UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHEILA PATTERSON,

Plaintiff-Appellant,

v.

No. 99-1738

COUNTY OF FAIRFAX, VIRGINIA; THE

BOARD OF COUNTY SUPERVISORS,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Chief District Judge.

(CA-93-788-A)

Argued: January 24, 2000

Decided: May 18, 2000

Before MICHAEL and TRAXLER, Circuit Judges, and

John T. COPENHAVER, Jr., United States District Judge for the

Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Traxler wrote the majority

opinion, in which Judge Copenhaver joined. Judge Michael wrote a

dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Claude David Convisser, CLAUDE D. CONVISSER &

ASSOCIATES, P.C., Alexandria, Virginia, for Appellant. Cynthia

Lee Tianti, Assistant County Attorney, Fairfax, Virginia, for Appel-
lees. ON BRIEF: David P. Bobzien, County Attorney, Robert Lyndon Howell, Deputy County Attorney, Fairfax, Virginia, for

Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

TRAXLER, Circuit Judge:

Sheila Patterson ("Patterson") appeals from a grant of summary

judgment in favor of the County of Fairfax ("the County") on her

Title VII hostile work environment claim. We affirm.

I.

The County hired Patterson, an African-American woman, as a

police officer in November 1983. Patterson filed suit in 1993 against

her employer alleging a bevy of wrongs. Over the course of this litigation, this court has affirmed grants of summary judgment on Patterson's claims of discriminatory failure to promote, discriminatory

denial of training opportunities, discriminatory application of disciplinary proceedings, and retaliation. See Patterson v. County of Fairfax, No. 97-1015, 1998 WL 869893 (4th Cir. Dec. 15, 1998) (per

curiam) (unpublished). The only claim remaining after seven years of

litigation is Patterson's claim of a hostile work environment based on

sex and race. The last time Patterson's case was before us, we

remanded the hostile work environment claim so that Patterson could

resubmit authenticated exhibits which had been inadvertently

destroyed after the initial remand. See id. After receiving Patterson's

evidence, the district court again granted summary judgment because

Patterson "ha[d] not established that her environment was either

severe or pervasive as to alter the terms of her conditions of her

employment." J.A. 105.

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The facts giving rise to the allegedly hostile environment, viewed

in the light most favorable to Patterson, are as follows. In December

1983, shortly after she was hired, Patterson and her field training officer were joined for lunch by Officer Brian McAndrew. A news segment about Jesse Jackson appeared on the restaurant's television and

a discussion ensued among the officers. As the exchange grew heated,

McAndrew told Patterson that the problem with her was that she was

oppressed. Patterson took offense at the comment. In early 1984, Patterson had another encounter with McAndrew. While the two officers

were riding together McAndrew told Patterson that she had two

strikes against her: race and sex. The final incident involving McAndrew occurred in the department's locker room in 1985. McAndrew

walked by Patterson when she was shining her shoes and jokingly

asked her to shine his boots. Angered by the remark, Patterson

reported the boots comment to Second Lieutenant Duckett who investigated the complaint. McAndrew apologized to Patterson, stressed

his comment had no racial overtones, and was hugged by Patterson.

The department took no further action.

Patterson next complains about the conduct of Officer William

Petracca, who served as one of her training officers. According to Patterson, in 1984 Petracca rolled down the window of his police cruiser

and sprayed mace out of the window so that it drifted toward her. Patterson also avers that Petracca maced her roll-call chair. Patterson

never complained about the mace incidents to the department's internal affairs office.

In November 1984, Patterson and Officer Stephen Scherr had a dispute. The police dispatcher had directed Patterson to respond to a call

at "Commonwealth ER." Patterson did not respond to the hospital

because she was looking for the intersection of Commonwealth and

ER streets. Once Officer Scherr learned that Patterson did not know

that ER stood for emergency room, he called her a"dumb bitch." Patterson reported Scherr's name-calling to her superiors, but "didn't

want Officer Scherr to get into any further trouble but . . . did want

him to be verbally told of his wrong doing." J.A. 123. Scherr was

informally counseled and apologized to Patterson.

