Renee Pryor v. United Air Lines, Incorporated

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cv-01125-LMB-TRJ. [999613061]. [14-1442]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1442

RENEE PRYOR,
Plaintiff - Appellant,
v.
UNITED AIR LINES, INC.,
Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge. (1:13-cv-01125-LMB-TRJ)

Argued:

April 8, 2015

Before MOTZ and
Circuit Judge.

GREGORY,

Decided:

Circuit

Judges,

and

July 1, 2015

DAVIS,

Senior

Vacated and remanded by published opinion. Judge Gregory wrote
the opinion, in which Judge Motz and Senior Judge Davis joined.

ARGUED: Spencer Freeman Smith, SMITH PATTEN, San Francisco,
California, for Appellant.
Jody A. Boquist, LITTLER MENDELSON,
P.C., Chicago, Illinois, for Appellee. ON BRIEF: Dow W. Patten,
SMITH
PATTEN,
San
Francisco,
California,
for
Appellant.
Paul E. Bateman, Angela I. Rochester, LITTLER MENDELSON, P.C.,
Chicago, Illinois, for Appellee.

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GREGORY, Circuit Judge:
This case most centrally concerns the question of when an
employer

may

be

held

liable

created by an anonymous actor.

for

a

hostile

work

environment

Renee Pryor, an African-American

flight attendant, alleges that her employer, United Airlines,
failed to adequately respond to a racist death threat left in
her company mailbox.
was

subjected

to

a

The district court concluded that Pryor
racially

hostile

work

environment,

but

granted summary judgment to the airline after deciding that it
was not liable for the offensive conduct.

For the reasons that

follow, we vacate the order granting summary judgment and remand
for further proceedings.

I.
Pryor joined United Airlines in 1984 and began working out
of Dulles International Airport in the early 1990s.
2011,

she

discovered

in

her

company

mailbox

a

In January
paper

note

claiming to be a “Nigger Tag – Federal Nigger Hunting License,”
declaring that the holder was “licensed to hunt & kill NIGGERS
during the open search hereof in the U.S.”

J.A. 209.

The tag

also purported to give “the holder permission to hunt day or
night, with or without dogs.”

Id.

A hand-drawn image of a

person hanging from a pole or a tree appeared on one corner of
the document, along with the words “this is for you.”
2

J.A.

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1947. 1

The

accessible

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mailbox
to

was

United

in

Pg: 3 of 26

a

secure

employees

space

and

at

others

the

airport,

with

company

authorization.
Pryor was shaken and afraid.

She immediately sought out

her supervisor, Richard Reyes, and showed him the racist death
threat.

Reyes told Pryor he was “sorry” but that there was “not

much” United could do because there were no security cameras
covering the

area.

J.A.

1948. 2

Reyes

gave Pryor

a

flight

attendant report to fill out and told her that he would give the
form – along with the offensive note – to security and the base
manager.

Pryor completed the form and gave it, along with the

threat, to Reyes.
At the time, United maintained an official Harassment &
Discrimination (“H&D”) Policy. 3
supervisors

and

managers

The policy provided guidance for

when

they

received

a

complaint

1

Although Pryor maintains that the note included the image
of a person hanging from a noose, the copy in the record only
bears the ‘mock license’ without the drawing.
It is unclear
whether that copy is, in fact, the version that Pryor first
received, or if United lost or altered the original (which Pryor
alleges).
Pryor continues to claim that the drawing was
originally included on the document, and we must accept her
version as true at the summary judgment stage, as the district
court did.
2

joke.”

Reyes, in fact, thought the racist death threat “was a
J.A. 156.

3

In 2010, a new written policy also took effect, known as
the Working Together Guidelines.
But the H&D policy was still
active in January 2011, when Pryor received the first note.

3

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regarding

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harassment

or

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discrimination.

It

instructed

such

employees to:
Listen to the allegation and regard it seriously.
Contact the Employee Service Center immediately to
report the complaint. The ESC will be responsible for
initial in-take of the complaint and then forward to
an investigative team for investigation and follow-up.
The team will also direct you if your participation in
the investigation is necessary.
If the complaint is
determined to be valid after a thorough and impartial
investigation,
the
supervisor
will
administer
appropriate
discipline
in
consultation
with
the
investigative team.
Supervisors and managers are additionally expected to
monitor their workplaces to ensure compliance with
this harassment and discrimination policy.
Any
supervisor or manager, who becomes aware of an
incident or complaint of harassment or discrimination,
whether by witnessing the incident or being told of
it, must immediately report it to the ESC.
J.A. 2169 (emphases added).
Despite that policy, Reyes did not contact the Employee
Service Center (“ESC”).

