UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-1476

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff - Appellant,

v.

CROMER FOOD SERVICES, INCORPORATED,

Defendant - Appellee.

No. 10-1552

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff - Appellee,

v.

CROMER FOOD SERVICES, INCORPORATED,

Defendant - Appellant.

Appeals from the United States District Court for the District 

of South Carolina, at Greenville. Henry M. Herlong, Jr., Senior 

District Judge. (6:08-cv-03249-HMH)

Argued: January 26, 2011 Decided: March 3, 2011

Before MOTZ, KING, and GREGORY, Circuit Judges.
2

Vacated and remanded by unpublished opinion. Judge Gregory 

wrote the opinion, in which Judge Motz and Judge King joined.

ARGUED: Corbett Anderson, U.S. EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION, Washington, D.C., for Equal Employment Opportunity 

Commission. Sarah Ganss Drawdy, THE DRAWDY LAW FIRM, LLC, 

Anderson, South Carolina, for Cromer Food Services, 

Incorporated. ON BRIEF: P. David Lopez, General Counsel, 

Carolyn L. Wheeler, Acting Associate General Counsel, Lorraine 

C. Davis, Assistant General Counsel, U.S. EQUAL EMPLOYMENT 

OPPORTUNITY COMMISSION, Washington, D.C., for Equal Employment 

Opportunity Commission.

Unpublished opinions are not binding precedent in this circuit.
3

GREGORY, Circuit Judge:

This case involves alleged sexual harassment in violation 

of Title VII of the Civil Rights Act of 1964. Homer Ray Howard, 

an employee of Cromer Food Services (“CFS”), claimed to suffer a 

daily barrage of lewd comments and gestures by employees of CFS’ 

biggest client. Rather than intervene, CFS told him there was 

nothing that could be done because the harassers were not under 

its control. Howard then filed a complaint with the Equal 

Employment Opportunity Commission (“EEOC”). The EEOC brought 

suit on his behalf. After discovery, CFS moved for summary 

judgment, which the district court granted. Because Howard has 

articulated sufficient facts to show that it would be reasonable 

to conclude his employer had actual or constructive notice of 

the harassment and failed to take any corrective action, we 

vacate and remand for trial.

I.

The following facts are undisputed unless otherwise noted. 

We recount them in the light most favorable to the EEOC, the 

nonmovant.

CFS is a food-stocking company that sells snacks and 

beverages in vending machines that it places on its clients’ 

premises. Its biggest client is Greenville Hospital. Howard 

began working for CFS in July of 2006 as a route driver. He 
4

worked on the second shift, 3:00 p.m. to 11:00 p.m., servicing 

the vending machines at Greenville Hospital. He had a 

regularized schedule where he would wind his way upstairs from 

the snack bar or cafeteria with scheduled stops in between.

Following an incident with a co-worker who left a note in 

the hospital canteen calling him gay, Howard began to be 

harassed on a daily basis at the hands of two hospital employees 

who referred to him as “Homo Howard.” These two employees, John 

Mills and Andre McDowell, were housekeepers. Starting in early 

December 2006, they made unwanted sexual comments in nearly 

every encounter they had with Howard, including graphic 

discussions of oral sex that featured the two men groping 

themselves and propositioning Howard. Howard wanted to walk 

away but because the comments were made while he was stocking 

the vending machines, he could not leave without abandoning his 

duties. Mills and McDowell knew Howard’s schedule and would 

wait for him at the machines so frequently that Howard felt 

“stalk[ed].” J.A. 78, 84-85, 100. Both men deny that they 

harassed Howard.

CFS failed to take adequate action to combat the harassment 

on behalf of the hospital employees. C.T. Cromer, the chairman 

of the company’s Board of Directors, claims this was because he 

was unaware of the harassment or at least unaware of the scale 

on which it was occurring. Howard, however, contends that he 
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made both CFS and the hospital aware of what was going on as 

soon as it began. After the first incident, Howard spoke to his 

supervisor, Gregg Adams, telling him “there was some gentlemen 

at the hospital that were asking me homosexual questions, asking 

me was I gay.” J.A. 89. Adams made light of the events, 

telling Howard to let it go, that the men were only joking. He

did not ask for additional information to rectify the problem. 

The employee sexual harassment policy, which Howard signed upon 

being hired, requires employees to report harassment to the 

president of the company. Howard never reported the harassment 

to Brent Cromer, who was the head of the company, and testified 

that he did not even know who the president was. J.A. 119. The 

harassment policy also requires any employee “who becomes aware 

of any harassment of any employee by a non-employee [to] report 

such harassment to the president of Cromer Food Services.” J.A.

