Case 1:08-cv-01882-CCB Document 1 Filed 07/18/08 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MARYLAND NORTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff, v.

CIVIL ACTION NO.

XERXES CORPORATION

COMPLAINT JURY TRIAL DEMAND

Defendants.

NATURE OF THE ACTION

This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991, to correct

unlawful employment practices on the basis of race and to provide

appropriate relief to Keith Wilson, Bernard Pearson, and a class of

black individuals who were subjected

to unlawful race

discrimination. The Commission alleges that Xerxes Corporation is

liable for discriminating against the aforementioned individuals

and blacks as a class by subjecting environment based on their race.

them to a racially

hostile work

JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. Sections 451, 1331, 1337, 1343 and 1345. This action is

authorized and instituted pursuant to Section 706(f) (1) and (3) of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e-5 (f) (1) and (3) ("Title VII") and Section 102 of the

Civil Rights Act of 1991, 42 U.S.C. Section 1981A.

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2. The unlawful employment practices alleged below were and are now being committed wi thin the jurisdiction of the United States District Court for, the District of Maryland, Northern Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is an agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action by Section 706(f) (1) and (3) of Title VII, 42 U.S.C., Section 2000e-
5 (f) (1) and (3) .
4. At all relevant times, Defendant Xerxes Corporation has continuously been and is now a corporation doing business in the State of Maryland and the City of Williamsport and has continuously had at least fifteen employees.
5. At all relevant times, Defendant Xerxes Corporation has continuously been and is now an employer engaged in an industry affecting commerce under Section 701(b), (g) and (h) of Title VII, 42 U.S.C. Section 2000e-(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Wilson and Pearson, each filed a charge with the Commission alleging violations of Title VI I by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled.
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7. since at least April 2005, Defendant has engaged in unlawful employment practices at its Hagerstown Plant, in

continuing violation of Section 703(a) (1) of Title VII, 42 D.S.C.

Section 2000e-2 (a) (1) . Specifically, Defendant subjected Wilson, Pearson, and a class of blacks, to a racially hostile work

environment on account of their race, black.

8. The effect of the practices complained of above has been to deprive Wilson, Pearson, and a class of blacks of equal employment opportunities and otherwise adversely affect their

status as employees because of their race, black. 9. The unlawful employment practices complained of above
were and are intentional.

10. The unlawful employment practices complained of above

were and are done with malice and/or reckless indifference to the federally protected rights of Wilson, Pearson, and the affected class of blacks.

PRAYER FOR RELIEF

Wherefore,
Court:

the Commission respectfully requests that this

A. Grant a permanent injunction enjoining Defendant, its

officers, successors, assigns and all persons in active concert or

participation with it, from engaging in racial discrimination and

any other employment practice which discriminates on the basis of race.

B. Order Defendant to insti tute and carry out pol icies,

practices and programs which provide equal employment opportunities

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for black employees and which eradicate the effects of its past and

present unlawful employment practices. C. Order Defendant to make whole Wilson, Pearson, and each

individual subjected to a racially hostile environment by

Defendant, by providing appropriate back pay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its

unlawful employment practices. D. Order Defendant to make whole Wilson, Pearson, and each
individual subjected to a racially hostile environment by

Defendant, by providing compensation for past and future pecuniary

losses resulting from the unlawful employment practices described

above, including but not limited to medical expenses, be determined at trial.

in amounts to

E. Order Defendant to make whole Wilson, Pearson, and each individual subjected to a racially hostile environment by Defendant, by providing compensation for non-pecunlary losses

resulting from the unlawful employment practices described above, including emotional pain and suffering, shock, anxiety, and

humiliation, in amounts to be determined at trial.

F. individual Defendant,

Order Defendant to pay Wilson, Pearson, and each subjected to a racially hostile environment by punitive damages for its malicious and/or reckless

conduct, in an amount to be determined at trial. G. Grant such further relief as the Court deems necessary and
proper.

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G. Grant such further relief as the Court deems necessary and proper.
H. Award the Commission its costs in this action.

JURY TRIAL DEMAND

The Commission requests a jury trial on all questions of fact

raised by its complaint.

Respectfully submitted,
RONALD S. COOPER General Counsel

JAMES L. LEE Deputy General Counsel

DE:ffiRAM. LAWREN
~ SU)Z:Vi~or~~Attorney
Trial Attorney EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION Baltimore Field Office 10 S. Howard Street, 3rd Flr. Baltimore, Maryland 21201 (410) 209-2724 Fax: (4 1 0 ) 9 62 - 4 2 7 0

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 Case 1:08-cv-01882-CCB Document 21 Filed 02/07/09 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
NORTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v. XERXES CORPORATION,
Defendant.

) ) ) ) ) ) ) Civil Action No. 08-01882 ) ) ) ) )

PROTECTIVE ORDER

Upon consideration of the parties’ Joint Motion for Protective Order, and for good cause

shown:

IT IS the 7th day of February

, 2009,

Pursuant to Federal Rule of Civil Procedure 26(c), ORDERED:

1. Designation of Confidential Information. All documents produced in the course

of discovery, all answers to interrogatories, all answers to requests for admission, all responses

to requests for production of documents, and all deposition testimony and deposition exhibits

shall be subject to this Order concerning “Confidential Information,” as set forth below.

(a) “Confidential Information” shall include information that a party in good faith

believes is confidential. Such information includes:

(i) Defendant’s inventions, designs, discoveries, works of authorship,

improvements or ideas whether or not patentable or copyrightable, methods, processes,

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Case 1:08-cv-01882-CCB Document 21 Filed 02/07/09 Page 2 of 6
techniques, shop practices, formulae, compounds, or compositions developed or otherwise possessed by Company;
(ii) the subject matter of Defendant’s patents, design patents, copyrights, trade secrets, manufacturing processes, manuals, operating instructions and other industrial property to the extent that such information is unavailable to the public and/or is in incomplete stages of design or research and development;
(iii) business plans, marketing strategies, customer information and financial information including financial statements and projections, pricing information, costs, sales, budgets and profits;
(iv) Confidential or private information about any current or former employee of Defendant or members of their families, including documents in personnel files to the extent the contents thereof contain or concern information about compensation and benefits information, social security numbers, bank account numbers, medical records and information, or other personal information, family records, bills or other recordation of debts, income tax returns and/or supporting documentation. (b) The designation of Confidential Information shall be made by placing or affixing on the document, in a manner that will not interfere with its legibility, the word “CONFIDENTIAL.” One who provides material may designate it as confidential only when such person in good faith believes it contains information defined as “Confidential Information” pursuant to paragraph 1(a). The designation of Confidential Information shall be made prior to, or contemporaneously with, the production or disclosure of that information. (c) All copies, duplicates, extracts, summaries or descriptions (hereinafter
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collectively referred to as “copies”) of documents or information designated as confidential under this Order or any portion thereof, shall be immediately affixed with the word “CONFIDENTIAL” if that word does not already appear.
(d) Portions of depositions of a party’s present and former officers, directors, employees, agents, experts, and representatives, as well as deposition exhibits, shall be deemed confidential only if they are designated as such when the deposition is taken or within fourteen business days after receipt of the transcript. Any testimony which describes a document which has been designated as “CONFIDENTIAL,” shall also be deemed to be designated as “CONFIDENTIAL.”
2. Disclosure of Confidential Information. Confidential Information shall not be used or disclosed by the parties or counsel for the parties or any person identified in this paragraph for any purposes whatsoever other than preparing for and conducting the litigation in which the Confidential Information was disclosed (including appeals). The parties shall not disclose information or documents designated as confidential to a class member unless the information or documents relate directly to the class member’s individual allegations in this matter and disclosing such information or documents to the class member is necessary to conducting the litigation. The parties and counsel for the parties shall not disclose or permit the disclosure of any Confidential Information under this Order to any other person or entity, except that disclosures may be made in the following circumstances:
(a) Disclosure may be made to counsel and employees of counsel for the parties, and in the case of the EEOC, to employees of the United States government, who have direct functional responsibility for the preparation and trial of the lawsuit. Any such employee to whom
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counsel for the parties makes a disclosure shall be provided with a copy of, and become subject to, the provisions of this Order requiring that the documents and information be held in confidence.
(b) Disclosure may be made only to employees of a party required in good faith to provide assistance in the conduct of the litigation in which the information was disclosed.
(c) Disclosure may be made to court reporters engaged for depositions and those persons, if any, specifically engaged for the limited purpose of making photocopies of documents. Prior to disclosure to any such court reporter or person engaged in making photocopies of documents, such person must agree to be bound by the terms of this Order.
(d) Disclosure may be made to consultants, investigators, or experts (hereinafter referred to collectively as “experts”) employed by the parties or counsel for the parties to assist in the preparation and trial of the lawsuit. Prior to disclosure to any expert, the expert must be informed of and agree in writing to be subject to the provisions of this Order requiring that the documents and information be held in confidence.
(e) The contents of the documents will not be shown or disclosed to any third parties other than those persons specifically listed above and further that all such persons shall be required, as a condition of disclosure, to maintain the confidentiality of such documents, including any and all copies of such documents and all information contained therein. For purposes of this stipulation, the term “third parties” shall also include any person other than: (1) employees of the EEOC at any of its offices; (2) witnesses interviewed by the EEOC; (3) persons deposed in this lawsuit; and (4) federal officials making duly authorized requests to produce copies of such documents submitted by the United States Congress or any federal agency.
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3. Maintenance of Confidential Information. Except as provided herein, counsel for the parties shall keep all documents designated as confidential which are received under this Order secure within their exclusive possession and shall take reasonable efforts to place such documents in a secure area.
4. Confidential Information Filed with the Court. To the extent that any materials subject to his Order (or any pleading, motion, or memorandum referring to them) are proposed to be filed or are filed with the Court, those materials and papers, or any portion thereof which discloses Confidential Information, shall be filed under seal with the Clerk of the Court in an envelope marked “SEALED PURSUANT TO ORDER OF COURT DATED ___________,” together with a simultaneous motion pursuant to L.R. 10413(c) (hereinafter the “Interim Sealing Motion”). The Interim Sealing Motion shall be governed by L.R. 105.11. Even if the filing party believes that the materials subject to the Order are not properly classified as confidential, the filing party shall file the Interim Sealing Motion; provided, however, that the filing of the Interim Sealing Motion shall be wholly without prejudice to the filing party’s rights under paragraph 6 of this Order.
5. Party Seeking Greater Protection Must Obtain Further Order. No information may be withheld from discovery on the ground that the material to be disclosed requires protection greater than that afforded by this Order unless the party claiming a need for greater protection moves for an order providing such special protection pursuant to Fed. R. Civ. P. 26(c).
6. Challenging Confidentiality Designation. A designation of confidentiality may be challenged upon motion. The burden of proving the confidentiality of designated information remains with the party asserting such confidentiality.
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7. Return of Confidential Information at Conclusion of Litigation. Upon final disposition of this action, including all appeals therefrom, counsel for EEOC shall make a good faith effort to return all the documents marked as “confidential” except: (a) such documents or copies thereof as are necessary to allow counsel for EEOC to maintain a litigation file so long as reasonable measures are taken to comply with the limitations on disclosure as provided herein, and (b) such documents or copies thereof as become part of the trial record having been filed under seal, including those appended to pleadings, briefs, motions, and depositions, or admitted into evidence at trial.
8. This protective order shall not apply to information which is available to the public.
IT IS SO ORDERED, this 7th day of February , 2009.
/s/ Andre Davis United States District Court Judge
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 Case 1:08-cv-01882-CCB Document 40-1 Filed 07/17/09 Page 1 of 43

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
NORTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

XERXES CORPORATION,

)

)

Defendant.

)

)

Civil Action No. CCB-008-1882

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Case 1:08-cv-01882-CCB Document 40-1 Filed 07/17/09 Page 2 of 43

TABLE OF CONTENTS

SECTION

PAGE

I. INTRODUCTION: ..............................................................................................................1 A. Summary ..................................................................................................................1 B. Xerxes Corporation Generally: ................................................................................2 C. Background Regarding the EEOC’s Three Purported Class Members: ..................2 D. Xerxes’ Prohibition of Racial Discrimination and Harassment:..............................3 E. Summary of Xerxes’ Preventative and Remedial Measures: ..................................4

II. STATEMENT OF FACTS: .................................................................................................7
A. Xerxes’ Prohibition of Harassment:.........................................................................7
B. Xerxes’ Corporate Compliance Policy: ...................................................................8
C. Xerxes’ Training Regarding its Prohibition of Discrimination, Including Harassment:..............................................................................................................9
D. UAW Representation of Xerxes Employees, and Absence of UAW or Class Member Grievances Regarding Alleged Racial Harassment:........................9
E. Class Member Allegations and Xerxes’ Remedial Measures:...............................11 1. Facts Regarding Gradian Graham..............................................................11 2. Facts Regarding Keith Wilson:..................................................................14 3. Facts Regarding Bernard Pearson:.............................................................21 4. Facts Regarding Neville Haymans.............................................................29

III. Argument ...........................................................................................................................30
A. Summary Judgment Standard ................................................................................30
B. Standard For Proving Hostile Work Environment Claim......................................31 1. No basis exists in this case to impute liability to Xerxes...........................31 2. The conduct alleged by Mr. Graham and Mr. Pearson was not sufficiently severe to be recognizable under Title VII...............................36

IV. CONCLUSION..................................................................................................................39

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TABLE OF CITATIONS

CASES

Page(s)

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)...........................................................................................................30, 31

Bernard v. Calhoon MEBA Eng’g School, 309 F. Supp. 2d 732 (D. Md. 2004) ...............................................................................6, 31, 32

Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514 (4th Cir. 2003) ...................................................................................................31

Carter v. Ball, 33 F.3d 450 (4th Cir. 1994) .....................................................................................................38

Dennis v. County of Fairfax, 55 F.3d 151 (4th Cir. 1995) .....................................................................................................32

Drewitt v. Pratt, 999 F.2d 774 (4th Cir. 1993) ...................................................................................................31

Eliott v. Maryland Dep’t of Human Res., No. CCB-05-2867, 2007 WL 627864 (D. Md. Feb. 22, 2007)..........................................33, 34

Faragher v. City of Boca Raton, 524 U.S. 775 (1998).................................................................................................................36

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993).......................................................................................................36, 37, 39

Mikels v. City of Durham, 183 F.3d 323 (4th Cir. 1999) .............................................................................................32, 35

Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989) ...................................................................................................35

Yancey v. Nat’l Ctr. on Inst. and Alternatives, 986 F. Supp. 945 (D. Md. 1997) ..............................................................................................35

OTHER AUTHORITIES

Fed. R. Civ. P. 56(c) ......................................................................................................................30

Title VII of the 1964 Civil Rights Act ................................................................................... passim

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I. INTRODUCTION: A. Summary The Equal Employment Opportunity Commission (“EEOC”) has brought this action
against Xerxes Corporation (“Xerxes”) on behalf of three Black current or former employees at Xerxes’ Williamsport, Maryland plant. The EEOC contends that those class members, Messrs. Bernard Pearson, Keith Wilson, and Gradian Graham, were subjected to racial discrimination, in the form of co-worker racial harassment, in violation of Title VII of the 1964 Civil Rights Act. Two of the three class members are no longer employed by Xerxes. Mr. Pearson resigned and Mr. Graham’s employment ended due to termination for attendance. The EEOC has not asserted any claim arising from their separations from Xerxes.
There is no dispute that Xerxes maintains detailed corporate policies strictly forbidding racially harassing conduct of any kind. Similarly, there is no dispute that in response to reports by class members, Xerxes undertook extensive investigative and remedial action including numerous employee interviews, severe disciplinary action against employees determined to have violated Xerxes policies, and repeated retraining of all supervisors and employees to reinforce Xerxes’ policies against racial harassment.
Summary judgment should be entered for Xerxes on two bases. First, Xerxes undertook prompt remedial action once it received allegations of racial harassment. As a result, liability may not be imputed against Xerxes. Xerxes’ preventive, investigative and remedial actions were extensive and effective. As a result, the Statement of Facts regarding these actions is, by necessity, lengthy and detailed. These facts compel the conclusion that reasonable minds cannot differ as to the sufficiency of Xerxes’ commitment to the principles of equal employment opportunity and Xerxes’ responsiveness to class members’ reports. Xerxes is therefore entitled to summary judgment.
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Second, Xerxes is entitled to summary judgment as to the class members because the undisputed facts demonstrate that the conduct they claim to have experienced, although contrary to Xerxes’ values, EEO standards, and policies which absolutely prohibit discrimination, including harassment, was not severe enough to be legally cognizable under Title VII.
B. Xerxes Corporation Generally: Xerxes manufactures fiberglass underground storage tanks at plants in Texas, California, Iowa, and Williamsport, Maryland. Xerxes’ main office is located in Minneapolis, Minnesota. Xerxes has policies, training initiatives, and other actions designed to advance Xerxes’ commitment to providing every applicant and employee with a work environment free of unlawful discrimination, including prohibited harassment. Those policies and related training are more fully described below. Xerxes’ Williamsport plant employs approximately 84 employees. (Affidavit of Wayne Green (“Green Aff.”) ¶ 2.) Wayne Green serves as the plant manager. (Green Aff. ¶ 2.) He supervises a small group of supervisors, who in turn supervise nonsupervisory production employees. (Green Aff. ¶ 2.) An organizational chart reflecting the plant’s management structure is attached as Exhibit A to the Affidavit of Wayne Green. (Green Aff. ¶ 2.) C. Background Regarding the EEOC’s Three Purported Class Members: The EEOC has brought this lawsuit against Xerxes on behalf of two former employees (Bernard Pearson and Gradian Graham) and one current employee (Keith Wilson). Mr. Pearson began working at Xerxes’ Williamsport plant initially as a temporary worker in April 2005. (Green Aff. ¶ 3.) In June, 2005, he became a Xerxes employee and he continued to work at Xerxes’ Williamsport plant until he voluntarily resigned in February 2008 in order to work at a correctional facility. (Green Aff. ¶ 3.) When he resigned, he indicated to plant manager Wayne Green, via a voice-mail message, that:
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Hello Wayne, this is Bernard. Tried to get in touch with you yesterday. I just wanted to call you and let you know I got a call from corrections to work for them this week. And I explained to them that I’m on a leave of absence from my job. But I’m going to go for the job and I just wanted to know if I didn’t like it, you know, could I come back. I know I’ll probably lose seniority, but I just wanted to talk to you about that. But I was going to go for it and I’ll be in touch with you real soon. Bye. (Green Aff. ¶ 4; Pearson Tr. at 429.)1 (emphasis supplied). Mr. Wilson began his employment with Xerxes in October 2005, and remains employed by Xerxes. (Green Aff. ¶ 3.) Mr. Graham worked at the plant from August 2004 until Xerxes terminated his employment because of attendance on April 18, 2007. (Green Aff. ¶ 3.) D. Xerxes’ Prohibition of Racial Discrimination and Harassment: Xerxes has a comprehensive set of policies and procedures which reflect its unequivocal opposition to and intolerance of racial discrimination and harassment. (See generally Affidavit of Ronald M. Bachmeier (“Bach. Aff.”) ¶ 2, Ex. A.) Xerxes also has Equal Employment Opportunity (“EEO”) Coordinators who have traveled from Xerxes’ Minneapolis headquarters, to Williamsport, Maryland to thoroughly investigate and respond to Messrs. Pearson and Wilson’s reports of racial harassment. (Bach. Aff. ¶ 3.) Xerxes’ intolerance of and aggressive response to racially offensive conduct is perhaps best illustrated by Xerxes’ termination of a white employee who told one racially offensive “joke” to two other white employees in August 2007. (Green Aff. ¶ 5, Ex. B.) Due to Xerxes’ training, the white employees tried to stop the “joke” before it was completed. (Green Aff. ¶ 5.) The employee continued. (Green Aff. ¶ 5.) Xerxes terminated his employment once the white employees who heard the “joke” reported it to plant manager Wayne Green. (Green Aff. ¶ 5.) No Black or minority employees were present
1 The relevant pages of all deposition transcripts cited herein are indexed and included in Exhibit 1 to this Memorandum. 3

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when the employee told the “joke.” (Green Aff. ¶ 5.) Xerxes has consistently taken aggressive
disciplinary action against employees who have made even arguably racially offensive remarks.
(Bach. Aff. ¶ 4.) Xerxes has also regularly conducted training and re-training of supervisory and
non-supervisory employees alike, in order to emphasize its absolute commitment to providing
every employee with a work environment free of unlawful discrimination and racial and other
harassment. (Bach. Aff. ¶ 4.)
E. Summary of Xerxes’ Preventative and Remedial Measures:
Xerxes has taken comprehensive, on-going, timely and appropriate measures to deter
racial discrimination, including racial harassment, as well as to respond to allegations or reports
of conduct which may constitute racial harassment. Xerxes’ undisputed preventive and remedial
measures at its Williamsport plant include the following:
1. Xerxes has adopted, promulgated, and repeatedly provided training for all employees regarding Xerxes’ opposition to racial discrimination, including racial harassment (Bach. Aff. ¶ 5);
2. Xerxes has systematically conducted training for all employees at their time of hire, on an annual basis, and in the course of responding to particular reports of racial harassment (Bach. Aff. ¶ 6);
3. Xerxes has explicitly encouraged plant employees to contact the plant manager, Xerxes’ Corporate Compliance Committee, or Xerxes’ EEO Coordinator, if employees have any concern regarding racial discrimination or harassment which they feel has been unsatisfactorily addressed by lower level supervision (Bach. Aff. ¶ 7);
4. When Xerxes EEO Coordinators have learned of reported harassment, those individuals have promptly traveled from Minneapolis to the Williamsport plant, for the purpose of conducting comprehensive, on-site investigations, including extensive employee interviews regarding reported harassment, and to then implement further remedial actions, such as discipline or discharge (Bach. Aff. ¶ 8);
5. Xerxes has entered into a collective bargaining agreement with the Union which represents its non-supervisory employees, which prohibits racial discrimination, and provides that employees, including the class members, could grieve and ultimately arbitrate claims of racial discrimination. The
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Union has acknowledged Xerxes’ commitment to the principles of EEO, and has acknowledged the severity of the disciplinary sanctions which Xerxes has imposed upon employees who have violated Xerxes’ EEO standards (Bach Aff. ¶ 9; Perkins Tr. at 47-48);
6. Xerxes has taken aggressive disciplinary action against employees who it has determined to have violated its standards which prohibit racial discrimination and harassment. Xerxes has taken disciplinary measures which have included the termination of an employee who made a racially offensive “joke” regarding a hypothetical Black person to two white employees, has issued final warnings and unpaid disciplinary suspensions, written disciplinary warnings, and confirmed verbal warnings to employees, depending upon the nature of their conduct, and other relevant factors (Bach. Aff. ¶ 10);
7. Xerxes has notified local law enforcement officials regarding reported acts of racial harassment, and has cooperated with that law enforcement agency’s investigative efforts (Green Aff. ¶ 6);
8. Xerxes has held all plant meetings to remind employees regarding its prohibition of racial harassment, and to warn employees regarding disciplinary measures, including termination from employment, which Xerxes would undertake, and has undertaken, in the event of substantiated reports of racial harassment (Green Aff. ¶ 7);
9. Xerxes has advised employees who have complained that they are protected against retaliation, and that they are to apprise Xerxes if they have any concerns regarding retaliation (Bach. Aff. ¶ 11);
10. Xerxes has apprised class members regarding its remedial actions, and has regularly communicated with them in an effort to identify and respond to any subsequent concerns. (Bach. Aff. ¶ 12.)
Xerxes’ preventive and remedial actions should be measured against the following standard
which Judge Davis has articulated:
When presented with the existence of illegal conduct, employers can be required to respond promptly and effectively, but when an employer’s remedial response results in cessation of the complained conduct, liability must cease as well. Employers cannot be saddled with the insurmountable task of conforming all employee conduct at all times to the dictates of Title VII, or irrespective of their knowledge of such conduct or the remedial measures taken in response to such conduct.
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Bernard v. Calhoon MEBA Eng’g School, 309 F. Supp. 2d 732, 741-42 (D. Md. 2004) (emphasis added).
With respect to Mr. Wilson, after his complaint in June 2007 regarding his discovery of the Stick Figure (described in detail below), he did not have another complaint for more than a year thereafter, and, as of his deposition, that was his most recent complaint. (Wilson Tr. at 128129, 132-133.) With respect to Mr. Pearson, Xerxes’ responses to his late June 2006 and 2007 complaints are reviewed in detail below. The effectiveness of Xerxes’ responsive measures is perhaps best illustrated by Mr. Pearson’s undisputed interest in returning to work at Xerxes if his new position at a correctional facility, which he pursued because it offered retirement benefits, proved unsatisfactory. (Pearson Tr. at 254.) Mr. Graham, whose employment ended after Xerxes terminated his employment due to unsatisfactory attendance and without dispute by either Mr. Graham or his Union, admitted not having complained to Xerxes’ Corporate Compliance Committee, EEO coordinator, or plant manager, despite admittedly being aware of his right to do so. (Graham Tr. at 83-84.)
In short, the reasoning of Judge Davis in Bernard v. Calhoon suggests that Xerxes cannot properly “be saddled with the insurmountable task of conforming all employee conduct at all times to the dictates of Title VII, irrespective of [Xerxes’] knowledge of such conduct or the remedial measures taken in response to such conduct.” Id. at 742.
Furthermore, the EEOC has tacitly, if not expressly, acknowledged that Xerxes has taken appropriate preventive and remedial measures. In its interrogatories, Xerxes asked the EEOC:
If it is your contention that Defendant failed to exercise reasonable care to prevent and correct promptly racial harassment or race discrimination, identify all actions that Defendant should have taken but did not that would have demonstrated an exercise of reasonable care to prevent and correct promptly racial harassment or race discrimination. Include in your description when you believe each such action should have been taken.
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(Interrogatory and Response, Exhibit 2 to this Memorandum.) The EEOC simply, albeit
inaccurately, replied:
Defendant has not effectively stopped or prevented racial harassment in its workplace.
(Interrogatory and Response, Exhibit 2 to this Memorandum.)
The EEOC has never factually replied regarding what actions it believes Xerxes should
have, but failed, to take. The EEOC’s answer is self-serving, conclusory, and altogether fails to
provide facts regarding what more Xerxes could and should have done.
II. STATEMENT OF FACTS: A. Xerxes’ Prohibition of Harassment:
Xerxes has adopted, posted, and distributed a comprehensive “Prohibition of Sexual, Racial . . . Harassment” Policy. (Bach. Aff. ¶ 2, Ex. A.) That Policy provides in relevant part as follows:
If you believe that you are being/have been subjected to or have observed any form of prohibited or objectionable conduct or harassment by an employee or non-employee (such as a customer, supplier or vendor) you MUST:

FIRST: SECOND: Note: THIRD:

If comfortable doing so, tell the offender to stop. Then, immediately go to next step below.
Immediately report the incident to your supervisor and plant manager or department head. Once we learn of the conduct which you have reported, we will investigate, and take timely and appropriate responsive action.
If you or any other employee has a complaint about objectionable conduct or harassment regarding a plant manager or department head, you must immediately notify the company’s EEO coordinator, Ronald M. Bachmeier, at (952) 887-1859.
If you for any reason feel uncomfortable objecting to or reporting harassment or objectionable conduct to your supervisor or plant manager, or department head, immediately notify the company’s EEO coordinator, Ronald M. Bachmeier, at (952) 887-1859, or in his absence Craig Peterson at (952) 887-1807, or in their absence Al Dorris at (952) 887-1886, regarding your concern.