Instead, he called Mary Kay Panos, the

director of Inflight Services at Dulles, to inform her of the
incident.

Panos was out of the office (it was a Saturday) and

told Reyes to put an envelope with the racist threat under her
door so she could see it on Monday morning.
the

envelope,

she

notified

Denise

When Panos found

Robinson-Palmer,

an

Operational Manager at Dulles, and instructed her to follow up.
Panos, like Reyes, did not contact the ESC, even though she
later acknowledged that it would have been proper protocol.

4

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As both Panos and Robinson-Palmer were aware, the note left
for

Pryor

United’s

was

not

Dulles

the

first

facility.

incident
In

the

of

racism

1990s,

reported

Pryor

at

received

a

question from an unidentified colleague about rumors circulating
among United employees that black flight attendants based out of
Dulles
Kuwait.
rumors

were

moonlighting

as

prostitutes

during

layovers

in

Both Panos and Robinson-Palmer became aware of these
when

they

resurfaced

in

2009-2010.

Panos

informally

looked into the claims, but failed to substantiate them.
Panos and Robinson-Palmer were also both aware that just a
few

months

before

Pryor

discovered

the

threat,

an

apartment

advertisement with a racist message on it had appeared in the
flight attendants’ break room at Dulles.

The message on the

advertisement stated that “No niggers need apply.”

J.A. 2182.

Pryor never viewed the flyer, but heard about it from co-workers
and a supervisor.

Although brought to the attention of Panos

and Robinson-Palmer, neither documented the incident, conducted
any interviews, contacted human resources, or enlisted the help
of

corporate

security.

Instead,

Robinson-Palmer

called

number listed on the ad to try to determine who posted it.

the
When

the woman on the other line disclaimed any knowledge of the
racist message on the advertisement, Robinson-Palmer “shredded
[the flyer], because [she] was so offended by it.”
The

supervisor

began

to

monitor
5

the

bulletin

board

J.A. 1340.
and

soon

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discovered a second identical posting.

She again shredded it,

without taking any additional action.
When Robinson-Palmer then became aware of the racist threat
in Pryor’s mailbox, she spoke to the flight attendant about it
and contacted Michael Folan from Corporate Security.
Palmer

did

interviews

not
of

evidence

or

contact

the

co-workers

and

“any

investigation.”

hard

J.A.

ESC.
did

copy

2102.

Security
not

preserve

documents

Security

Robinson-

conducted
any

no

physical

concerning

also

the

claimed

was

it

“unable to ‘brush’ for prints as there were no prints of other
employees to match them with, and there was no telling how long
the item was there, as anyone could have touched it.”
1484-85.

J.A.

In the end, United “was unable to identify a suspect

or even a time of placement of the document.”

J.A. 1484-85.

Corporate security closed its investigation on February 4,
2011.
of

It appears, however, that nobody directly informed Pryor

that

called

development.

the

ESC

and

Increasingly
another

frustrated,

employee

hotline

on

Pryor

herself

February

16,

2011, to ask about the status of the investigation and express
her unhappiness.

The ESC referred the matter to Ally Zauner, a

human resources manager in Chicago.
to

Pryor,

her

supervisors,

and

information.