In February 1986, Patterson and Officer Ernest Jones were scheduled to provide security for a high school wrestling match. Jones

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arrived at the school, but learned that the match was canceled due to

a winter storm. He returned to the police station and encountered Patterson in the locker room. When questioned why she did not report

to the school, Patterson explained that she was delayed by heavy traffic. Jones later took umbrage at Patterson submitting a request for

overtime pay when she never arrived at the high school. Jones told

Patterson that "[a]ll women do is bitch. They aren't nothing but a

bunch of bitches." J.A. 126. He further opined that women did not

belong in the police department.

One month following the dispute with Jones, Patterson requested

duty in the West Springfield District, a prized assignment because of

its size. Patterson claims her supervisor denied the request and

explained that only officers certified as Accident Investigation Unit

Specialists (AIUS) could work in the West Springfield District. Patterson later learned that officers who were not certified AIUS had

been assigned to West Springfield. In a December 1986 internal

affairs investigation,1 Patterson's supervisor denied mentioning anything about certification to Patterson. Moreover, the investigation

revealed that officers were assigned to West Springfield based on

their competence. The internal affairs report concluded that Patterson's previous troubles operating a camera at an accident scene prevented her assignment to West Springfield.

Patterson also maintains that her supervisors fabricated charges

against her. Specifically, Patterson points to an oral reprimand she

received in September 1986 for touching a citizen with her flashlight.

Though Patterson admitted to "nudging" the citizen, she filed a grievance and the reprimand was upheld. Patterson further alleges that fellow officers encouraged citizens to file complaints against her, but the

record is bereft of evidence that any complaints were filed.

_________________________________________________________________

1 In her brief, Patterson objects to consideration of the results of the

internal affairs investigation which examined many of the incidents at

issue here. According to Patterson, it was improperly admitted into evidence. We find that consideration of the report is proper because the

County had filed it with the district court previously and there was no

objection made to it at that time by Patterson. Under the pretrial order

of the district court, exhibits were deemed admitted into evidence when

there was no objection. Nothing in the remand undid the effect of prior

submissions by the County.

 4
In the fall of 1986, Patterson noticed what she described as a double standard regarding report corrections. Patterson complains that

supervisors made corrections for the male officers, but required her

to rewrite numerous reports. However, Patterson's 1986 Performance

Rating indicated that she "habitually turns required reports in which

are incomplete or misclassified." J.A. 218. The evaluator recommended that Patterson spend more time reviewing her written work,

but nonetheless recommended that Patterson "receive her merit increment." J.A. 220. An internal affairs investigation revealed that many

officers, on occasion, had reports returned for correction.

As further evidence of a hostile environment Patterson alleges that

when she asked for back-up fellow officers would inform the dispatcher that they were too busy to respond. According to the custodian of internal affairs' records, Patterson never filed a complaint

regarding refusals to provide assistance.

Automobile vandalism is also adduced by Patterson. At various

times in the 1980s, Patterson reported her car was keyed, the gasoline

cap stolen, the lights turned on, and the tires flattened--all while the

vehicle was parked near the police station. On one occasion, Patterson

left her car running in the station parking lot and returned to find the

windshield wipers on and the radio's volume increased. Patterson

does not know who tampered with her vehicle, but speculates it was

the work of fellow officers.

Patterson has also offered two affidavits from fellow officers in

which they state that other officers had referred to Patterson as "a

dumb nigger" and "Zulu," and that an officer openly stated that Patterson was transferred to the Mt. Vernon station because the supervisor

there "was a hatchet man and he gets rid of people the department

doesn't want working for it." J.A. 127-29. These comments were not

made in Patterson's presence.