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FOURTH: Immediately report any subsequent objectionable conduct or retaliation of any type to your plant manager or the company’s EEO coordinator Ronald M. Bachmeier, at (952) 887-1859.
Always immediately report any concern you may have regarding discrimination, harassment, or other unlawful conduct. (Bach. Aff. Ex. A.)
B. Xerxes’ Corporate Compliance Policy: In the interest of advancing Xerxes’ commitment to Equal Employment Opportunity and
the prohibition of unlawful discrimination and harassment, Xerxes also has a comprehensive
Corporate Compliance Program and a Corporate Compliance Committee. (Bach. Aff. ¶ 13.)
Copies of Xerxes’ current and former Corporate Compliance Guides (“Guides”) which the
Williamsport plant provides to every employee, are also filed herewith. (Bach. Aff. ¶ 13, Ex. B.)
The Guides clearly articulate the procedure which class members must follow in order to alert
Xerxes’ Corporate Compliance Committee regarding concerns about alleged discrimination or
harassment. (Bach Aff. ¶ 13, Ex. B.) The Guides specifically provide, in relevant part:

NonDiscrimination

POLICY SUMMARY

WATCH FOR

Xerxes’ policy is to provide equal opportunity in employment, training, compensation, and other Company programs without regard to race, gender, marital status, color, religion, national origin, age or disability, unless a bona fide qualification exists.

Negative or harassing comments based on race, gender, marital status, color, religion, national origin, age or disability.

(Bach. Aff. Ex. B.) The Guides provide specific instruction regarding how Xerxes employees should contact Compliance Committee members to express concern regarding racial and other harassment. (Bach. Aff. Ex. B.)

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C. Xerxes’ Training Regarding its Prohibition of Discrimination, Including Harassment:
Xerxes trains employees regarding its prohibition of racial discrimination and harassment on a regular basis. First, all employees undergo training regarding Xerxes’ EEO standards, as embodied in its Compliance Program Guide, as to its prohibition of racial harassment when they are hired by Xerxes. (Bach. Aff. ¶ 14, Ex. A.) “Sign-In” sheets reflect the class members’ attendance at various training sessions, as well as the attendance of other Xerxes employees. (Green Aff. ¶ 8, Ex. C.) Second, Xerxes conducts annual re-training of employees regarding its prohibition of discrimination and harassment, typically during the first quarter of a given year. (Bach. Aff. ¶ 14.) Finally, Xerxes conducts re-training for employees in the course of responding to allegations of harassment. (Bach. Aff. ¶ 14.) “Sign in” sheets again reflect employees’ attendance at re-training sessions. (Green. Aff. ¶ 8, Ex. C.)
D. UAW Representation of Xerxes Employees, and Absence of UAW or Class Member Grievances Regarding Alleged Racial Harassment:
Xerxes Williamsport plant nonsupervisory employees are represented by Local No. 171, of the United Automobile, Aerospace and Agricultural Implement Workers of America (the “Union” or “UAW”). (Perkins Tr. at 19-20.) David Perkins serves at the President of Local 171 of the UAW. (Perkins Tr. at 12). He has served continuously as the President of that local since 2004. (Perkins Tr. at 15-16). Xerxes and the Union are parties to a comprehensive Collective Bargaining Agreement (“Agreement”). (Perkins Tr. at 31.) That Agreement prohibits unlawful racial and other discrimination, providing in relevant part, that:
The parties agree that there shall be no unlawful discrimination against employees on account of race, color, creed, national origin, religion, sex, sexual orientation, pregnancy, marital status, age, disability, or Union affiliation or any other legally protected class. Agreement, Article 19.1 (p. 19). (Bach. Aff. ¶ 15, Ex. C) (emphasis supplied).
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When asked by Plaintiff’s counsel regarding the basis for his view that “Xerxes takes a strong stance against discrimination” (Perkins Tr. at 159), Perkins replied that:
The basis that I made that statement on was the fact that comparing it to other locations of which I have a direct knowledge. When an allegation is brought to them, they go through a very formal process, unlike other units and other facilities that I’m familiar with which, you know, I applaud them for that. (Perkins Tr. at 159.) Perkins further testified that, “. . . they seem to respond very quickly whenever there are allegations that I’m aware of . . . .” (Perkins Tr. at 160.) With respect to Xerxes’ “strong stance against racial discrimination,” Mr. Perkins observed that, “On any instance in which I’ve been involved they seem to exert a lot of effort in trying to find out the facts of the case.” (Perkins Tr. at 164.) The parties’ Agreement also reflects a comprehensive Grievance Procedure through which employees, including Messrs. Wilson, Pearson, or Graham, could have brought grievances including alleged violations of the Agreement’s prohibition against racial discrimination. (Perkins Tr. at 31-39.) In fact, employees have an obligation to bring to the attention of their Union representative employer conduct that employees believe violates their Agreement. (Perkins Tr. at 173.) That Grievance Procedure is set forth in Article Three of the Agreement. (Perkins Tr. at 31.) Although Messrs. Wilson, Pearson and Graham had the right to file grievances alleging that Xerxes had violated their right to be free of unlawful discrimination, none of them filed such a grievance. (Perkins Tr. at 36-37.) The Union holds periodic meetings with its members on both a monthly and quarterly basis for the purpose of discussing issues of interest to its members, including their welfare. (Perkins Tr. at 24, 26.) Members can place issues of concern on the agenda for those meetings and can contact the Union by phone at any time. (Perkins Tr. at 25-26.) As the President of the Union, Mr. Perkins typically visited the Xerxes Williamsport plant on at least a quarterly basis.
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(Perkins Tr. at 28). While at the plant, he was available to meet with employees in the plant break room, or privately if necessary. (Perkins Tr. at 28-30.)
Mr. Perkins testified that, “I’ve never had a racial discrimination grievance filed, nor any grievance based on any other protected class . . . [w]ith respect to the Xerxes Corporation.” (Perkins Tr. at 37). Mr. Perkins testified that, “I know that they, from my perspective take a very strong stance when an issue [related to race discrimination and racial harassment] has come up.” (Perkins Tr. at 47.)
Mr. Perkins acknowledged that Xerxes had terminated a union-represented employee, James Davis, after Xerxes determined that Mr. Davis had made one racial “joke” in the plant break room. (Perkins Tr. at 176.) With respect to the Davis termination, Perkins testified that, “We ascertained that Xerxes did do a thorough investigation. We verified their findings that were given to us as far as the statements by our members against Mr. Davis and we informed Mr. Davis that we would not be processing a grievance on his behalf due to his termination . . . .” (Perkins Tr. at 46-47.)
None of the class members, Mr. Pearson, Mr. Wilson, and Mr. Graham, ever contacted the Union’s office or Mr. Perkins to report that Xerxes employees were discriminating against them, nor did any of them ever attend any Union meeting to express concern about racial discrimination or harassment at the Xerxes plant. (Perkins Tr. at 58-59, 63-65.)
E. Class Member Allegations and Xerxes’ Remedial Measures: 1. Facts Regarding Gradian Graham
Mr. Graham immigrated from Jamaica to the United States in 2001. (Graham Tr. at 18.) He began working at Xerxes on August 2, 2004. (Graham Tr. at 31.) When he began his employment at Xerxes, he underwent training regarding Xerxes’ prohibition of discrimination and harassment. (Graham Tr. at 69.) He signed an Acknowledgement that he had viewed
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Xerxes’ video programs regarding the Corporate Compliance Program and Sexual Harassment/Diversity training. (Graham Tr. at 72.) Mr. Graham understood that if he had a complaint, and he was dissatisfied with how plant management responded to the complaint, he could elevate that complaint to Xerxes’ management, including its Corporate Compliance Committee. (Graham Tr. at 75).
Mr. Graham acknowledged having seen the Xerxes Compliance Program Guide, and that he carefully read that Guide. (Graham Tr. at 79.) Mr. Graham understood that if he made a complaint and nothing was done, he could take it to the next level, and that would have included the people identified in the Compliance Guide. (Graham Tr. at 81.) Mr. Graham also admitted having seen Xerxes’ “Prohibition of Sexual, Racial, and Other Objectionable Conduct or Unlawful Harassment” policy. (Graham Tr. at 86.) However, Mr. Graham admitted that he never attempted to contact any of the members of the Xerxes Corporate Compliance Committee. (Graham Tr. at 83-84.) He also admitted that he never attempted to contact anybody at the Xerxes Corporate Office about what he now contends was racial harassment. (Graham Tr. at 85.) Mr. Graham conceded that although he knew he could contact [Xerxes EEO Coordinator] Ronald M. Bachmeier, he never did so. (Graham Tr. at 75.)
Mr. Graham also understood that the Union was his legal representative. (Graham Tr. at 94.) Nevertheless, he testified that after making one unsuccessful attempt to reach Union Representative Perkins, Mr. Graham made no further attempt to reach Mr. Perkins. (Graham Tr. at 94.) Mr. Perkins received no voicemail or other indication that this attempt to contact him was made by Mr. Graham. (Perkins Tr. at 64-65, 179.)
At his deposition, Mr. Graham alleged that nonsupervisory employee Robert Churchey “had used the N word a bunch of different times.” (Graham Tr. at 97.) Mr. Graham was unable
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to testify with any clarity regarding when Mr. Churchey allegedly made those remarks. (Graham Tr. at 98-99.) Mr. Graham never complained to the Xerxes Corporate Compliance Committee, or anybody at the Xerxes corporate headquarters regarding Mr. Churchey’s alleged remarks. (Graham Tr. at 104.) Rather, he testified that he reported the remarks only to plant superintendent Greg Carty, and two nonsupervisory Union representatives. (Graham Tr. at 105.)
Mr. Graham also testified that he found another employee’s use of the word “fuck” offensive. (Graham Tr. at 117.) Mr. Graham also believed that it was racially discriminatory or harassing when another employee (Carolyn Reed) referred to Mr. Bernard Pearson as “a lazy bum.” (Graham Tr. at 122.) Mr. Graham testified that Ms. Reed did not say anything else that Mr. Graham thought was racially discriminatory or harassing. (Graham Tr. at 123.) Mr. Graham never complained to plant manager Green about Ms. Reed. (Graham Tr. at 125.)
At his deposition, Mr. Graham made other vague allegations of nonsupervisory employee conduct which bothered him and which he concluded was racially discriminatory. For example, he observed that another employee did not communicate with him. (Graham Tr. at 138.) Mr. Graham admitted that he never complained to his supervisor, plant superintendent, or plant manager about that lack of communication. (Graham Tr. at 138-139.) Additionally, Mr. Graham alleged that an employee “. . . would stay in the area across the beam from the tanks, when the tanks is in the beam, and he can stay over there and he is constantly over there just staring at you over the tank to your area.” (Graham Tr. at 134-135). Nevertheless, Mr. Graham admitted that he never complained to his supervisor, plant superintendent, or plant manager, about the alleged staring. (Graham Tr. at 135-136.) Mr. Graham claimed at his deposition that he felt that his life had been threatened at Xerxes, because, “the way these guys would just, in one particular area, just stare at me across the floor as if -- I haven’t done anything, but you
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know, that’s what it make me like I feel like and I have to, you know, be over there looking to make sure that my life is going to be okay.” (Graham Tr. at 205.) Despite this supposed fear for his safety, Mr. Graham never notified the plant manager, superintendent, or anyone at Xerxes, nor any law enforcement officials, about his purported feeling that his life was threatened. (Graham Tr. at 206-207).
During the course of his employment, Mr. Graham received a series of disciplinary warnings because of his unsatisfactory attendance. (Graham Tr. at 144-177.) Mr. Graham never grieved any of those disciplinary warnings. (Graham Tr. at 180.) On March 8, 2007, plant manager Wayne Green issued Mr. Graham a Final Warning. (Graham Tr. at 169.) Mr. Graham did not grieve that Final Warning. (Graham Tr. at 169.) On April 18, 2007, Xerxes terminated Mr. Graham’s employment because of his unsatisfactory attendance, according to Xerxes’ attendance policy. (Graham Tr. at 182.) Mr. Graham did not grieve Xerxes’ termination of his employment. (Graham Tr. at 182). He never communicated to the plant manager that he disagreed with any of his disciplinary warnings because he thought they were racially discriminatory. (Graham Tr. at 185.) Furthermore, Mr. Graham never went to the EEOC or the Maryland Commission on Human Relations to complain about his termination or racial discrimination. (Graham Tr. at 186.)
2. Facts Regarding Keith Wilson: Mr. Wilson acknowledged receipt of Xerxes’ “Prohibition of Sexual, Racial, and Other Objectionable Conduct or Unlawful Harassment” policy, as well as Xerxes’ Equal Employment Opportunity Policy. (Wilson Tr. at 56.) Mr. Wilson also acknowledged that those policies were posted near the time clock at the Xerxes plant. (Wilson Tr. at 67.) With respect to racial harassment, Mr. Wilson contends that on two or three occasions, he discovered that his lunch had been discarded. (Wilson Tr. at 70.) Mr. Wilson alleged that he had
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reported those incidents to supervisor Shifflett, but he never reported those alleged incidents to plant superintendent Carty or plant manager Green. (Wilson Tr. at 69-71.) When asked why he thought these incidents were racially discriminatory or represented racial harassment, Mr. Wilson speculated “because me and Bernard [Pearson] was the only minorities there and it wasn’t nobody’s lunches tampered with or anything.” (Wilson Tr. at 71.) He denied that there could have been any other explanation for why his lunch had been discarded. (Wilson Tr. at 71.)
Mr. Wilson alleges that he worked with a female employee who observed, while they were assembling a tank, “boy you don’t lay up no manway like that. And I was like, Boy? I said, your boy is at home sitting on the couch.” (Wilson Tr. at 77.) Mr. Wilson advised supervisor Shifflett of that incident, and Shifflett initiated a meeting with the employee who made that remark. With respect to her use of the term “boy,” non-supervisory employee Amber Gatrell explained that she referred to male employees as “boys,” just as male employees would greet her with the observation “Hey, girl what’s up?” (Gatrell Tr. at 40-49.) She did not refer to Mr. Wilson as a “boy” because he is Black. (Gatrell Tr. at 48.) Once supervisor Shifflett apprised Ms. Gatrell that Mr. Pearson and Mr. Wilson were upset with her use of the term “boy,” she apologized to them. (Gatrell Tr. at 47.) One of them replied to her that if she had used the term “boy” on the street, that she would get her ass kicked. (Gatrell Tr. at 56.) Ms. Gatrell observed, with respect to that statement, that “because I felt threatened, you know. I mean I - - I did - - you know, I felt if they took it the wrong way, I felt bad about it, and I was being nice by apologizing and I didn’t think I had to be threatened. (Gatrell Tr. at 57.)
Nevertheless, Xerxes placed Ms. Gatrell on a two-day unpaid suspension (Gatrell Tr. at 109), and gave her a written Final Warning. (Green Aff. ¶ 9, Ex. D.) Ms. Gatrell considered that two-day unpaid suspension to be punishment. (Gatrell Tr. at 111.) Ms. Gatrell did not think that
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she had done anything wrong (Gatrell Tr. at 112), observing with respect to the warning that “. . . I didn’t really understand, you know, because I called everybody boy, besides the girls I called them girl. I didn’t think I really did anything wrong.” (Gatrell Tr. at 114.)
Another employee (Floyd Myers) said something to Mr. Wilson and Mr. Pearson to the effect that “boy, well I’ll see you outside, or something like that.” (Wilson Tr. at 78). With respect to that incident, for which Xerxes later disciplined him, Mr. Myers testified:
I can’t remember exact words, but it was just us three in there. They were talking amongst themselves. I can’t remember exactly what they were saying, but I thought it was being directed to me. So, there was words exchanged. I reported it to the supervisor. And then, that was pretty much it until the next day, Mr. Green and I had a meeting. Made me realize it was a misunderstanding. I went and apologized to both of them. We shook hands and I thought it was a done deal. (Myers Tr. at 27.) With respect to the lunchroom incident, Myers observed that “it’s possible I did say; keep it up boys or you know, keep going boys, whatever it was. But as far as calling him boys I mean that’s just the way I talk.” (Myers Tr. at 33.) Mr. Myers testified that he did not use the term “boy” because Mr. Pearson and Mr. Wilson are Black, did not intend the word to be racially offensive, and did not restrict the use of that word only to Black people. (Myers Tr. at 78.) He observed that he used the term “boys” in addressing men, just as with respect to a group of women, “. . . could walk in here and you would all be ladies sitting here. And I will just say; Hey, what’s up guys. And then, you are all ladies. You know, it’s just the way I express myself.” (Myers Tr. at 82.) Mr. Myers later apologized to Mr. Wilson and Mr. Pearson. (Wilson Tr. at 70.) Mr. Myers sustained two lost days of pay because of his disciplinary suspension. (Myers Tr. at 56.) With respect to Xerxes’ disciplinary action, Myers explained that he received a “two day suspension and a final notice, if it happens again, I’m terminated pretty much.” (Myers Tr. at 76.) He also underwent additional training. (Myers Tr. at 76.) He understands that Xerxes takes
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its commitment to the prohibition of racial discrimination and harassment seriously. (Myers Tr. at 77.) When asked “why,” he observed “because I got my discipline and we have plenty of meetings.” (Myers Tr. at 77.) Since then, he has not, to his knowledge, used the term boys.” (Myers Tr. at 34.) He recalls having been told not to retaliate, he has not attempted to “get even” with Mr. Pearson, and has not been reprimanded since July 25, 2006. (Myers Tr. at 60-61.)
According Mr. Wilson, the foregoing incident occurred in January or February of 2006. (Wilson Tr. at 77-79.) After that incident, according to Mr. Wilson, Xerxes initiated a meeting with the entire second shift to talk about harassment. (Wilson Tr. at 79.) According to Mr. Wilson, during that meeting, plant manager Green advised employees that racial harassment was prohibited, that they were not to make offensive remarks to one another, and that if they did they would be disciplined. (Wilson Tr. at 80.)
In July, 2006, Xerxes EEO Coordinator, Ronald M. Bachmeier, learned of and investigated Mr. Myers’ use of the term “boy.” (Bach. Aff. ¶ 16.) Based upon that investigation, Xerxes took disciplinary action against Mr. Myers. (Green Aff. ¶ 10, Ex. E.)
Mr. Wilson testified that he discovered a “Stick Figure” in his locker on June 11, 2007. (Green Aff. ¶ 11, Ex. F.) According to Wilson:
I went back in there, I said, let me throw these papers away and a little paper dropped back on the floor. I picked it up and I unfolded it and I said whoa. And then I went and put it back in my locker and went straight to Mark Shaffer. (Wilson Tr. at 111.) (Mark Shaffer was a nonsupervisory Union representative at that time.) The Sunday after he discovered the Stick Figure, Mr. Wilson conferred with his pastor (who was also a local officer with the NAACP) about what he should do about it. (Wilson Tr. at 114.) According to Mr. Wilson, his pastor told him that he should take it back and “go through the chain of command.” (Wilson Tr. at 114). According to Mr. Wilson’s testimony, he then talked to Xerxes supervisor Robert Shifflett, who made a copy of the Stick Figure. (Wilson Tr. at 114).
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According to Mr. Wilson’s testimony, Shifflett gave the Stick Figure back to Mr. Wilson. (Wilson Tr. at 114.) Then, according to his deposition testimony, Mr. Wilson called the EEOC. (Wilson Tr. at 114.) When asked, “Did Xerxes take any action in response to your communication with -- ,” Mr. Wilson replied, contrary to the undisputed substance of a memo which Xerxes had given him and which he acknowledges having received, that:
I had a meeting with Wayne and I think he made a copy of it. And then after that, it was -- I didn’t hear nothing else about it. It was just like, well, if you didn’t have anything or anything else happen to you, come see me. This and that, but after a while, you get tired of hearing the same thing. So I was saying to myself well I’m not going to do go do nothing. I’m not even going to see Wayne or none of them because ain’t nothing going to come out of it. So nothing from nothing leaves nothing. So, I just said, I’ll just start talking to Regina [Andrew, EEOC attorney]. I’ll just start faxing my stuff over to her. (Wilson Tr. at 115-116.) When asked whether Xerxes took any other action in response to his report regarding the Stick Figure apart from Mr. Green telling Mr. Wilson to talk to him if anything else happened, Mr. Wilson replied, “Not that I know of.” (Wilson Tr. at 116.) Incredibly, Mr. Wilson’s testimony fails to acknowledge the undisputed, extensive remedial actions described below, which Xerxes took in response to Mr. Wilson’s report of the Stick Figure. That remedial action is described in a memorandum dated August 30, 2007 provided to Mr. Wilson and which Mr. Wilson admitted having received. (Green Aff. ¶ 12, Ex. G; Wilson Tr. 165-166.) Mr. Wilson did not report his discovery of the Stick Figure to any law enforcement agency. (Wilson Tr. at 119.) When asked if he could determine who created the Stick Figure, Mr. Wilson observed, “No. No. I don’t – No, I can’t tell you who did it. I mean, anybody could have did it.” (Wilson Tr. at 121.) When asked what he next did in the wake of his discovery of the Stick Figure, Mr. Wilson replied that “what you mean what next I did? I didn’t do nothing. I just called Regina [Andrew] and went with the process.” (Wilson Tr. at 122.)
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The truth is, Xerxes took the following undisputed remedial action: Xerxes EEO Coordinator Mike Zais flew from the Corporate Office in Minneapolis, Minnesota to Williamsport, Maryland strictly to investigate Mr. Wilson’s report regarding the Stick Figure. (Green Aff. ¶ 12, Ex. G.) Further, as part of Xerxes’ investigation of Mr. Wilson’s report, Xerxes notified the Washington County Sheriff’s Office and asked them to investigate the Drawing. Xerxes also conducted its own investigation. (Green Aff. ¶ 12, Ex. G.)
Based upon that investigation, EEO Coordinator Zais prepared a memorandum dated August 30, 2007, which he forwarded to Mr. Wilson. (Green Aff. ¶ 12, Ex. G.) That memorandum provided a detailed review of Xerxes’ remedial actions in response to Mr. Wilson’s complaint about the Stick Figure, which included:
1. Conducted an extensive investigation through employee interviews; 2. Enlisted the assistance of the Washington County Sheriff’s Office with respect to investigating who created the Drawing; 3. Conducted retraining for all supervisors; 4. Took strong disciplinary action towards three Williamsport employees who Xerxes concluded had made statements which violated its prohibition against discrimination and harassment; 5. Posted notices which reminded Williamsport employees regarding Xerxes’ standards of conduct, prohibition of harassment, and prohibition of offensive conduct; 6. Advised nonsupervisory employees’ Union representative that Xerxes will not tolerate racial discrimination or harassment, and that Xerxes would respond to such conduct with strong discipline, including the termination of employees when appropriate;
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7. Spoke with individual employees regarding situations where their conduct may have been misunderstood or might arguably have offended another employee, in the interest of avoiding or resolving misunderstandings or misperceptions. (Green Aff ¶ 12, Ex. G.)
According to Mr. Wilson’s deposition testimony, more than a year passed before another incident occurred which he considered to be racial harassment. (See Wilson Tr. at 128-129.) According to Mr. Wilson, in August 2008, another nonsupervisory employee, Tammy [Smith] was complaining to him about having to clean up after other employees. According to Mr. Wilson, “She said, I hope this does not offend you, but I’m not trying to be nobody’s white nigger.” (Wilson Tr. at 128.) According to Mr. Wilson, Ms. Smith has not done or said anything else, after the foregoing November incident, which he found racially or otherwise offensive. (Wilson Tr. at 132.)
Mr. Wilson did not report this alleged incident to the plant manager, plant superintendent, or Xerxes’ Corporate Compliance Committee. (Wilson Tr. at 156-157.) Instead, he reported it to EEOC lawyers who then advised Xerxes’ counsel Robert Castle regarding the alleged incident. (Green Aff. ¶ 13, Ex. H.) Plant manager Wayne Green nevertheless undertook an investigation. (Green Aff. ¶ 13.) During that investigation, Mr. Green interviewed both Mr. Wilson and Ms. Smith. (Green Aff. ¶ 13.) Ms. Smith denied having made the alleged remark. (Green Aff. ¶ 13.) On October 31, 2008, plant manager Green provided Mr. Wilson with a memorandum that reviewed the results of the investigation and reminded Mr. Wilson regarding the importance of promptly reporting allegations of racial harassment to him, plant superintendent Greg Carty, Xerxes’ EEO Coordinator, or other members of the Xerxes Compliance Committee. (Green Aff. ¶ 13, Ex. H.)
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3. Facts Regarding Bernard Pearson: Bernard Pearson began working at Xerxes’ Williamsport plant initially as a temporary worker in April 2005 and became a Xerxes employee in June 2005. (Green Aff. ¶ 3.) During 2005, Mr. Pearson informed Mr. Wilson of employment opportunities at Xerxes’ Williamsport plant. (Wilson Tr. at 34.) Mr. Pearson told Wilson, with respect to working at Xerxes, that “he would like, it’s a good job, they have good benefits, and it’s a good place to work at. And you know, he was just, like, if you want to work there, he was telling me about the fiberglass and everything he had to say was good.” (Wilson Tr. at 34) (emphasis supplied). When asked if Pearson told him anything that he (Pearson) did not like about working at Xerxes, Wilson replied, “He just said it was -- he didn’t like working nights.” According to Wilson, “. . . he [Pearson] didn’t say nothing negative about the job.” (Wilson Tr. at 35) (emphasis supplied). Wilson began working at the Xerxes Williamsport plant initially as a temporary worker, and was hired as an employee on October 17, 2005. (Wilson Tr. at 33.) Mr. Pearson and Mr. Wilson later regularly drove to work together. (Wilson Tr. at 37-38.) Nevertheless, according to Mr. Wilson, Mr. Pearson never communicated to him about his allegations of racial harassment at Xerxes. (Wilson Tr. at 39-40.) In late June, 2006, EEO Coordinator Bachmeier learned from plant manager Green that Mr. Pearson had concerns about statements which nonsupervisory employees had made to him. (Bach. Aff. ¶ 17.) When EEO Coordinator Ronald M. Bachmeier learned of the issues raised by Mr. Pearson, he disrupted his personal and professional plans and obligations and immediately flew from Xerxes’ corporate office in Minnesota to the Williamsport plant to investigate and respond to Mr. Pearson’s concerns. (Bach. Aff. ¶ 17.) Mr. Bachmeier initially attempted to meet with Mr. Pearson on July 5, 2006. (Bach. Tr. at 161.) Mr. Pearson declined to meet with Mr. Bachmeier for more than a few minutes, despite Mr. Bachmeier’s efforts to conduct the
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investigation. (Bach. Tr. at 162.) Mr. Pearson was apparently unwilling to meet with Mr. Bachmeier until Mr. Pearson had spoken to his attorney. (Bach. Tr. at 161.)
On July 6, 2006, Mr. Pearson agreed to meet with Mr. Bachmeier. (Bach. Tr. at 163.) During the meeting, Mr. Pearson shared his concerns with Mr. Bachmeier. (Bach. Tr. at 169.) Mr. Bachmeier then proceeded to interview more than 15 other employees who were identified by Mr. Pearson as having knowledge or who might have knowledge regarding Mr. Pearson’s allegations. (Bach. Aff. ¶ 17.) Interviewees either denied Mr. Pearson’s allegations, explained that Mr. Pearson had taken their remarks out of context, indicated that they did not mean their remarks to be racially offensive, or had since apologized for those remarks, and explained that Mr. Pearson had himself engaged in interaction with other employees using profanity and the racially offensive term “N _ _ _ _ _.” (Bach. Aff. ¶ 17.)
Neither Mr. Pearson nor any other employee attributed any racially offensive remarks to any Xerxes supervisor. (Bach. Aff. ¶ 17.) Moreover, although Mr. Pearson contended that he had spoken with certain Xerxes supervisors regarding his concerns, those supervisors credibly disputed Mr. Pearson’s contention that he spoke to them or Mr. Pearson’s version of their communications. (Bach. Aff. ¶ 17.)
Given conflicting explanations, poor recollection of facts and timeframes, a general lack of corroborating information, and Mr. Pearson’s failure to promptly complain about what he contended was objectionable conduct, Mr. Bachmeier developed and implemented a responsive plan to address past objectionable conduct and strongly deter such conduct in the future. (Bach. Aff. ¶ 18.) Xerxes responsive action is summarized as follows:
1. Xerxes concluded that nonsupervisory employee Floyd Myers had used the word “Boy” in the course of communicating with Mr. Pearson. After determining that
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Mr. Myers had not been disciplined for any similar conduct during his fifteen years of employment at Xerxes, Xerxes responded to Mr. Myers’ objectionable words with a written Notice of Disciplinary Suspension and Final Warning. That Warning imposed a two day unpaid suspension. The Warning required Myers to undergo retraining, to comply with Xerxes’ standards, and warned of termination in the event of any future violations. (Bach. Aff. ¶ 18; Green Aff. Ex. E.) A Final Warning and suspension represented the most significant discipline that Xerxes could impose upon an employee, short of termination. (Perkins Tr. at 184-185); 2. Xerxes concluded that nonsupervisory employee Amber Gatrell had made a racially disparaging remark to Mr. Pearson. In the course of Mr. Bachmeier’s investigation, Mr. Bachmeier learned that Ms. Gatrell had reportedly apologized for that remark. Mr. Bachmeier also found that she had used the word “N _ _ _ _ _” around Mr. Pearson, but could not confirm that it was directed at Mr. Pearson. Based on these findings, Xerxes issued Ms. Gatrell a Disciplinary Suspension and Final Warning. (Bach. Aff. ¶ 18; Green Aff. Ex. D); 3. Xerxes concluded that nonsupervisory employee Brian Bradley had referred to certain music as “jungle music.” Mr. Bachmeier also concluded that Mr. Bradley had not made the remark with intent to disparage any employee’s race, national origin, etc. Mr. Bachmeier also determined that Mr. Bradley had apologized to both Mr. Pearson and another employee regarding his remark. In view of the foregoing, and in light of Mr. Bradley’s disciplinary record, which was free of prior such issues or related discipline, Xerxes issued Mr. Bradley a Written Disciplinary Warning. That Warning required that Mr. Bradley attend additional,
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mandatory training regarding Xerxes’ Equal Employment Opportunity Policy, Corporate Compliance Standards, Xerxes’ prohibition of discrimination including harassment, and it warned of serious discipline in the event of a future violation. (Bach. Aff. ¶ 18; Green Aff. Ex. O); 4. Xerxes concluded that nonsupervisory employee Tammy Smith had used the term “Buckwheat,” in the context of a conversation with another African-American employee. The term related to a show with which she was familiar. Ms. Smith credibly denied that she intended the remark to be in any way racially derogatory. In light of the nature of her remark, her explanation, and her credibility regarding the use and context in which she made the remark, Xerxes provided Ms. Smith with a verbal counseling. Xerxes confirmed the verbal counseling in a Memorandum, Green. Aff. Ex. I. That verbal counseling reminded Ms. Smith of her obligation to comply with Xerxes’ Equal Employment Opportunity Policy, Corporate Compliance Program and related policies, and required that she undergo additional retraining. (Green Aff. Ex. I; Bach. Aff. ¶ 18); 5. On July 25, 2006, EEO Coordinator Ronald M. Bachmeier conducted retraining for Xerxes’ Williamsport plant supervisors regarding Xerxes’ prohibition of harassment, and their responsibilities with respect to the promotion of a work environment in which all employees are treated lawfully, with dignity and respect. Attendees also watched a video regarding Xerxes’ prohibition on discriminating or harassing conduct and employee options for reporting incidents to Xerxes’ EEO Coordinator or Corporate Compliance Committee to facilitate a response by
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the company. (Bach. Aff. ¶ 18.) A copy of the sign in sheet for those supervisory training sessions is attached in Exhibit C to the Affidavit of Wayne Green; 6. On July 25, 2006, Mr. Bachmeier also conducted retraining for all plant employees regarding Xerxes’ commitment to its Corporate Compliance Program, Equal Employment Opportunity Policy, and prohibition of discrimination and harassment. (Bach. Aff. ¶ 18.) A copy of the sign in sheet for those employee training sessions is attached in Exhibit C to the Affidavit of Wayne Green; 7. Finally, on July 25, 2006, plant manager Wayne Green gave Mr. Pearson a Memorandum which reflected Xerxes’ appreciation for Mr. Pearson having come forward with his concerns, and which generally described Xerxes’ response to those concerns. (Green Aff. ¶ 15, Ex. J.) More specifically, the Memorandum explained that certain employees would receive various levels of disciplinary action, that Xerxes would conduct retraining for all nonsupervisory employees, that Xerxes would conduct retraining for all supervisors, and that Xerxes would not retaliate against Mr. Pearson for having come forward with his concerns. Xerxes believed that Mr. Pearson was satisfied with the Company’s response to his concerns. (Green Aff. ¶ 15, Ex. J.) Mr. Pearson subsequently withdrew a Charge of discrimination which he had filed with the Maryland Commission on Human Relations. (Pearson Tr. at 221-223.) Xerxes remained committed to ensuring that he continued to work in an environment free of unlawful discrimination or harassment. (Green. Aff. ¶ 16.) Toward that end, Xerxes’ Williamsport plant manager, Wayne Green, periodically checked with Mr. Pearson to ensure that he did not have any complaints regarding his work environment. (Green. Aff. ¶ 16.)
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In mid April, 2007, Xerxes’ Williamsport plant management learned that Mr. Pearson had found an item in his locker, which he would not at that time describe. (Green Aff. ¶ 17.) Shortly thereafter, plant manager Wayne Green sought out Mr. Pearson in an effort to learn what had been discovered. (Green. Aff. ¶ 17.) Mr. Pearson initially declined to tell Mr. Green what he found in his locker. (Green. Aff. ¶ 17.) Instead of cooperating with Mr. Green’s inquiry, Mr. Pearson replied that he was going to contact his lawyer and would not discuss what he had discovered until he had spoken to and received direction from his attorney. (Green. Aff. ¶ 17.) Mr. Green was frustrated by Mr. Pearson’s uncooperative posture, since Mr. Green was attempting to understand and respond to Mr. Pearson’s concern. (Green. Aff. ¶ 17.) That item later turned out to be a 4”x 4” piece of clear laminated fiberglass with an offensive racist communication (“Fiberglass Piece”). (Green. Aff. ¶ 17, Ex. K.)
In order to aggressively respond to Mr. Pearson’s concerns, particularly in light of the Fiberglass Piece which Mr. Pearson ultimately, but reluctantly, allowed Xerxes to photograph, Mr. Green asked the Washington County Sheriff’s Office to investigate the Fiberglass Piece. (Green. Aff. ¶ 18.) Mr. Green informed the Sheriff’s Office that although Xerxes’ Williamsport plant employed other African American employees, none of those employees had reported receiving messages such as that reflected on the Fiberglass Piece. (Green. Aff. ¶ 18.)
On April 26, 2007, in response to plant manager Wayne Green’s report to the Washington County Sheriff’s Office, Deputy James Robert Grimm visited the Xerxes plant. (Green Aff. ¶ 19.) When the Sheriff’s Office Investigator contacted Mr. Pearson, Mr. Pearson indicated that he had “kept the racial message for himself, but allowed plant management to photograph it for there (sic) investigation.” (Green Aff. ¶ 19, Ex. L.) After Xerxes initiated the Sheriff’s Office investigation, Xerxes continued to fully cooperate with the Sheriff’s
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investigation. (Green Aff. ¶ 19.) Xerxes made plant manager Wayne Green and Bernard Pearson available for interview at the Xerxes plant. (Green Aff. ¶ 19.) Xerxes would have further cooperated had the Sheriff’s Office wanted to interview additional employees, or conduct further investigation. (Green Aff. ¶ 19.) The Sheriff’s Office investigator indicated to Mr. Green that it could not be determined who had created the Fiberglass Piece. (Green Aff. ¶ 19.) The Sheriff’s Office indicated that it would remain available to investigate any report of criminal conduct, but that otherwise, it did not think it could do more and it considered its investigation of Mr. Pearson’s concern closed. (Green Aff. ¶ 19.) Mr. Green had by that point, in addition to invoking a Sheriff’s Office investigation, interviewed several employees regarding Mr. Pearson’s concern and held an all-staff meeting during which he provided re-training regarding Xerxes’ EEO policies and prohibition of discrimination. (Green Aff. ¶ 20.)
A copy of the Sheriff’s Office’s Investigative Report narrative (“Report”) is attached. (Green. Aff. Ex. L.) In the Report, the Sheriff’s Office Investigator observed, in relevant part, that . . .
I asked Bernard Pearson if he has received any more threats from the “KKK” while at work, home, or on his cellular phone, and he stated no. I asked Bernard Pearson if he could provide any suspect information concerning this incident and he replied no particular person but stated that there were “clicks” (sic) in the workplace and a number of people could be responsible. (Green. Aff. Ex. L.) The Report goes on to indicate that: “I advised Bernard Pearson that this would be reported as a criminal investigation and any further incidents that arose concerning the “KKK” or threats to him, to contact the Sheriff’s Office directly.” (Green. Aff. Ex. L.) Mr. Pearson has not notified the Sheriff’s Office regarding any further incidents of alleged racial harassment. (Pearson Tr. at 369.) Mr. Green took additional, significant actions in response to Mr. Pearson’s April, 2007 concerns, beyond interviewing employees and initiating a Washington County Sheriff’s Office
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investigation. (Green. Aff. ¶ 21.) For example, on April 23, 2007, Mr. Green conducted an allemployees’ meeting. (Green. Aff. ¶ 21.) The purpose of that meeting was to make absolutely clear to employees that:
1. Xerxes absolutely prohibits discrimination, including racial and other harassment; 2. Xerxes will not tolerate racial, sexual or other hostile communications in our
workplace. That includes plant parking lots, restrooms, locker rooms, and production areas; 3. Xerxes had asked the Williamsport Police Department to investigate the Fiberglass Piece; 4. Once the Sheriff’s Office investigation was complete, and once Xerxes had taken all appropriate steps to identify who was involved in creating and bringing the offensive communication to our plant, Xerxes would take additional appropriate steps, which would probably involve the termination of the employee or employees involved with the communication; 5. Xerxes would also encourage law enforcement officials to prosecute the individuals responsible for the communication, to the extent that their conduct violated any criminal laws; 6. Finally, Xerxes would conduct ongoing training, such as today’s meeting, to make sure that every employee is clear about our policies and procedures. (Green. Aff. ¶ 21.) A copy of Mr. Green’s outline for that all-employees’ meeting is attached as Exhibit M to the Affidavit of Wayne Green. Among other critical points, Mr. Green advised employees that “compliance with our prohibition of discrimination and harassment is a condition of employment; [and that] employees who we determine to have violated our standards will be disciplined and terminated as appropriate and necessary.” (Green Aff. ¶ 21, Ex. M.) In a further effort to emphasize the points which he made during his April 23, 2007 meeting, Mr. Green also posted a memorandum which provided employees with yet another reminder regarding Xerxes’ prohibition of racially hostile communications. (Green Aff. ¶ 22, Ex. N.) That memorandum observes, in relevant part, that “Xerxes will continue to take
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appropriate action in response to the offensive communication. Such action will likely include termination of the employee(s) who created the offensive communication.” (Green Aff. Ex. N.)
As part of his ongoing effort to continually check in with Mr. Pearson to ensure he was not subjected to unlawful discrimination or harassment in the workplace, on June 1, 2007, Mr. Green was walking through his plant’s assembly area and stopped by Mr. Pearson’s work area to check on how things were going. (Green Aff. ¶ 23.) Mr. Pearson indicated his approval of the Sheriff’s investigation. (Green Aff. ¶ 23.)
4. Facts Regarding Neville Haymans Neville Haymans is a Black male, born in 1951. (Haymans Tr. at 12, 29.) Although the EEOC has not identified Mr. Haymans as a class member, the Court should be aware of the undisputed facts regarding his employment with Xerxes. Mr. Haymans began working at the Xerxes Williamsport plant on May 15, 2006, and became a regular Xerxes employee in July, 2006. (Green Aff. ¶ 3.) Mr. Haymans has always worked as a nonsupervisory employee in the plant’s Assembly department. (Haymans Tr. at 18). According to Mr. Haymans’ sworn affidavit: 4. Since I began my employment with Xerxes, I have never been
discriminated against or harassed because of my color or national origin; 5. During my employment with Xerxes, I have never seen racially hostile or
offensive drawings, materials, or any type of communication at the Xerxes plant; 6. During my employment with Xerxes, no Xerxes employee has ever made a racially hostile, offensive, or threatening statement or other communication to me; 7. I know another Xerxes employee named Keith Wilson. Keith Wilson has never told me that he has felt that he has been discriminated against or harassed because of his race;
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8. I know a former Xerxes employee whose name is Bernard Pearson. Mr. Pearson never told me that he felt he had been discriminated against or harassed because of his race;
9. Nobody at Xerxes has ever discriminated against or harassed me, or made me feel uncomfortable, because of my race. All of us employees get treated the same.
(Affidavit of Neville Haymans (“Haymans Aff.”) ¶¶ 4-9.) Since Mr. Haymans signed his affidavit, he has not been subjected to any racial
discrimination or harassment. (Haymans Tr. at 29.) During his deposition, Mr. Haymans testified that he understood what constitutes a racially hostile statement and further stated that nobody has ever used racial jokes in front of him, nor has he ever heard anyone use the “N _ _ _ _ _” word at Xerxes. (Haymans Tr. at 44-45.) III. ARGUMENT
A. Summary Judgment Standard Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “should 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.” The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
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The party opposing a properly supported motion for summary judgment “may not rest upon the mere allegations or denials in [its] own pleadings,” but rather must “set forth specific facts showing that there is a genuine issue for trial.” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (citing Fed. R. Civ. P. 56(e)). When no genuine issue of material fact exists, trial judges in the Fourth Circuit have an affirmative obligation to prevent factually unsupported claims and defenses from proceeding to trial. Drewitt v. Pratt, 999 F.2d 774, 779 (4th Cir. 1993).
B. Standard For Proving Hostile Work Environment Claim In Bernard v. Calhoon MEBA Eng’g School, 309 F. Supp. 2d 732, 743 (D. Md. 2004), Judge Andre Davis granted summary judgment, finding that the employer defendant was not liable for a nonsupervisory employee’s alleged racial harassment of a coworker. Judge Davis articulated the standards of proof applicable in this case. In order to survive summary judgment, the EEOC must produce evidence sufficient, if believed, to permit a reasonable fact finder to conclude by a preponderance of the evidence the following elements: (1) the conduct in question was unwelcome; (2) the harassment was based on race; (3) the harassment was sufficiently pervasive or severe to create an abusive working environment; and (4) some basis exists for imputing liability to the employer. Id. at 738 (citing Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998)). As Judge Davis acknowledged: “An employer may defeat a plaintiff’s case at the summary judgment stage by adducing substantial evidence that undermines the proof of any one or more of the above elements as a matter of law.” Id.
1. No basis exists in this case to impute liability to Xerxes The class members in this case were not, and do not claim to have been, subjected to harassment by any supervisory or managerial employee of Xerxes. The allegations instead focus entirely on the alleged actions of the class members’ nonsupervisory coworkers. An employer is
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liable for harassment by the alleged victim’s coworkers only if, after acquiring actual or constructive knowledge of the allegedly harassing conduct, the employer takes no prompt and adequate remedial action to correct it. Mikels v. City of Durham, 183 F.3d 323, 329 (4th Cir. 1999). “[W]here an employer implements timely and adequate corrective measures after harassing conduct has come to its attention, vicarious liability should be barred regardless of the specific motivation for the wrongdoing or the particular cause of action.” Dennis v. County of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995). “Employers cannot be saddled with the insurmountable task of conforming all employee conduct at all times to the dictates of Title VII, irrespective of their knowledge of such conduct or the remedial measures taken in response to such conduct.” Bernard, 309 F. Supp. 2d at 741-42.
As the foregoing Statement of Facts demonstrates in detail, Xerxes undertook exhaustive investigation followed by swift and severe remedial action in response to reports of allegedly offensive or harassing conduct. It must be noted that Mr. Graham never reported any such conduct to Xerxes’ plant manager, EEO Coordinator, or Corporate Compliance Committee prior to the start of this litigation. (Graham Tr. at 83-85.) Furthermore, he never filed any charge of discrimination with any administrative agency. (Graham Tr. at 185-186.) Rather, the EEOC apparently identified him as a class member based upon their review of documents regarding a dispute which he had with a supervisor and involved him in this action. The reports of Mr. Pearson and Mr. Wilson led to prompt investigations by plant management, Xerxes’ EEO Coordinators Ronald Bachmeier and Mike Zais, and – in the case of the Stick Figure Drawing and Fiberglass Piece – the Washington County Sheriff’s Office. These investigative actions were designed to identify individuals responsible for violating Xerxes’ policies strictly forbidding harassment and to require serious remedial action and training to prevent future
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violations. With respect to each instance of allegedly offensive or harassing conduct, Xerxes responded with investigative and remedial action, collectively including interviews of dozens of employees, retraining of all plant supervisors and all plant employees regarding Xerxes’ commitment to its Corporate Compliance Program, issuance of serious disciplinary sanctions including disciplinary suspensions and final warnings to employees found in investigations to be responsible for violations of company policy, the posting of memoranda reminding employees that Xerxes prohibits racially hostile communications, and continued communication with Mr. Pearson and Mr. Wilson regarding Xerxes’ attentiveness to their concerns. (Green Aff. ¶¶ 5-23, Bach. Aff. ¶¶ 8, 16-18.)
Under the precedent of this Court and in the Fourth Circuit, Xerxes’ swift and thorough remedial action bars the imposition of liability on Xerxes. In granting summary judgment to the employer in Eliott v. Maryland Dep’t of Human Res., No. CCB-05-2867, 2007 WL 627864, at *10 (D. Md. Feb. 22, 2007)2, this Court considered several key factors in the course of finding the defendant’s response prompt and adequate, including: (1) involving the complainant in follow-up regarding the remedial action, (2) conducting workplace-wide sensitivity training and emphasizing company policies banning discrimination, and (3) responding promptly and effectively to each alleged incident.
Xerxes’ investigative and remedial actions fully satisfy each of these criteria. Both Mr. Pearson and Mr. Wilson received detailed memoranda describing the investigations into their reported allegations, identifying the remedial action taken, and thanking them for reporting their allegations. (Green Aff. Exs. G, H, J.) Additionally, Xerxes’ response to the alleged incidents was company-wide, including retraining of all employees emphasizing Xerxes’ Prohibition of
2 A copy of this unpublished decision is attached as Exhibit 3 to this Memorandum. 33