6

Zauner made telephone calls

Corporate

Security

to

gather

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the

occurrence

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of

a

possible

hate

crime,

and

a

crime that involved a threat of violence at a major airport,
United
Pryor

never
made

Metropolitan

a

reported
police

the

incident

complaint

Washington

on

Airport

to

the

February

Authority. 4

police.
27,

Instead,

2011,
In

her

at

the

police

statement, Pryor recounted in part:
I showed [the note] to [Reyes].
He said we have no
cameras so there is not much we can do.
I was so
stunned.
I was hurt and even embarrassed . . .
The
“Base Manager” never came to me!!
The assistan[t]
Base [Manager] did say (5 days later) she did hear of
the incident. [Reyes] took the letter[,] put it in a
large envelope[,] and told me it would be sent to
Corporate Security.
A lady from some [department]
that handles sexual harassment called me Feb. the
18th, 2011. I returned her call Feb. 19th. She said
United was busy merging with Continental Airlines and
that she handles other types of situations.
To say
the least I have followed all the procedures United
said to do but up until me calling HR in Chicago no
one bothered to call me back. . . . I am stressed[,]
hurt[,] and I do not feel safe at work. I dread going
to my mailbox because I do not know if this person is
in wait for me!!
I do not feel safe!!
. . .
I
noticed how [supervisors] look at me different now.
Mr. Barreta (supr.) has been good to me with his hugs.
It took me a long time to get to the [department] in
HR!!
Why is this!
The stress of this matter has
changed how I feel at work. I keep wondering why and
who. I thought this behavior was not tolerated in any
work environment today . . . It also bothers me that
I was asked after my Moscow trip “what did I do” to
get this in my mailbox.
My response is what does a
4

Folan stated in a “case log” that he directed RobinsonPalmer to have Pryor prepare a police report in January.
J.A.
219.
Robinson-Palmer, however, apparently failed to do so.
Folan later told police that he informed Pryor in January that
she should file a report. Pryor disputes that assertion.

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person have to do to get a note or to be called a
racial slur[].
J.A. 2192-93.
When the police first approached Pryor’s supervisors, they
were greeted with less than enthusiastic cooperation.

Panos

told the officer “that they were in the middle of a situation
and this was not the best time to meet.”

J.A. 196.

As the

officer further noted on the relevant incident sheet:
Ms. Palmer and Ms. Panos stated the issue was being
handled internally through Corporate Security and
Equal
Employment
Opportunity
(EEO)
and
did
not
understand why the police [department] was involved.
I explained that in the Commonwealth of Virginia the
racial note was considered a form of Hate Crime and a
Threat. I also informed that MWAA PD should have been
notified on the date of the incident. I also informed
that Ms. Pryor did not feel that United Airlines was
handling the situation and felt that her job was
unsafe. At that time, all the supervisors filled out
the Statement of Facts form.
J.A. 196.
Pryor spoke to Zauner again after filing the police report.
During that conversation, Zauner received “very limited” details
and believed that Pryor “did not want to really share a lot of
information

with

me,

unfortunately.”

J.A.

1512.

Pryor

did

suggest to Zauner that United should send out an email warning
employees that “this type of behavior would not be tolerated,”
and implement a program to encourage employees to “treat each
other with respect.”
identify

suspects,

J.A. 1960.
and

she

In the end, Zauner could not

concluded
8

that

the

incident

was

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Notably, Panos and Robinson-Palmer did not inform

Zauner of the racist flyers which had been posted a few months
earlier, or the prostitution rumors.
On March 25, 2011 – two and a half months after Pryor
discovered the racist death threat – Panos sent a “must-read”
email to Dulles-based employees.

J.A. 1612.

the

was

employees

that

the

company

The email informed

investigating

unspecified

“inappropriate and offensive material,” and it instructed them
to notify a manager if they had any knowledge regarding the
unspecified activity.
tell

her

future

that

she

J.A. 1612.
believed

behavior.”

J.A.

Panos also contacted Pryor to

the

email

1194.

would

Shortly

“discourage

thereafter,

any

Zauner

concluded that although the racist threat “did not align with
. . .

[the]

“substantiate

Working
that

Together

somebody

Guidelines,”

had

violated

Discrimination Policy.”

J.A. 2083-84.

Pryor

the

informing

investigation

her

was

of

being

findings

closed.

The

she

the

could

Harassment

not
and

Zauner wrote a letter to
and

explaining

police

that

department

the
also

suspended its investigation “pending the development of further
leads.”

J.A. 2189.

Months later, on October 21, 2011, Pryor received a nearly
identical racist death threat in her United mailbox at Dulles,
also

purporting

Americans.

to

be

a

license

to

hunt

and

kill

African-

Pryor went immediately to the nearest supervisor,
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Sandra Sales, who largely ignored her entreaties.
showed the note to Reyes.

Pryor then

Reyes asked to keep it, but Pryor

said that she wanted to take it to the police.

