Arnold White v.  Bfi Waste Services, LLC

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 ARNOLD WHITE,
Plaintiff-Appellant,
v. No. 03-1833 
BFI WASTE SERVICES, LLC,
Defendant-Appellee. 
 DELBERT GASKINS,
Plaintiff-Appellant,
v. No. 03-2020 
BFI WASTE SERVICES, LLC,
Defendant-Appellee. 
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge;
Gerald Bruce Lee, District Judge.
(CA-02-1833; CA-02-1832)
Argued: June 3, 2004
Decided: July 14, 2004
Before LUTTIG and KING, Circuit Judges, and
Robert R. BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Luttig wrote the opinion, in which Judge King and Senior
Judge Beezer joined.

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COUNSEL
ARGUED: Christopher Edwin Brown, Alexandria, Virginia, for
Appellants. Abbey Gail Hairston, SEYFARTH SHAW, Washington,
D.C., for Appellee. ON BRIEF: Edwin C. Brown, Jr., BROWN,
BROWN & BROWN, P.C., Alexandria, Virginia, for Appellants.
Christina S. Pignatelli, SEYFARTH SHAW, Washington, D.C., for
Appellee.
OPINION
LUTTIG, Circuit Judge:
Appellants Delbert Gaskins and Arnold White, who are black, are
employed as "roll-off" drivers for defendant-appellee BFI Waste Ser-
vices (BFI). Appellants’ jobs primarily entail picking up the refuse
containers of BFI’s clients, emptying the containers at one of several
dump sites, and returning the containers to the clients.
In actions below that were brought separately but by the same
attorneys, Gaskins and White both sued BFI, raising claims of racial
discrimination in employment under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e et seq., and under 42 U.S.C. § 1981. In
particular, appellants claimed that they were subjected to discrimina-
tory treatment in compensation because supervisors repeatedly cut
their "pay codes" and the codes of other black employees, meaning
that appellants received less pay per waste-service route than
similarly-situated white drivers. Appellants also claimed that frequent
use of derogatory terms toward black employees by supervisors cre-
ated a hostile work environment.
After discovery, the district courts in each of the cases below
granted summary judgment to BFI. We affirm these grants of sum-
mary judgment with respect to the claims of discrimination in com-
pensation, but reverse with respect to appellants’ hostile work
environment claims.
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I.
At the outset, we address the one respect in which the paths of
these two consolidated cases diverged below.
After White filed his complaint, but before the commencement of
discovery, the district court in White’s case granted BFI’s motion to
dismiss White’s section 1981 claims insofar as they concerned acts
which occurred before December 19, 2000, two years prior to the fil-
ing of White’s complaint in district court. The court also granted
BFI’s motion to dismiss White’s Title VII claims insofar as they con-
cerned acts which occurred before September 6, 2001, 300 days prior
to White’s filing of an EEOC charge before bringing his employment
discrimination claim in the district court. J.A. 17-18. Because White
does not contest factual findings made by the district court in granting
BFI’s motion to dismiss on statute of limitations grounds, but only
argues that the district court committed errors of law, we review the
district court’s grant of BFI’s motion to dismiss de novo. See United
States v. United Med. & Surgical Supply Corp., 989 F.2d 1390, 1398
(4th Cir. 1993).
A.
We turn first to the district court’s dismissal of White’s section
1981 claims insofar as they were "based upon acts" that occurred two
years before White filed his complaint. J.A. 18. In ordering the dis-
missal of these claims, the district court relied upon this circuit’s deci-
sion in McCrary v. Runyon, 515 F.2d 1082, 1096-97 (4th Cir. 1974),
aff’d, 427 U.S. 160 (1976), which held that all section 1981 claims
brought in Virginia are subject to the two-year Virginia statute of lim-
itations for personal injury borrowed from Virginia Code § 8.01-
243(a). This is no longer the law.