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Harassment, Corporate Compliance Policy and its absolute prohibition of harassing conduct, as well as the posting of materials visible to all employees. These remedial measures involved and were visible to all employees, including the class members.
While the class members may feel their complaints were not investigated and resolved rapidly enough, the facts demonstrate that when tangible allegations were brought forward, Xerxes sprang into action. For example, upon his discovery of the Stick Figure drawing, Mr. Wilson delayed substantially before even informing Xerxes management of its discovery, not coming forward until after he was urged to do so by his pastor. (Wilson Tr. at 114.) Xerxes promptly completed a comprehensive investigation conducted by its EEO Coordinator which resulted in substantial remedial action as documented in the memorandum provided to Mr. Wilson on August 30, 2007. (Green Aff. Ex. G.)
In reality, any delay in investigating and resolving the allegations of the class members were caused by the class members themselves. For example, Mr. Graham claims in this litigation that he was subjected to racial harassment (in the form of coworkers “staring at you over the tank to your area”) so severe he felt his life was in danger. (Graham Tr. at 205.) But prior to the initiation of this litigation, Mr. Graham never alerted anyone to this supposedly life threatening behavior – not plant management, not his Union, not a Xerxes Corporate Compliance Committee member, and not law enforcement. (Graham Tr. at 206-207.) Similarly, Mr. Pearson did not initially report discovering the Fiberglass Piece to any supervisor and initially refused even to tell plant manager Wayne Green what he had found. (Green Aff. ¶ 17.) The record in this case demonstrates that Xerxes took swift and decisive action once made aware of the complaints by the class members, consistent with the Court’s decision in Eliott.
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Other decisions within this district and circuit demonstrate that Xerxes conducted legally sufficient “timely and adequate” corrective measures. In Yancey v. Nat’l Ctr. on Inst. and Alternatives, 986 F. Supp. 945, 954-55 (D. Md. 1997), Judge Davis granted summary judgment finding that in light of the defendant’s investigation as soon as specific allegations were raised, its confrontation of the alleged harasser, issuance of a written warning, and the remedial action taken, “reasonable minds could not disagree that [the defendant] took prompt and adequate remedial action designed to end the harassment when informed” of the allegations. Similarly, in Mikels v. City of Durham, 183 F.3d 323, 335 (4th Cir. 1999) the Fourth Circuit affirmed the entry of summary judgment in favor of the defendant and specifically approved the district court’s finding that the defendant’s investigation and remedial actions were sufficiently “prompt and adequate” in light of the prompt investigation into the allegations, the reprimand and warning to the alleged harasser, and the remedial action taken against him. Id. at 329-30. In Mikels, the court distinguished the defendant’s investigation from those conducted in cases like Paroline v. Unisys Corp., 879 F.2d 100, 107 (4th Cir. 1989), where the employer’s investigative and remedial actions were found to be “nothing more than a slap on the wrist or perhaps even an outright sham.” The exhaustive factual recitation above proves unequivocally that Xerxes’ investigation was not a “sham.” Xerxes took serious, comprehensive, and extensive action to remedy allegations of conduct that violated its corporate policies.
Typical of the effectiveness of Xerxes’ remedial actions is the case of Floyd Myers. Xerxes’ investigation determined that Mr. Myers – despite having no disciplinary record for similar conduct in more than fifteen years at the plant – had infrequently (and in his view without any intended racial animosity) used the term “boys.” (Green Aff. ¶ 10, Ex. E.)3 As a result of
3 Specifically: “boy, well I’ll see you outside, or something like that.” (Wilson Tr. at 78). 35

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this finding, Myers testified that he received a “two day suspension and a final notice, if it happens again, I’m terminated pretty much.” (Myers Tr. at 76.) He also underwent additional training. (Myers Tr. at 76.) Since July 25, 2006, when remedial action was taken against him, Mr. Myers has not used the term “boys” and has not been reprimanded. (Myers Tr. at 34, 6061.)
Xerxes’ extensive investigation and remedial action in this case were sufficiently timely and adequate to bar the imputation of liability to Xerxes. In light of the extensive efforts undertaken and documented by the defendant in this case, reasonable minds cannot disagree with the sufficiency of Xerxes’ response and summary judgment should be entered.
2. The conduct alleged by Mr. Graham and Mr. Pearson was not sufficiently severe to be recognizable under Title VII
In order to be legally cognizable, alleged harassment must be both objectively and subjectively severe and pervasive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). In determining whether conduct is sufficiently severe and pervasive, the courts look to the “totality of the circumstances” including: (1) the frequency of the discriminatory conduct; (2) the severity of the conduct; (3) whether the conduct was physically threatening, humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee’s work performance. Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998).
Xerxes recognizes that the severity of alleged harassment is a fact-specific question not always conducive to resolution on summary judgment. However, with respect to Mr. Graham and Mr. Pearson, undisputed evidence demonstrates that summary judgment is appropriate.
Gradian Graham While Mr. Graham claims to have been subjected to racially-motivated harassment, his deposition testimony demonstrates that all of the alleged conduct is innocuous, unrelated to race,
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or so vaguely described and unsupported by evidence as to provide an insufficient basis to deny summary judgment. He alleges that he was offended when another employee used the word “fuck” (Graham Tr. at 117), annoyed when a fellow employee did not communicate with him (Graham Tr. at 138-39), and felt it was racially discriminatory when a fellow employee was “constantly over there just staring at you over the tank to your area.” (Graham Tr. at 134-35.) Mr. Graham also asserts that he heard another employee refer to Bernard Pearson as a “lazy bum” – a statement he believes was racially discriminatory despite admitting that the employee in question never said anything else that Mr. Graham considered racially discriminatory or harassing. (Graham Tr. at 122-23.) None of these alleged incidents is sufficiently severe to give rise to a cause of action. The “mere utterance” of an “epithet with engenders offensive feelings” of an employee “does not sufficiently affect the conditions of employment to implicate Title VII.” Harris, 510 U.S. at 22. The rare, innocuous, and non-threatening statements and actions of Xerxes employees complained about by Mr. Graham fail to rise to the level compensable under Title VII. Mr. Graham did claim in his deposition that he, subjectively, felt his life was in danger based on “the way these guys would just, in one particular area, just stare at me across the floor….” (Graham Tr. at 205.) However, whether alleged conduct is sufficiently severe to be cognizable is measured both subjectively and objectively. Harris, 510 U.S. at 21. Mr. Graham’s claim that employees looking at him was racial harassment of such severity he felt his life was in danger is objectively unreasonable and is inconsistent with the fact that Mr. Graham never reported the staring to his supervisor, the plant superintendent, plant manager, or any law enforcement officials. (Graham Tr. at 138-139, 206-207.)
The only additional allegation raised by Mr. Graham is that a nonsupervisory employee who also worked at the plant named Robert Churchey “had used the N word a bunch of different
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times.” (Graham Tr. at 97.) However, at his deposition, Mr. Graham was unable to provide any clear testimony identifying when and in what context Mr. Churchey allegedly used that word.
Q: When did you hear Mr. Churchey use the N word? A: Not one occasion, but I can’t say the exact dates of these. Q: Tell me, to the best of your recollection, your best recollection of the dates when he used those words? That word or that phrase? A: I cannot. Not off the back of my head. Because I don’t want to say this time and it’s not even close. It was my time of employment at Xerxes. Q: That’s your best recollection, though? A: Yes, sir. Q: And tell me exactly what Mr. Churchey said. A: I can’t get the exact statement he use, that he stated. I can’t remember the exact. Because it’s been a while. It’s been a long time. (Graham Tr. at 98-99.) As such, the allegations are insufficient in this circuit to give rise to a hostile work environment claim. Carter v. Ball, 33 F.3d 450, 461-62 (4th Cir. 1994) (allegations were “not substantiated by accounts of specific dates times or circumstances. Such general allegations do not suffice to establish an actionable claim of harassment.”)
Bernard Pearson Two facts are essential to keep in mind about Mr. Pearson’s term of employment with Xerxes. First, his working experience during his first several months with the company was so good that he essentially recruited Keith Wilson to work for Xerxes. Mr. Wilson recalled being told by Mr. Pearson, while considering whether to work for Xerxes, that “it’s a good job, they have good benefits, and it’s a good place to work at … he didn’t say nothing negative about the job.” (Wilson Tr. at 34-35.) Second, when Mr. Pearson resigned from Xerxes in February 2008 to take a job at a correctional facility because it offered a retirement plan, he left a voicemail with plant manager Wayne Green asking, “I’m going to go for the [corrections] job and I just
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wanted to know if I didn’t like it, you know, could I come back. I know I’ll probably lose seniority, but I just wanted to talk to you about that.” (Pearson Tr. at 429.)
Mr. Pearson’s glowing review conveyed to Keith Wilson of his job at Xerxes and his interest in returning to Xerxes in the event he merely “didn’t like it” at his new job demonstrate that Mr. Pearson’s experiences at Xerxes did not cross the threshold to be actionably severe under Title VII. Notably, as he resigned from Xerxes while looking back to see whether he could still return, Mr. Pearson expressed concern only about a loss of seniority, not workplace harassment. “A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers.” Harris, 510 U.S. at 22. Here Mr. Pearson’s job experience was apparently so satisfactory that he recruited another Black individual to work with him at Xerxes and inspired Mr. Pearson to try to keep the door open to returning to Xerxes even as he chose to take another job. IV. CONCLUSION
For the foregoing reasons, Xerxes respectfully requests that summary judgment be entered in favor of Xerxes as to each claim asserted by EEOC.
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Date: July 17, 2009

PARLER & WOBBER
By: /s/ William C. Parler, Jr.
406 E. Joppin Road Towson, Maryland 21286 Telephone: (410) 494-7400 E-Mail: W.Parler@parlerwobber.com
LOCAL COUNSEL FOR DEFENDANT XERXES CORPORATION

Date: July 17, 2009

OPPENHEIMER WOLFF & DONNELLY LLP
By: /s/ Robert C. Castle (#18942X)
3300 Plaza VII Building 45 South Seventh Street Minneapolis, Minnesota 55402 Telephone: (612) 607-7000 Facsimile: (612) 607-7100 E-Mail: RCastle@oppenheimer.com
ATTORNEYS FOR DEFENDANT XERXES CORPORATION

40
OPPENHEIMER: 2663147 v04 07/16/2009

 
 Case 1:08-cv-01882-CCB Document 42 Filed 08/17/09 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND NORTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

XERXES CORPORATION,

)

)

Defendant.