Crying, Pryor

went upstairs to call her aunt and tell her about the threat.
Shortly thereafter, a pilot walked by and Pryor showed him the
note and explained where she found it.

The pilot went to “get

someone downstairs” to help, and he brought Reyes up to speak
with Pryor again.

J.A. 1141.

Reyes told Pryor that he had

already called Panos and told her what happened.

Pryor then

took the note to the police station and filed a new report.
Two or three days later, Panos called Pryor at home to
discuss the incident.
the

facility,

and

Pryor asked why there were no cameras in

Panos

mentioned

the

cost

of

installation.

Panos also scheduled a meeting with Pryor and George Bellomusto,
who at the time was United’s Human Resources Manager at Dulles.
During

that

meeting,

Bellomusto

gave

Pryor

a

about the confidentiality of the investigation.
to

sign

it.

The

HR

manager

nonetheless

letter

to

sign

Pryor refused

promised

to

do

a

thorough investigation.
Pryor

also

emailed

corporate

complaint with United’s ESC.

security

and

filed

another

She told the ESC that she was

“hurt and afraid,” and asked “if something could be done about
it.”

J.A.

1159.

Charles

Miller

from

reviewed Pryor’s email to that department.
10

Corporate

Security

Miller referred the

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matter to a colleague for “follow-up investigation.”

J.A. 1468.

Miller also called Pryor to let her know that they were “taking
it seriously” and to tell her that she should contact him or
Bellomusto with any questions.
During

this

discovered

by

time
four

Id.

period,
other

the

same

senior

racist

threat

African-American

was

flight

attendants in their mailboxes.

Subsequent daily audits of the

mailboxes

for

October

revealed

31,

copies

Bellomusto

left

sent

an

five

email

more

to

employees.

supervisors

On

and

HR

personnel, letting them know of the notes that had been found.
One of the other flight attendants, the email stated, was very
concerned

because

fingerprints

were

not

kept

on

file.

Bellomusto expressed his hope that the police would be able to
help.
Ten

days

later,

through

collaboration

with

the

police,

United installed two temporary security cameras in the mailbox
area.

The

cameras,

however,

did

not

capture

any

relevant

information, and Bellomusto closed the investigation on or about
November 15 after failing to identify suspects.

A month later,

Bellomusto informed Pryor of the measures the company had taken
to prevent future incidents.

United also worked with the police

to record the fingerprints of all United employees known to have
touched the notes to narrow the field of potential suspects if
subsequent dusting yielded any evidence.
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Pryor relocated to George Bush Intercontinental Airport in
Houston.

She

has

not

incidents,

nor

does

reported

the

record

any

further

contain

race-related

evidence

of

any

additional incidents.
On March 9, 2012, Pryor filed a complaint with the Equal
Employment Opportunity Commission (“EEOC”), alleging that United
failed
racist

to

adequately

notes

left

investigate
in

her

the

mailbox,

constituted unlawful discrimination.

prostitution
and

that

rumors
the

and

failure

She received a right-to-

sue letter and timely filed the instant action.

Pryor’s First

Amended Complaint includes three counts, each premised on the
set of facts described above. 5

Count I alleges that United

“engaged in a systemic pattern and practice of unlawful racial
discrimination”

through

its

failure

to

investigate

complaints, in violation of 42 U.S.C. § 1981.

Pryor’s

Counts II-III

allege that United created a hostile work environment based on
the

speculation

regarding

the

prostitution

ring

and

the

two

notes received, in violation of 42 U.S.C. § 2000e.

5

A quasi companion case was also filed by two of Pryor’s
colleagues. See Johnson v. United Airlines, Inc., No. 1:13-CV00113, 2013 WL 3990789 (E.D. Va. Aug. 2, 2013), appeal
dismissed, No. 13-2053 (4th Cir. Dec. 12, 2013).
The district
court in Johnson granted summary judgment for United after
finding that neither of the plaintiffs had actually “received
the Hunting License . . . or viewed it personally.” Id. at *4.

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United moved for summary judgment on all three counts.

On

April 16, 2014, the district court granted the company’s motion.
Although

the

court

determined

that

the

racist

notes

were

sufficiently severe to create a hostile work environment, it
concluded that the conduct could not be imputed to United.
Pryor timely appealed.