Finally, Patterson points to two incidents occurring in the early

1990s. In the summer of 1990, Officer Timothy Baumker referred to

Patterson as "cruiser butt" or "cruiser ass." After an investigation,

Baumker received an oral reprimand. In 1992, Patterson found a dead

mouse in her mailbox at the police station. An investigation ensued

in which twenty-seven people were interviewed and three given poly-

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graph examinations. The department never discovered who, if anyone, placed the mouse in the mailbox.

II.

We review the district court's grant of summary judgment de novo,

viewing the evidence in the light most favorable to the nonmoving

party. See Smith v. Virginia Commonwealth Univ. , 84 F.3d 672, 675

(4th Cir. 1996) (en banc). "Summary judgment in favor of a defendant

in a civil action is appropriate when, after adequate time for discovery

and upon motion, the plaintiff `fails to make a showing sufficient to

establish the existence of an element essential to[the plaintiff's] case,

and on which [the plaintiff] will bear the burden of proof at trial.'"

LeBlanc v. Cahill, 153 F.3d 134, 148 (4th Cir. 1998) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986) (alterations in original)).

To establish a Title VII hostile work environment claim based on

race and gender, Patterson must establish four elements: (1) unwelcome conduct, (2) based on Patterson's race and gender, (3) sufficiently pervasive or severe to alter the conditions of employment and

to create a hostile work environment, and (4) some basis for imputing

liability to the County. See Smith v. First Union Nat'l Bank, No. 98-

2200, 2000 WL 37744, at *4 (4th Cir. Jan. 19, 2000).

First, Patterson contends that the conduct complained of was

unwelcome. We agree. The record indicates that Patterson reported

many of the incidents to superiors and often protested directly to the

offending officers. In light of the grievances filed and other protestations, Patterson clearly meets her burden on the first element.

Second, Patterson claims that all of the incidents complained of

were based on race or sex. "General harassment if not racial or sexual

is not actionable." Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir.

1994). Viewing the evidence in a light most favorable to Patterson,

we find that only seven of the incidents appear to be germane to racial

or gender animus: McAndrew's "oppression" and"two strikes" comments; Scherr's "dumb bitch" remark; Jones' disparaging statements

about women serving on the police force; the "dumb nigger" and

"Zulu" comments, neither of which Patterson heard; and Baumker's

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"cruiser butt" remark.2 The remaining incidents--ranging from routine disciplinary procedures to adolescent pranks to mean-spirited

behavior--are simply not susceptible to an inference of racial- or

gender-based hostility. See Yarnevic v. Brink's Inc., 102 F.3d 753,

757-58 (4th Cir. 1996) (holding that remote inferences and conclusory

allegations cannot defeat summary judgment). In addition, Patterson

cannot link two of the episodes--the vandalism and dead mouse--to

her fellow officers, and the record reveals several instances of Patterson's argumentative behavior and insubordination. Thus, inferring

that all the of incidents were based on sex and race would "transmute

. . . workplace disagreements between individuals of different races

[and genders] into actionable race [or gender] discrimination." Hawkins v. PepsiCo, Inc., No. 98-2193, 2000 WL 159903, at *1 (4th Cir.

Feb. 15, 2000). Accordingly, in examining the hostility element, we

will only consider the seven incidents to have been based on race or

sex.

Third, Patterson alleges that the conduct to which she was subjected was so severe and pervasive as to create a hostile work environment. A hostile work environment is actionable under Title VII

because it amounts to discrimination in the conditions of employment.

See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63-68 (1986). We

cannot construe Title VII to "provide a remedy for every instance of

verbal or physical harassment in the workplace," Lissau v. Southern

Food Serv., Inc., 159 F.3d 177, 183 (4th Cir. 1998), nor can we forge

"a federal guarantee of refinement and sophistication in the workplace." Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 773 (4th Cir.

1997). Rather, Title VII "prohibits only harassing behavior that is so

severe or pervasive as to render the workplace objectively hostile or

abusive." Id. The Supreme Court has made it abundantly clear that

_________________________________________________________________

2 The County fervently asserted that "cruiser butt" or "cruiser ass" did

not relate to race or gender. Instead, the county argued that it referred to

officers who sit in a police cruiser "all day and don't do work." J.A. 85.