)

____________________________________)

Civil Action No. 1:08CV01882-CCB

PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION’S CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION On July 18, 2008, the Equal Employment Opportunity Commission (“EEOC” or “Commission”) filed a Complaint alleging Xerxes Corporation (“Defendant”) had created, maintained and failed to correct a racially hostile work environment for Albert Bernard Pearson, Keith Wilson, and a class of blacks in violation of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”). In its Answer to EEOC’s Complaint, Defendant asserted an affirmative defense it “took timely and appropriately responsive action in response to the complaints of Mr. Wilson and Mr. Pearson.” See, Defendant’s Answer and Affirmative Defense to EEOC’s Complaint at 3, ¶ 5 (Document 5). As discussed below, however, this affirmative defense lacks factual support, thereby establishing no genuine issue of material fact as to Defendant’s failure to exercise reasonable care to prevent racial harassment. Accordingly, EEOC moves for partial summary judgment to prevent Defendant from asserting this defense at trial, and files this
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memorandum in support thereof. EEOC also opposes Defendant’s Motion for Summary Judgment filed on July 17, 2009. Summary judgment in favor of Defendant is not appropriate because Defendant’s actions, undisputed in this litigation, enable EEOC to establish a prima facie case of a race-based hostile work environment under Title VII.
II. STATEMENT OF UNDISPUTED MATERIAL FACTS A. Black employees were openly ridiculed and threatened. Defendant manufactures fiberglass containers for the petroleum, chemical, water and wastewater industries. It is headquartered in Minnesota, with plants in California, Texas, Iowa, and Maryland. The events at issue occurred in Defendant’s manufacturing facility in Williamsport, Maryland (“Williamsport Plant”). Defendant employs 84 employees at Williamsport Plant, only two are black, both of whom are production employees. 1. Edward L. Younger, Sr. Edward L. Younger, Sr., age 45, is a black male who began working for Defendant as a materials handler in September 1995. (Younger Dep. 13).1 He came to his position at Defendant with previous experience, having served in the United States Army and Army Reserve as a Materials Handler Specialist since 1982. (Id. 18). Throughout Younger’s employment, Defendant subjected him to racist jokes, comments, and death threats. Racist jokes directed at Younger began during his first weeks of employment. Once while observing Younger coming indoors out of the rain, Floyd Weller, a white co-worker, commented, “[R]ain or soap don’t wash the black off.” (Ex. 2, Todd E. memo, dated November 7, 1995). Another time, Weller approached Younger about the color of a magic marker, and wrote on Younger’s skin with the marker and said, “Yeah, It’s Black.” Id.
1 References to deposition transcripts comprise EEOC Exhibit 1, which is tabbed for each deponent who is cited.
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On January 2, 1996, Younger re-enlisted with the U.S. Army to serve active duty in Desert Storm. When he returned to work at Defendant in June, 1997, the racial hostility toward him renewed. (Younger Dep. 43-44). Sometime in 1997, Younger encountered a death threat directed at him which was scrawled on the men’s bathroom stall door. (Id. at 20, 98-99):
The first incident, I was going back to the restroom from the breakroom and I went to the back stall, which contains the toilet, and closed the door and sat down to do my business and noticed on back of the door, the bathroom stall door, that there was black Magic Marker and scratch marks which read: Deer hunting season. But the deer was scratched out and the word nigger was on top of the deer that was scratched out, which in turn, read: Nigger hunting season.
Right underneath that there was three Ks, that says: KKK rules. And it was scratched in the grey paint, but it was highlighted in black Magic Marker and says: KKK rules. And on the bottom of that, it says: Dead nigger. It said: Ed dead nigger. (Id. 85-86). Younger immediately sought the assistance of Defendant supervisor Todd Edgerton, white, and showed him the racist graffiti on the bathroom stall door. (Id. 88-89). Despite Younger’s repeated complaints to Edgerton, the writing remained on the bathroom door stall. (Id. 91-92). After two weeks of Defendant’s inaction, Younger sought the assistance of his Union Representative, and complained to then-Plant Superintendent John Ngee, who, in turn, notified Plant Manager Wayne Green. (Ngee Dep.42). Defendant then painted over the racist graffiti which remained visible because the words had been scratched deep into the surface of the stall door. Both Green and Ngee knew that their attempt to cover the racial slurs with paint had failed. (Ngee Dep. 146-147 (threat had been scratched into the painted surface)). Younger and at least one other employee complained that the writing was still visible. (Ex. 3, Green Notes (noting that, “Couple days later an individual came to me, told me there was still some writing in Bath Room that wasn’t covered.”)). Green also noted that Younger was overtly “tracking the days” that it took
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management to respond. (Id; Younger Dep. 91-92 (Younger encountered a dozen or so coworkers, who took notice that management had failed to remove the racist threats, and asked them to sign and date a statement)).
Finally, Defendant covered and riveted a sheet of metal over the racial slurs and death threats. (Id. 95-96). A couple weeks later, Younger complained again about another threat to his life. This time, the words, “Kill Ed, dead nigger” were written in black magic marker on a yellow pole near Younger’s work station. (Id. 98-100).
The harassment Younger experienced was not limited to scrawled racial slurs and death threats, but also involved a hostile encounter with Floyd Weller’s wife, Deanna Weller, also a white co-worker. (Green Dep. 98-99). On February 25, 1998, Deanna Weller accused Younger of calling her a racist. She engaged Younger by pointing her finger in his face, while screaming at him that that she was not a racist because she had, “several nigger friends.” (Younger Dep. 48-50). When Younger yelled back at Weller and moved to push her finger out of his face, another white co-worker lunged at Younger and pushed him against a spinning piece of equipment. (Id.). Almost immediately, Plant Manager Green summoned Younger and reprimanded him for engaging in “threatening, intimidating. . . . potential physical harm.” (Ex. 4, Employee Warning Notice, dated February 25, 1998). Green did not discipline Weller for using the N-word or for provoking the incident. (Younger Dep. 70). Instead, Green insisted that Younger needed anger management and released him from work with instructions to get medical treatment. (Id. 50-51). Younger was not allowed to work for several months. (Id. 53-55).
In the meantime, Younger filed a Charge of Discrimination with the State of Maryland Human Relations in March, 1998, alleging that Defendant discriminated and
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retaliated against him on the basis of his race. On February 11, 1999, Younger entered into a Settlement with Defendant, agreeing to withdraw the Charge of Discrimination. (Ex. 5, Settlement Agreement and General Release). Younger has not worked full-time at Defendant since October, 1999. (Younger Dep. 13-15).2
2. Gradian Graham Gradian “Roy” Graham, age 29, is a black male who joined Defendant on August 2, 2004 as an assembler working on second shift. (Graham Dep. 30). Throughout Graham’s employment and in his presence, white coworker Robert Churchey routinely used the terms “nigger,” and “nigger-lovers.” (Id. 97-98). One of Graham’s white co-workers confided to him that Churchey addressed her as “nigger-lover” because she was friends with Graham. (Id. 101-102). Graham complained to Defendant’s Superintendent Greg Carty about Churchey’s racial slurs, both orally and in writing, but nothing was done. (Id. 104-106; 113-114). Eventually, Defendant’s treatment of Graham included pure intimidation. White coworker Floyd Myers and Supervisor Robert Shifflett stared at Graham while he worked, making him feel very uncomfortable in the workplace. (Id. 134-135, 207) In 2005, a group of white co-workers followed him on his way home from work. (Id. 54). Consequently, Graham became fearful of his safety while at and away from work. (Id. 193). On January 19, 2007, Graham complained to Superintendent Carty again – this time about Supervisor Shifflett discriminating against him because of his race (Ex. 6, Carty Notes). Graham then met with Carty and Plant Manager Green and told them that Shifflett “stared at him strangely” and harassed him. (Id.). Green determined that Graham’s complaints about Shifflett
2 During the processing of Younger’s charge, he experienced a workplace injury which prevented him from returning to Defendant in his previous job. While his worker’s compensation status keeps him on Defendant’s payroll, he has not returned to work since March, 2000. (Younger Dep.14-15).
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did “not constitute anything relating to discrimination or harassment.” (Ex. 7, Green Notes). On January 30, 2007, Supervisor Shifflett followed Graham to the bathroom and peered
under the bathroom stall while Graham was on the toilet. When Graham complained to Plant Manager Green about Shifflett’s harassing behavior, Green accused Graham of lying about the incident and disciplined him with a “final” warning that another violation of Xerxes’ policies would result in termination. (Ex. 8).
By early March, 2007, despite having had an excellent work record,3 Graham started missing work due to the stress associated with Defendant’s racial slurs, staring, and stalking behavior. On April 18, 2007, Defendant mailed Graham a letter, discharging him for missing work. (Ex. 9, Graham Termination Letter).
3. Albert Bernard Pearson Albert “Bernard” Pearson, age 48, is a black male who joined Defendant in early 2005. Initially, he was referred by a temporary service and on June 15, 2005, Defendant hired him as a full-time employee, working as an Assembler, an entry level production position. Several times throughout Pearson’s employment, Defendant subjected him to racial slurs. Amber Gatrell, a white female co-worker who trained Pearson, remarked in his presence that she hated niggers. Floyd Myers, white male co-worker, referred to Pearson as “black Pollack” and “boy” often while pantomiming that he was cracking a whip at him. (Ex. 10; Pearson Dep. 227). Pearson recalls that these remarks, along with Gatrell’s frequent use of the word “nigger” in his presence, were ongoing and occurred multiple times daily. (Ex. 11). Within weeks of becoming permanent with Defendant, Pearson reported his co-workers’ behavior and remarks to his shift supervisor Shifflett, who said that he would relay his concerns to Carty. (Pearson Dep. 93-94).
3 (Shifflett Dep. 113 (“Roy Graham was one of my best employees I ever had a Xerxes.”); Graham Dep. 143-144).
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Nevertheless, the remarks continued. Pearson, frustrated by Defendant’s continuing failure to stop the racial comments, enlisted the assistance Union Representative, Kenny Thompkins. Thompkins and Pearson approached Carty about the constant racial harassment, who claimed that Shifflett never had relayed his complaints. Carty advised Pearson to keep quiet about the harassment and that he would handle the matter. (Id. 314-315). However, the harassment persisted and intensified after Pearson recruited Keith Wilson, a black male, to work at Xerxes. Gatrell and Floyd Myers referred to and addressed both Pearson and Wilson as “boy” and “nigger.” (Ex. 11). Floyd Myers also referred to April Acree (a white co-worker) a “niggerlover” in Pearson’s presence, explaining that it was Churchey who actually said it, not him. (Pearson Dep. 323-325).
The harassment escalated to pranks. As an example, on about three occasions, while Pearson was on the toilet, someone turned off the lights and threw wet toilet paper at him. He had difficulty turning on the lights because gel had been placed on the bathroom doorknob, making it difficult to open the door to locate the light switches. Twice, he had his tool box hidden, seven times he had resin placed in his lock so it would not open and each time he needed his lock cut off and replaced, and even his diary logging the harassing incidents was stolen from his locker. (Ex. 11). His lunch was often stolen and found in the garbage. (Wilson Dep. 68-70). Pearson’s repeated complaints to his supervisors Shifflett, Carty, and Green remained unaddressed.
In May, 2006, Pearson complained to Plant Manager Green that white coworkers Terry Smith and Brian Bradley were using the terms “jungle music” and “nigger music” in his presence. (Ex. 11). In June, 2006, Pearson contacted the Maryland Commission on Human Relations to file a charge of discrimination against Defendant for subjecting him to a racially
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hostile work environment. (Ex. 12). Around the same time, Pearson, frustrated with Green’s failure to address his complaints of racial hostility, informed Green that he had contacted an attorney. Green, in turn, contacted Defendant’s General Counsel Craig Peterson about Pearson’s complaints. (Bachmeier Dep. 46 – 49). In July, 2006, Defendant’s Chief Financial Officer and EEO Coordinator, Ronald Bachmeier, visited the Williamsport Plant, conducted interviews with Pearson, Wilson, and the alleged offenders, issued written reprimands to certain offenders, and conducted racial harassment training.
Nevertheless, the racial harassment continued. Pranks and sabotage extended to Pearson’s actual work. On several occasions, Pearson had to fill up buckets of resin and catalyst, and bring these heavy buckets to his work station. During his break, the buckets would be taken, causing him to refill and carry other buckets. (Ex. 11).
On April 10, 2007, Pearson discovered in his locker a piece of fiberglass on which the following message was glued: “KKK plans could result in death, serious personal injury, NIGGA BENARd.” (Ex. 13). Pearson immediately went to Green’s office to report the threat, but Green indicated that he was busy and asked Pearson to come back the next day. (Ex. 11 at EEOC – 468). Defendant thereafter queried Pearson as to who he considered possible suspects. Pearson did not know. Defendant then queried Pearson’s shift supervisors who also denied knowledge. Defendant then conducted “compliance training” and notified the workforce that they had found “something” and requested that individuals with knowledge come forward and that immediate action would be taken against the perpetrator. No one came forward. (Green Dep.177-178; 181-182).
Ten days after this incident, Defendant reported the threat to the county sheriff. (Id. 161162). Green informed the sheriff that no other KKK issues had arisen at the plant and he did not
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know any employees with motive to threaten Pearson. (Id. 183-187). The sheriff was unable to identify the offender. After the sheriff’s investigation, Defendant held a meeting with its employees discussing the prohibitions of racial harassment and posted a notice outlining the same. Pearson’s coworkers blamed him for the training and the pranks and racial remarks persisted. (Pearson Dep. 388). In June, 2007, someone again put resin in Pearson’s lock, which had to be replaced. (Ex. 13A). In August, 2007, white co-worker Sam Crone, in front of Pearson, mocked black women as being “nappy-headed hos.”4 (Pearson Dep. 331). Shortly thereafter, when Pearson was climbing a ladder in his work area, Tammy Smith, a white female co-worker, remarked that Pearson looked like the monkey, Curious George. (Id. 334). Pearson left for a better job in February, 2008.
4. Keith Wilson In October, 2005, Keith Wilson, age 45, a black male, joined Defendant as a temporary laborer. In December, 2005, Wilson became a full-time assembler. White co-worker Tammy Smith addressed Wilson as “boy,” “yellow boy,” and “Buckwheat.” (Wilson Dep. 133-134). Smith also referred to Wilson as “Benson,” saying that when she hit the lottery, he could be her butler.5 (Id.). Wilson complained to his immediate supervisor, Shifflett, who promised to take his complaints to Green. But the harassment continued. (Id. 136-137). Like Pearson, Wilson was offended by Bradley’s use of the terms “jungle music” and “nigger music.” (Id. 43). Also, like Pearson, Wilson’s work tools and lunches were repeatedly stolen. (Id. 68-71). In June, 2007, Wilson discovered in his locker a drawing of a stick figure with a noose
4 This incident occurred after there had been much publicity over the firing of celebrity Radio Talk Show host Don Imus for making this racial slur about the Rutgers women basketball players in April 2007. 5 “Benson” is a TV series (1979 to 1986), named after the main character who is a black butler serving a widowed governor and his family. (Wilson Dep. 139-140).
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around its neck next to a caption which read “IH IH MY NIGGER.” (Ex. 14). After Wilson complained about racial harassment, Shifflett began to watch him more closely, constantly monitoring and logging Wilson’s 10 minute and lunch breaks. Wilson felt that his supervisor was trying to catch him in a mistake in order to fire him. (Wilson Dep. 86-87, 92).
During the week of August, 2008, Tammy Smith complained to Wilson about having to clean up her work area and commented that she was “not trying to be nobody’s white nigger.” (Id. 128, 156). Wilson continues to work for Defendant. Currently, Wilson is the only black employee on first shift. His complaints and charge of discrimination, resulting in this lawsuit, have caused him to feel isolated and very uncomfortable at work. (Id.175).
II. ARGUMENT A. Summary Judgment Standards Summary judgment is appropriate only when there is no dispute as to a material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Summary judgment is appropriate only if a rational trier of fact could not find for the non-moving party in light of the record as a whole. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). In making this assessment, “’plaintiff’s version of the facts must be presented where the parties’ versions conflict, at least to the degree that [his] allegations have support in affidavits, deposition or other documentary evidence.’” Magnuson v. Peak Technical Services, Inc., 808 F. Supp. 500, 504 (E.D.Va. 1992)(quoting Paroline v. Unisys Corp., 879 F.2d 100, 102-103 (4th Cir. 1989), vacated in part on other grounds, 900 F.2d 27 (4th Cir. 1990). The discussion below and the evidence in support thereof, show conclusively that Defendant did not exercise reasonable care to prevent and correct promptly racial harassment, and no genuine issue of material fact exists which would support the
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denial of EEOC’s motion for partial summary judgment with respect to Defendant’s “timely and appropriate action” affirmative defense. Accordingly, Defendant’s motion for summary judgment fails and should be denied.
B. Defendant’s Hostile Work Environment is Actionable Title VII forbids an employer from discriminating on the basis of race with respect to terms, conditions, or privileges of employment. See, 42 U.S.C. § 2000e-2(a) (1). The Supreme Court has long recognized that such discrimination includes subjecting an employee, because of a protected characteristic such as the employee's race, to a workplace permeated with unwelcome "discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create a[] [hostile or] abusive working environment." Meritor Sav. Bank, FSB, v. Vinson, 477 U.S. 57, 65-67 (1986); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993) ("[T]he very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII's broad rule of workplace equality."); EEOC v. Central Wholesalers, Inc., _ F.3d _ (4th Cir. March 21, 2009), 2009 WL 2152348, at * 16 (reversing summary judgment where black female was subjected to blue-colored mop-head dolls hanging by nooses tied around dolls’ necks, and daily use of epithets like “nigger” and “bitch”); EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008)("Title VII extends the promise that no one should be subject to a discriminatorily hostile work environment."). Here, EEOC has presented sufficient evidence that Defendant violated Title VII by subjecting Pearson, Wilson, and Graham to an environment which was racially abusive and hostile. EEOC can prove its case by demonstrating that the harassment was (1) unwelcome; (2) based on Pearson, Wilson and Graham’s race; (3) subjectively and objectively severe or pervasive enough to alter the
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conditions of their employment, and (4) imputable to Defendant. Sunbelt Rentals, Inc., 521 F.3d 306, 313-14 (4th Cir. 2008). Each of these elements is established below.
1. The Racial Harassment was Unwelcome. It is undisputed that the relevant comments and conduct in this case unquestionably were unwelcome. This is most clearly demonstrated through Pearson, Wilson, and Graham’s repeated complaints to the perpetrators, co-workers, their supervisors, and even the company’s executive officer, Ron Bachmeier. Accordingly, the first factor is satisfied. Central Wholesalers, Inc., _ F.3d _ (4th Cir. July 21, 2009), 2009 WL 2152348, at *13 (“[C]oncluding that a jury could find the harassment ‘unwelcome’ because the victim ‘indicated to both management and his coworkers that he found the … demeaning conduct to be offensive.’”)(quoting Sunbelt Rentals, 521 F.3d at 314. 2. The Harassment Was Race-Based. The comments and incidents at issue were racially-based. They included overtly racial slurs, and physical threats directed at Pearson, Wilson, and Graham. The Fourth Circuit recognizes that the negative impact of the N-word in the workplace is so severe, that a single utterance of this racial epithet may be enough to create a hostile work environment. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 182, 185-186 (4th Cir. 2001) ("Far more than a 'mere offensive utterance,' the word 'nigger' is pure anathema to African Americans."). Moreover, name-calling incidents like "boy,” “Benson,” Buckwheat," "Curious George," “Nappy Headed Ho,” and references “Jungle Music” and “nigger music” are inherently racially harassing. Cf. Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (even without any clear racial modifier, the use of a pejorative term like “boy” alone could evince the speaker’s racial bias); See White v. BFI Waste Servs., LLC, 375 F.3d 288, 297 (4th Cir. 2004) (terms like “boy, jigaboo, nigger, porch
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monkey, Mighty Joe Young,” and “Zulu warrior” are racial epithets); Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1129, 1131 (4th Cir. 1995) (national origin basis evident where Iranian plaintiff was called “the local terrorist,” a “camel jockey,” “the ayatollah,” and “the Emir of Waldorf”).
3. Racial Harassment at Defendant’s Williamsport Plant Was Severe and Pervasive.
The harassment directed against Pearson, Wilson, and Graham was not isolated incidents, but rather was repeated and ongoing over the course of years. Defendant’s actions in this case span the full spectrum of harassment from name calling, to intimidation, to overt death threats. Indeed, it is axiomatic that racially-motivated death threats, alone, amount to severe and pervasive harassment.
Contrary to Defendant’s arguments, there exists abundant evidence showing that the harassment in this case was sufficiently "severe or pervasive" to be actionable. This test includes both an objective and subjective component. The Supreme Court has explained that the determination of whether the harassment is sufficiently severe or pervasive,
is not, and by its nature cannot be, a mathematically precise test. . . . [W]hether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include 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. . . . [N]o single factor is required.
Harris, 510 U. S. at 22-23; see also Oncale v. Sundowner Offshore Servs, Inc., 523 U.S. 75, 8182 (1998) (similarly stressing the need to look at "all the circumstances" in these cases).
Here, the harassment was subjectively and objectively severe or pervasive. In terms of objectively reasonable, beginning in 1995, Defendant subjected Younger to repeated racially-
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based death threats and slurs. Pearson, Wilson, and Graham similarly were subjected to the daily barrage of “nigger,” “boy, and other racial slurs. The racial slurs were compounded by racebased death threats – a piece of fiberglass on which the following message was glued: “KKK plans could result in death, serious personal injury, NIGGA BENARd” in Pearson’ locker; and just two months later, a drawing of a stick figure with a noose around its neck next to a caption which read “IH IH MY NIGGER,” in Wilson’s locker. The daily barrage of race-based language and depictions, coupled with intimidating staring, stalking, and death threats from the workforce result in an objectively hostile work environment. See Jackson v. Flint Ink N. Am. Corp., 382 F.3d 869, 870 (8th Cir. 2004)(recognizing that graffiti depicting the letters KKK were sufficiently severe given their threatening and intimidating nature.); See, e.g., Tademy v. Union Pac. Corp., 520 F.3d 1149, 1163 (10th Cir. 2008)(concluding "the noose is among the most repugnant of all racist symbols, because it is itself an instrument of violence" and "the noose remains a potent and threatening symbol for African-Americans, in part because the grim specter of racially motivated violence continues to manifest itself in present day hate crimes" (quotation marks and citation omitted)).
In addition to the race-permeated remarks and threats, Defendant’s staring and stalking Graham also contributes to the objectively hostile environment.
[E]ven though a certain action may not have been specifically racial in nature it may contribute to the plaintiff's proof of a hostile work environment if it would not have occurred but for the fact that the plaintiff was African American.
* * * [A] court should not examine each alleged incident in a vacuum, as "[w]hat may appear to be a legitimate justification for a single incident of alleged harassment may look pretextual when viewed in the context of several other related incidents."
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Jackson v. Quanex Corp., 191 F.3d 647, 660, 662 (6th Cir. 1999) (citations omitted). See also, EEOC v. Alton Packaging Corp., 901 F.2d 920, 923 (11th Cir. 1990). Physical threats -- like the unveiled ones made toward Pearson and Wilson in 2007 -- are inherently more severe as well. See id. at n.6 (finding the presence of protected trait-based physical threats "undeniably strengthens a hostile work environment claim").
In terms of subjectively reasonable, it is clear that Pearson, Wilson, and Graham believed their work environment to be racially hostile. All considered the harassment extremely stressful. (Pearson Dep. 149; Graham Dep. 32, 197; Wilson Dep. 174-175); Harris, 510 U. S. at 23. Gatrell admitted and Supervisor Shifflett noted that both Pearson and Wilson had complained that “they were tired of people saying boy to them and other racial slurs.” (Ex. 15). Graham reported that he believed Shifflett was treating him unfavorably because he is black. (Ex. 6, Carty Notes). All asked Plant Manager Green to do something about the race discrimination. These complaints are more than sufficient to satisfy the "subjective" prong of the actionable harassment standard. See EEOC v. R&R Ventures, 244 F.3d 334, 339 (4th Cir. 2001)("In conducting the subjective inquiry we need only look at the testimony of the complaining witnesses."); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) (victim's complaints to supervisors about harassment show he or she believed the environment was hostile or abusive).
The above discussion makes clear that the work environment at Defendant’s Williamsport Plant was both objectively and subjectively hostile. See White, 375 F.3d at 297; Spriggs, 242 F.3d at 182, 185 (ruling that "frequent and highly repugnant insults were sufficiently severe or pervasive (or both) to cause a person of ordinary sensibilities to perceive
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that the work atmosphere . . . was racially hostile").
4. Defendant Failed to Take Prompt and Corrective Action to Remedy Racial Harassment.
An employer will be liable for a hostile work environment created by coworkers6 if it
fails to take "timely and adequate corrective measures after harassing conduct has come to its
attention." Dennis v. County of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995); Howard v. Winter, 446
F.3d 559, 565, 567 (4th Cir. 2006) (citing Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333-
34 (4th Cir. 2003) (en banc)(“employer cannot avoid Title VII liability for coworker harassment
by adopting a ‘see no evil, hear no evil’ strategy.”). The employer must take "prompt remedial
action" which is "reasonably calculated to end" the co-worker harassment. Dennis, 55 F.3d at
155 (citing Paroline v. Unisys Corp., 879 F.2d 100, 106 (4th Cir. 1989)), rev'd in part on reh'g
on other grounds, 900 F.2d 27 (4th Cir. 1990) (en banc)); see also Katz, 709 F.2d at 256 (same).
The employer also must take "'corrective action reasonably likely to prevent the
offending conduct from reoccurring.'" See Harris v. L&L Wings, Inc., 132 F.3d 978, 984 (4th
Cir. 1997) (quoting Knabe v. Boury Corp., 114 F.3d 407, 414 (3d Cir. 1997)). In Howard, the
Court emphasized that Title VII "places significant responsibilities on employers in reasonably
responding to employee allegations" of harassment. Id. at 571. The Court observed that
6 To avoid liability for supervisory harassment, Defendant must meet the burden of proof as set forth in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998):
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages subject to proof by a preponderance of the evidence.... The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. For the reasons discussed in part C., below, there is no dispute that black employees complained about supervisory harassment and that Defendant failed to exercise reasonable care to prevent and correct promptly the racially harassing conduct.
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"[w]here, as here, the employer's supervisory personnel manifested unmistakable acquiescence in or approval of the harassment, the burden on the employer seeking to avoid liability is especially heavy." Katz, 709 F.2d at 256.
Despite the numerous complaints to Defendant, it simply failed to take prompt remedial action. Defendant ignored Pearson’s repeated oral complaints about the harassment, until after Pearson advised Green that he would seek the assistance of counsel. Despite knowing about Pearson’s and Wilson’s complaints as early as February 2, 2006, Green waited until June 30, 2006 to refer the matter to Defendant’s Chief Financial Officer and EEO Coordinator Ronald Bachmeier. (Green Dep. 197; Bachmeier Dep. 45-50; 70-71). Even then, Defendant’s response was markedly deficient. Bachmeier failed to conduct a complete and proper investigation. He failed to credit Gradian Graham, who heard Churchey use the N-word many times. Worse, many of the witnesses identified by Pearson and Wilson were not interviewed. For example, both Green and Bachmeier failed to interview Acree, a witness to Floyd Myers’ daily use of the Nword. Instead, Bachmeier accepted at face value Floyd Myers’ blanket denial of the allegations. Cf. Howard, 446 F.3d at 570 n.10 (providing that the adequacy of the "employer's response must always be viewed in light of what it actually knew or should have known at the time of its response").
The Fourth Circuit has held that an employer will be on actual notice of harassment if a victim makes "repeated, specific complaints" to managers. See L&L Wings, Inc., 132 F.3d at 982. Pearson, Wilson, and Graham complained repeatedly to Plant Manager Green about the harassment. Shifflett, Ngee, and Carty -- all Defendant managers -- witnessed, or were told about it. See Howard, 446 F.3d at 569 (one conversation with a human resources representative was sufficient to put the employer on actual notice); Katz v. Dole, 709 F.2d 251, 255 (4th Cir.
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1983) (actual knowledge can be shown by "proving that complaints about the harassment were

lodged with the employer"). In addition, given the long history of racial hostility at Defendant

Williamsport Plant, and the sheer quantity of racial slurs would have put any reasonable

employer on notice that blacks were being harassed.