63. Adams did not follow this directive.

In addition to Adams, Howard also reported the problem to 

his direct supervisor, Brian Tyner. Howard asked if there were 

a way to address the problem such as switching routes. Tyner’s 

reply was “it was just a joke” and not to take things too 

seriously because “faggots are ignorant, retarded people, and 

Homer, I know you’re not retarded.” J.A. 89-90. The next week, 

Howard told another supervisor, Gary Roper, about the problem. 

J.A. 90. Roper replied that it was unfortunate that the 
6

situation was being handled as it was, but that Adams had 

already dealt with it. Id.

As the harassment continued unabated, in late December or 

early January Howard spoke to Chet Cromer, one of the sons of 

the chairman of the Board of Directors and a manager with the 

company, and told him “what was going on.” J.A. 91. Chet told 

Howard he would speak with his father, which he did. Id. That 

very night, Howard met with C.T., who was visibly upset by the 

situation. The first words out of his mouth were “[d]o you not 

realize this could cost me everything?” J.A. 92. He started to 

“rambl[e]” so much that Howard could not get a word in edgewise. 

J.A. 93. Howard does not remember whether or not he disclosed 

the names of his harassers in the meeting, but he knows he was 

never asked for their names. J.A. 130, 135. Howard testifies 

that he met with C.T. again in January to tell him the situation 

was getting worse. C.T.’s response, which directly contradicted 

the company harassment policy, was that he was not responsible 

for the hospital but only responsible for CFS employees.

As the harassment continued, Howard took progressively more 

drastic measures to stop it. In January, he reported the 

harassment directly to Greenville Hospital, speaking to an 

unidentified woman in the human resources department. Nothing 

happened as a result of that report. He also complained to 

Ronnie Galloway, Mills’ and McDowell’s supervisor, about their 
7

actions. Galloway took action and the harassment stopped for 

“[p]robably two days.” J.A. 125. However, it quickly resumed. 

In response Howard remembers “constantly” telling Adams that the 

harassment at the hospital continued unabated. J.A. 100. He 

told Adams that the men were “following him” around the hospital 

and waiting for him to get there, as well as making lewd and 

vulgar comments about sex, but Adams only laughed it off and 

told him not to take the comments seriously. Id.; J.A. 139. 

When Howard asked if he could switch to another second-shift 

route he believed was available that would not entail him going 

to the hospital, Adams told him to quit whining and that he was 

under contract at the hospital. Adams’ version of the facts 

differs from Howard’s. In his deposition testimony, Adams 

claimed he only remembered receiving one complaint from Howard 

in February of 2007 about a one-time incident, not a pervasive 

and hostile environment. Adams did not report the complaint as 

he did not consider it to be sexual harassment.

On March 6, 2007, Howard decided to report the daily 

harassment to the EEOC. CFS received a report of what happened 

shortly thereafter. The same day, C.T. called Howard into his 

office and told him he got “this stupid letter from the EEOC.” 

J.A. 102. According to Howard, the meeting only lasted a few 

minutes and C.T. told Howard he did not want to hear about it. 

C.T.’s description of the meeting differs from Howard’s. In his 
8

deposition, C.T. claims that he thought that Howard’s failure to 

give specifics proved that he was lying about the details of the 

harassment. According to C.T., Howard’s refusal to give names 

or to turn over the note suggests that he was making things up. 

Despite purportedly believing that Howard was a liar, C.T. acted 

to protect his employee. As a result of the details that C.T. 

claims emerged for the first time in this meeting, he decided 

that it was unacceptable for Howard to continue working at the 

hospital. Therefore, he immediately and in writing offered him 

a position on the first shift, which was from 4:00 a.m. to 3:30 

p.m. Mondays through Fridays, with a thirty-minute unpaid lunch 

break.

The hours worked as part of the first shift increased to 

fifty-five per week from forty hours per week. The pay was $10 

per hour for the first forty hours and $15 per hour thereafter 

with weekly pay coming to $625. Because overtime was mandatory, 

the effective pay rate was $11.26 per hour. By contrast, and 

according to the EEOC’s calculations, the pay for Howard was 

$12.50 per hour for his original second shift position. This 

calculation includes the $100 weekly advance on his annual bonus 

that was paid on top of his $400-a-week salary and which he 

would only be able to keep if he worked at the company for a 

year. CFS disputes whether the advance is properly included in 

the calculations, and alleges that his actual pay was $10 per 
9

hour. Regardless of the pay, Howard declined to take the new 

shift, which allegedly conflicted with his childcare 

responsibilities. Because the shift was a “take it or leave it” 

offer, Howard claims he was terminated as a result of his 

choice.