The Tenth Circuit has concluded that "[t]he term `ass' is a vulgar expression that refers to a portion of the anatomy of persons of both sexes.

Thus, the term is gender-neutral." Gross v. Burggraf Constr. Co., 53 F.3d

1531, 1543 (10th Cir. 1995). However, giving Patterson the benefit of all

reasonable inferences, we will assume the term has some racial or sexual

connotation.

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"simple teasing, offhand comments, and isolated incidents (unless

extremely serious) will not amount to discriminatory changes in the

terms and conditions of employment." Faragher v. City of Boca

Raton, 118 S. Ct. 2275, 2283 (1998) (internal citations and quotation

marks omitted).

Patterson's allegations, assuming they are true, are simply insufficient to satisfy the requirement that the harassment be so severe or

pervasive as to create a hostile working environment. Initially, we

note that the seven incidents in question spanned a seven-year period.

So few incidents of racially or sexually motivated behavior occurring

over such a long period "alone suggests the absence of a condition

sufficiently pervasive to establish Title VII liability." Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 753 (4th Cir. 1996); see also

Baskerville v. Culligan Int'l Co., 50 F.3d 428, 431 (7th Cir. 1995)

("The infrequency of the offensive comments is relevant to an assessment of their impact. A handful of comments spread over months is

unlikely to have so great an emotional impact as a concentrated or

incessant barrage."); Bolden, 43 F.3d at 551 ("Instead of sporadic

racial slurs, there must be a steady barrage of opprobrious racial comments."). The affronts, though uncalled for, fall short of the consistent

abhorrent conduct prohibited by the statute.

Furthermore, Title VII also has a subjective component. See

Faragher, 118 S. Ct. at 2283 (stating "that in order to be actionable

under the statute, a sexually objectionable environment must be both

objectively and subjectively offensive, one that a reasonable person

would find hostile or abusive, and one that the victim in fact did perceive to be so"). In this context, it is not lost on the court that the

record indicates Patterson herself used the term"nigger" when referring to an African-American male suspect, and the term "bitch" when

referring to women with whom she was upset. J.A. 205-06, 224; see

Harris, 510 U.S. at 23 (stating that in determining whether an environment is hostile the court must "look[ ] at all the circumstances").

In conclusion, though the lack of professionalism shown at times

by Patterson's co-workers certainly led to periods of unpleasantness,

this is beyond the scope of Title VII. On one hand, courts must diligently enforce Congress' prohibitions against racial or sexual harassment in the workplace. But on the other hand, courts must also

 8
"ensure that Title VII does not become a general civility code."

Faragher, 118 S. Ct. at 2283-84 (internal quotation marks omitted).

To hold that the incidents complained of amount to a hostile work

environment would stretch Title VII beyond permissible limits. Under

the circumstances, "allowing [Patterson's] claim to go to trial would

countenance a federal cause of action for mere unpleasantness." Hartsell, 123 F.3d at 773. Because Patterson cannot establish a hostile

environment, we do not reach imputation of the conduct to Patterson's employer.

III.

For the foregoing reasons, we affirm the district court's decision

granting summary judgment to the County on Patterson's Title VII

hostile work environment claim.

AFFIRMED

MICHAEL, Circuit Judge, dissenting:

Because I believe that Sheila Patterson has forecast sufficient evidence to create a triable issue of fact on her Title VII claim, I must

respectfully dissent.

To make out a Title VII hostile work environment claim, Patterson

must establish four elements: (1) unwelcome harassment (2) "because

of" her race or gender (3) that is "sufficiently severe or pervasive to

create an abusive working environment," with (4) grounds for imputing liability to the employer. Smith v. First Union Nat'l Bank, 202

F.3d 234, 241 (4th Cir. 2000). I agree with the majority that Patterson

has met the first element, that is, the conduct she complains of was

unwelcome. In analyzing the remaining elements, however, we must

keep in mind that Patterson's case is at the summary judgment stage.