The above discussion makes clear that all the elements of a coworker created racially

hostile work environment, are established.

C. Defendant’s Defense and Failure to Establish Affirmative Defense

Defendant’s defense and its reasonable care affirmative defense that it “took timely and

appropriately responsive action” to prevent harassment from occurring are without merit and no

genuine issue of material fact exists under which this Court should allow Defendant’s affirmative

defense issue to go to a jury. Each of Defendant’s defenses is addressed below.

Defendant disputes the severe or pervasive nature of the harassment. In response to the

abundant evidence supporting a hostile work environment, Defendant denies that such an environment existed for Graham and Pearson.7 For example, it disputes the daily use of the term

“nigger” and argues that it immediately responded to stop this harassment. Defendant’s

argument, however, is belied by witness accounts that the term “nigger” was used daily in the

workplace. For example, April Acree made the following declaration:

1.

I am a white female and a former employee of Xerxes Corporation located

in Williamsport, Maryland. The following information is based on my personal

knowledge.

2.

I was employed by Xerxes Corporation for approximately one and one-half

years beginning in 2004 and ending in 2006. While employed at Xerxes, I worked

in the man-hole cover production area in the back of the production facility near the

testing area where Floyd Myers, a white male, worked.

7 Defendant does not dispute that Wilson experienced severe or pervasive harassment. (See, Defendant Br. At 3639).
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3.

I heard Floyd Myers use the word “nigger” on a daily basis and frequently

in the presence of Bernard Pearson, a black male co-worker.

4.

When I played hip-hop music on my work-area radio and CD player, Bob

Churchey, a white male, Lead Production worker, frequently made the comment that

I was listening to “nigger music.”

5.

Mr. Churchey often watched me when I would speak to Mr. Pearson. Once

after seeing my child, who is black, Mr. Churchey asked me, “Why do you want to

mess with niggers?”

6.

Floyd Myers stated that Mr. Churchey often referred to me as a “nigger-

lover.” Floyd Myers made this statement in the presence of me and Mr. Pearson,

who became upset with Mr. Myers because of the way that he was repeating

“nigger-lover” while denying that the words were his.

7.

Because I felt offended by Floyd Myers and Mr. Churchey’s racial

comments, I complained to Xerxes Supervisor, Todd Edgerton. Mr. Edgerton said

he would report my complaints to Mr. Wayne Green, who was the Plant Manager.

8.

Neither Mr. Green, nor anyone else in Xerxes’ upper management, spoke to

me about my complaints regarding Mr. Myers and Mr. Churchey’s racial comments.

(Ex.16, Declaration of April Acree). Even Plant Manager Green knew that Gatrell used the term
“nigger” in the presence of Pearson. In his handwritten notes of an interview with white
employee Dennis Shade, Green wrote, Worked on 2nd shift for month or so (month & ½?) and worked next to beam where
Amber Gatrell and Bernard Pearson working
Heard Amber use “N” word 3 or 4 times did not remember context or if spoken directly to Bernard, But knew he (Bernard) was in area.
(Ex.17 ). Evidence which corroborates the testimony of the claimants only bolsters the fact that a hostile work environment existed.8

8 The case Defendant cites on this issue, Br.38, is easily distinguishable on its facts. In Carter v. Ball, 33 F.3d 450, 461-62 (4th Cir. 1994), this Court faulted the plaintiff for failing to substantiate his discrimination claim with even the barest of details about dates, times, or circumstances. Here, by stark contrast, the specifics about the incidents in question, the precise epithets used, and their effect on Graham, Pearson, and Wilson’s working environment, have been well detailed.
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While Defendant now prides itself on its written reprimands of Myers and Gatrell (while simultaneously denying that any racially harassing behavior occurred), such written reprimands were nonsensical and ineffective. Both Myers and Gatrell received two-day suspensions and were advised that sexual harassment (not racial harassment) was the reason for their discipline. (Exs. 18 and 19). Gatrell did not understand why she was being suspended, but did not care, as she was able to take her two days off at her convenience, (Gatrell Dep.109-112). With regard to Bradley who described Wilson’s music as “Jungle Music,” Defendant issued a written warning advising him not to do it again. (Ex. 20 ). Similarly, Tammy Smith, who used the terms, “Buckwheat,” “Benson,” “Curious George,” and “white nigger” received only a written warning, and thus, was not really disciplined in any other meaningful way. (Ex. 21). Defendant’s policy provided that any individual found to have engaged in harassment would be subject to disciplinary action. But Defendant never once imposed written discipline on Churchey, despite his frequent use of “nigger,” “nigger-lover,” and “nigger music.”
It is no surprise that Defendant’s purported corrective measures were feeble, based on the intensity of the harassment and the undisputed fact that Plant Manager Green, charged with investigating complaints at Defendant’s Williamsport Plant, had no training to do so. (Green Dep. 423). Indeed, whatever steps Defendant took after Pearson, Wilson, and Graham’s complaints were completely ineffective, because the hostile work environment exacerbated each time any one of them complained. Indeed, several co-workers ignored Defendant’s company policies and instructions given during Defendant’s so-called “compliance training” to refrain from racial harassment and retaliation against blacks in the workplace. Smith, a repeat offender, remarked to Pearson that he looked like “Curious George” and complained in Wilson’s presence
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that she was not a “white nigger.” Sam Crone commented about “Nappy-Headed Hos” in Pearson’s presence.
Defendant further argues against liability based on the existence of its anti-harassment policy and that it took action after Pearson and Wilson complained. Defendant's policy alone cannot allow Defendant to escape liability if, as here, there was a failure to effectively implement its policy. See Central Wholesalers, Inc., _ F.3d _ (4th Cir. July 21, 2009), 2009 WL 2152348, at *18 (“This is not a case where employer took no action in response to employee’s complaints” such as investigations into the victim’s complaints, but because they “failed to respond in a timely manner or failed to respond at all ” and “remedial efforts proved completely ineffective” summary judgment was not warranted); see also USFHolland, 526 F.3d at 887 (despite numerous examples of corrective action, including conducting employee meetings to respond to plaintiffs’ complaints and even disciplining responsible employees, defendant could not escape liability). Here, despite his numerous complaints and the actions Defendant took in response, Pearson testified that it did not stop; indeed, the harassment even escalated. Also, Green was slow to investigate, and admittedly was not even trained to handle or investigate, and therefore was totally ineffective at stopping the harassment, and at best only served to intensify the harassment against blacks. Defendant should not be permitted to proceed with any claim that it exercised reasonable care to prevent racial harassment, when it did not even train the person designated to receive complaints of racial harassment.
Defendant’s total ineptness at stopping racial harassment belies any suggestion that Defendant was truly interested in remedying the hostile work environment. Green’s failure to appropriately investigate complaints of supervisory racial harassment is evident in the case of Graham. When Graham complained, Green responded by threatening termination of Graham.
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Green refused to believe Graham’s race was an issue after Graham complained about supervisor Shifflett. He refused to treat seriously supervisor Shifflett's stalking and strange stares at Graham, and instead credited Shifflett’s self-serving denial of the incident. Defendant’s sustained indifference to racially hostile work environment allowed such environment to thrive.
CONCLUSION For reasons stated above, EEOC requests that the Court deny Defendant’s motion for summary judgment. Also, EEOC should be granted partial summary judgment with respect to Defendant’s reasonable care affirmative defense.
Respectfully submitted, /s/
DEBRA M. LAWRENCE Regional Attorney (Acting)
/s/ REGINA M. ANDREW Trial Attorney, Bar No. 07756 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Baltimore Field Office 10 S. Howard Street Baltimore, Maryland 21201 (410) 209-2724
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 Case 1:08-cv-01882-CCB Document 50 Filed 11/30/09 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

:

EQUAL EMPLOYMENT OPPORTUNITY :

COMMISSION

:

:

v.

:

:

XERXES CORPORATION

:

:

...o0o...

Civil Action No. CCB-08-1882

MEMORANDUM

Now pending before the court is a motion for summary judgment, filed by defendant Xerxes Corporation (“Xerxes”), and a motion for partial summary judgment filed by the Equal Employment Opportunity Commission (“EEOC”). The EEOC brings this lawsuit on behalf of Keith Wilson, Albert Bernard Pearson, and Gradian Graham, asserting that Xerxes violated Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., by creating a hostile work environment for these employees because of their race. The issues in this case have been fully briefed and the court heard oral argument on November 5, 2009. For the reasons stated below, Xerxes’ motion for summary judgment will be granted and the EEOC’s motion for partial summary judgment will be denied.

BACKGROUND The EEOC claims that Xerxes violated Title VII by creating a racially hostile work environment for three African-American employees: Keith Wilson, Albert Bernard Pearson, and Gradian “Roy” Graham. All of the plaintiffs were employed at Xerxes’ plant in Williamsport, Maryland during the events at issue in this case. Mr. Wilson began working for Xerxes in October 2005 and currently remains employed there. Xerxes hired Mr. Pearson as a full-time employee in

Case 1:08-cv-01882-CCB Document 50 Filed 11/30/09 Page 2 of 17
June 2005, after he had served as a temporary worker since April 2005. Mr. Pearson resigned in February 2008. Mr. Graham began working for Xerxes in August 2004 and was terminated on April 18, 2007.
I. Gradian “Roy” Graham Mr. Graham alleges that coworker Robert Churchey routinely used the word “nigger” in his
presence. Mr. Graham claims to have complained to Plant Superintendant Greg Carty, who never responded. In Mr. Graham’s deposition, however, he was unable to recall precisely what Mr. Churchey said to him and when he might have said it. (See Def.’s Resp. 16 (citing Graham Dep. 9899).)
Mr. Graham also alleges a pattern of intimidation that was not clearly racially motivated. Mr. Graham claims that a group of men followed him home at some point in 2005. In addition, Mr. Graham asserts that Shift Supervisor Robert Shifflett stared at him at work and watched him while he was inside of a bathroom stall. On January 19, 2007, Mr. Graham complained about the staring to Mr. Carty and explained that he believed it to be racially motivated. Mr. Carty and Plant Manager Wayne Green met with Mr. Graham on January 26, 2007 to discuss his allegations, and Mr. Green concluded that no racial harassment had taken place. On January 30, 2007, Mr. Graham told Mr. Carty that Mr. Shifflett had peered under a bathroom stall to watch him while he was inside. Mr. Graham identified coworker Tony Yung as a witness. Mr. Carty subsequently investigated the allegation and spoke with Mr. Yung, who contradicted Mr. Graham’s account.1 On February 1, 2007, Mr. Green, Mr. Carty, Mr. Graham, and union steward Mark Shaffer met to discuss the bathroom allegation. At the meeting, however, Mr. Graham changed his story and claimed instead 1 The EEOC suggested at the hearing that Mr. Yung was unable to confirm Mr. Graham’s allegations because of a language barrier. The EEOC has not presented any evidence in support of this contention.
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that Mr. Shifflett had watched him through the cracks in the door of the bathroom stall. On March 8, 2007, Mr. Green concluded that Mr. Graham had filed a false report and disciplined him with a final warning in light of this event and prior complaints of disruptive behavior and insubordination. (See Pl.’s Cross Mot. Ex. 8.) Xerxes eventually terminated Mr. Graham on April 18, 2007, because of his poor attendance record. (See Pl.’s Cross Mot. Ex. 9.)
II. Albert Bernard Pearson According to the EEOC, Mr. Pearson was subjected to racial slurs soon after joining Xerxes.
Mr. Pearson claims that coworker Floyd Myers frequently called him a “black Pollack” and a “boy” while pantomiming cracking a whip at him. Mr. Pearson also alleges that coworker Amber Gatrell often used the word “nigger” in his presence. The EEOC asserts that Mr. Pearson complained to Mr. Shifflett about this conduct “[w]ithin weeks of becoming permanent with [Xerxes].” (Pl.’s Cross Mot. 6.) Yet in response to a question about when he lodged his first complaint, Mr. Pearson stated during his deposition: “I don’t remember the timing or whatever, but I know it was a while after [being hired as a permanent employee]” and “I can’t really remember the exact month or date or anything…” (Pl.’s Cross Mot. Ex. 1 Pearson Dep. 94.) After this initial complaint proved fruitless, Mr. Pearson went up the chain of command to Mr. Carty. According to Mr. Pearson, Mr. Carty claimed that Mr. Shifflett never passed along Mr. Pearson’s complaints to him. Mr. Carty allegedly told Mr. Pearson to keep quiet about the harassment and that he would take care of it. Mr. Pearson asserts that the harassment intensified after Mr. Wilson began working at the Williamsport plant in October 2005, with Ms. Gatrell and Mr. Myers repeatedly referring to both Pearson and Wilson as “boy” and “nigger.” Mr. Myers also allegedly called white coworker April Acree a “nigger-lover” in Mr. Pearson’s presence.
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Xerxes asserts that after Mr. Wilson complained to Mr. Shifflett about similar derogatory language in January or February of 2006, Mr. Shifflett met with Ms. Gatrell and she subsequently apologized to both Mr. Pearson and Mr. Wilson. The EEOC claims that Mr. Green learned of Mr. Pearson’s complaints of harassment on February 2, 2006 and took no action.
Mr. Pearson also describes several pranks coworkers played against him, although he does not specify the dates on which these pranks occurred. On about three occasions, someone turned the bathroom lights off and threw wet toilet paper at Mr. Pearson while he was using the toilet. Mr. Pearson describes another instance where someone covered the bathroom doorknob with gel, so that he had difficulty opening the door to turn the lights on. Mr. Pearson also claims that someone hid his tool box on two different occasions, placed resin on his lock so that he could not open it on seven different occasions, and stole his diary logging these incidents from his locker another time. In addition, Mr. Pearson asserts that someone often threw away his lunch and stole buckets of resin and catalyst from his work station during breaks.
Mr. Pearson claims that in May 2006, he complained to Mr. Green about the use of the terms “jungle music” and “nigger music” by white coworkers Terry Smith and Brian Bradley. In June 2006, Mr. Pearson filed a complaint with the Maryland Commission on Human Relations. Soon after, Mr. Green contacted Xerxes’ General Counsel Craig Peterson, who relayed the information to Ronald Bachmeier, Xerxes’ Chief Financial Officer and EEO Coordinator at the time. In July 2006, Mr. Bachmeier flew to the Williamsport Plant to conduct an investigation.
Xerxes claims that Mr. Bachmeier initially tried to interview Mr. Pearson on July 5, but that Mr. Pearson refused to speak with him. Mr. Pearson did agree to speak with Mr. Bachmeier on July 6. Mr. Bachmeier also conducted interviews with about 15 other employees and various supervisors. He stated in his affidavit that the supervisors “credibly disputed Mr. Pearson’s
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contention that he spoke to them or Mr. Pearson’s version of their communications.” (Def.’s Summ. J. Mem. Ex. 3, Bachmeier Aff. ¶ 17.) Mr. Bachmeier also concluded that Mr. Myers and Ms. Gatrell had made racially derogatory remarks to Mr. Pearson and subsequently issued them written Notices of Disciplinary Suspension and Final Warnings. Both Mr. Myers and Ms. Gatrell were punished with two days of unpaid suspension. Mr. Bachmeier further found that although Mr. Bradley had referred to certain music as ‘jungle music,” he had not intended this as a derogatory remark. Because of Mr. Bradley’s previously untarnished disciplinary record, Xerxes issued him a written Disciplinary Warning, required him to attend additional anti-harassment training, and did not issue him any suspension. Mr. Bachmeier also concluded that Tammy Smith had used the term “Buckwheat” while talking to a different African-American employee, but that she did not intend to use the term in a derogatory manner. Instead, Mr. Bachmeier found that she was simply referring to a television show character. Accordingly, Mr. Bachmeier provided Ms. Smith with verbal counseling and required that she undergo additional anti-harassment training. On July 25, 2006, Mr. Bachmeier conducted retraining sessions on the company’s equal employment opportunity (“EEO”) policy for both supervisors and employees. Mr. Green wrote Mr. Pearson a memorandum outlining the steps Xerxes had taken to investigate and remedy the harassment and thanked Mr. Pearson for coming forward with his complaints.
The EEOC claims that these written warnings were ineffective because they explained to employees that they were being disciplined for sexual, rather than racial, harassment. (See Def.’s Resp. Exs. 3-4.) Indeed the first two paragraphs of the warning letters appear to have been copied from a standard letter relating to sexual harassment, as they specify the company’s position against this type of harassment. (See id.) Xerxes points out, however, that despite these errors, the letter later specifies that the employee “shall not make any racially hostile, offensive, or intimidating
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remarks, gestures, or engage in any conduct, of any type, which is racially offensive.” (Def.’s Resp. 7 (citing Exs. 3-4).) Furthermore, Ms. Gatrell acknowledged in her deposition that she understood she had been disciplined for racial harassment. (Def.’s Resp. 8 (citing Ex. 1, Gatrell Dep. 130-31).)
After this incident, Mr. Green claims to have checked with Mr. Pearson periodically to ensure that he had no further complaints of harassment. Mr. Pearson instead alleges that Ms. Gatrell continued to harass him upon her return to work and that Mr. Carty knew of this and did nothing. On April 10, 2007, Mr. Pearson found a piece of fiberglass in his locker with the message, “KKK plans could result in death, serious personal injury, NIGGA BENARd” glued on it. (Pl.’s Cross Mot. 8. (describing Ex. 13).) Mr. Pearson claims that he immediately reported the threat to Mr. Green, who told him that he was busy and that he should return the following day. Xerxes, however, asserts that after Mr. Green learned of the fiberglass incident from plant management, he sought out Mr. Pearson to learn more about what had occurred. According to Mr. Green, Mr. Pearson refused to cooperate with his investigation and insisted on contacting his own attorney. Mr. Pearson eventually allowed Mr. Green to photograph the fiberglass piece.
Mr. Green enlisted the assistance of the Washington County Sheriff’s Office on April 20, 2007. On April 25, Mr. Pearson filled out a Charge Information Questionnaire with the EEOC, although he did not mention the fiberglass incident in the questionnaire. (See Pl.’s Cross Mot. Ex. 10.) Deputy James Robert Grimm visited the Xerxes plant on April 26 to conduct an investigation and interviewed Mr. Pearson. The Sheriff’s Office was ultimately unable to determine the source of the threatening fiberglass piece. Mr. Green claims to have continued the internal investigation of the incident by interviewing individual employees and holding an all-staff meeting, in which he led a retraining on the company’s EEO policies. Mr. Pearson asserts that his coworkers blamed him for the retraining and continued to harass him. Mr. Green also posted a memorandum reminding
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employees of Xerxes’ anti-harassment policy. Mr. Green claims that when he checked in with Mr. Pearson on June 1, 2007, Mr. Pearson indicated his approval of the Sheriff’s investigation. Mr. Green’s file memorandum from that day, however, reveals that Mr. Pearson complained to him that someone had put resin on his lock. Mr. Green indicates in the memorandum that he offered to replace Mr. Pearson’s lock.
Mr. Pearson’s final claims of harassment arose in August 2007. Coworker Sam Crone referred to African-American women as “nappy-headed hos” in Mr. Pearson’s presence. In addition, Mr. Pearson alleges that Tammy Smith told him he looked like the monkey Curious George as he was climbing a ladder. Mr. Pearson does not claim to have reported these incidents to anyone at Xerxes.
Despite Mr. Pearson’s allegations of harassment, Xerxes points to several instances in which Mr. Pearson indicated that he was satisfied with his job. When Mr. Pearson recruited Mr. Wilson to work at the Williamsport Plant in October 2005, for example, he told Mr. Wilson that Xerxes was “a good place to work at.” (Def.’s Summ. J. Mem. Ex. 1, Wilson Dep. 34.) According to Mr. Wilson, “everything [Mr. Pearson] had to say was good,” and he “didn’t say nothing negative about the job.” (Id.) In addition, Mr. Pearson withdrew the charge of discrimination he had filed with the Maryland Commission on Human Relations after Mr. Bachmeier’s visit to the plant in July 2006. Mr. Pearson, however, alleges that he was tricked into withdrawing his claim by Catherine Scaggs, a Commission employee. (See Pl.’s Cross Mot. Ex. 11.) Xerxes also points to the voicemail message that Mr. Pearson left for Mr. Green after he resigned in February 2008 as evidence of Mr. Pearson’s job satisfaction. In the message, Mr. Pearson explains that he is leaving to work at a correctional facility, but would like to know if he could return to Xerxes if he does not like his new
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job. (See Def.’s Summ. J. Mot. 3.) After accepting this job at the correctional facility, Mr. Pearson did not return to the Williamsport Plant.
III. Keith Wilson Mr. Wilson’s allegations of harassment began in October 2005, when just a few weeks after
starting his new job, coworkers threw away his lunch on several occasions. He believed the harassment to be racially motivated because it only happened to Mr. Pearson and him, the only African-American employees on their shift. Mr. Wilson reported the problem to Mr. Shifflett, who did nothing according to Mr. Wilson. Mr. Wilson never reported the incidents further up the chain of command to Mr. Carty or Mr. Green.
In January or February of 2006, after Ms. Gatrell began calling Mr. Wilson “boy,” Mr. Wilson again claims to have complained to Mr. Shifflett. Mr. Wilson asserts that Mr. Shifflett promised to take his complaints to Mr. Green, but that the harassment continued. In response, Mr. Shifflett met with Ms. Gatrell, who explained to him that she did not intend to use the word “boy” in a derogatory manner. Ms. Gatrell later apologized to both Mr. Wilson and Mr. Pearson. Mr. Wilson claims that Mr. Myers called him “boy” immediately after this incident, but that he apologized the following day. Mr. Wilson complained to Mr. Green about these remarks some time during this period as well. Later in February, Mr. Green held a meeting for everyone on Mr. Wilson’s shift about Xerxes’ prohibition on harassment. Mr. Wilson claims that the harassment grew worse after this meeting.
The EEOC asserts that, like Mr. Pearson, Mr. Wilson was offended by Mr. Bradley’s references to “jungle” and “nigger” music. Mr. Wilson states in his deposition that Mr. Bradley referred to rap music as “some type of African music or something like that” and that he was “kind of offended, but I thought it was—like, I didn’t really pay him too much attention…” (Pl.’s Cross
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Mot. Ex. 1, Wilson Dep. 43.) According to Mr. Pearson’s account, these remarks occurred around May 2006. Mr. Myers and Mr. Bradley were all eventually disciplined in July 2006, after Mr. Bachmeier’s visit to the plant.
After Mr. Bachmeier’s visit, all was quiet for Mr. Wilson until June 11, 2007, when he found a note in his locker with a stick figure drawing of a person hanging by a noose. Next to the drawing, the note contained the writing, “IH IH MY NIGGER.” (Pl.’s Cross Motion Ex. 14.) Mr. Wilson reported the note to Mr. Shifflett, who copied it and informed Mr. Green about it. Mr. Green then held a meeting with Mr. Wilson. Mr. Wilson contacted the EEOC around this time period and told the EEOC attorney that Xerxes’ only response to the incident had been from Mr. Green, who simply instructed him to let him know if anything else happened.
At some point, Mike Zais, Xerxes’ new EEO Coordinator, learned of this incident and flew to the plant in August 2007 to investigate. Mr. Zais spent three days in Hagerstown and interviewed eight employees. In Mr. Zais’s August 30, 2007 letter to Mr. Wilson, he explained the remedial steps he had taken, including: contacting the Sherriff’s Office about the drawing, conducting a retraining for all supervisors, taking strong disciplinary action against three employees who had made harassing statements, advising the union representative of Xerxes’ policy against harassment, and speaking with individual employees about their language. (See Def.’s Summ. J. Mem. Ex. 3, Green Aff. Ex. G.)
Mr. Wilson claims that after lodging his harassment complaints, Mr. Shifflett began to watch him more closely during his breaks. Mr. Wilson believed that Mr. Shifflett was waiting for him to make a mistake so he could be fired. On August 25, 2008, Ms. Smith allegedly told Mr. Wilson that she was “not trying to be nobody’s nigger” because she was upset about having to clean up her work area. (Pl.’s Cross Mot. Ex 1, Wilson Dep. 128, 156.) Mr. Wilson claims to have
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reported the incident to Mr. Shifflett. However, Xerxes asserts that its management first learned of Ms. Smith’s remarks from the EEOC on September 17, 2008. On October 31, 2008, Mr. Green wrote Mr. Wilson a memorandum outlining the steps he had taken to investigate the derogatory comments that Ms. Smith had allegedly made. (See Def.’s Summ. J. Mem. Ex. 3, Green Aff. Ex. H.) Mr. Green concluded the memorandum by stating that Mr. Wilson’s claim could not be substantiated. (See id.) He also reminded Mr. Wilson of the importance of promptly reporting any allegations of harassment. (See id.)
*** Xerxes has moved for summary judgment on two grounds. First, Xerxes argues that liability may not be imputed to it based on coworker harassment because it acted promptly and effectively to eliminate the harassment once it learned of the allegations. Second, Xerxes claims that the harassment experienced by the plaintiffs was insufficiently severe and pervasive to substantiate a hostile work environment claim under Title VII. The EEOC has filed a cross motion for partial summary judgment, arguing that Xerxes’ affirmative defense regarding its response to charges of harassment fails as a matter of law. The EEOC also opposes Xerxes’ motion for summary judgment.
ANALYSIS Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment Ashould 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). The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion. ABy its very terms, this standard provides that the mere
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existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.@ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
AA party opposing a properly supported motion for summary judgment >may not rest upon the mere allegations or denials of [his] pleadings,= but rather must >set forth specific facts showing that there is a genuine issue for trial.=@ Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). The court must Aview the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witnesses= credibility,@ Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002), but the court also must abide by the Aaffirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.@ Bouchat, 346 F.3d at 526 (internal quotations omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
To succeed on a claim for a racially hostile work environment, the employee must show that the harassment was: 1) unwelcome, 2) based on race, 3) sufficiently severe or pervasive to alter the conditions of employment, and 4) there was some basis for imposing liability on the employer. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183-84 (4th Cir. 2001). Although the first element is subjective, the other elements are objective, based on a “reasonable person” standard. Pueschel v. Peters, 577 F.3d 558, 565 (4th Cir. 2009). In determining whether conduct is sufficiently severe and pervasive, the courts look to the “totality of the circumstances,” including 1) the frequency of the discriminatory conduct, 2) the severity of the conduct, 3) whether the conduct was physically
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threatening, humiliating, or a mere offensive utterance, and 4) whether it unreasonably interferes with an employee's work performance. See Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998).
The court will assume without deciding that the EEOC has satisfied the first three elements of its hostile work environment claim.2 For the purposes of determining employer liability, workplace harassment by coworkers is treated differently from harassment by supervisors with authority over the employee. See Howard v. Winter, 446 F.3d 559, 565 (4th Cir. 2006). When a supervisor harasses an employee, the employer is vicariously liable for the harassment, but may assert limited affirmative defenses. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). If a coworker is responsible for the harassment, however, a negligence standard applies such that the employer will only be liable if “it knew or should have known about the harassment and failed to take effective action to stop it.” Ocheltree v. Scollon Prod., Inc., 335 F.3d 325, 333-34 (4th Cir. 2003) (en banc).
An employer cannot avoid liability under Title VII by willfully ignoring harassment. See id. at 334. Therefore, an employer will be charged with “constructive knowledge of coworker harassment when it fails to provide reasonable procedures for victims to register complaints.” Id. Once the employer is aware of the harassment, it must “respond with remedial action ‘reasonably calculated to end the harassment.’” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008) (quoting Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1131-32 (4th Cir. 1995)). As proving employer liability is part of the plaintiff’s prima facie case, the plaintiff has the burden of demonstrating that the defendant failed to reasonably respond. See EEOC v. Central 2 If it becomes necessary at some future point to decide whether the harassment was severe and pervasive, the court doubts that the sporadic instances of harassment experienced by Mr. Graham would meet this threshold.
12

