Argued, April 8, 2015
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. (1:13-cv-01125-LMB-TRJ). Leonie M. Brinkema, District Judge.
Spencer Freeman Smith,
SMITH PATTEN, San Francisco, California, for Appellant.
Jody A. Boquist, LITTLER MENDELSON, P.C., Chicago, Illinois, for Appellee.
Dow W. Patten, SMITH
PATTEN, San Francisco, California, for Appellant.
Paul E. Bateman, Angela I. Rochester, LITTLER MENDELSON, P.C., Chicago, Illinois, for Appellee.
Before MOTZ and GREGORY, Circuit Judges, and DAVIS, Senior Circuit Judge.
GREGORY, Circuit Judge
This case most centrally concerns the question of when an employer may be held liable for a hostile work environment created by an anonymous actor. 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. The district court concluded that Pryor was subjected to a 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.
Pryor joined United Airlines in 1984 and began working out of Dulles International Airport in the early 1990s. In January 2011, she discovered in her company mailbox a 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." J.A. 1947. The mailbox was in a secure space at the airport, accessible to United employees and others 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. 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. The policy provided guidance for supervisors and managers when they received a complaint regarding harassment or 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. When Panos found the envelope, she notified Denise 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.
As both Panos and Robinson-Palmer were aware, the note left for Pryor was
not the first incident of racism reported at United's Dulles facility. In the 1990s, Pryor received a question from an unidentified colleague about rumors circulating among United employees that black flight attendants based out of Dulles were moonlighting as prostitutes during layovers in Kuwait. Both Panos and Robinson-Palmer became aware of these rumors when they ...