PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION,

Plaintiff-Appellant,  No. 10-1156

v.

XERXES CORPORATION,

Defendant-Appellee. 

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.,
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 VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 ("Title

VII"). The district court granted summary 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

Shifflett 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

2 EEOC v. XERXES CORP.
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." J.A. 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

EEOC v. XERXES CORP. 3
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."1 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

1Buckwheat 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. 

4 EEOC v. XERXES CORP.
name for the N word." J.A. 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

if he 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 warned that future misconduct

would result in disciplinary action.

After February 2006, Wilson reported no further incidents

of racial harassment until June 2007.2 In May 2006, however,

2Although 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. 

EEOC v. XERXES CORP. 5
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 turn, 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

3By 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 determined is that Pearson complained

to Shifflett and Carty sometime in May and that Green requested assistance from the corporate office in late June. 

6 EEOC v. XERXES CORP.
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] terminate [their] employment if [it was] ever determine[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 disciEEOC v. XERXES CORP. 7
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 name 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 remind[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.4

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

4As 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. 

8 EEOC v. XERXES CORP.
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.5 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

5There 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 only 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. 

EEOC v. XERXES CORP. 9
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

"IH IH MY N*****." J.A. 640. Several days later, Wilson

reported the incident to Shifflett, 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.6

6Wilson did not immediately report the drawing to Xerxes. He reported

the incident to his Union representative, who suggested several days later

10 EEOC v. XERXES CORP.
On August 30, 2007, Zais summarized Xerxes’ response to

the complaints of racial harassment in a memorandum to Wilson. Zais advised Wilson that "in response to [his] 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]f we 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 [Xerxes] to 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. J.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. J.A. 358. 

EEOC v. XERXES CORP. 11
J.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 Shifflett to fire

him. After these two weeks, Shifflett 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 Chur12 EEOC v. XERXES CORP.
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 final 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 financial 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. 

EEOC v. XERXES CORP. 13
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 Graham’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. Graham 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, J.A. 846, and held that Graham’s

complaints about Shifflett 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 permanent

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. 

14 EEOC v. XERXES CORP.
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 VII makes it unlawful for an employer "to discriminate 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)(1). 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 find [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.

Scollon Prods., 335 F.3d 325, 333-34 (4th Cir. 2003) (en

banc); 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.

EEOC v. XERXES CORP. 15
2008) (internal quotation marks omitted); see also Mikels v.

City of Durham, 183 F.3d 323, 329 (4th Cir. 1999) ("[O]ur

precedents ha[ve] 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 of Va., Dep’t of 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 administered 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

16 EEOC v. XERXES CORP.
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,

[courts] 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

EEOC v. XERXES CORP. 17
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.

18 EEOC v. XERXES CORP.
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 183-

84. The men also testified that they first 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." J.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

EEOC v. XERXES CORP. 19
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 immediately 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

20 EEOC v. XERXES CORP.
that Xerxes’ response was unreasonable. See Knabe, 114 F.3d

at 414 ("[T]aking punitive action against [a] 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 complained to Shifflett 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 final, 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.

EEOC v. XERXES CORP. 21
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.9

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

9This 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 of Pearson’s complaint to Carty. He testified

that he never heard racial slurs or experienced racial harassment in the

workplace. 

22 EEOC v. XERXES CORP.
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[ed] to

come forward," J.A. 525 (emphasis added), and they were

warned that the perpetrators, if identified, would face probable termination and possible criminal prosecution.10

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. 

10Xerxes’ 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 termination." J.A. 493. In addition, the antiharassment policy informs employees that they "Must" report any harassment that they "Have Been Subjected To Or Have Observed," J.A. 481,

and the CBA requires Union employees to report violations of the CBA

to their Union representatives. 

EEOC v. XERXES CORP. 23
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

24 EEOC v. XERXES CORP.
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

EEOC v. XERXES CORP. 25
"[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

requires 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)

(internal 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,

26 EEOC v. XERXES CORP.
"[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 (10th 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

EEOC v. XERXES CORP. 27
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 enlisted 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

28 EEOC v. XERXES CORP.
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." Id.

"[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." Id. (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

EEOC v. XERXES CORP. 29
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 VII 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 VII 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 Shifflett stared at him

strangely and looked at him when he was in a bathroom stall.

However, there is no evidence that Shifflett’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

summary judgment on hostile work environment claim), and

Xerxes’ responses to Graham’s complaints about Shifflett

were reasonable. Accordingly, we affirm the district court’s

grant of summary judgment for Xerxes as it pertains to Graham.

30 EEOC v. XERXES CORP.
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

EEOC v. XERXES CORP. 31
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 commend 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

32 EEOC v. XERXES CORP.
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 of Durham, N.C., 183 F.3d

EEOC v. XERXES CORP. 33
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.

34 EEOC v. XERXES CORP.