Case 1:08-cv-01882-CCB Document 50 Filed 11/30/09 Page 13 of 17
Wholesalers, Inc., 573 F.3d 167, 177 (4th Cir. 2009) (noting that “the EEOC must establish a basis for imposing liability on” the defendant employer in a case involving coworker harassment) (internal quotations omitted).
The harassment in this case was committed by coworkers, and thus the EEOC must prove that Xerxes was aware of the harassment, but negligently failed to take effective action to stop it.3 The record, however, reveals that whenever Xerxes learned of harassment, it acted quickly and reasonably effectively to end it. Instances where Xerxes was unaware of the harassment were not caused by willful ignorance, but by the complainants’ failure to notify Xerxes’ management. In these cases, as soon as Xerxes’ management learned of the harassment, it acted immediately to investigate and attempt to prevent the harassment from happening again in the future.
Soon after Mr. Wilson complained to Mr. Shifflett about Ms. Gatrell’s racist comments in January or February of 2006, Mr. Shifflett met with Ms. Gatrell, who subsequently apologized to both Mr. Wilson and Mr. Pearson. In addition, although Mr. Myers called Mr. Wilson “boy” shortly after Ms. Gatrell’s apology, Mr. Wilson reported this comment to Mr. Shifflett and Mr. Myers apologized to Mr. Wilson the following day. Once Mr. Green learned of these complaints in February 2006, he held a meeting for everyone on Mr. Pearson and Mr. Wilson’s shift, explaining Xerxes’ position on harassment and warning employees that they would be disciplined for racially harassing others. Mr. Wilson claims that the harassment grew worse after this meeting, but he does not appear to have reported any further incidents of harassment to his supervisors. Given the plant
3 Mr. Graham alleges that Mr. Shifflett, a supervisor, harassed him by staring at him and following him to the bathroom. As this alleged harassment does not appear to have been racially-motivated, however, it falls outside the purview of Title VII and cannot form the basis for employer liability in this case.
13

Case 1:08-cv-01882-CCB Document 50 Filed 11/30/09 Page 14 of 17
supervisors’ prompt response to these allegations of harassment,4 it is reasonable that upon hearing no further complaints of harassment, Mr. Green concluded that the harassment had ended. In addition, the fact that Xerxes had a written policy prohibiting racial and sexual harassment and outlining a reporting procedure, indicates that Xerxes did not ignore racial harassment at the plant after February 2006. (See Def.’s Summ. J. Mem. Ex. 3, Bachmeier Aff. Ex. A.)
The EEOC alleges that Mr. Pearson complained to Mr. Green about Mr. Smith and Mr. Bradley’s use of the terms “jungle music” and “nigger music” in May 2006. The exhibit that the EEOC cites to support this allegation, however, does not contain any date and neither does Mr. Pearson’s deposition. (See Pl.’s Cross Mot. Ex. 1, Pearson Dep., Ex. 11.) Mr. Pearson mentioned in his deposition that he told Mr. Bachmeier about these incidents during his trip to the plant in July 2006. (See Pl.’s Cross Mot. Ex. 1, Pearson Dep. at 315.) This was after Mr. Bachmeier flew to the plant to investigate charges of racial harassment upon learning of Mr. Pearson’s complaint filed with the Maryland Commission on Human Relations.
Mr. Bachmeier effectively responded to these allegations of harassment by interviewing numerous employees, issuing Ms. Gatrell and Mr. Myers written notices of Disciplinary Suspension and Final Warning, accompanied by two days of unpaid suspension, issuing Mr. Bradley a writing Disciplinary Warning, providing Ms. Smith with verbal counseling, and conducting EEO retraining sessions for all employees and supervisors at the plant. Despite the accidental references to “sexual” rather than “racial” harassment in certain parts of the disciplinary letters, it is clear that the employees who received these letters knew they were being disciplined for racial, not sexual, 4 Although the EEOC alleges that Mr. Pearson complained to Mr. Shifflett about racial harassment by Ms. Gatrell and Mr. Myers as early as the summer of 2005, Mr. Pearson was unable to provide any estimate as to the month in which this occurred in his deposition. Accordingly, the court will not consider this factually unsupported allegation in determining the promptness of Xerxes’ response to complaints of harassment.
14

Case 1:08-cv-01882-CCB Document 50 Filed 11/30/09 Page 15 of 17
harassment. In contrast to the prompt remedial measures taken by Mr. Bachmeier upon learning of the harassment at the plant, Mr. Pearson initially refused to talk to Mr. Bachmeier when he arrived at the plant to conduct the investigation. Mr. Bachmeier persisted, however, and convinced Mr. Pearson to talk to him the following day. Finally, Mr. Bachmeier wrote Mr. Pearson a letter outlining all the ameliorative steps he had taken and thanking him for coming forward with his complaints.
Xerxes’ pattern of earnestly responding to allegations of harassment continued as the harassment grew more severe. When Mr. Pearson found the threatening fiberglass piece in his locker on April 10, 2007, Mr. Green responded by notifying the Sherriff’s Office ten days later. Although the EEOC argues that ten days was too long a delay, Mr. Green apparently had trouble gathering information from Mr. Pearson, who initially refused to speak with him about the fiberglass. In addition, Mr. Pearson never attempted to enlist the help of the Sherriff’s Office himself. Mr. Pearson’s only response to the incident was filing a charge of harassment with the EEOC on April 25. In addition to allowing the Sherriff’s Office access to the plant to conduct its investigation, Mr. Green initiated his own investigation by interviewing employees and holding an all-staff meeting where he asked employees to come forward with information. At the meeting, Mr. Green also retrained employees on the company’s EEO policy and followed up by posting the policy around the plant. Mr. Green subsequently checked in with Mr. Pearson to keep apprised of any new instances of harassment. When he learned on June 1, 2007 about someone putting resin on Mr. Pearson’s lock, he offered to replace the lock. These proactive steps to address and learn of new incidents of harassment indicate Xerxes’ commitment to stopping racial harassment at the plant.
In response to the stick figure drawing that Mr. Wilson found in his locker in June 2007, Mr. Green met with Mr. Wilson and later notified Mr. Zais, Xerxes’ new EEO Coordinator. Mr. Zais
15

Case 1:08-cv-01882-CCB Document 50 Filed 11/30/09 Page 16 of 17
flew to the plant in August where he interviewed employees, enlisted the help of the Sherriff’s Office, retrained all supervisors on their responsibility to stop harassment, disciplined three employees who had made racist statements, advised the union representative that Xerxes would take strong disciplinary action in response to racial harassment, spoke with individual employees about their language, and posted notices about Xerxes’ prohibition on harassment. Mr. Zais then wrote Mr. Wilson a letter outlining all these steps and thanking him for coming forward with his complaints. Given Xerxes’ collective bargaining agreement with the employees’ union, it is difficult to imagine what further steps Xerxes might have taken to discipline employees or to prevent future instances of harassment. (See Def.’s Summ. J. Mem. 4.) Indeed, when asked in an interrogatory what more Xerxes could have done to stop the harassment, the EEOC did not provide a single suggestion. (See Def.’s Resp. Ex. 5 at 6.)
Xerxes’ practice of conducting internal investigations and notifying law enforcement in cases of especially severe and threatening harassment hardly portrays a company trying to ignore racial harassment. Although Xerxes claims not to have learned of Ms. Smith’s alleged derogatory remarks on August 25, 2008, until they were mentioned by the EEOC on September 17, 2008, once Xerxes was notified, it acted promptly to investigate the allegation. These ameliorative steps were outlined in a memorandum that Mr. Green wrote to Mr. Wilson on October 21, 2008. In addition, while Mr. Pearson alleges that Mr. Crone and Ms. Smith used racist language in his presence in August 2007, he does not claim ever to have reported these incidents to any supervisors at Xerxes. Xerxes cannot be charged with constructively knowing of this harassment, given that it had reasonable reporting procedures in place and had previously thanked Mr. Pearson for coming forward with complaints of harassment and encouraged him to report any further incidents.
16

Case 1:08-cv-01882-CCB Document 50 Filed 11/30/09 Page 17 of 17
When Xerxes learned of racial harassment at the Williamsport Plant, it disciplined employees with unpaid suspensions and written reprimands. These actions set Xerxes apart from employers found to have responded inappropriately to employees’ allegations of harassment. See e.g., Central Wholesalers, 573 F.3d at 178 (noting that the employer could have acted more responsively to complaints of harassment if it had “suspended [the offending employees] from work…or issued them written reprimands”); Sunbelt, 521 F.3d at 320 (discussing how despite the employer’s attempt to investigate harassment, its failure to sanction or reprimand harassing employees was evidence of an inadequate response). Therefore, the EEOC has not met its burden of demonstrating that Xerxes acted negligently in responding to allegations of coworker harassment.5 Accordingly, the EEOC’s claims against Xerxes must fail.
CONCLUSION For the foregoing reasons, the defendant’s motion for summary judgment will be granted and the EEOC’s cross motion for partial summary judgment will be denied. A separate Order follows.

November 30, 2009 Date

/s/ Catherine C. Blake United States District Judge

5 Despite the lack of employer liability in this case, the harassment alleged by Mr. Pearson and Mr. Wilson was severe and the EEOC’s investigation into the harassment was certainly appropriate. When an employer attempts to address harassment with a sufficiently serious response, however, it is important for the court to recognize such conduct.
17

 
 PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

EQUAL EMPWYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant, v.
XERXES CORPORATION,
Defendant-Appellee.

No. 10-1156

Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1 :08-cv-01882-CCB)
Argued: December 9, 2010
Decided: April 26, 2011
Before TRAXLER, Chief Judge, and WILKINSON and MOTZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Chief Judge Traxler wrote the opinion, in which Judge Wilkinson and Judge Motz joined. Judge Wilkinson and Judge Motz each wrote a separate concurring opinion.
COUNSEL
ARGUED: Elizabeth Ellen Theran, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C.,

2

EEOC v. XERxEs CORP.

for Appellant. Robert C. Castle, OPPENHEIMER WOLFF & DONNELLY LLP, Minneapolis, Minnesota, for Appellee. ON BRIEF: P. David Lopez, General Counsel, Carolyn L. Wheeler, Acting Associate General Counsel, Lorraine C. Davis, Assistant General Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. Aaron Mills Scott, OPPENHEIMER WOLFF & DONNELLY LLP, Minneapolis, Minnesota, for Appellee.

OPINION
TRAXLER, Chief Judge:
This appeal arises from an action brought by the Equal Employment Opportunity Commission ("EEOC") on behalf of Albert Bernard Pearson, Keith Wilson, and Gradian Graham, present or former African-American employees of Xerxes Corporation ("Xerxes"), alleging a hostile work
environment on the basis of race, in violation of Title vn of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 ("Title VII"). The district court granted sununary judgment for Xerxes. We affirm in part, vacate in part, and remand.
I.
A.
Xerxes is a fiberglass tank manufacturer based in Minneapolis, Minnesota. Pearson, Wilson, and Graham worked as assemblers at Xerxes' plant in Williamsport, Maryland. Bob Shiffiett was their shift supervisor. He reported to plant superintendent Greg Carty, who reported to plant manager Wayne Green.
At all times, Xerxes had in place a comprehensive Corporate Compliance Program and Program Guide, prohibiting

EEOC v. XERxEs CORP.

3

discrimination and harassment in the plant. Plant employees were instructed to report any violations to their "supervisor, Plant Manager, . . . or a member of Xerxes' Compliance Committee." J.A. 487,493. In addition, as of at least January 9, 2006, Xerxes also had in place a separate anti-harassment policy, which prohibited "Sexual, Racial and Other Objectionable Conduct or Unlawful Harassment." J.A. 480. The policy provided specific examples of prohibited conduct and, among other directions, instructed plant employees to "Immediately Report The Incident To Your Supervisor And Plant Manager." J.A. 481. All employees received copies of Xerxes' antiharassment policies and were trained in them at the time of hire. Refresher training was conducted annually.

Xerxes and its nonsupervisory employees were also subject to a Collective Bargaining Agreement (the "CBA") between Xerxes and the United Automobile, Aerospace and Agricultural Implement Workers of America, Local No. 171 (the "Union"). The CBA prohibited "unlawful discrimination against employees on account of race, color, creed, national origin, religion, sex, sexual orientation, pregnancy, marital status, age, disability, or Union affiliation, or any other legally protected class status." lA. 501. The CBA also protected Union employees from being "disciplined or discharged without just cause." J.A. 498. The CBA contained a grievance procedure for alleged violations, and Union representatives were regularly available to meet with employees about any concerns. The Union president testified that Xerxes took "a strong stance against discrimination," J.A. 307, and "seem[ed] to respond very quickly whenever there [were] allegations" of discrimination. J.A. 308.

B.

Bernard Pearson was hired by Xerxes to work at the plant on a temporary basis in April 2005 and as a full-time employee in June 2005. He testified that from June 2005 until February 2006, his coworkers subjected him to repeated racial

4

EEOC v. XERxEs CORP.

slurs and pranks in the plant. He testified that Amber Gatrell used the word "n*·**·" in his presence on repeated occasions and referred to him as "Boy." He testified that Floyd Myers called him "Boy" and "black Polack," and called a white woman a "n***** lover." He also testified that unknown coworkers occasionally played pranks on him, such as turning the lights off in the bathroom and throwing wet paper towels at him, placing gel on the doorknob in the bathroom so that he could not open the door, tampering with his toolbox lock, and hiding his toolbox. Pearson testified that he reported these incidents to Shifflett as they occurred, but that Shifflett did nothing until February 2006. He did not complain to any other members of management.

Keith Wilson was hired by Xerxes as a temporary employee in October 2005 and as a full-time employee in December 2005. He alleges that he was first subjected to racial harassment by his coworkers in November 2005. He testified that on two or three occasions someone stole or threw away his and Pearson's lunches. He also complained that Tammy Smith called him by racially-tinged names, including "Buckwheat," "Benson," and "Yellow Boy.'" Wilson testified that he reported the incidents to Shifflett as they occurred, but did not complain to any other management employee because the Union representative told him he had to report them to his direct supervisor first.

On February 3, 2006, however, two related incidents involving Gatrell and Myers were reported to Shifflett and to Green. Wilson testified that while he was working with Gatrell, she said to him, "Boy you don't lay up no manway like that." J.A. 353. Wilson reported the incident to Shifflett and told Shifflett that "where I come from ... boy is another

'Buckwheat and Benson are African-American characters in the television series "Little Rascals" and "Benson," respectively. We assume "Yellow Boy" is a reference to a mixed-race individual.

EEOC v. XERxEs CORP.

5

name for the N word." lA. 353. Shifflett memorialized the complaint and his response in writing, as follows:

[Gatrell] and [Wilson] were working [together and] it was at the end of the shift. [Wilson] started to take the dumpster up to dump it. [Gatrell] said to [Wilson] hey boy you can't dump the dumpster yet because its not 9:30 p.m. Later [Wilson] and [Pearson] came to me and said that they were tired of people saying boy to them and other racial slurs. I told [Wilson] and [pearson] that no they don't have to listen to this and that it would be dealt with right away. I went to [Gatrell] and told her that I think the best thing to do is go to [Wilson] and say to him that ifhe took [o]ffense about her saying boy to him that she was sorry. The next day [Gatrell] talked to [Wilson] and [Pearson] in the parking lot and told [Wilson] just what I said to.

J.A. 641. Gatrell admitted using the term "boy," but claimed that she did not intend it to be racially offensive. Later that same evening, Myers exchanged words with Pearson and Wilson in the lunchroom and "said something like, yeah, Boy, well I'll see you outside." J.A. 354. Myers also admitted using the term "boy" during the exchange, but claimed that he did not intend it to be racially offensive. After Green met with Myers about the incident, Myers apologized to Pearson and Wilson. Green also held a meeting with the shift employees to review Xerxes' anti-harassment policies. Green reminded the employees that racial harassment, including race-based comments, was prohibited and wamed that future misconduct would result in disciplinary action.

After February 2006, Wilson reported no further incidents of racial harassment until June 2007.' In May 2006, however,

'Although Wilson testified that "[i]t seemed like [it] just got worse[]" after the February 2006 meeting, J.A. 356, there is no evidence of any additional incidents or reports of racial harassment involving Wilson until June 2007.

6

EEOC v. XERxEs CORP.

Pearson complained to Shifflett that two different coworkers had referred to music being played in the plant as "jungle music" and "n***** music." Shifflett told Pearson that he should report the incidents to Carty. Carty, in tum, met with Pearson and the Union representative. At the meeting, Pearson also told Carty about the problems he had experienced with Gatrell and Myers, and told Carty that he "wanted it to stop." J.A. 548. Carty told Pearson not to say anything to anyone and that he would take care of it.

When Green learned of Pearson's complaint, he notified Xerxes' corporate office and Ronald Bachmeier, the EEO coordinator, traveled to the plant to investigate.3 According to
Bachmeier:

While at the plant, I conducted a comprehensive investigation into Mr. Pearson's allegations. I interviewed Mr. Pearson as well as more than 15 other employees. Interviewees either denied Mr. Pearson's allegations, explained that Mr. Pearson had taken their remarks out of context, indicated that they did not mean their remarks to be racially offensive, or had since apologized for those remarks, and explained that Mr. Pearson had himself engaged in interaction with other employees using profanity and the racially offensive term "N_ _." Neither Mr. Pearson nor any other employee attributed any racially offensive remarks to any Xerxes supervisor. Moreover, although Mr. Pearson contended that he had spoken with certain Xerxes supervisors regarding his concerns, those supervisors credibly disputed

"By this time, Pearson had also filed the Maryland Commission on
Human Relations (MCHR) charge, which is dated June 15, 2006. There is no evidence in the record on appeal as to when Xerxes became aware of the charge, nor are the exact dates of the other events during this time period clear. The best that can be detennined is that Pearson complained to Shiffiett and Carty sometime in May and that Green requested assistance from the corporate office in late June.

EEOC v. XERxEs CORP.

7

Mr. Pearson's contention that he spoke to them or Mr. Pearson's version of their communications.

J.A. 474-75.

At the conclusion of the investigation, the following actions were taken by Xerxes. Myers and Gatrell were each issued two-day unpaid suspensions from work and required to attend refresher training in the anti-harassment policies. They were also "placed on a final warning" that Xerxes "w[ould] tenninate [their] employment if [it was] ever detennine[d] that [they] engaged, directly or indirectly, in hostile, offensive, or otherwise unlawful conduct toward any Xerxes employee." J.A. 646. They were also instructed as follows:

You are under no circumstances to have any hostile, offensive, or otherwise unlawful interaction with [Pearson]. You shall not make any racially hostile, offensive, or intimidating remarks, gestures, or engage in any conduct, of any type, which is racially offensive. This prohibition applies to our entire Plant, including Plant production areas, break areas, lunchroom, restrooms, and parking lot.

J.A. 646.

Bachmeier determined that coworker Brian Bradley "had referred to certain music as 'jungle music,''' but that he "had not made the remark with intent to disparage any employee's race," and had apologized to Pearson and another employee. J.A. 476. Bradley was issued a "Written Disciplinary Warning" and also required to attend refresher training. J.A. 477. He was warned not to "engage in prohibited discrimination, harassment, or objectionable conduct" to any employee or "make any racially hostile, offensive, or intimidating remarks, gestures, or engage in any conduct, of any type, which is racially offensive." J.A. 650-51. He was also warned that future misconduct would "subject[] [him] to further disci-

8

EEOC v. XERxEs CORP.

pline, up to and including the termination of [his] employment." J.A. 651.

During his investigation of Pearson's complaint, Bachmeier also learned that coworker Tammy Smith "had used the term 'Buckwheat,' in the context of a conversation with another African-American employee," but determined that her use of the narne was related to a television show and that she had "credibly denied that she intended the remark to be in any way racially derogatory." J.A. 477. "In light of the nature of her remark, her explanation, and her credibility regarding the use and context in which she made the remark," Smith was provided a "verbal counseling rernind[ing] [her] of her obligation to comply with Xerxes . . . policies," and required to attend refresher training. J.A. 477. Smith was also warned that violations of the harassment policies would result in appropriate disciplinary action in the future.'

Finally, Bachmeier conducted refresher training of all employees regarding Xerxes' EEO and anti-harassment policies. This included a review of employees' "options for reporting incidents to Xerxes' EEO Coordinator or Corporate Compliance Committee to facilitate a response by the company." J.A. 478. In a separate session, Bachmeier retrained the supervisory personnel as well, including "their responsibilities with respect to the promotion of a work environment in which all employees are treated lawfully, with dignity and respect." J.A. 477. Pearson was provided a memorandum summarizing Xerxes' investigation and response to his complaint, and thanking him for coming forward. Pearson withdrew his MCHR. charge and there were no further reports of

'As noted above, Wilson testified that he complained about Smith to Shifflett prior to February 2006, but there is no evidence that he ever complained to Carty, Green or Bachmeier. We presume that Bachmeier learned of Smith's use of the "Buckwheat" name while investigating Pearson's complaints and that the other African-American employee was Wilson.

EEOC v. XERxEs CORP.

9

harassment at the Xerxes plant until April 2007, nearly a full year later.

C.

On April 10, 2007, Pearson found a 4" x 4" piece of fiberglass in his locker with the following message on it: "KKK plans could result in death, serious personal injury, NIGGA BENARd." J.A. 639. Pearson reported the incident to the Union representative and Green, and Xerxes promptly began an investigation." Pearson also reported the incident to the EEOC. Unfortunately, Pearson could not identify the culprit, nor name any particular suspect. Xerxes was also unable to determine who was responsible.

On April 20, 2007, Green reported the incident to the local Sheriff's Office. Three days later, Green held a plant meeting with all employees. At this meeting, Green warned the employees that the act was inappropriate and unacceptable, that Xerxes had requested a full police investigation, and that anyone with information about the incident was expected to come forward. The employees were advised that Xerxes "would take immediate and appropriate discipline, which in all likelihood, would result in termination" should Xerxes or the police find the person responsible for the act, and that Xerxes would encourage criminal prosecution if available. J.A. 525. Xerxes also posted a notice in the plant to the same effect.

On April 26, 2007, Sheriff's Deputy Grimm responded to the plant's request to investigate the incident. Green advised

"There is some dispute regarding Pearson's report of this incident to Green. Pearson testified that he and the Union representative went directly to Green, but that Green was busy and asked them to return the next day. Green claims that Pearson would ouly say that he found something in his locker and that he was going to contact an attorney. However, it is undisputed that, within a few days, Pearson allowed Green to photograph the item and cooperated in the investigation.

10

EEOC v. XERxEs CORP.

Deputy Grimm that Pearson had "reported racial remarks in the past by fellow employees, but they were handled internally through human resources and none ever contained any reference to the 'KKK'." J.A. 465. Pearson also told Deputy Grimm that he could identifY "no particular person [as a suspect] but stated there were [cliques] in the workplace and a number of people could be responsible." J.A. 466. The Sheriff's Office was unable to determine who was responsible and advised Pearson to report any further incidents.

After the April 2007 incident, Green periodically checked on Pearson to see if he had experienced any further problems. On June 1, during one such inquiry, Pearson told Green that someone had put resin on his toolbox lock, but that nothing else had happened. Pearson told Green that he did not know who played the prank, but he thought there were still a few people "play[ing] games with him." J.A. 653. Green told Pearson that Xerxes would get him a replacement lock and reminded Pearson to immediately report such incidents. Green also assured Pearson that "the training [had been done] many times and everyone knows what they are supposed to do and not do so if someone is still playing games we will catch them and we will deal with it strongly." J.A. 653.

On June 11, 2007, Wilson discovered a small, stick-figure drawing depicting a person hanging by a noose and the phrase "ill IH MY N*****." J.A. 640. Several days later, Wilson reported the incident to Shiffiett, who made a copy of the drawing and notified Green. Wilson reported the incident to the EEOC as well. Green met with Wilson, reported the incident to the Sheriffs' Office, and notified the corporate office. When Mike Zais, Xerxes' EEO Coordinator at that time, learned of the incident, he also traveled to the plant to investigate and interview employees. Unfortunately, the person responsible for this incident was also never identified.·

"wilson did not immediately report the drawing to Xerxes. He reported the incident to his Union representative, who suggested several days later

EEOC v. XERxEs CORP.

11

On August 30, 2007, Zais summarized Xerxes' response to the complaints of racial harassment in a memorandum to Wil-
son. Zais advised Wilson that "in response to [his1 concern
and [those] of two other employees," a number of steps had been taken "in order to make sure that [Xerxes] maintain[s] a workplace free of discrimination and harassment." J.A. 455. This included (1) an internal investigation and employee interviews; (2) enlisting the assistance of the local Sheriff's Office; (3) retraining of all supervisors; (4) disciplining three employees who Xerxes had concluded had violated the prohibition against discrimination and harassment; (5) posting notices reminding the employees of the standards of conduct and prohibition of harassment; (6) advising the Union that Xerxes "will not tolerate racial discrimination or harassment, and that Xerxes will respond to such conduct with strong discipline, including the termination of employees when appropriate"; and (7) discussing with individual employees situations in which they may have unintentionally offended other employees. J.A. 456.