In a decision released less than two months ago, Jones v. R.R. Don-
nelley & Sons Co., 124 S. Ct. 1836 (2004), the Supreme Court held
that claims arising under the 1991 amendments to section 1981 are
governed by the four-year federal statute of limitations set forth in 28
U.S.C. § 1658. Section 1981 claims based upon conduct occurring
after the formation of an employment contract, including hostile work
environment claims and claims of discrimination in compensation like
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the ones raised here, arise under the 1991 amendments. Id. at 1840;
see also James v. Circuit City Stores, Inc., 370 F.3d 417 (4th Cir.
2004). Accordingly, White’s section 1981 claims are subject to the
four-year statute of limitations in section 1658 and are thus timely to
the extent they are based upon acts that occurred after December 19,
1998.
Because White’s hostile work environment claim is limited to con-
duct that is alleged to have occurred after this date, see J.A. 12, no
portion of that claim is time-barred. Additionally, to the extent
White’s claims of discrimination in compensation under section 1981
are based on acts that occurred after Dec. 19, 1998 but before Dec.
19, 2000 (the cut-off date that the district court chose), they must also
be remanded for further proceedings.
B.
For Title VII claims, with respect to which a plaintiff first must file
a charge with the EEOC before bringing suit in district court, a plain-
tiff can only complain of discrimination that "occurred" within either
the 180-day period or the 300-day period immediately preceding the
filing of the EEOC charge. 42 U.S.C. § 2000e-5(e) (2003). The 300-
day period, rather than the 180-day period, applies where, as here,
state law also proscribes the alleged employment discrimination and
the plaintiff files with a state or local employment discrimination
agency either before filing with the EEOC, or concurrently therewith.
See id.; see also Tinsley v. First Union Nat’l Bank, 155 F.3d 435, 442
(4th Cir. 1998).
White filed his individual charge of discrimination with the EEOC
on July 3, 2002. J.A. 43. Accordingly, at first blush the district court
appears to have done nothing more than faithfully follow the applica-
ble rules when it granted BFI’s motion to dismiss and thus limited
White’s Title VII claims to events occurring after September 6, 2001
(300 days prior to the date on which White filed his EEOC charge).
White nonetheless argues that the district court erred in so limiting
his Title VII claims, for two reasons. First, White contends, the dis-
trict court failed to recognize that under the Supreme Court’s decision
in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101
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(2002), a hostile work environment claim under Title VII can encom-
pass racially hostile acts that occurred even beyond the applicable
limitations period, as long as at least part of the hostile work environ-
ment to which those acts contributed took place within the limitation
period. Second, White asserts, the district court should have used an
earlier EEOC filing in February 2000, and not White’s own EEOC fil-
ing, as the appropriate reference point for determining the limitations
period for White’s Title VII claims, because the earlier EEOC charge
was filed by White’s co-employees and raised substantially similar
claims.
1.
The first contention pressed by White is not without force. In Mor-
gan, the Supreme Court held that while a Title VII plaintiff seeking
to recover for discrete acts of alleged discrimination may complain
only of those acts that occurred within the relevant limitations period,
a Title VII plaintiff seeking to recover for a hostile work environment
can recover for acts occurring even beyond that period, as long as at
least a portion of the hostile work environment occurred within the
relevant limitations period. Id. at 122. The district court, without cit-
ing Morgan and seemingly without recognizing its holding, limited all
of White’s Title VII claims to "acts" occurring after September 6,
2001.
With respect to White’s claims of discriminatory pay-code cuts,
this ruling was correct. Each such pay-code cut is a discrete act that
would be actionable under Title VII by itself, as appellants’ counsel
conceded at oral argument. See id. at 112 (citing with approval the
Supreme Court’s earlier statement in Bazemore v. Friday, 478 U.S.
385 (1986) (per curiam), that with respect to salary discrimination,
"each week’s paycheck that deliver[s] less to a black than to a simi-
larly situated white is a wrong actionable under Title VII"). And
accordingly, under Morgan, White is appropriately barred under Title
VII from complaining of any pay-code cut that occurred prior to Sep-
tember 6, 2001.