The EEOC brought suit shortly thereafter. The district 

court in South Carolina granted summary judgment to the 

defendant. In reaching this conclusion, the district court 

rejected a magistrate judge’s recommendation that it deny 

summary judgment. Specifically, the district court found that 

although there was a dispute of fact regarding when CFS was 

aware of harassment, this dispute was immaterial because CFS 

lacked the requisite details regarding the harassment to take 

curative action. In reaching this conclusion, the district 

court focused on one snippet of Howard’s deposition testimony, 

where Howard said “no” when he was asked if he provided details 

of the harassment to Adams or other employees of CFS. J.A. 139-

40, 18. However, other evidence from the record made plain that 

Howard attempted on numerous other occasions to alert CFS to the 

nature of the harassment, and had effectively been stonewalled. 

J.A. 130 (“Q: Do you think you could have given [C.T.] more 

information so that he could go to Greenville Hospital and file 

a formal complaint? . . . A: No. Because C.T. already had it 

in his mind, it’s not his problem.”); J.A. 105 (“What details 
10

did you tell [C.T.] about the harassment? . . . A: With C.T., 

I was explaining to him that the gentlemen are very aggressive, 

very vulgar, very sexually-oriented, stalking. And that’s about 

as far as you can get.”); J.A. 100 (“Q: Did you tell [Gregg] 

the details? A: I told him a couple of incidents where 

‘They’re following me around. They’re stalking me in certain 

areas of the hospital, waiting for me to get there.’ And as any 

other conversation, he thought it was funny.”); J.A. 89 (“Q: 

What did you say to [Gregg]? A: And I told him there was some 

gentlemen at the hospital that were asking me homosexual 

questions, asking me was I gay. And I told him I didn’t find it 

very pleasing. And his comment was, ‘Homer, it was just a joke. 

Let it go.’ And I said I didn’t find it a joke. And he said, 

‘It’s time to go, get on your route, and head on out.’”). 

Further, according to Howard’s testimony, none of the managers 

to whom he reported the harassment asked for names or details. 

J.A. 135, 140-41.1

 1 At oral argument, counsel for the EEOC contended that 

Howard stated that if asked for the names he would have provided 

them. Counsel did not provide a cite to the Joint Appendix, 

and, after scouring the record, we find no such statement.
11

II.

We review a grant of summary judgment de novo, applying the 

same test as the district court. EEOC v. Fairbrook Med. Clinic, 

P.A, 609 F.3d 320, 327 (4th Cir. 2010) (citations omitted).

Importantly, we “view the facts and draw reasonable inferences 

in the light most favorable to the non-moving party, here the 

EEOC.” Id. at 322 (internal quotations omitted). That means 

that evidence supporting CFS should be disregarded unless it is 

“uncontradicted and unimpeached, at least to the extent that the 

evidence comes from disinterested witnesses.” Reeves v. 

Sanderson Plumbing Prods., 530 U.S. 133, 151 (2000). Further, 

the court may not make credibility determinations or weigh the 

evidence, a function that is reserved for the jury. Id. at 

150. Importantly, this means considering the evidence as a 

whole rather than zooming in and focusing on deposition 

testimony that is taken out of context or is viewed in 

isolation.

III.

To make out a claim for sexual harassment, the plaintiff 

must establish four elements: (1) the harassment was unwelcome; 

(2) was based on sex; (3) was sufficiently severe or pervasive 

to alter conditions of employment and create an abusive 

atmosphere; and (4) was imputable to the employer. EEOC v. 
12

Central Wholesalers, Inc., 573 F.3d 167, 174-75 (4th Cir. 2009). 

Because the fourth element is the only one challenged, it is the 

only one we address here.

The Fourth Circuit has yet to consider whether an employer 

may be liable for the activities of non-employees in a claim for 

sexual harassment. Other Circuits to address the issue have 

adopted a negligence standard, finding that an employer can be 

liable if it took no steps to protect its employees and if it 

had actual or constructive knowledge of the situation. See Dunn 

v. Washington County, 429 F.3d 689, 691 (7th Cir. 2005) 

(employers, which have an “arsenal” of tools at their disposal, 

can be liable for the acts of independent contractors if they 

fail to take corrective action); Galdamez v. Potter, 415 F. 3d 

1015, 1022 (9th Cir. 2005) (employer can be liable for third 

parties if it ratifies their actions by failing to act); Watson 

v. Blue Circle, Inc., 324 F.3d 1252, 1258 n.2 (11th Cir. 2003)

(employer can be liable for acts of its customers if it knew or 

should have known of actions); Turnbull v. Topeka State Hosp., 

255 F.3d 1238, 1244 (10th Cir. 2001) (adopting a negligence 

standard in this context). EEOC regulations are also to the 

point, providing that an employer “may also be responsible for 

the acts of nonemployees, with respect to sexual harassment of 

employees in the workplace where the employer (or its agents or 

supervisory employees) knows or should have known of the conduct 
13

and fails to take immediate and appropriate corrective action.” 