Accordingly, we are required to view the facts in the light most favorable to her. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255

(1986). We also "draw all justifiable inferences in favor of [Patterson], including questions of credibility and of the weight to be

accorded particular evidence." Masson v. New Yorker Magazine, Inc.,

501 U.S. 496, 520 (1991). When the proffered evidence is treated in

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this way, Patterson meets the remaining elements of a hostile work

environment claim.

On the second element, I believe the majority errs in concluding

that only seven incidents "appear to be germane to racial and gender

animus." Ante at 6. To be sure, the following seven incidents identified by the majority are directly attributable to racial or gender animus:

(1) In late 1983 Officer McAndrew told Patterson,"Sheila, the

problem with you is, you are oppressed. Black people are oppressed."

(2) In 1984 Officer McAndrew said to Patterson,"You have two

strikes against you, you are Black and you are a female." When Patterson asked, "Why do you say that?", McAndrew responded, "Because that is the way it is around here."

(3) After Patterson failed to respond to a call at "Commonwealth

ER" (a hospital) because she was mistakenly looking for the intersection of Commonwealth and ER streets, Officer Scherr yelled to her

in a harsh tone, "[You're] a dumb bitch!"

(4) In February 1986 Patterson did not report to a high school to

provide security for a wrestling match because she was delayed by

heavy traffic due to a storm. Officer Jones reported to the school but

learned that the match had been canceled because of the storm. When

he arrived at the station and saw Patterson, he told her that she was

not going to get overtime. The next day, Lt. Duckett signed her overtime slip. Shortly thereafter, Lt. Duckett and Officer Jones were playing pool in the dressing room. When Patterson asked to play, they

refused to allow her in the game. Jones then said,"Women don't

belong on this police department. This police department went to pot

when women were hired on the department. All women do is bitch.

They aren't nothing but a bunch of bitches. All they do is bitch. They

don't belong on the department." Patterson alleges that Lt. Duckett

did nothing except continue playing pool. Lt. Duckett later claimed

that he was not present during the incident.

(5) Officer Larry Neidig states in an affidavit that between 1983

and 1989 several officers said to him that "Sheila Patterson is a dumb

nigger."

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(6) Officer Thaddeus Furlong, who is white and graduated first in

his class from the police academy, reports in an affidavit that on one

occasion before Patterson arrived at a roll call meeting, he heard Officer Baumker state, "we got to wait for Zulu to come in." Baumker

was referring to Patterson.

(7) On at least two occasions, Officer Baumker called Patterson

"cruiser butt" or "cruiser ass."

A reasonable jury could attribute at least five more events or situations to racial or gender animus. We have said that"[a]n employee

is harassed or otherwise discriminated against `because of' his or her

sex if, `but-for' the employee's sex, he or she would not have been

the victim of the discrimination." Wrightson v. Pizza Hut of America,

Inc., 99 F.3d 138, 142 (4th Cir. 1996). A reasonable jury would have

at least two grounds for finding that additional events would not have

occurred "but for" Patterson's race or gender. First, when viewed in

conjunction with the seven incidents discussed above, these additional

events could be viewed as part of an overall pattern of discrimination.

See, e.g., Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083

(3d Cir. 1996). Second, because no white or male officers in the

department were treated in the same way, it would be reasonable to

infer that Patterson would not have been the victim of these other

incidents but for her race or gender. See, e.g. , Van Steenburgh v. Rival

Co., 171 F.3d 1155, 1159 (8th Cir. 1999). Consequently, at the summary judgment stage, the following five incidents or situations should

also be considered as attributable to racial or gender animus:

(1) While stationed in the West Springfield District from 1983 to

1987, Patterson reports that she frequently did not receive backup

support when she asked for it. When she would ask for backup, the

other officers often responded that they were busy. She also stated,

"After an officer refused over the radio, my fellow patrol officers

would click rapidly in unison on their hand microphones as a way to

mock me."