II.
We review the district court’s grant of summary judgment de
novo, viewing the facts in the light most favorable to the nonmoving party (Pryor) and drawing all reasonable inferences in
her favor.

EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167, 174

(4th Cir. 2009).

Summary judgment is appropriate if “there is

no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
56(a).

Summary

judgment

is

inappropriate,

Fed. R. Civ. P.
however,

if

“the

evidence is such that a reasonable jury could return a verdict
for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986).

III.
Pryor alleges that she was subjected to a racially hostile
work environment, contravening the Civil Rights Act of 1866, 42
U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964, 42
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U.S.C. §§ 2000e to 2000e-17. 6

The elements an employee must

prove are the same under either provision.

Spriggs v. Diamond

Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001).

To survive

summary judgment, Pryor must show that a reasonable jury could
find that the conduct she alleges was (1) unwelcome; (2) based
on her race; (3) sufficiently severe or pervasive to alter the
conditions

of

her

employment

and

to

create

an

environment; and (4) imputable to her employer.

abusive

work

Okoli v. City

of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011); see also BoyerLiberto v. Fontainebleau Corp., --- F.3d ---, 2015 WL 2116849,
at *9 (4th Cir. May 7, 2015) (en banc).
The first two elements – that the conduct at issue was
unwelcome and based on race – are not in dispute here.

The

parties,

was

however,

disagree

about

whether

the

conduct

sufficiently severe to create a hostile environment, and whether

6

The Civil Rights Act of 1866 prohibits race discrimination
in the “making, performance, modification, and termination of
contracts, and the enjoyment of all benefits, privileges, terms,
and conditions of the contractual relationship.”
42 U.S.C.
§ 1981(b).
Title VII, meanwhile, prohibits employers from
“discriminat[ing] against any individual with respect to his [or
her]
compensation,
terms,
conditions,
or
privileges
of
employment, because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Workplace
harassment that sufficiently alters the terms and conditions of
employment is actionable under a “hostile work environment”
theory.
See Ocheltree v. Scollon Prods., Inc., 335 F.3d 325,
331 (4th Cir. 2003).

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liability can be imputed to United.

We consider each question

in turn.
A.
A

violation

“workplace

is

of

Title

permeated

VII

occurs

with

when

discriminatory

an

employee’s

intimidation,

ridicule, and insult that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an
abusive working environment.”

Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993) (internal quotation marks and citation
omitted).
“the

To make that showing, a worker must demonstrate that

environment

would

reasonably

be

perceived,

and

is

perceived, as hostile or abusive,” even if it is not actually
“psychologically

injurious.”

Id.

at

22.

We

determine

the

“objective severity of harassment . . . from the perspective of
a reasonable person in the plaintiff’s position, considering all
the circumstances.”

Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75, 81 (1998) (internal quotation marks omitted).
Our inquiry into the severity of unwelcome conduct “is not,
and by its nature cannot be, a mathematically precise test.”
Harris, 510 U.S. at 22.
and

isolated

incidents

“[S]imple teasing, offhand comments,
(unless

extremely

serious)

will

not

amount to discriminatory changes in the terms and conditions of
employment.”

Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998) (internal quotation marks and citations omitted).
15

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recently

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confirmed,

“an

‘isolated

incident[]’

of

harassment can ‘amount to discriminatory changes in the terms
and conditions of employment,’ if that incident is ‘extremely
serious.’”

Boyer-Liberto, 2015 WL 2116849, at *10 (alterations

in original) (quoting Faragher, 524 U.S. at 788).
Here,

Pryor

prostitution

alleged

rumors

and

work environment.

in

her

mailbox

complaint

threats

that

engendered

both
a

the

hostile

The district court concluded that although

the prostitution rumors were not severe or pervasive enough to
create

a

hostile

environment,

sufficient by themselves.
court’s

findings

the

racist

death

threats

were

On appeal, Pryor does not contest the

regarding

the

prostitution

rumors.

United,

meanwhile, argues that a hostile environment cannot arise from
two notes that it characterizes as isolated, infrequent, and
anonymous.
We

agree

with

the

district

court’s

determination

that

although the notes may not have been pervasive, “a reasonable
jury could find that [they] were sufficiently severe to alter
the conditions of plaintiff’s employment” and create a hostile
work environment.