With respect to White’s hostile work environment claim, however,
the district court’s ruling was incorrect. Under Morgan, this claim
may appropriately extend even to acts that occurred before the rele-
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vant limitations period, because the hostile work environment contin-
ued within the limitations period as well. See id. at 118. Accordingly,
the district court erred in limiting White’s hostile work environment
claim under Title VII to acts that occurred after September 6, 2001.
2.
White next argues that the district court erred with respect to the
date it used to determine the 300-day limitations period for his Title
VII claims. According to White, the district court should have used
a filing with the EEOC by other employees in February 2000, and not
White’s own filing with the EEOC in July 2002, as the relevant date,
because White’s claims are substantially related to those raised in the
earlier EEOC charge filed by other employees. We do not agree.
White grounds his attempt to obtain the benefit of the earlier filing
date in a doctrine, which has not yet been adopted in this circuit,
known as the "single-filing rule." See Appellant’s Br. at 19. The
"single-filing rule," as applied by those circuits which have adopted
it, allows plaintiffs who have not exhausted the administrative
requirement of filing with the EEOC to join in a lawsuit with other
plaintiffs who have exhausted the requirement, provided that all plain-
tiffs’ claims are substantially similar and that the EEOC charge itself
gave notice of the charge’s collective nature. See, e.g., Bettcher v.
Brown Schools, Inc., 262 F.3d 492, 494-95 (5th Cir. 2001) (setting
forth the requirements for invocation of the "single-filing rule"); Tol-
liver v. Xerox Corp., 918 F.2d 1052, 1056 (2d Cir. 1990) (same); see
also Dalton v. Employment Security Comm’n, 671 F.2d 835, 838 (4th
Cir. 1982) (noting that the Fifth Circuit had applied such a rule in
Crawford v. United States Steel Corp., 660 F.2d 663, 665-66 (1981),
but noting also that the Ninth Circuit had declined to apply such a rule
in Inda v. United Air Lines, Inc., 565 F.2d 554, 558-59 (9th Cir.
1997)). By its terms, this rule would be entirely inapplicable here
even if our circuit were to adopt it: White simply has not joined in
a lawsuit brought by those plaintiffs who filed the earlier EEOC
charge from which White would like to benefit. Cf. Bettcher, 262
F.3d at 495 (rejecting a plaintiff’s attempt to invoke the "single-filing
rule" because the individual who filed the EEOC charge did not him-
self bring suit). Rather, White has brought suit on his own behalf.
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What White truly seeks is not to invoke the "single-filing rule," but
some form of "relation back" between his claim and the earlier EEOC
charge filed by other employees. Cf. Fed. R. Civ. P. 15(c) (setting
forth conditions under which an amendment of a pleading "relates
back" to the date of the original pleading). But other than the "single-
filing rule," which is inapplicable for the reasons stated above, White
can muster no legal authority on which any relation back would rest,
under the circumstances here presented. Again, White did not for-
mally join the earlier EEOC charge or any civil complaint brought
thereafter with respect to that EEOC charge. Instead, White filed his
own charge of discrimination with the EEOC, received his own
"right-to-sue" letter, and subsequently brought his own, separate
claim in district court. Accordingly, as required by statute, and as the
district court correctly determined, the date on which White’s own
EEOC charge was filed is the date with respect to which any limita-
tion of White’s Title VII claims must be determined. 42 U.S.C.
§ 2000e-5(e).
*********
In sum, in light of the Supreme Court’s recent decision in Jones,
we reverse the district court’s application of a two-year statute of lim-
itations to White’s section 1981 claims, and remand for further pro-
ceedings those claims that the district court erroneously held to be
time-barred. We affirm the district court’s limitation of White’s Title
VII claims of disparate treatment in compensation, because those
claims rely on "discrete acts" of discrimination under Morgan. But we
reverse the district court’s limitation of White’s Title VII hostile work
environment claim to events that occurred after September 6, 2001.
II.