29 C.F.R. § 1604.11(e) (internal citations and quotations 

omitted). The analysis is very similar to the standard used by 

this Circuit in the context of harassment of co-workers. See

Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333-34 (4th 

Cir. 2003) (“The employer may be liable in negligence if it knew 

or should have known about the harassment and failed to take 

effective action to stop it.”) For the purposes of the instant 

litigation, and because both parties urge us to do so, we adopt 

a negligence standard commensurate with the above precedents. 

Thus CFS is liable if it knew or should have known of the 

harassment and failed to take appropriate actions to halt it.

Appellee argues, and the district court agreed, that CFS 

did not have actual or constructive knowledge of the harassment 

because the complaints that Howard lodged were vague and 

insufficiently detailed for CFS to take action. Further, it 

argues, Howard failed to follow the sexual harassment protocol 

that required incidents be made known to the company president. 

But such reasoning ignores the clear evidence in the record that 

Howard tried to communicate the nature and extent of the 

harassment and was effectively ignored by all levels of CFS 

management who scoffed at him and told him to quit being such a 

“crybaby.” J.A. 140. If Howard’s deposition testimony is 

credited, as it must be, then whatever paucity of details that 
14

resulted from his complaints are due to the company’s own 

decision not to listen to him. For example, he mentions that he 

tried to tell C.T. but could not get a word in edgewise. He 

also reported the incidents numerous times to his supervisor, 

Adams, but was rebuffed at every turn. Furthermore, Howard did 

communicate details about the harassment, including recounting a 

couple of incidents, to Adams, who laughed at him and took it as 

a joke despite Howard’s clear sentiments to the contrary. And, 

crediting Howard’s testimony, the company also failed to ask him 

follow-up questions or request the names of the harassers.

In this situation, it is hardly fair to fault Howard for 

failing to communicate more information about the incidents or 

for ineffectively conveying their gravity. To do so would be a 

perversion of the law of anti-harassment, which although 

requires notice to the employer, does not and should not require 

it to be pellucid. Even if it is true that Howard refused to 

give names, CFS still had a duty to investigate or take other 

measures to combat the harassment. Indeed, other employees 

reported problems to the hospital which were solved, indicating 

that such a solution was available here as well. Further, the 

fact that the hospital took some steps to combat the harassment 

suggests that Howard was, in fact, communicating a sufficient 

degree of detail to facilitate curative action.
15

Appellee cites Madray v. Public Supermarkets, Inc., 208 

F.3d 1290, 1300 (11th Cir. 2000), for the proposition that once 

the employer has “promulgated an effective anti-harassment 

policy and disseminated that policy and associated procedures to 

its employees . . . it is incumbent upon the employees to 

utilize the procedural mechanisms established by the company 

specifically to address problems and grievances.” Id.

(citations and quotations omitted). There, the Eleventh Circuit 

held that an employee who had not followed the anti-harassment 

policy had not effectively put the company on notice. Id. This 

is not the approach taken by the Fourth Circuit. In Ocheltree, 

this Court found that claims of harassment could not be avoided 

through the adoption of a “see no evil, hear no evil” strategy. 

335 F.3d at 334. Rather, knowledge can be imputed to an 

employer if a “reasonable [person], intent on complying with 

Title VII, would have known about the harassment.” Id. 

Further, knowledge may be constructive if the employer does not 

provide reasonable procedures to register complaints. Id.

On the facts here, a reasonable person would have known

about the harassment given Howard’s vocal and vociferous 

complaints to practically anyone who would listen. Furthermore, 

the company policy obligates those who become aware of 

harassment to report it up the chain of command, a protocol 

which fell by the wayside. See Williamson v. City of Houston, 
16

148 F.3d 462, 466 (5th Cir. 1998) (duty to report up sufficient 

to trigger liability on part of the company); Restatement 

(Second) of Agency § 275 (1958) (“the principal is affected by 

the knowledge which an agent has a duty to disclose to the 

principal or to another agent of the principal to the same 

extent as if the principal had the information.”). Finally, the 

company’s policy itself is somewhat questionable in requiring 

the employees of a 100-person cadre to report directly to the 

president. An employee might be easily intimidated and fail to 

report it such that the company would be technically insulated 

from liability. We do not find such a result just or proper. 

EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 320 (4th Cir. 2008) 

(“[e]vidence of repeated complaints to supervisors and managers 

creates a triable issue as to whether the employer had notice of 

the harassment.”). Finally, as here, an employee may lack 

knowledge of the higher-ups; we do not think such ignorance is 

justification for inaction on the part of the company sued.

CFS points to a snippet of Howard’s deposition: “Q: Did 

you ever report your problem to the president of the company? 

A: No. No, I didn’t.” J.A. 119. But this needs to be placed 

in context because Howard explains that C.T. Cromer was out of 

town for the Christmas holidays, and that’s why he reported the 
17

incident to Adams in his stead.2

CFS next contends that it acted promptly to protect Howard 

as soon as it had sufficient information about what was 

occurring in the hospital. In other words, the offer to 

transfer Howard from second shift to first shift, which would 

have changed his route not to include Greenville Hospital, was 

enough to fulfill its obligations to him. But the record does 

not include evidence that the shift would have allowed Howard to 

drive his young child to hospital appointments, his stated 

reason for preferring a second-shift slot. Even if it is true 

that he could have worked around it, as CFS implies, if it still 

resulted in Howard being worse off, it is unacceptable as a 

remedial measure. See Guess v. Bethlehem Steel Corp., 913 F.2d 

463, 465 (7th Cir. 1990) (“A remedial measure that makes the 

victim of sexual harassment worse off is ineffective per se.”). 

Furthermore, corrective action is not enough if it is too 

 The evidence when viewed in the 

light most favorable to the EEOC showed that numerous 

individuals laughed at and belittled his complaints or adopted 

an ostrich-in-the-sand approach. J.A. 89 (“Homer, it was just 

a joke. Let it go.”).

 2 It should be noted that while technically Brent Cromer was 

CFS’ president, C.T. Cromer, the chairman of the Board, 

essentially ran the show as Brent Cromer admitted in his 

deposition. JA 252. Thus, Howard was reasonably confused 

regarding to whom he should report the harassment.
18

little, too late. Id. That is exactly the case here. Howard 

endured months of inaction between when he first alerted his 

employer of the problem, in December, to its eventual offer to 

transfer him, which came in late March. Indeed, there were many 

alternatives that may have been available to the employer that 

suggest themselves when the facts are viewed in the light most 

favorable to the EEOC and that may be substantiated at trial. 

Perhaps, for example, CFS could have availed itself of its 

relationship with Greenville Hospital and asked the management 

there to investigate and, if proper, to discipline the relevant 

employees. Alternatively, it could have petitioned its 

employees who were on second shifts to see if they would switch 

routes with Howard. But no matter how the facts are spun, CFS’ 

actions were hardly an effective remedy.

IV.

The next question, closely related to the previous, is 

whether a reasonable jury could find that CFS’ decision to 

switch Howard from the second to first shift constituted 

unlawful retaliation for his decision to file an EEOC complaint. 

In order to support a claim for retaliation, there must be 

sufficient evidence that (1) the employee engaged in a protected 

activity; (2) the employer acted adversely; and (3) a causal 

connection between (1) and (2) exists. Holland v. Washington 
19

Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007). CFS argues on 

appeal that its decision to transfer was not adverse; it does 

not claim that there was no causal connection between the two. 

Therefore, we only address the second prong here.

In Burlington Northern v. Santa Fe Railway Co., 548 U.S. 53 

(2006), the Supreme Court established the framework for what 

constitutes adverse action. It held that it is any action that 

might “dissuade a reasonable worker from making or supporting a 

charge of discrimination.” Id. at 57. Materiality must be 

considered from the vantage point of someone in the plaintiff’s 

position who shares “at least some individual characteristics 

with the actual victim” such as “age, gender, and family 

responsibilities.” Id. at 79.

Here, a jury could easily conclude that the actions taken 

by CFS were adverse. First, there is a dispute of material fact 

over whether Howard’s salary per hour increased or decreased. 

According to the EEOC, Howard was paid $11.26 per hour for the 

new shift but $12.50 per hour for his original second shift 

position. Viewing these calculations in the light most 

favorable to Howard, his pay per hour decreased and his number 

of hours per week increased. Further, he had childcare 

obligations that were interfered with. As a result, someone in 

his position could find the material effects of the new shift 

adverse.
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V.

The final question is whether the district court abused its 

discretion by denying CFS’ attorneys fees. Because we vacate 

the district court as to liability, there is no prevailing party 

at this point in the litigation. Therefore, there is no need to 

consider the attorneys’ fees.

VI.

For the foregoing reasons, the decision of the district 

court is

VACATED AND REMANDED.