(2) On several occasions in 1984 Patterson's field training officer,

Officer Petracca, rolled down his cruiser window and sprayed mace

so that it flew directly into Patterson's face. Officer Petracca also

sprayed mace on Patterson's roll call chair in front of other officers.

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Patterson declares that Petracca's conduct "was far worse than he

exhibited towards other white, male officers."

(3) While in the locker room in 1985, Officer McAndrew said,

"Hey, Sheila, why don't you come over here and shine my shoes,"

and then he began to laugh. Patterson viewed the remark as a continuation of McAndrew's earlier comments disparaging her race and gender.

(4) In September 1986 Patterson was questioning a juvenile while

Sergeant Settlemeyer was present. Settlemeyer claims that Patterson

hit the juvenile on the leg with a flashlight, and Patterson admits to

"nudging" the juvenile. Lt. Duckett and Sgt. Settlemeyer orally reprimanded Patterson. Patterson filed a grievance as a result of the reprimand. No one from the department ever contacted the juvenile's

parents to investigate the incident. Patterson offers a letter and an affidavit from the parents. They say that Patterson"displayed an exemplary professional demeanor" at all times and that "she also displayed

human sensitivity and personal concern" for the juvenile and his parents.

(5) Monica Fenton, a resident of Fairfax County, declares that on

March 23, 1987, her neighbors had called the police about another

neighbor. Patterson responded first to the call. Later, four male police

officers arrived. Fenton overheard "Sgt. Settlemeyer tell the people

inside to calm down and if you would come down and file a complaint against this lady police officer (referring to Sheila Patterson),

we can get her put off the force because we already have it set up."

Fenton thought that the officers "were more interested in getting the

young man to make a complaint against Ms. Patterson than in taking

him into custody and enforcing the law."

These twelve matters -- the seven recognized by the majority plus

the additional five -- enable Patterson to meet the second element of

her hostile work environment claim. Patterson, in other words, has

proffered sufficient evidence to establish that she was harassed

because of her race or gender.1

_________________________________________________________________

1 Patterson complained to superiors about several of the twelve events.

In certain cases the department took some action, and in some cases Patterson claims that the department did not take any remedial action at all.

In any event, there is a material issue whether the department took adequate and effective remedial steps. See infra .

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In evaluating the third element, whether the incidents are sufficiently severe or pervasive, the Supreme Court instructs us to examine "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." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). The majority says

that because we are only talking about seven incidents (twelve or

more by my count) occurring over a seven-year period, they "fall

short of the consistent abhorrent conduct prohibited by the statute."

Ante at 8. I disagree and would not discount the incidents on grounds

of infrequency. First, Patterson forecasts evidence of several situations that involved both repeated and frequent harassment: Officer

McAndrew made harassing and demeaning comments on at least

three occasions; Officer Baumker called Patterson"cruiser butt" or

"cruiser ass" at least two times; Officer Petracca sprayed mace at Patterson on several occasions; and Patterson reports that (between 1983

and 1987) she often did not receive the backup support she needed.

In any event, the frequency of the conduct is only one factor in the

analysis of the third element (severity or pervasiveness). While we

noted in Hopkins v. Baltimore Gas & Electric Company, 77 F.3d 745,

753 (4th Cir. 1996), that a series of intermittent incidents spread over

seven years suggested a weak claim, we did not end our analysis

there. Instead, we went on to conclude that the plaintiff's claim also

failed because the alleged conduct "was sexually neutral or, at most,

ambiguous" and because many of the events occurred in group settings where it was unclear that the comments were directed specifically at the plaintiff. Id. at 753-54. In contrast, Patterson raises a

number of incidents that were overtly racial or sexual in nature. It was

also clear that comments made in group settings were directed specifically at Patterson. Finally, the events involving the mace and the failure to provide Patterson with backup support showed that her fellow

officers also placed her in physically threatening circumstances.