With regard to the sketch itself, Zais assured Wilson that "Xerxes is both highly offended by and absolutely opposed to such a communication" and that "[i]fwe are able to determine who created that communication, and if that person is an employee, Xerxes will in all likelihood terminate their employment." J.A. 456. Wilson was asked to "immediately notify" Xerxes if he "learn[ed] of information that would
allow [Xerxes1to identify who created that communication."

that he contact the NAACP. Wilson then took the paper home over the weekend to consult with his pastor, who was also a local NAACP officer. At his pastor's recommendation, Wilson reported the incident to Shifflett the following week. There is no way to know when the paper was put into Wilson's locker. Wilson testified that he "had a whole bunch of papers in" his locker and that "a couple papers dropped out" when he opened it. I.A. 358. He threw the papers back into the locker, but decided to clean them out the next day. While doing so, "a little [folded] paper dropped back on the floor," which he discovered contained the drawing. I.A. 358.

12

EEOC v. XERxEs CORP.

I.A. 456. Wilson testified that he did not know what Xerxes could have done to discover who created the drawing.

At the time of this appeal, Wilson was still employed at the Xerxes plant and, with the exception of an isolated comment allegedly made by Tammy Smith in August 2008, discussed infra, he reported no further incidents of racial harassment after June 2007. Pearson also reported no further incidents of racial harassment after June 2007. He voluntarily resigned from Xerxes in February 2008, in order to take a position at a correctional facility. Prior to leaving, Pearson left a message with Green indicating his desire to return to Xerxes if his new position did not work out. The only violation of the antiharassment policy that was reported occurred in August 2007. It involved a racial "joke" told by a white employee to two other white employees. After unsuccessfully attempting to stop their coworker, the two employees reported the incident to Xerxes management and the offending party was immediately terminated with the support of the Union.

D.

Gradian Graham was employed by Xerxes from August 2004 until April 2007. Graham testified that during the first two weeks of his employment, coemployee Bob Churchey did a poor job of training him and encouraged Shiffiett to fire him. After these two weeks, Shiffiett reassigned Graham to Carolyn Reed to complete his training. Graham also testified that Churchey "used the N word a bunch of different times" during his employment. J.A. 103. When asked for details, however, Graham could only state that Churchey had used the N word on "[n]ot one occasion," but he could not "say the exact dates of these." J.A. 104. His "best recollection" was that "[i]t was [during his] time of employment at Xerxes." J.A. 105. Graham testified that he complained about Chur-

EEOC v. XERxEs CORP.

13

chey to Shifflett and Carty, but was likewise unable to recall any details about these alleged complaints.7

Graham's remaining complaints pertain to Shifflett. On January 19, 2007, Shifflett told Carty that he was having a recurring problem with Graham coming to work without the key to his lock. When Carty met with Graham about Shifflett's concerns, Graham claimed that Shifflett did not like him because he was black. Carty immediately requested a meeting with the Union representative and Green. Graham's only complaint at this meeting, however, was that Shifflett "stare[d] at [him] strangely," which Green found insufficient to support a charge of racial discrimination. J.A. 612. On January 30, 2007, Graham told Carty that Shifflett had looked under the restroom stall at him and that this incident was witnessed by a coemployee, Tony Yung. Again, the complaint was immediately investigated by Green. Yung told Green that Shifflett had entered the bathroom the previous day, but had simply looked at the sink and walked out. Yung denied that Shifflett had looked under the stall at Graham. According to Green, Graham then changed his story and claimed that Shifflett had looked at him through the cracks in the stall door, which was also contrary to Yung's account. Graham denies changing his story and maintains that Shifflett looked under the stall door at him. Green concluded that Graham's complaint was not been made in good faith and, because Graham had a documented written warning and recent incident of insubordination, issued Graham a fmal warning.

On April 18, 2007, however, Graham was instead terminated for excessive absenteeism after receiving several disciplinary warnings for attendance. Graham testified that he had been having personal and fmancial problems that interfered

7Graham also testified that he was followed from Xerxes by several men in a car in 2005, but the EEOC admits that there is no evidence that he reported this incident to Xerxes, nor is there any evidence that it was based on his race.

14

EEOC v. XERxEs CORP.

with his attendance and work. He never filed a grievance with the Union regarding racial discrimination, his disciplinary warnings, or his termination. He also never filed a charge with the EEOC regarding racial discrimination. The EEOC does not contend that Graharn' s termination is related to alleged racial harassment.

II.

In July 2008, the EEOC initiated this action on behalf of Pearson, Wilson, "and a class of black individuals," alleging
a hostile work environment. J.A. 7. Graharn was identified as the only additional complainant during litigation.8

The district court granted summary judgment to Xerxes, based on its conclusion that Xerxes' responses to the reports of harassment were reasonable as a matter of law. Specifically, the district court held that "whenever Xerxes learned of harassment, it acted quickly and reasonably effectively to end it." J.A. 847. With regard to Graham, the district court noted its "doubts that the sporadic instances of harassment experienced by Mr. Graham would meet [the] threshold" of severe or pervasive harassment, I.A. 846, and held that Graham's complaints about Shiffiett were not actionable because there was insufficient evidence that the incidents were based on race.

We review de novo the district court's grant of summary judgment to Xerxes, "viewing the facts in the light most favorable to, and drawing all reasonable inferences in favor of," the EEOC. EEOC v. Central Wholesalers, Inc., 573 F.3d

8The only other African-American employee working in the assembly department during the time in question was Neville Haymans. Haymans began working at the plant on May 15, 2006, and became a pennanent employee in July 2006. He testified that he never heard racial slurs or jokes in the plant, nor did he ever experience any racial discrimination or harassment.

EEOC v. XERxEs CORP.

15

167, 174 (4th Cir. 2009) (internal quotation marks omitted). Summary judgment is appropriate "if 'the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.'" Id. (quoting Fed. R. Civ. P. 56(c».

III.
Title vn 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." 42 U.S.C. § 2000e-2(a)(I). Because "an employee's work environment is a term or condition of employment, Title VII creates a hostile working environment cause of action." Central Wholesalers, 573 F.3d at 174 (internal quotation marks omitted).

To survive summary judgment on a claim of a racially hostile work environment, the EEOC "must demonstrate that a reasonable jury could fmd [the] harassment (1) unwelcome; (2) based on race; and (3) sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere." Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183-84 (4th Cir. 2001). In addition, the EEOC must present "sufficient evidence of a fourth element: that there is some basis for imposing liability" for the harassment on the employer.Id. at 184 (internal quotation marks omitted).

Where an employee has been harassed by a coworker, "the employer may be liable in negligence [under the fourth element] if it knew or should have known about the harassment and failed to take effective action to stop it." Ocheltree v. Scallon Prods., 335 F.3d 325, 333-34 (4th Cir. 2003) (en bane); Howard v. Winter, 446 F.3d 559, 565 (4th Cir. 2006). "Once the employer has notice, then it must respond with remedial action reasonably calculated to end the harassment." EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir.

16

EEOC v. XERxEs CORP.

2008) (internal quotation marks omitted); see also Mikels v.
City 0/ Durham, 183 F.3d 323, 329 (4th Cir. 1999) ("[O]ur
precedents halve] long defined the basis for imposing liability under element (4) as being that after having acquired actual or constructive knowledge of the allegedly harassing conduct, the employer had taken 'no prompt and adequate remedial
action to correct it. "') (emphasis added and alteration omitted)
(quoting Spicer v. Commonwealth o/Va., Dep't o/Corr., 66 F.3d 705, 710 (4th Cir. 1995) (en banc».

"The institution and enforcement of [an anti-harassment] policy, in conjunction with an adequate complaint procedure, aid the employer in establishing that it has exercised reasonable care to prevent discrimination." Spriggs, 242 F.3d at 187 (internal quotation marks omitted). "However, the mere promulgation of an anti-harassment policy, no matter how wellconceived, will not suffice to show the requisite level of care where the employer has admiuistered the policy in bad faith or has rendered it ineffectual by acting unreasonably." Id. (internal quotation marks omitted); see also Sunbelt, 521 F.3d at 320 ("While the adoption of an effective anti-harassment policy is an important factor in determining whether [an employer] exercised reasonable care, the policy must be effective in order to have meaningful value." (internal quotation marks omitted».

In this case it is undisputed that Xerxes' anti-harassment policies "provide[d] reasonable procedures for victims to register complaints." Ocheltree, 335 F.3d at 334; Howard, 446 F.3d at 568. Thus, for purposes of the fourth element, we need only inquire as to whether the EEOC presented sufficient evidence to demonstrate that Xerxes' responses to the complaints made under its policies were not reasonably calculated to end the harassment and, therefore, that liability for the harassment may be imputed to it.

There is no "exhaustive list" or "particular combination" of remedial measures or steps that an employer need employ to

EEOC v. XERxEs CORP.

17

insulate itself from liability. Central Wholesalers, 573 F.3d at 178. Among other things, we have considered the promptness of the employer's investigation when complaints are made, whether offending employees were counseled or disciplined for their actions, and whether the employer's response was actually effective. However, the mere fact that harassment reoccurs in the workplace, either by the same offender or different offenders, does not, ipso facto, allow a jury to conclude that an employer's response was not reasonably calculated to end the harassment. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 676 (10th Cir. 1998). The cessation of "harassment shows effectiveness, which in turn evidences such reasonable calculation." Id.; see also Mikels, 183 F.3d at 330 (noting that we "have given great weight to the fact that a particular response was demonstrably adequate to cause cessation of the conduct in question"). But "this is not the sole factor to be considered. Because there is no strict liability and an employer must only respond reasonably, a response may be so calculated even though the perpetrator might persist," Adler, 144 F.3d at 676, or, as in this case, harassment reoccurs in the workplace. "A remedial action that effectively stops the harassment will be deemed adequate as a matter of law. On the other hand, it is possible that an action that proves to be ineffective in stopping the harassment may nevertheless be found reasonably calculated to prevent future harassment and therefore adequate ... as a matter of law." Knabe v. Boury Corp., 114 F.3d 407, 411-12 n.8 (3d Cir. 1997). In such cases,

[courts1 consider the timeliness of the plaintiff's
complaint, whether the employer unduly delayed, and whether the response was proportional to the seriousness and frequency of the harassment. ... By way of example, responses that have been held reasonable have often included prompt investigation of the allegations, proactive solicitation of complaints, scheduling changes and transfers, oral or written warnings to refrain from harassing conduct, reprimands, and warnings that future misconduct could

18

EEOC v. XERxEs CORP.

result in progressive discipline, including suspension and termination.

The employer is, of course, obliged to respond to any repeat conduct; and whether the next employer response is reasonable may very well depend upon whether the employer progressively stiffens its discipline, or vainly hopes that no response, or the same response as before, will be effective. Repeat conduct may show the unreasonableness of prior responses. On the other hand, an employer is not liable, although [harassment] persists, so long as each response was reasonable. It follows that an employer is not required to terminate a [particular] perpetrator except where termination is the only response that would be reasonably calculated to end the harassment.

Adler, 144 F.3d at 676-77 (10th Cir. 1998) (citations omitted); see also Central Wholesalers, 573 F.3d at 178 (noting that we also consider whether the employer took "increasingly progressive measures to address the harassment when its [initial] responses proved ineffective").

IV.

We begin with the district court's grant of summary judgment on the hostile work environment claims advanced by the EEOC on behalf of Pearson and Wilson. The EEOC contends that the district court erred in granting summary judgment to Xerxes as to these claims because a reasonable jury could find (1) that Xerxes was placed on actual notice of racial harassment by coworkers of Pearson in June 2005 and of Wilson in November 2005, when they first complained to Shifflett, respectively; (2) that Xerxes failed to respond to their complaints at all until February 2006; and (3) that Xerxes failed to respond to their complaints thereafter with remedial action reasonably calculated to end the harassment.

EEOC v. XERxEs CORP.

19

A.

Viewing the evidence in the light most favorable to the EEOC, we conclude that a genuine issue of material fact exists as to whether Xerxes had notice of the alleged racial slurs and pranks in the workplace prior to February 2006, but failed to respond with any remedial action.

Pearson and Wilson each testified that prior to February 2006, they were subjected to the repeated use of racial slurs by Gatrell and Myers, as well as to various pranks by unknown coworkers that they believed were racially motivated. In addition, Wilson testified that Tammy Smith used racially-tinged names when addressing him. If the facts are as asserted by Pearson and Wilson, they would constitute racial harassment sufficient to "alter the conditions of employment and create an abusive atmosphere." Spriggs, 242 F.3d at 18384. The men also testified that they fust reported this harassment to Shifflett in June 2005 and November 2005, respectively, and continued as the incidents occurred thereafter, up to and including the complaints they made on February 3, 2006 about Gatrell and Myers. However, Xerxes did nothing in response to their complaints until February 2006.

At the time of the prior complaints, Xerxes' Compliance Program Guide advised employees that they "may report a violation [of the Program] by approaching or telephoning [their] supervisor, Plant Manager, ... or a member of Xerxes' Compliance Committee, as the circumstances dictate." I.A. 487 (emphasis added). As the direct supervisor of Pearson and Wilson, therefore, Shifflett was specifically designated as an appropriate person to receive such complaints.

Xerxes disputes that complaints of racial harassment were made to Shifflett prior to the February 3, 2006 incident with Gatrell and Myers, but a jury could reasonably credit the testimony of Pearson and Wilson and conclude otherwise. Accordingly, we hold that a reasonable juror could find that

20

EEOC v. XERxEs CORP.

the complaints by Pearson and Wilson to Shifflett prior to February 2006 were sufficient to place Xerxes on actual notice of the racial slurs and pranks in the plant and that Xerxes' response was unreasonable. Accordingly, we vacate the district court's award of summary judgment for any alleged racial harassment of Pearson and Wilson occurring before February 2006, and we remand for further proceedings as to this time period.

B.

With regard to the incidents of racial harassment that were reported on February 3,2006 and beyond, however, we hold that Xerxes' response to each reported incident was reasonably calculated to end the harassment and, therefore, reasonable as a matter of law. Accordingly, we affirm the district court's award of summary judgment for the alleged racial harassment as to this time period.

1.

As of February 2006, Xerxes had in place extensive antiharassment policies consistent with Title VII that directed plant employees to inunediately report any racial harassment to their supervisor and the plant manager. The employees were assured that their complaints would be promptly investigated and that appropriate remedial action would be taken.

On February 3, 2006, when Shifflett and Green were made aware of the incident involving Gatrell and Myers, Xerxes' response was prompt and proportional to the seriousness of the offense. Gatrell and Myers were individually counseled and they apologized. In addition, Green held a meeting with the shift employees to review Xerxes' anti-harassment policies and warn that future misconduct would result in disciplinary action. The fact that formal disciplinary action, such as suspension or termination, was not taken against Gatrell and Myers at that time is an insufficient basis for concluding

EEOC v. XERxEs CORP.

21

that Xerxes' response was unreasonable. See Knabe, 114 F.3d at 414 ("[TJaking punitive action agamst [aJ harassing employee, e.g., reprimand, suspension or dismissal, is not necessary to insulate the employee from liability for a hostile work environment. So long as the remedy is reasonably calculated to prevent future instances of harassment, the company cannot be held liable.") (footnote omitted). As the EEOC has argued, Green apparently believed that, because Gatrell and Myers had apologized and the anti-harassment training had been reinforced, they would not continue to use offensive language in the workplace. His assumption was correct. While Myers and Gatrell were disciplined for their prior conduct in July 2006, there is no evidence that either of them engaged in acts of racial harassment after February 3, 2006.

In May 2006, Pearson complamed to Shiffiett and Carty about other coworkers using racially-offensive terms to describe music being played in the plant. Pearson also told Carty about his previous problems with Myers and Gatrell, and told Carty that he wanted the racial slurs to stop. When Green learned of Pearson's complaint, he notified the corporate office, and an escalated response ensued. Bachmeier immediately traveled to the plant to conduct a formal investigation and employee interviews. At the conclusion of the investigation, Xerxes imposed written disciplinary action upon Myers and Gatrell, including two-day unpaid suspensions from work, and issued a fmal, written warning that any future violations of the anti-harassment policies would result in their termination. Bradley received a written disciplinary warning for his use of a racially-offensive term to describe music, and he was advised that he faced possible termination for future violations as well. Tammy Smith was verbally counseled for her use of a racial nickname during her conversation with another African-American employee, presumably Wilson. In addition, Bachmeier conducted refresher training of all supervisory and nonsupervisory employees in their respective obligations under Xerxes' anti-harassment policies.

22

EEOC v. XERxEs CORP.

In sum, Xerxes' response to the complaints of racial harassment in 2006, taken in consultation with the Union representatives for the victims and the accused, was prompt, proportional to the seriousness and frequency of the various offenses, and employed "increasingly progressive measures to address the harassment" that had occurred in the workplace. Central Wholesalers, 573 F.3d at 178; see Adler, 144 F.3d at 676. This included employee counseling and disciplinary action, suspensions of two employees, and warnings that future misconduct could result in progressive discipline, up to and including termination. It was not only "reasonably calculated to end the harassment" as a matter of law, Sunbelt, 521 F.3d at 319 (internal quotation marks omitted), it was actually effective. There were no reported incidents of racial slurs for over two years, and no incidents of pranks for nearly a year thereafter."

2.

In April and June 2007, Pearson and Wilson each found an anonymous, racially-charged message in his locker. The messages were unquestionably abhorrent. However, they were of a much different character than the racial slurs and pranks that had been the subject of the complaints the previous year. There was no reason to believe that the employees disciplined in 2006 were involved in the incidents in 2007. And the EEOC failed to present any evidence that the two incidents occurred because the disciplinary action and training implemented in response to the 2006 complaints were inadequate.

Xerxes' response to these new incidents was also prompt and reasonably calculated to put a stop to any further such

"This conclusion is also supported by the testimony of Haymans who, as noted earlier, began his employment in the Assembly Department on May 15, 2006, about the time ofPearson's complaint to Carty. He testified that he never heard racial slurs or experienced racial harassment in the workplace.

EEOC v. XERxEs CORP.

23

activity in the workplace. Indeed, we can think of nothing further that Xerxes could have done to convey to the perpetrators how seriously Xerxes viewed these incidents and how aggressively it would pursue disciplinary action if it succeeded in identifying the culprits. In addition to conducting internal investigations, Xerxes reported the incidents to the local Sheriff's Office. Green held a plant-wide meeting and notified all employees (which would, of course, have included the perpetrators if they were employees) that law enforcement had been notified and a full investigation requested. The employees were advised that anyone with information was "expect[edJ to come forward," I.A. 525 (emphasis added), and they were warned that the perpetrators, if identified, would face probable termination and possible criminal prosecution.'·

Xerxes' EEO Coordinator also traveled to the plant to personally investigate the incidents, interview employees, and review the company's efforts to address the situation. In the meantime, Green routinely checked on Pearson to ensure that he was experiencing no further incidents of racial harassment and, if he was, that Xerxes was being made aware of them. It was through this proactive enforcement of Xerxes' antiharassment policy that Green learned of the single, but also anonymous, toolbox prank that occurred in the midst of the two locker incidents. Green assured Pearson that the training had been done and that Xerxes would continue to respond aggressively to known offenders, and reminded him to immediately report any such violations to him.

'·Xerxes' Compliance Program Guide provides that "failing to report or condoning a violation of the law, the principles contained in th[e] compliance guide or Xerxes' Compliance Program will lead to disciplinary action up to and including tennination." I.A. 493. In addition, the antiharassment policy informs employees that they "Must" report any harassment that they "Have Been Subjected To Or Have Observed," I.A. 481, and the CBA requires Union employees to report violations of the CBA to their Union representatives.

24

EEOC v. XERxEs CORP.

For their part, neither Pearson nor Wilson offered any suggestions of additional steps Xerxes should have taken to identify the perpetrators or otherwise respond in a more reasonable or effective manner. And the EEOC, in response to Xerxes' interrogatory asking it to "identify all actions that [Xerxes] should have taken but did not that would have demonstrated an exercise of reasonable care to prevent and correct promptly racial harassment or race discrimination," responded simply that Xerxes "ha[d] not effectively stopped or prevented racial harassment in its workplace." J.A. 719. That, however, is not the standard for imputing liability on Xerxes.

We conclude that Xerxes' response in 2007 was also "reasonably calculated to end the harassment" as a matter of law, Sunbelt, 521 F.3d at 319 (internal quotation marks omitted), and that it was effective in doing so. No further raciallycharged threats or workplace pranks occurred after Xerxes' response. The single reported violation of Xerxes' antiharassment policy was the racial joke that was told by a white coworker in August 2007, which resulted in the employees reporting the offense in accordance with the anti-harassment policies and the offending employee being fIred.

3.

Finally, the EEOC claims that, despite this demonstrable effectiveness, a reasonable jury could fInd that Xerxes' responses in 2006 and 2007 were unreasonable based upon Pearson's testimony that he was subjected to two isolated racial slurs in August 2007, and Wilson's testimony that he was subjected to a single racial slur in August 2008.

Pearson testifIed that in August 2007, coworker Sam Crone referred to African-American women as "nappy headed hos," and Tammy Smith told him that he looked like "Curious George" as he was climbing a ladder. Pearson did not, however, report these alleged incidents to Xerxes at the time and he resigned a few months later. Accordingly, Xerxes was

EEOC v. XERxEs CORP.

25

given no opportunity to investigate the complaints or respond appropriately.

Wilson testified that, in August 2008, after this lawsuit was filed, Tammy Smith said to him, "I hope this does not offend
you, but I'm not trying to be nobody's white n*****," as she
was cleaning up a work area. J.A. 376. Wilson claims that he reported the comment to Shifflett, but does not claim that he reported it to Green or any other management employee as he had been instructed. Xerxes contends that it first learned of the alleged incident several weeks later, when the EEOC attorney reported it to Xerxes' attorney. When Green investigated the claim, he was unable to corroborate it. Wilson advised Green that there were no witnesses to Smith's alleged statement. Smith "absolutely denie[d] having made the statement" and "state[d] that she never used the N_ _ word" to Wilson. J.A. 459 (internal quotation marks omitted). Wilson also claimed that he reported the incident to the Union representative, but the Union representative told Green that he thought he heard it "'through the grapevine.''' J.A. 459. Accordingly, Green notified Wilson that he had been unable to substantiate the allegation and took no further action.

The EEOC makes much of these alleged, albeit isolated, racial remarks, particularly the unreported and uncorroborated accusations against Smith, as evidence from which a jury could reasonably conclude that Xerxes' previous disciplinary action against her and the others was unreasonable. We disagree.

As an initial premise, we note that "an employer cannot be expected to correct harassment unless the employee makes a concerted effort to inform the employer that a problem exists" under its reasonable procedures. Howard, 446 F.3d at 567 (emphasis added). Thus, "employee[s] claiming harassment by a coworker bear[] significant responsibility in notifying the employer." Id. at 570; see Barrett v. Applied Radiant Energy Corp., 240 F.3d 262,268 (4th Cir. 2001) (noting that

26

EEOC v. XERxEs CORP.

"[l]ittle can be done to correct [harassing] behavior unless the victim first blows the whistle on it"). Here, both Pearson and Wilson inexplicably failed to avail themselves of Xerxes' available procedures to report these additional instances of racial slurs in the workplace, procedures of which they were undeniably aware and had effectively used in the past.

Even if the alleged racial slurs by Smith had been properly reported, however, this would be an insufficient basis upon which to conclude that Xerxes' discipline of Smith or the others in 2006 was too light to be reasonable. Plaintiffs often feel that their employer "could have done more to remedy the adverse effects of the employee's conduct. But Title VII reqnires only that the employer take steps reasonably likely to stop the harassment." Knabe, 114 F.3d at 414 (internal quotation marks and alteration omitted). The standard "in no way requires an employer to dispense with fair procedures for those accused or to discharge every alleged harasser. And a good faith investigation of alleged harassment may satisfY the . . . standard, even if the investigation turns up no evidence of harassment. Such an employer may avoid liability even if a jury later concludes that in fact harassment occurred." Harris v. L&L Wings, Inc., 132 F.3d 978, 984 (4th Cir. 1997) (intemal quotation marks and citation omitted); see also Adler, 144 F.3d at 677 ("The courts ... must balance the victim's rights, the employer's rights, and the alleged harasser's rights. If our rule were to call for excessive discipline, employers would inevitably face claims from the other direction of violations of due process rights and wrongful termination.")

This principle finds particular significance in this case, where Xerxes bore responsibility to investigate its employees' complaints of racial harassment by their coworkers and an obligation to fairly investigate and only discipline offending coworkers, including Smith, in a manner consistent with the protections the Union afforded to all nonsupervisory employees in the workplace. As the district court aptly noted below,

EEOC v. XERxEs CORP.

27

"[g]iven Xerxes' collective bargaining agreement with the employees' union, it is difficult to imagine what further steps Xerxes might have taken to discipline [its] employees or to prevent future instances of harassment." J.A. 850.

4.

In the end, the crux of the EEOC's claim on appeal is the same as its answer to Xerxes' interrogatory at the outset of this litigation: that a reasonable jury could conclude that Xerxes' response to the reports of harassment in the workplace was not "reasonably calculated to end the harassment," Central Wholesalers, 573 F.3d at 177 (internal quotation marks omitted), because subsequent incidents of harassment, albeit isolated and temporally distant, occurred. This, however, is but a variation of strict liability, which employers do not bear for claims of coworker harassment. See Tademy v. Union Pac. Corp., 614 F.3d 1132, 1148 (lOth Cir. 2008) ("Because there is no strict liability and an employer must only respond reasonably, a response may be so calculated even though the perpetrator might persist.") (internal quotation marks omitted); Adler, 144 F.3d at 676 ("[A]n employer is not liable, although a perpetrator persists, so long as each response was reasonable.").

"While employers can and should be required to adopt reasonable policies aimed at preventing illegal conduct and to take reasonable measures to enforce these policies, they cannot be held to a standard under which they are liable for any and all inappropriate conduct of their employees." Spicer, 66 F.3d at 711. "Employers cannot be saddled with the insurmountable task of conforming all employee conduct at all times to the dictates of Title VII, irrespective of their knowledge of such conduct or the remedial measures taken in response to such conduct." Id. So long as the employer's response to each known incident of coworker harassment is reasonably prompt, and the employer takes remedial measures

28

EEOC v. XERxEs CORP.

that are reasonably calculated to end the harassment, liability may not be imputed to the employer as a matter of law.

Here, Xerxes' responses to each reported incident of harassment as of February 2006 were "prompt and either effective or proportional to the seriousness and frequency of the incidents, and therefore [they] were reasonably calculated to end the harassment." Adler, 144 F.3d at 677. When harassment reoccurred, Xerxes "t[ook] increasingly progressive measures to address [it]." Central Wholesalers, 573 F.3d at 178. Where the alleged offenders were known and the offenses could be corroborated, Xerxes took disciplinary action, in the form of counseling, written reprimands, fInal warnings, suspensions, and, in one instance, termination, and conducted refresher training of the workforce in its antiharassment policies. Where the perpetrators were unknown and could not be identifIed, Xerxes eulisted the assistance of the local police department and warned its entire workforce of the serious consequences that would ensue if the perpetrators were identifIed. Holding Xerxes "liable under these circumstances would be tantamount to imposing strict liability on an employer ... regardless of the employer's ... response," Spicer, 66 F.3d at 711, and "would make employers insurers against future [racial] harassment by coworkers after an initial employee response, regardless of the nature of the response taken. This is liability without end," Adler, 144 F.3d at 679.

Because the EEOC has failed to present sufficient evidence upon which a jury could fInd that Xerxes' responses to the reported incidents of racial harassment beginning in February 2006 were not reasonably calculated to end the harassment, liability for the subsequent, isolated acts of coworker harassment of Pearson and Wilson may not be imputed to Xerxes. Accordingly, we affIrm the district court's award of summary judgment as it pertains to this time period.
v.