We now turn to the grants of summary judgment in favor of BFI
with respect to both appellants’ claims of racial discrimination in
compensation. We review these grants of summary judgment de novo,
viewing all facts in the light most favorable to, and drawing all justifi-
able inferences in favor of, the appellants. Love-Lane v. Martin, 355
F.3d 766, 775 (4th Cir. 2004).
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Understanding appellants’ claims of discrimination in compensa-
tion requires a brief overview of the BFI compensation system. "Roll-
off" drivers, such as White and Gaskins, are paid a fee for each route
they drive. The amount of the per-route fee is dictated by a "pay
code" letter.1 The pay code for each route, in turn, is determined with
reference to the average time it takes to complete a route.
When BFI drivers report to work at the beginning of each day, they
receive computer-generated route sheets. In most cases, the pay code
for a particular route is generated by the computer and printed in
advance on the route sheet that the driver receives (the only exception
to this rule is apparently in cases where a client is new, such that no
pay code has been generated). When drivers complete their routes,
they also write in the route pay codes in a blank next to each route
entry on their sheets. Supervisors then review the route sheets once
they are submitted to make sure that the written-in route pay codes
correspond to the computer-generated route pay codes. Additionally,
if unusual circumstances make the computer-generated route pay code
inappropriate, supervisors may authorize a different pay code.
The substance of appellants’ claim for racial discrimination in
compensation is that appellants’ supervisors repeatedly altered their
self-reported pay codes (as well as those of other black employees),
resulting in lower compensation per route, but that those supervisors
did not alter the pay codes of similarly-situated white drivers.
As the district courts noted and as appellants here do not contest,
appellants have no direct evidence that BFI intentionally discrimi-
nated against them on the basis of race with respect to compensation.
Thus, in order to establish a prima facie case of racial discrimination
in compensation under either Title VII or section 1981, appellants
needed to show: (1) membership in a protected class; (2) satisfactory
job performance; (3) adverse employment action with respect to com-
pensation; and (4) that similarly-situated employees outside the pro-
tected class received more favorable treatment. See McDonnell
1The pay code letters are A, B, C, D, E, and F. The amount of the per-
route fee increases from A to F, with the surprising exception that "D"
is actually the lowest of the pay codes.
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Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Love-Lane, 355
F.3d at 786-87; Causey v. Balog, 162 F.3d 795, 804 (4th Cir. 1998).
Both district courts granted summary judgment to BFI, holding
that, despite appellants’ membership in a protected racial class and
concededly satisfactory job performance, appellants failed to produce
evidence from which a reasonable jury could conclude that similarly-
situated white employees received more favorable treatment. White
J.A. 273-74; Gaskins J.A. 329-30. Our de novo review of the record
before the district courts convinces us that the district courts below
did not err in granting summary judgment on this basis.