Pryor v. United Airlines, Inc., 14 F. Supp.

3d 711, 721 (E.D. Va. 2014).

Four considerations support that

conclusion.

of

First,

the

use

“the

word

‘nigger’

is

pure

anathema to African-Americans,” Spriggs, 242 F.3d at 185, as it
is to all of us.

As the district court elaborated, the “[u]se
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of that word is the kind of insult that can create an abusive
working

environment

in

an

instant,

see

Rodgers

v.

Western-

Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993), and is
degrading

and

humiliating

in

the

extreme,

see

Thompson, 214 F.3d 615, 626 (5th Cir. 2000).”

Walker

v.

Pryor, 14 F.

Supp. 3d at 720.
Second, as the district court also persuasively reasoned,
the offensive language was made still more severe “by virtue of
the presence of a clear element of violence” manifested by the
threats

inherent

lynching.

in

a

“hunting

Id. at 721.

license”

and

the

image

of

a

Indeed, the content of the notes is

simply chilling, purporting to give permission for the hunting
of a race of human beings “with or without dogs.”

The “license”

thus “clearly implicates the express purpose of killing, the
additional implication that the recipient is a sub-human object
to be hunted, and the allusion to lynching.”
Third,

the

location

added to their gravity.

where

Pryor

Id.

discovered

the

threats

They were left in a secure mailroom at

a major airport – a space with access ostensibly limited to coworkers and others with company authorization.

In an age of

unparalleled attention paid to the security of air travel, a
death

threat

restricted
concern.

left

space

for
should

an

airline

have

been

employee
viewed

in
with

a

secure,

heightened

Further, Pryor’s work as a flight attendant left her
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particularly

vulnerable

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position,

flying

internationally

and coming into contact with hundreds of strangers daily.

And

if there was any doubt, the record includes ample evidence that
Pryor was subjectively terrified after receiving the threats.
Fourth and finally, the context of the notes matters.

In

addition to the two threats that Pryor directly received, the
record

includes

evidence

of

(1)

the

same

threats

left

for

several other flight attendants, (2) the racist message written
on the two apartment advertisements, of which Pryor was aware;
and

(3)

severe

the

racially-tinged

enough

hostile

on

work

their

own

environment,

prostitution
to

subject

such

facts

rumors.
Pryor

to

While
a

contribute

not

racially
to

our

evaluation of the severity of the two threats Pryor received.
See Spriggs, 242 F.3d at 184 (observing that a hostile work
environment

analysis

looks

not

only

to

conduct

directed

specifically at an individual but also to “the ‘environment’ of
workplace hostility”).
In sum, the conduct at issue in this case is far removed
from
found

the

mere

of

environment.
court

off-hand

comments

insufficient

or

severity

teasing
to

that

engender

See Faragher, 524 U.S. at 788.

properly

concluded,

“a

reasonable

jury

courts
a

have

hostile

As the district
could

properly

construe the notes as racially-tinged death threats so severe

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that it does not matter that they were not pervasive.”

Pryor,

14 F. Supp. 3d at 721.
B.
The

question

of

United’s

liability

harassing conduct is a closer one.

for

the

anonymous

On one hand, employers are

not strictly liable for acts of harassment that occur in the
workplace.

See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,

72 (1986); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765
(1998).

Indeed, instances of anonymous harassment pose unique

challenges
perpetrator

to

companies

and

to

ominous, threat.
responsibility

to

that

protect

must

work

victims

both

from

a

to

identify

faceless,

the

though

But on the other hand, an employer maintains a
reasonably

carry

investigation and protection.

out

those

dual

duties

of

The anonymous nature of severe

threats or acts of harassment may, in fact, heighten what is
required of an employer, particularly in circumstances where the
harassment

occurs

inside

a

secure

space

accessible

to

only

company-authorized individuals.
As we have held, an employer may be liable for hostile work
environments created by co-workers and third parties “if it knew
or should have known about the harassment and failed to take
effective

action

to

stop

it

. . .

[by]

respond[ing]

with

remedial action reasonably calculated to end the harassment.”
EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008)
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(internal quotation marks omitted) (emphasis added); see also
Freeman v. Dal-Tile Corp., 750 F.3d 413, 423 (4th Cir. 2014);
EEOC v. Xerxes Corp., 639 F.3d 658, 669 (4th Cir. 2011).