This brings us to the district court's grant of summary judgment to Xerxes on the racial harassment claims advanced by

EEOC v. XERxEs CORP.

29

the EEOC on behalf of Graham. In addition to granting summary judgment to Xerxes based upon its conclusion that Xerxes' responses to the reports of harassment were reasonable, the district court expressed doubt that Graham had satisfied the threshold requirement of demonstrating that he was subjected to severe or pervasive harassment, and held that there was insufficient evidence that Shifflett's alleged actions were based on race.

The determination of whether "race-based harassment was so severe or pervasive as to alter the conditions of' employment includes "both subjective and objective components." Central Wholesalers, 573 F.3d at 175. The employee must demonstrate that he "did perceive, and a reasonable person would perceive, the environment to be abusive or hostile." ld. "[W]hen 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 (internal quotation marks omitted).

The EEOC '''must clear a high bar in order to satisfy the severe or pervasive test. '" Central Wholesalers, 573 F.3d at 176 (internal quotation marks omitted). It "must show that the environment was pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate, thereby creating an abusive atmosphere." ld. (internal quotation marks omitted). Thus, we have held that "conclusory statements, without specific evidentiary support, cannot support an actionable claim for harassment," Causey v. Balog, 162 F.3d 795,802 (4th Cir. 1998), and that allegations "[un]substantiated by accounts of specific dates, times or circumstances," are too "general" to suffice, Carter v. Ball, 33 F.3d 450,461-62 (4th Cir. 1994).

Here, the EEOC has failed to present sufficient evidence upon which a jury could conclude that Graham was subjected

30

EEOC v. XERxEs CORP.

to a racially hostile work environment. Graham's testimony consists of general statements that Churchey used a racial slur "a bunch of different times," J.A. 103, and, later, that it was "[n]ot one occasion," J.A. 104. However, his "best recollection" was only that this occurred at some point during his "time of employment" at Xerxes, which spanned from August 2004 until April 2007. Graham's testimony is wholly unsupported by any detail, context, examples, or time frame. "Such [general] assertions, standing alone, are [simply] insufficient
to sustain an actionable Title vn claim." Gilliam v. South
Carolina Dep't of Juvenile Justice, 474 F.3d 134, 143 (4th Cir. 2007). Similarly, Graham's uncorroborated testimony that Churchey trained him poorly during the first two weeks of his employment, before he was reassigned to Carolyn Reed
for training, is insufficient to establish a Title vn claim.
There is insufficient evidence to show that Churchey's poor training of Graham was based on his race and insufficient evidence that Graham's "environment was [so] pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate, [as to] creat[e] an abusive atmosphere." Central Wholesalers, 573 F.3d at 176 (internal quotation marks omitted).

Finally, we agree that Graham's allegations regarding Shifflett's conduct in January 2007 fail to support an actionable Title VII claim. Graham complains that Shiffiett stared at him strangely and looked at him when he was in a bathroom stall. However, there is no evidence that Shiffiett's actions, even if they occurred, were motivated by Graham's race, see Hawkins v. PepsiCo, Inc., 203 F.3d 274,281 (4th Cir. 2000) (concluding that disputes with a supervisor, without evidence that harassment was racial in nature, were not enough to sustain sununary judgment on hostile work environment claim), and Xerxes' responses to Graham's complaints about Shiffiett were reasonable. Accordingly, we affirm the district court's grant of sununary judgment for Xerxes as it pertains to Graham.

EEOC v. XERxEs CORP.

31

VI.

Because there is a genuine issue of material fact as to whether Xerxes was on notice of racial harassment of Pearson and Wilson prior to February 2006, and took no action reasonably calculated to end the harassment, we vacate the district court's award of summary judgment as it pertains to that time period, and remand for further proceedings consistent with this opinion. The remainder of the district court's decision is affirmed.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

WILKINSON, Circuit Judge, concurring:

The undisguised ugliness of the incidents alleged here stands as a rebuke to complacency and a reminder that the task of racial reconciliation in our country remains incomplete. When judges speak of impermissible alterations of the terms and conditions of employment, what we mean is that no one should endure under law displays of racial bigotry at work.

The court is right to recognize that the company for the most part did not sit on its hands. As the district court has documented, Xerxes took the reports of rank prejudice in its midst quite seriously. I can hardly fault the able judge for believing that taken as a whole, the company's response was reasonably calculated to end the harassment. See J.A. 847 ("The record . . . reveals that whenever Xerxes learned of harassment, it acted quickly and reasonably effectively to end it. ").

It is understandable, in one sense, for the EEOC to believe that the company should have done more - that, as the agency puts it, "Xerxes knew about the racial harassment of

32

EEOC v. XERxEs CORP.

all three class members but failed to take prompt or effective remedial action." Appellant's Br. at 31. Therein lies peril. To push employers to immediate and draconian actions is to dispense with any semblance of due process - to require disciplining the accused upon mere accusation. It is true the defendant here is not a state actor, but no entity - public or private - should be denied the leeway to sort out right from wrong.

There is a danger also, if the law requires too heavy an employer fist, that we stiffen interpersonal relationships; punish those inadvertent insensitivities that can arise even among persons of good will; and discourage the formation of friendships free of boundaries - the sole felicitous path upon which a decent people may proceed.

These hostile environment cases often defy hasty judgment. I write simply to co=end the court for its good sense and balance - affirming in substantial part, but sending one claim back for a closer, further look. I am pleased to concur in its opinion. For every sad window such as this upon our daily lives, there is a hopeful one - unreported, unlitigated, but in its own way, a harbinger of happier times to come.

DIANA GRIBBON MOTZ, Circuit Judge, concurring:

In my view, the EEOC offered ample evidence of severe and pervasive racial harassment of two African-American employees-Bernard Pearson and Keith Wilson-by their coworkers. The conduct of the harassing co-workers was not just ugly, it was outrageous. The record is rife with testimony of racial slurs directed at Mr. Pearson and Mr. Wilson from at least six fellow Xerxes employees. The record also contains evidence that anonymous pranks were played on them and vile anonymous threats made to them. No one should be subjected to such abuse in the workplace. The panel opinion rightly concludes that the EEOC offered sufficient evidence

EEOC v. XERxEs CORP.

33

of severe and pervasive racial harassment in Xerxes's workplace to require a trial on that issue.

But not all workplace harassment---even harassment as severe and pervasive as that at issue here-imposes liability on the employer. Rather, "the EEOC must establish some basis for imposing liability" on the employer. EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008).

If an employer's president or another management official "indisputably within that class of . . . officials who may be treated as the organization's proxy" had perpetrated this harassment, it would certainly be imputable to the employer. Faragher v. City of Boca Raton, 524 U.S. 775, 789 (1998). Moreover, we have held that when an employee perpetrates such harassment on a fellow employee, it will also be imputable to the employer-provided that the employer knew about the harassment and failed to "respond with remedial action reasonably calculated to end the harassment." EEOC v. Central Wholesalers, Inc., 573 F.3d 167, 177 (4th Cir. 2009)(quoting Sunbelt Rentals, 521 F.3d at 319).

In this case, the EEOC does not contend high level officials of Xerxes management perpetrated the harassment. Rather, the EEOC's only contention is that fellow employees engaged in these dreadful acts of racial harassment. To render Xerxes responsible for its employees' actions, the EEOC must offer evidence that Xerxes failed to take remedial action calculated to end the harassment. For the period after February 2006, the panel holds that the EEOC has failed to offer such evidence.

In retrospect, I believe that more aggressive, early corrective action by Xerxes would have been well advised. However, although this is a very close case, it seems to me our precedent does not require Xerxes to undertake such action. For our precedent holds that an employer's "particular remedial responses" need not be the "most certainly effective that
could be devised." Mikels v. City ofDurham, N. c., 183 F.3d

34

EEOC v. XERxEs CORP.

323, 330 (4th Cir. 1999); see also Spicer v. Comm. of Va., Dep't of Corr., 66 F.3d 705, 710 (4th Cir. 1995)(en banc)("[W]e have never suggested that an employer must make the most effective response possible ...."). Given this precedent, I think we must conclude that the EEOC failed to offer evidence that the remedial action undertaken by Xerxes, after February 2006, was inadequate.

Accordingly, I concur.

 
 Case: 1:08-cv-01882-CCB As of: 06/04/2011 12:09 PM EDT 1 of 6
APPEAL, CASREF, CLOSED
U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:08−cv−01882−CCB

EEOC v. Xerxes Corporation Assigned to: Judge Catherine C. Blake Case in other court: USCA, 10−01156 Cause: 42:2003 Job Discrimination
Plaintiff
Equal Employment Opportunity Commission

Date Filed: 07/18/2008 Date Terminated: 11/30/2009 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Regina Maria Andrew Equal Employment Opportunity Commission City Crescent Bldg 10 S Howard St Third Fl Baltimore, MD 21201 14109624220 Fax: 14109624270 Email: regina.andrew@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Debra Michele Lawrence U S Equal Employment Opportunity Commission City Crescent Bldg 10 S Howard St Third Fl Baltimore, MD 21201 14109623932 Fax: 14109622817 Email: debra.lawrence@eeoc.gov ATTORNEY TO BE NOTICED

V. Defendant Xerxes Corporation

represented by William Carlos Parler , Jr Parler and Wobber LLP The Hemenway Bldg 406 E Joppa Rd Towson, MD 21286 14108321800 Fax: 14108322536 Email: w.parler@parlerwobber.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Mills Scott Oppenheimer Wolff and Donnelly LLP Plaza VII Bldg 45 S Seventh St Ste 3300 Minneapolis, MN 55402 16126077000 Fax: 16126077100 Email: ascott@oppenheimer.com PRO HAC VICE ATTORNEY TO BE NOTICED
Meghan Marie Anzelc Oppenheimer Wolff and Donnelly LLP

Case: 1:08-cv-01882-CCB

As of: 06/04/2011 12:09 PM EDT 2 of 6
Plaza VII Bldg 45 S Seventh St Ste 3300 Minneapolis, MN 55402 16126077504 Fax: 16126077100 Email: manzelc@oppenheimer.com PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Clare Castle Oppenheimer Wolff and Donnelly LLP Plaza VII Bldg 45 S Seventh St Ste 3300 Minneapolis, MN 55402 16126077000 Fax: 16126077100 PRO HAC VICE ATTORNEY TO BE NOTICED
William John Egan Oppenheimer Wolff and Donnelly LLP Plaza VII Bldg 45 S Seventh St Ste 3300 Minneapolis, MN 55402 16126077000 Fax: 16126077100 Email: wegan@oppenheimer.com PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 07/18/2008
07/18/2008 07/21/2008
08/25/2008
09/18/2008 10/02/2008 10/03/2008 10/06/2008
10/07/2008

# Docket Text
1 COMPLAINT against Xerxes Corporation, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(ljs, Deputy Clerk) (Entered: 07/21/2008)
Jury Trial Demand by Equal Employment Opportunity Commission. (ljs, Deputy Clerk) (Entered: 07/21/2008)
2 REQUEST FOR WAIVER of Service of Summons as to Xerxes Corporation by Equal Employment Opportunity Commission. (Attachments: # 1 Waiver of Service of Summons)(ljs, Deputy Clerk) (Entered: 07/21/2008)
3 WAIVER OF SERVICE Returned Executed by Equal Employment Opportunity Commission. Xerxes Corporation waiver sent on 7/21/2008, answer due 9/19/2008. (Andrew, Regina) (Entered: 08/25/2008)
4 STIPULATION re 1 Complaint Extend Time To Answer by Equal Employment Opportunity Commission. (Andrew, Regina) (Entered: 09/18/2008)
5 ANSWER to 1 Complaint by Xerxes Corporation.(Parler, William) (Entered: 10/02/2008)
6 SCHEDULING ORDER (Judge Davis) (Entered: 10/03/2008)
7 MOTION to Appear Pro Hac Vice for Robert C. Castle on behalf of Xerxes Corporation Filing fee $ 50, receipt number 14637028975. by Xerxes Corporation (eg, Deputy Clerk) (Entered: 10/06/2008)
8 PAPERLESS ORDER granting 7 Motion to Appear Pro Hac Vice for attorney Robert C Castle on behalf of Xerxes Corporation. Directing attorney Robert C Castle to register on−line for CM/ECF at http://www.mdd.uscourts.gov/attorney/registration.asp.. Signed by Clerk on 10/7/08. (cmns, Deputy Clerk) (Entered: 10/07/2008)

Case: 1:08-cv-01882-CCB As of: 06/04/2011 12:09 PM EDT 3 of 6

10/07/2008

9 STIPULATION Joint Stipulation for Early ADR and Postponement of Discovery/Suspension of Scheduling Order Deadlines by Xerxes Corporation. (Parler, William) (Entered: 10/07/2008)

10/08/2008

10 ORDER REFERRING CASE to Magistrate James K. Bredar for settlement. Signed by Judge Andre M Davis on 10/8/08. (jnl, Deputy Clerk) (Entered: 10/08/2008)

10/08/2008

11 ORDER Setting date for Settlement Conference. Signed by Magistrate James K. Bredar on 10/8/08(cag, Deputy Clerk) (Entered: 10/09/2008)

10/09/2008

Deficiency Notice − to Xerxes Corporation − Your Local Rule 103.3 disclosure statement has not been filed. The Statement must be filed by 10/21/2008 (egs, Deputy Clerk) (Entered: 10/09/2008)

10/20/2008

13 Local Rule 103.3 Disclosure Statement by Xerxes Corporation. (Parler, William) (Entered: 10/20/2008)

10/28/2008

Settlement Conference held on 10/28/2008 before Magistrate James K. Bredar. (das, Deputy Clerk) (Entered: 10/28/2008)

10/28/2008

Magistrate James K. Bredar no longer referred for settlement. (das, Deputy Clerk) (Entered: 10/28/2008)

11/17/2008

14 STIPULATION to Amend the Scheduling Order by Xerxes Corporation. (Attachments: # 1 Text of Proposed Order)(Parler, William) (Entered: 11/17/2008)

11/17/2008

15 PAPERLESS ORDER APPROVING 14 Stipulation filed by Xerxes Corporation (Judge Davis) (Entered: 11/17/2008)

12/04/2008

16 MOTION to Appear Pro Hac Vice for William J. Egan on behalf of Xerxes Corporation Filing fee $ 50, receipt number 04160000000001935386. by Xerxes Corporation (Parler, William) (Entered: 12/04/2008)

12/04/2008

17 MOTION to Appear Pro Hac Vice for Meghan M. Anzelc on behalf of Xerxes Corporation Filing fee $ 50, receipt number 04160000000001935392. by Xerxes Corporation (Parler, William) (Entered: 12/04/2008)

12/05/2008

18 PAPERLESS ORDER granting 17 Motion to Appear Pro Hac Vice for attorney Meghan M Anzelc on behalf of Xerxes Corporation. Directing attorney Meghan M Anzelc to register on−line for CM/ECF at http://www.mdd.uscourts.gov/attorney/registration.asp.. Signed by Clerk on 12/5/08. (cmns, Deputy Clerk) (Entered: 12/05/2008)

12/05/2008

19 PAPERLESS ORDER granting 16 Motion to Appear Pro Hac Vice for attorney William John Egan on behalf of Xerxes Corporation. Directing attorney William John Egan to register on−line for CM/ECF at http://www.mdd.uscourts.gov/attorney/registration.asp.. Signed by Clerk on 12/5/08. (cmns, Deputy Clerk) (Entered: 12/05/2008)

02/05/2009

20 STIPULATION for Protective Order by Xerxes Corporation. (Attachments: # 1 Text of Proposed Order Proposed Protective Order)(Anzelc, Meghan) (Entered: 02/05/2009)

02/07/2009

21 PROTECTIVE/CONFIDENTIALITY ORDER (Judge Davis) (Entered: 02/07/2009)

02/09/2009

22 (FILED IN ERROR) NOTICE to Take Deposition of Neville Haymans. (Parler, William) Modified on 2/10/2009 (das, Deputy Clerk). (Entered: 02/09/2009)

02/09/2009

23 (FILED IN ERROR) NOTICE to Take Deposition of Bernard Pearson. (Parler, William) Modified on 2/10/2009 (das, Deputy Clerk). (Entered: 02/09/2009)

02/09/2009

24 (FILED IN ERROR) NOTICE to Take Deposition of Keith Wilson. (Parler, William) Modified on 2/10/2009 (das, Deputy Clerk). (Entered: 02/09/2009)

02/09/2009

25 (FILED IN ERROR) NOTICE by Xerxes Corporation re 23 Notice to Take Deposition, 22 Notice to Take Deposition, 24 Notice to Take Deposition Notice of Service (Parler, William) Modified on 2/10/2009 (das, Deputy Clerk). (Entered: 02/09/2009)

Case: 1:08-cv-01882-CCB As of: 06/04/2011 12:09 PM EDT 4 of 6

03/18/2009

26 Joint MOTION for Extension of Time to Complete Discovery by Equal Employment Opportunity Commission. Responses due by 4/6/2009 (Andrew, Regina) (Entered: 03/18/2009)

03/18/2009

27 ORDER granting 26 Motion for Extension of Time to Complete Discovery (Judge Davis) (Entered: 03/18/2009)

05/17/2009

28 PAPERLESS ORDER finding as moot 12 Motion for Disclosure (Judge Davis) (Entered: 05/17/2009)

05/20/2009

Case reassigned to Judge Catherine C. Blake. Judge Andre M Davis no longer assigned to the case. (cag, Deputy Clerk) (Entered: 05/20/2009)

05/26/2009

29 MOTION to Compel Deposition Testimony of Ronald Bachmeier by Equal Employment Opportunity Commission Responses due by 6/12/2009 (Attachments: # 1 Memorandum In Support, # 2 Exhibit "A")(Andrew, Regina) (Entered: 05/26/2009)

06/05/2009

30 PAPERLESS Correspondence: Please submit status report due May 26, 2009 as directed by Judge Davis. (Blake, Catherine) (Entered: 06/05/2009)

06/06/2009

31 CERTIFICATE of Counsel re 29 MOTION to Compel Deposition Testimony of Ronald Bachmeier Local Rule 104.7 by Regina Maria Andrew on behalf of Equal Employment Opportunity Commission (Andrew, Regina) (Entered: 06/06/2009)

06/09/2009

32 Status Report Submitted Joint Status Report by Equal Employment Opportunity Commission, Xerxes Corporation (Parler, William) (Entered: 06/09/2009)

06/09/2009

33 ORDER REFERRING CASE to Magistrate James K. Bredar for Settlement. Signed by Judge Catherine C. Blake on 6/9/09 (cag, Deputy Clerk) (Entered: 06/09/2009)

06/09/2009

34 ORDER APPROVING 32 Status Report and Motions Schedule Submitted by Equal Employment Opportunity Commission, Xerxes Corporation ; REFERRING case for mediation with Judge Bredar in late September or early October, 2009. Signed by Judge Catherine C. Blake on 6/9/09. (das, Deputy Clerk) (Entered: 06/09/2009)

06/10/2009

35 NOTICE by Xerxes Corporation Appearance of Kathleen Wobber on behalf of Defendant Xerxes Corporation (Parler, William) (Entered: 06/10/2009)

06/10/2009

36 ORDER SCHEDULING settlement conference for 9/24/09. Signed by Magistrate James K. Bredar on 6/10/09. (das, Deputy Clerk) (Entered: 06/11/2009)

06/12/2009

37 RESPONSE to Motion re 29 MOTION to Compel Deposition Testimony of Ronald Bachmeier filed by Xerxes Corporation. Replies due by 6/26/2009. (Attachments: # 1 Affidavit Affidavit of Castle, # 2 Affidavit Peterson, # 3 Exhibit A, # 4 Exhibit B Part I, # 5 Exhibit B Part II, # 6 Exhibit B Part III, # 7 Exhibit C, # 8 Text of Proposed Order)(Parler, William) (Entered: 06/12/2009)

06/23/2009

38 REPLY to Response to Motion re 29 MOTION to Compel Deposition Testimony of Ronald Bachmeier filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Bachmeier's Handwritten Notes)(Andrew, Regina) (Entered: 06/23/2009)

07/06/2009

39 ORDER denying 29 Motion to Compel. Signed by Judge Catherine C. Blake on 7/6/09. (das, Deputy Clerk) (Entered: 07/07/2009)

07/17/2009

40 MOTION for Summary Judgment by Xerxes Corporation Responses due by 8/3/2009 (Attachments: # 1 Memorandum of Law, # 2 Request for Hearing, # 3 Text of Proposed Order, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Affidavit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Affidavit, # 15 Exhibit, # 16 Exhibit, # 17 Affidavit)(Parler, William) (Entered: 07/17/2009)

08/17/2009

41 (FILED IN ERROR) MOTION to Appear Pro Hac Vice for Aaron Mills Scott on behalf of Xerxes Corporation Filing fee $ 50, receipt number 04160000000002218103. by Xerxes Corporation (Parler, William) Modified on 8/17/2009 (das, Deputy Clerk). Modified on 8/17/2009 (das, Deputy Clerk).

Case: 1:08-cv-01882-CCB As of: 06/04/2011 12:09 PM EDT 5 of 6

08/17/2009
08/17/2009 08/17/2009
08/18/2009
09/16/2009 09/21/2009 09/24/2009 09/24/2009 09/29/2009 10/07/2009 10/08/2009 11/05/2009
11/30/2009 11/30/2009

(Attorney called to say they forgot to sign the motion) (Entered: 08/17/2009)
42 Cross MOTION for Partial Summary Judgment and Opposition to Defendant's Motion for Summary Judgment by Equal Employment Opportunity Commission Responses due by 9/3/2009 (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8, # 8 Exhibit 9, # 9 Exhibit 10, # 10 Exhibit 11, # 11 Exhibit 12, # 12 Exhibit 13, # 13 Exhibit 14, # 14 Exhibit 15, # 15 Exhibit 16, # 16 Exhibit 17, # 17 Exhibit 18, # 18 Exhibit 19, # 19 Exhibit 20, # 20 Exhibit 21, # 21 Exhibit 13A)(Andrew, Regina) Modified on 8/20/2009 (eg, Deputy Clerk). (recv'd 8/20/09 EXHIBIT 1 FILED SEPARATELY) (Entered: 08/17/2009)
43 MOTION to Appear Pro Hac Vice for Aaron Mills Scott on behalf of Xerxes Corporation; Filing fee $ 50, receipt number 04160000000002218103. (das, Deputy Clerk) (Entered: 08/17/2009)
44 NOTICE by Equal Employment Opportunity Commission re 42 Cross MOTION for Partial Summary Judgment and Opposition to Defendant's Motion for Summary Judgment Of Filing of Lengthy Exhibit (Andrew, Regina) (LENGTHY EXHIBIT REC'D 8/18/09) Modified on 8/19/2009 (hmls, Deputy Clerk). (Entered: 08/17/2009)
45 PAPERLESS ORDER granting 43 Motion to Appear Pro Hac Vice for attorney Aaron Mills Scott on behalf of Xerxes Corporation. Directing attorney Aaron Mills Scott to register on−line for CM/ECF at http://www.mdd.uscourts.gov/attorney/registration.asp.. Signed by Clerk on 8/18/09. (cmns, Deputy Clerk) (Entered: 08/18/2009)
46 RESPONSE re 44 Notice (Other), Notice (Other), 42 Cross MOTION for Partial Summary Judgment and Opposition to Defendant's Motion for Summary Judgment filed by Xerxes Corporation. (Attachments: # 1 Exhibit 1−7, # 2 Affidavit Wayne Green, # 3 Text of Proposed Order)(Parler, William) (Entered: 09/16/2009)
Telephone Settlement Conference held on 9/21/2009 before Magistrate James K. Bredar. (das, Deputy Clerk) (Entered: 09/23/2009)
Settlement Conference held on 9/24/2009 before Magistrate James K. Bredar. (das, Deputy Clerk) (Entered: 09/24/2009)
Magistrate James K. Bredar no longer referred to case. (das, Deputy Clerk) (Entered: 09/24/2009)
47 PAPERLESS Correspondence to counsel: The Court has scheduled a conference call to discuss further scheduling needs for OCTOBER 7, 2009 at 5:00 P.M. Plaintiff's counsel is asked to initiate the call. (Blake, Catherine) (Entered: 09/29/2009)
Telephone Conference held on 10/7/2009 held before Judge Catherine C. Blake. (kam, Deputy Clerk) (Entered: 10/08/2009)
48 Miscellaneous Correspondence to counsel scheduling a motions hearing. (Blake, Catherine) (Entered: 10/08/2009)
49 Motion Hearing held on 11/5/2009 re 40 MOTION for Summary Judgment filed by Xerxes Corporation, 42 Cross MOTION for Partial Summary Judgment and Opposition to Defendant's Motion for Summary Judgment filed by Equal Employment Opportunity Commission held before Judge Catherine C. Blake. (Court Reporter: Gail Simpkins) (kam, Deputy Clerk) (Entered: 11/05/2009)
50 MEMORANDUM. Signed by Judge Catherine C. Blake on 11/30/09. (das, Deputy Clerk) (Entered: 11/30/2009)
51 ORDER granting 40 Motion of Defendant for Summary Judgment; denying 42 Motion of Plaintiff for Partial Summary Judgment; ENTERING Judgment in favor of Defendant; CLOSING case. Signed by Judge Catherine C. Blake on 11/30/09. (das, Deputy Clerk) (Entered: 11/30/2009)

Case: 1:08-cv-01882-CCB As of: 06/04/2011 12:09 PM EDT 6 of 6

12/14/2009

52 BILL OF COSTS by Xerxes Corporation. (Attachments: # 1 Memorandum, # 2 Affidavit, # 3 Exhibit)(Parler, William) (Entered: 12/14/2009)

12/31/2009

53 STIPULATION re 52 Bill of Costs to extend time to file a response by Equal Employment Opportunity Commission. (Andrew, Regina) (Entered: 12/31/2009)

01/04/2010

54 PAPERLESS ORDER APPROVING 53 Stipulation to Extend Time until January 11, 2010 to respond to the Bill of Costs. Signed by Judge Catherine C. Blake on January 4, 2010. (Blake, Catherine) (Entered: 01/04/2010)

01/11/2010

55 BILL OF COSTS Objection to Defendant's by Equal Employment Opportunity Commission. (Andrew, Regina) (Entered: 01/11/2010)

01/28/2010

56 NOTICE OF APPEAL as to 51 Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment by Equal Employment Opportunity Commission. Appeal Record due by 3/2/2010. (Andrew, Regina) (Entered: 01/28/2010)

02/04/2010

57 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 11−5−2009, before Judge Blake. Court Reporter/Transcriber Gail Simpkins, Telephone number 410−962−4536. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER... Redaction Request due 2/25/2010. Redacted Transcript Deadline set for 3/8/2010. Release of Transcript Restriction set for 5/5/2010. (gak, Court Reporter) (Entered: 02/04/2010)

02/05/2010

58 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 56 Notice of Appeal. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms &Notices. (nrm, Deputy Clerk) (Entered: 02/05/2010)

02/10/2010

59 USCA Case Number 10−1156 for 56 Notice of Appeal filed by Equal Employment Opportunity Commission. Case Manager − RJ Warren (nrm, Deputy Clerk) (Entered: 02/16/2010)

04/26/2011

60 JUDGMENT of USCA (certified copy): In accordance with the decision of this court, the judgment of the district court is "Affirmed" in part and "Vacated" in part. This case is "Remanded" to the district court for further proceedings consistent with the court's decision as to 56 Notice of Appeal filed by Equal Employment Opportunity Commission (Attachments: # 1 NOTICE OF JUDGMENT, # 2 PUBLISHED AUTHORED OPINION) (nrm, Deputy Clerk). (Entered: 04/26/2011)