In the overwhelming majority of instances in which Gaskins’ or
White’s pay codes were changed, they were changed because Gaskins
or White had themselves put down a better pay code than the one that
the computer had already generated. See, e.g., White J.A. 56-59
(showing numerous instances in which White wrote in a pay code one
level better than the computer-generated code, e.g., "C" instead of
"B", and in which the supervisor then changed the code back); Gas-
kins J.A. 62-67 (same). The record also shows that supervisors han-
dled similar behavior by white drivers in the same manner, that is, by
lowering the pay code to the presumptively-appropriate computer-
generated one. See, e.g., White J.A. 61-72 (showing numerous
instances in which white drivers wrote in a pay code one level better
than the computer-generated one, and in which the supervisor then
changed the pay code back). And the record shows that at least one
white driver even complained to the supervisors regarding pay-code
cutting. White J.A. 26 (identifying the driver as white), 153-54; Gas-
kins J.A. 95-96. Given this evidence, no reasonable jury could con-
clude that BFI treated white drivers more favorably than black drivers
with respect to compensation for truck routes. The only reasonable
inference to be drawn is that it was common practice at BFI for white
and black drivers alike to write in slightly better pay codes than the
ones to which they were entitled, and for supervisors to lower these
codes back down.2
2Appellants also argue that it was improper for the courts below to
deny their motions under Federal Rule of Civil Procedure 56(f) for relief
from summary judgment and for additional time to conduct discovery,
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To be sure, plaintiffs testified in their depositions that they and
other black employees had the impression that black employees’ pay
codes were being altered in a discriminatory manner. They also testi-
fied that supervisors had stated that they "do not like the blacks to
make more than the whites" and had made comments that because
particular black drivers were making too much money, they were
going to have to be "cut back." White J.A. 121, 123; Gaskins J.A. 128,
130. But the only documentary evidence in the record regarding the
pay codes awarded for specific routes driven by White, Gaskins and
other drivers lends no support to, and in fact affirmatively contradicts,
any inference that BFI supervisors did in fact treat white drivers more
favorably than similarly situated black drivers.3 While a reasonable
jury could conclude that plaintiffs’ impressions of discriminatory
treatment were honestly held — especially in light of the derogatory
terms in which BFI supervisors allegedly referred to black employees
and the remarks which BFI supervisors allegedly made — a reason-
able jury could not conclude, on the basis of the evidence produced
by the appellants, that any specific instances of disparate treatment in
compensation actually occurred.4 Thus, we affirm the district courts’
which motions appellants presumably made in implicit recognition of the
sparsity of the evidence supporting the allegation of disparate treatment
in compensation. The record shows that these motions were denied
because the magistrate judge to whom they were submitted found that
appellants had not exercised the required level of diligence in obtaining
discovery during the discovery period. White J.A. 278 ("The discovery
period for this case extended from February 11, 2003, to May 9, 2003.
Plaintiff served discovery on April 9, 2003, the last possible day to serve
discovery which would be due within the Court’s prescribed discovery
period.") (emphasis added); Gaskins J.A. 323A (same). There was no
reversible error in the denial of appellants’ motion on this basis. See
Strag v. Bd. of Trustees, 55 F.3d 943, 953 (4th Cir. 1995).
3This conclusion is bolstered by the evidence that, in the aggregate,
black drivers, including Gaskins and White, were among the highest paid
drivers at BFI, as both district courts noted, White J.A. 271; Gaskins J.A.
329-30, and that they remained such even after the comments regarding
"cutting back" black drivers were allegedly made. See White J.A. 51;
Gaskins J.A. 57. It is also bolstered by the admission of appellants’ coun-
sel, at oral argument, that the evidentiary basis supporting the claims of
disparate treatment in compensation was thin.
4It is noteworthy that BFI was the only party to supply any route sheets
to the district court as documentary evidence for the purposes of sum-
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grants of summary judgment with respect to appellants’ claims of
racial discrimination in compensation.
III.
We find more merit in appellants’ claims of racial discrimination
in the form of a hostile work environment. To survive summary judg-
ment on these claims, plaintiffs needed to demonstrate that a reason-
able jury could find that they suffered workplace harassment that was
"(1) unwelcome, (2) based on race, and (3) sufficiently severe and
pervasive to alter the conditions of employment and create an abusive
atmosphere." Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th
Cir. 2001). They also needed to demonstrate that "there is some basis
for imposing liability" on BFI for this harassment. Id.
A.
Both district courts granted summary judgment on the basis that,
although some unwelcome comments based on race were made, the
allegations simply did not establish that harassment was sufficiently
"severe or pervasive" to give rise to an actionable hostile work envi-
mary judgment. Had appellants’ counsel exercised more diligence in
acquiring route sheets and pay records to support his clients’ position
with documentary evidence of specific instances of discrimination
involving similar routes for which white drivers were paid more than
black drivers under like circumstances, and thus to oppose BFI’s inevita-
ble motion for summary judgment, a different result might have been
required. As it happened, however, the only such evidence to which
appellants purport to point on appeal was first included in appellants’
reply brief after BFI filed its opposition to appellants’ motion for relief
under 56(f). See White J.A. x, 234-38; Gaskins J.A. x, 248-92. Because
this evidence was not before the district courts for purposes of summary
judgment, but only for purposes of the motion for relief under 56(f), we
cannot consider it when reviewing the correctness of the district courts’
grants of summary judgment to BFI. See Fraser v. Goodale, 342 F.3d
1032, 1036 (9th Cir. 2003) (noting that when reviewing a grant of sum-
mary judgment, an appellate court is "limited to the evidence available
to the [district] court at the time the motion [for summary judgment] was
made").