An

employer is not subject to a lesser standard simply because an
anonymous actor is responsible for the offensive conduct.

See

Xerxes, 639 F.3d at 672-73 (holding an employer to the same
standard for responding to harassment carried out by known and
unknown individuals); Cerros v. Steel Techs., Inc., 398 F.3d
944, 951 (7th Cir. 2005) (noting that a plaintiff’s “inability
to

verify

obstacle

the

to

authorship

his

of

establishing

. . .
that

racist
this

graffiti

graffiti

contributed to a hostile work environment”).
of

anonymity

determination

is
of

a

circumstance

whether

a

that

company’s

Corp.,

614

F.3d

1132,

1149

produced

or

Instead, the fact

response

(10th

no

helps

calculated to end the harassment at issue.
Pac.

poses

was

inform

our

reasonably

See Tademy v. Union

Cir.

2008)

(“Although

there may be difficulties with investigating anonymous acts of
harassment, those difficulties at most present factual questions
about the reasonableness of [the employer’s] response . . . .”).
The parties here do not dispute that United knew about the
two

racist

prostitution

death

threats

rumors

advertisements).

and

Pryor
the

received

(in

bulletin

addition
board

to

the

apartment

Further, Pryor agrees that United’s response

to the second threatening note she received was adequate.
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only question is thus whether the airline’s actions in response
to the first threat were prompt and reasonably calculated to end
the harassment.
Of

course,

See Freeman, 750 F.3d at 423.
the

reasonableness

of

a

company’s

actions

depends, in part, on the seriousness of the underlying conduct.
See Xerxes, 639 F.3d at 675-76 (examining whether a company’s
response was proportional to the seriousness of the incidents of
harassment); Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991)
(observing that “remedies should be assessed proportionately to
the

seriousness

of

the

offense”

(internal

quotation

marks

omitted)); Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307,
309 (5th Cir. 1987) (looking to the severity of alleged sexual
harassment to determine the adequacy of a company’s response).
It is only in light of the nature of the harassment that we can
see whether a company’s response was proportional by examining
the

promptness

of

any

investigation,

the

specific

remedial

measures taken, and the effectiveness of those measures.

See

Xerxes Corp., 639 F.3d at 669-70.
As previously described, the conduct at issue in this case
is some of the most serious imaginable in the workplace – an
unmistakable

threat

of

deadly

violence

against

an

individual

based on her race, occurring in the particularly sensitive space
of an airport.

By its own terms, the note Pryor received was

not only a threat to her but to all African-American employees
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who shared the same space.
this

record

that

the

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It is also reasonable to infer on

perpetrator

was

someone

United

had

entrusted with access to the mailroom.
Given the severity of the threat, a reasonable jury could
find that United’s response was neither prompt nor reasonably
calculated to end the harassment.

United supervisors did not

call police, even though police later suggested that they should
have.

They did not escalate the matter to the ESC, in apparent

violation of the company’s H&D policy. 7
corporate

security

of

the

racist

message

previously discovered in the break room.
install

cameras

or

other

monitoring

They did not inform
on

the

fliers

They did not promptly

devices.

They

did

not

provide Pryor with additional security or protective measures.
They did not obtain fingerprints, do other forensics analysis,
or interview co-workers.

And they remarkably did not inform

Pryor when their investigation closed, an event that occurred
without management having sent any correspondence to employees
to

solicit

company

was

information
being

and/or

vigilant

in

put

them

monitoring

on
the

notice

that

the

workplace.

In

short, a reasonable jury could find that United had done very
7

Clearly, a company’s failure to follow an internal policy
does not make its response unreasonable as a matter of law. But
insofar as a company’s policies reflect its reasoned belief as
to the best way to address and end harassing conduct, compliance
with those policies is a factor we may consider.

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little to deter future acts of harassment up until the time that
the airline initially closed its investigation.
Tellingly,

Pryor

herself

had

to

both

call

the

ESC

to

resurrect the investigation and report the incident to police.
Were it not for Pryor’s actions, it is reasonable to infer that
no email would have ever gone out to United employees – an email
that Panos sent more than a month after Pryor contacted the ESC.
And after the ESC became involved, Panos and Robinson-Palmer
failed to inform the investigating HR manager of prior instances
and

allegations

of

racism

at

United’s

Dulles

facility.