Patterson has also proffered enough evidence to meet the subjective component of the third element. To meet this component, Patterson need only forecast enough evidence to create a factual issue over

whether she perceived her work environment to be abusive. See Harris, 510 U.S. at 21-22. Regardless of whether Patterson may have

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occasionally used a derogatory term herself, see ante at 8, she has

indicated, through her own account of the events in question, that she

considered her own working conditions to be abusive and at times

threatening.

Analysis of the fourth element (imputation of liability to the

employer) depends on whether the actor was a co-worker or a supervisor. In co-worker harassment cases, an employer is liable if it had

notice and failed to take prompt remedial action. See Spicer v. Commonwealth, 66 F.3d 705, 710 (4th Cir. 1995). Patterson has alleged

a number of instances in which she gave her employer notice of coworker harassment. Whether the county met its burden to take remedial action depends on whether the action was prompt, effectual, and

adequate. See id. Based on Patterson's evidence, a reasonable jury

could find that the county's response was ineffective in several

instances. After Patterson notified her supervisors about Officer

McAndrew's offensive remarks, they took no corrective action, and

thereafter McAndrew demeaned Patterson still another time. Even

though Officer Jones explicitly stated that women did not belong in

the department, Internal Affairs decided to take no action about the

remark. Patterson also declares that her supervisors did nothing to

respond to her complaints regarding the lack of backup support.

Finally, it is questionable whether an oral reprimand was an adequate

and effectual response to the grossly offensive comments made by

Officer Baumker. Based on this evidence, a jury could impute liability

to the county on Patterson's claim of co-worker harassment.

Patterson also asserts several incidents of supervisor misconduct.

(Officer Petracca, Sergeant Settlemeyer, and Lieutenant Duckett were

all her supervisors.) In the sexual harassment cases of Faragher v.

City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries,

Inc. v. Ellerth, 524 U.S. 742 (1998), the Supreme Court announced

a new standard for analyzing employer liability for supervisor misconduct. Although our court has yet to apply this standard to racebased harassment claims, other circuits have done so. See Allen v.

Michigan Dep't of Corrections, 165 F.3d 405, 411-12 (6th Cir. 1999)

(and cases cited therein). I would apply the Faragher-Ellerth standard

to Patterson's claims of supervisor misconduct. Under Faragher and

Ellerth, if the employer has not taken a tangible employment action

(and none was taken against Patterson), the "defending employer may

 14
raise an affirmative defense to liability or damages, subject to proof

by a preponderance of the evidence." Ellerth , 524 U.S. at 765. The

affirmative defense "comprises two necessary elements: (a) that the

employer exercised reasonable care to prevent and correct promptly

any . . . 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."

Id.; Faragher, 524 U.S. at 807. Whether an employer has adopted "an

effective anti-harassment policy is an important factor" in analyzing

the first prong of the affirmative defense. Smith, 202 F.3d at 244. We

have held "that any anti-harassment policy an employer adopts must

be `both reasonably designed and reasonably effectual.'" Id. (quoting

Brown v. Perry, 184 F.3d 388, 396 (4th Cir. 1999)). On the record

before us, an issue of fact exists over whether the county's antiharassment policy was "reasonably designed" and "reasonably effectual." Patterson asserts that she lodged verbal complaints about Officer Petracca's conduct (spraying mace), but nothing was done. When

Patterson filed her grievance regarding the oral reprimand (from Sgt.

Settlemeyer and Lt. Duckett) for the juvenile incident, no one from

the department contacted the juvenile's parents to investigate. As a

result, there is a basis for a reasonable jury to find for Patterson on

the issue of employer liability for supervisor harassment.

Patterson has produced enough evidence to establish a genuine

issue of material fact on her Title VII hostile work environment claim.

Accordingly, I would reverse the district court's award of summary

judgment to the county. Because I believe that Patterson is entitled to

a trial, I respectfully dissent.

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