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ronment claim. See White J.A. 275 ("Plaintiff has failed to allege
comments or conduct so severe or pervasive as to create an abusive
atmosphere."); Gaskins J.A. 332 ("The Court finds the alleged com-
ments to be wholly inappropriate workplace conversation. However,
under Fourth Circuit case law, these offensive and odious statements
are not so severe or pervasive as to permeate the workplace, thereby
not creating a hostile work environment as a matter of law.").
We reverse these grants of summary judgment. Our de novo review
of the record persuades us that, contrary to the district courts’ hold-
ings, a reasonable jury could find both Gaskins and White suffered
harassment that was "sufficiently severe or pervasive to alter the con-
ditions of employment and create an abusive atmosphere." Spriggs,
242 F.3d at 183. In particular, White testified in his deposition, which
was included as part of the record in both cases below, that through-
out his employment at BFI, supervisors repeatedly called him and
other black employees "boy, jigaboo, nigger, porch monkey, Mighty
Joe Young,"5 and "Zulu warrior." White J.A. 125, 127, 129; Gaskins
J.A. 132, 134, 136. Nowhere in his deposition did White state that
these terms were used on only a few occasions; rather, White testified
that use of these terms was "just the way they speak to you at BFI,
like you are less than nothing." White J.A. 125; Gaskins J.A. 132.
Indeed, White specifically testified that supervisors used the term
"boy" on a daily basis to refer only to black employees, and not to
white ones. White J.A. 128, 131; Gaskins J.A. 135, 138.
Gaskins also testified in his deposition that one of his supervisors,
upon learning that Gaskins’ wife was white, told Gaskins that he did
not appreciate Gaskins’ "taking our white women" and that "he had
a relative that was dating a black man, and that he didn’t like that at
all." White J.A. 97, 111; Gaskins J.A. 104, 118. And thereafter, Gas-
kins has alleged, this same supervisor raised the issue of Gaskins’
wife repeatedly. White J.A. 99-100; Gaskins J.A. 106-07. Gaskins fur-
ther stated that he overheard the same supervisor on a number of
occasions referring to black female employees as "black hookers."
White J.A. 115; Gaskins J.A. 122. And finally, Gaskins testified that
he had heard another supervisor, when "writing up" a fellow black
5"Mighty Joe Young" is a reference to a large gorilla in a recent movie
of the same name.
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employee, tell that employee that he was being written up because he
was "one of them." White J.A. 112; Gaskins J.A. 119.
As comparison with our earlier decision in Spriggs v. Diamond
Auto Glass reveals, the deposition testimony of White and Gaskins
described above is easily sufficient to create a triable issue of fact in
both cases as to whether the harassment at BFI of black employees
created an actionable hostile work environment. In Spriggs, the dis-
trict court had granted summary judgment to an employer on an
employee’s hostile work environment claim, even though the
employee had testified in his deposition that his supervisor "habitually
called Spriggs ‘monkey,’ ‘dumb monkey,’ and ‘nigger.’" 242 F.3d at
182. We reversed this grant of summary judgment on appeal, holding
that Spriggs’ testimony, if believed, established the existence of an
actionable hostile work environment:
Far more than a "mere offensive utterance," the word "nig-
ger" is pure anathema to African-Americans. "Perhaps no
single act can more quickly alter the conditions of employ-
ment and create an abusive working environment than the
use of an unambiguously racial epithet such as ‘nigger’ by
a supervisor in the presence of his subordinates." Rodgers v.
Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir.
1993) (citation and internal quotation marks omitted).
[The supervisor’s] constant use of the word "monkey" to
describe African Americans was similarly odious. To sug-
gest that a human being’s physical appearance is essentially
a caricature of a jungle beast goes far beyond the merely
unflattering; it is degrading and humiliating in the extreme.
See Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000)
(triable issue raised with regard to hostile work environment
where, inter alia, supervisors verbally assailed African
American employees with physically humiliating compari-
sons to "monkeys" and "slaves").
[The supervisor’s] frequent and highly repugnant insults
were sufficiently severe or pervasive (or both) to cause a
person of ordinary sensibilities to perceive that the work
atmosphere at the Forestville store was racially hostile.
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Id. at 185.
In both of the cases before us here, as in Spriggs, the plaintiffs have
forecasted evidence that workplace supervisors repeatedly used the
term "nigger" and "monkey," as well as other insulting terms, to refer
to black employees. Indeed, when viewed in the light most favorable
to plaintiffs, the evidence in Gaskins’ and White’s cases illustrates a
work environment that was arguably even more racially hostile than
the one alleged in Spriggs. Accordingly, we reverse the district
courts’ holdings that the evidence in the record is inadequate to sup-
port a finding that the harassment plaintiffs suffered was sufficiently
severe or pervasive to give rise to a hostile work environment.6
6As shown by the above discussion, both district courts failed properly
to assess the import of Spriggs in light of the analogous evidence present
here. But independent of that larger error, when considering Gaskins’
hostile work environment claim the Gaskins district court also made
three particular errors that cannot be overlooked.
First, the Gaskins court made a factual finding that "no one at BFI has
made a racially derogatory remark to [Gaskins] or in his presence in
more than three years." J.A. 333. But this finding cannot be squared with
the contrary record evidence that BFI supervisors made racially deroga-
tory remarks to all black employees, including Gaskins, within that
period. See supra at 12-13.
Second, the Gaskins court emphasized that "[Gaskins] has made no
allegations that his bigoted supervisor or his co-workers made any physi-
cal threats against him." J.A. 333. But the fact that Gaskins was never
physically threatened does not defeat his hostile work environment
claim. As this court held in Spriggs, some words are so offensive that,
when uttered repeatedly, they can foster "an abusive working environ-
ment" even if they are not accompanied by threat of physical injury.
Spriggs, 242 F.3d at 185. The presence of race-based physical threats
undeniably strengthens a hostile work environment claim. The absence
of such, however, is in no way dispositive, when there is sufficient evi-
dence from which a reasonable jury could conclude that allegedly harass-
ing conduct was otherwise "humiliating." See Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 23 (1993).
Lastly, the Gaskins court held that "Gaskins fails to demonstrate how
[BFI’s] actions reasonably interfered with [Gaskins’] performance,
because [Gaskins] is currently still employed by [BFI]." J.A. 333. Again,
however, Gaskins’ continued employment with BFI does not defeat his
hostile work environment claim. One need not sacrifice one’s job (and
a steady source of income) in order to prove that racial harassment in the
workplace rose to the level of an actionable hostile work environment.
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B.
We are also convinced that a reasonable jury could find that a suffi-
cient basis exists to impose liability on BFI.
Employers are generally presumed to be liable for hostile work
environment harassment committed by supervisory employees. See
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998). As we
explained in Spriggs, however, even where a prima facie case of hos-
tile work environment harassment has been raised, as long as no "tan-
gible employment action" has been taken against the employee, the
employer can raise an affirmative defense to the imputation of liabil-
ity "if it can demonstrate, by a preponderance of the evidence, that (1)
it ‘exercised reasonable care to prevent and correct promptly any
harassing behavior’; and (2) the plaintiff ‘unreasonably failed to take
advantage of any preventive or corrective opportunities provided by
the employer or to avoid harm otherwise.’" 242 F.3d at 186 (citing
Ellerth, 524 U.S. at 765; Faragher v. City of Boca Raton, 524 U.S.