A

reasonable jury could find that such an omission contributed to
the

manager’s

conclusion

that

the

first

note

Pryor

received

represented an isolated occurrence.
As

for

United’s

interaction

with

the

police,

when

an

officer first interviewed Panos and Robinson-Palmer, she was met
with

less

than

generous

cooperation.

In

fact,

before

the

officer could even explain her presence, the managers told her
that it was “not the best time to meet” and questioned whether
she

should

have

made

an

appointment.

Curiously,

Panos

and

Robinson-Palmer further indicated that they “did not understand
why the police [department] was involved.”

J.A. 196.

Such

initial antipathy to police involvement stands in informative
contrast

with

the

active

cooperation

23

advocated

by

Human

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Manager

George

Pg: 24 of 26

Bellomusto

in

the

aftermath

of

the

discovery of the second note.
It

is

United’s

also

response

significant,
to

the

albeit

first

not

threat

dispositive,
was

that

ineffectual

in

stopping the harassing conduct, as the notes reappeared months
later

in

greater

strategy

was

not

number.

The

successful

mere

does

fact

not

that

669-70.

remains

a

response.

Yet
factor

the
in

effectiveness
evaluating

of

the

company’s

necessarily

strategy was not a reasonably calculated one.
at

a

an

mean

the

Xerxes, 639 F.3d
employer’s

reasonableness

actions
of

the

See Cerros, 398 F.3d at 954 (observing that “the

efficacy of an employer’s remedial action is material to our
determination

whether

the

action

was

reasonably

likely

to

prevent the harassment from recurring” (internal quotation marks
omitted)).

On

this

record,

a

reasonable

jury

could

find

a

causal relationship between United’s lukewarm initial response
to the threat Pryor received and the later reappearance of the
notes.
In granting summary judgment for United, the district court
reasoned

that

there

were

no

grounds

to

think

that

the

perpetrator would have been found even if the airline had taken
additional steps.

Pryor, 14 F. Supp. 3d at 723 (“[T]here is

absolutely no basis in the record to conclude that plaintiff’s
preferred route would have led defendant to the culprit.”).
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that logic miscalibrates the test for employer liability and
fails to view the evidence in the light most favorable to Pryor.
A plaintiff in a hostile work environment case does not bear the
burden of making the speculative showing that taking different
measures would have necessarily stopped the harassing conduct at
issue.

Instead, the focus of our inquiry rests on whether the

means that a company chose were “reasonably calculated” to end
the harassment.

That is, even if a diligent response may not

have been successful, a company is not thereby excused for its
lack of diligence.
Even using the district court’s logic, a reasonable jury
could find that a more immediate and robust response to the
first

threatening

note

would

have

increased

the

chances

of

identifying suspect(s) while deterring the later proliferation
of notes.
including

Any number of actions could have been effective,
reporting

the

incident

immediately

to

the

police,

conducting interviews with co-workers and others with access to
the

mailroom,

and

promptly

sending

correspondence

about

the

incident to Dulles-based employees.
We need not, and indeed could not, prescribe exactly what
United’s response to the first note should have been.
were,

no

doubt,

multiple

ways

for

the

company

to

There

reasonably

respond.

It also bears emphasizing that an employer’s response

need

be

not

perfect,

or

even
25

embody

best

practices,

to

be

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reasonably

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calculated

to

end

harassing

conduct.

Mikels v. City of Durham, N.C., 183 F.3d 323, 330 (4th Cir.
1999)

(holding

that

an

employer’s

“particular

remedial

responses” need not be the “most certainly effective that could
be devised”).

We can, however, confidently say on this record

that a reasonable jury could conclude that the response United
actually

chose

was

neither

prompt

nor

reasonably

calculated.

Indeed, a reasonable jury could find that United’s response was
instead

reluctant

disruption

to

and

day-to-day

reactive,

intended

operations

instead

to

minimize

any

of

identifying

a

perpetrator and deterring future harassment.
We therefore vacate the district court’s award of summary
judgment and remand for further proceedings consistent with this
opinion.
VACATED AND REMANDED

26