775, 807 (1998)). Further, this court has held that the distribution by
an employer of an anti-harassment policy provides "compelling proof
that the [employer] exercised reasonable care in preventing and
promptly correcting harassment." See Barrett v. Applied Radiant
Energy Corp., 240 F.3d 262, 266 (4th Cir. 2001).
BFI accordingly points to its anti-harassment policy, which both
Gaskins and White indisputably received, and argues that, even if this
court concludes that Gaskins and White have raised a prima facie hos-
tile work environment claim, this court should still affirm the grants
of summary judgment below on the basis of BFI’s affirmative
defense. Because, as we have already determined, plaintiffs cannot
show that they suffered discriminatory treatment in terms of compen-
sation, supra at 7-11, and because plaintiffs have raised no other
claim of "tangible employment action" being taken against them, the
affirmative defense described above is potentially available to BFI.
The state of the record, however, precludes us at this point from
holding as a matter of law that BFI is entitled to this affirmative
defense. While it is undisputed that the anti-harassment policy was
distributed to BFI employees, issues of material fact exist as to
whether the policy was effectively enforced and, thus, as to whether
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BFI has satisfied the first prong of the affirmative defense by "exer-
cis[ing] reasonable care to prevent and correct promptly any harassing
behavior." See Barrett, 240 F.3d at 266 (noting that any presumption
of "reasonable care" arising from the distribution of an anti-
harassment policy can be rebutted through proof that the policy was
adopted or administered in bad faith or that the policy was otherwise
defective or dysfunctional). In particular, White has testified that he
complained to management numerous times about the harassment he
was suffering, but that nothing ever came of these complaints because
his supervisors always denied making any racially derogatory remarks
and management thereafter took no further action. White J.A. 133-34;
Gaskins J.A. 140-41. And while Gaskins never himself complained to
management, he testified that he and other employees, acting as a
group, sent a representative to complain to management of the behav-
ior of a particular supervisor, but that this representative was rebuffed
with the general statement that the group "was making a big mistake"
and that the supervisor "was not prejudiced." White J.A. 102-03; Gas-
kins J.A. 109-10. "Under these circumstances, a jury could rationally
conclude that, although [BFI’s] institution of an anti-harassment pol-
icy represented a reasonable step toward preventing the type of abuse
suffered by [White and Gaskins], the company unreasonably failed to
correct [the supervisors’] offending behavior by neglecting to enforce
the policy. [The employer’s] entitlement to the affirmative defense is
therefore a triable issue." Spriggs, 242 F.3d at 188.
C.
BFI alternatively argues that to the extent a hostile work environ-
ment existed at BFI, the evidence establishes that it existed only until
a particular "roll-off" supervisor, Jay Smith, left in May 2000.
Accordingly, BFI contends, recovery for this hostile work environ-
ment is time-barred both under Title VII (because May 2000 is more
than 300 days prior to the dates on which either Gaskins or White
filed EEOC charges) and under section 1981 (because May 2000 is
more than two years prior to the dates on which either Gaskins or
White brought suit in the district court).
Of course, as to appellants’ section 1981 hostile work environment
claims, BFI’s argument has been overtaken by the Supreme Court’s
recent decision in Jones v. R.R. Donnelley & Sons Co., 124 S. Ct.
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1836 (2004), which established that the four-year federal statute of
limitations set forth in 28 U.S.C. § 1658 applies to section 1981
claims based upon conduct occurring after the formation of an
employment contract. Even if Gaskins or White could only prove that
a hostile work environment existed up until Smith’s departure in May
2000, their section 1981 hostile work environment claims would still
fall within the applicable four-year limitations period. See supra at 3-
4.
As to appellants’ Title VII hostile work environment claims, how-
ever, the shorter 300-day limitations period means that if the alleged
hostile work environment did end upon Smith’s departure, any claims
based upon it would be time-barred. But while it is true that much of
the evidence in the record pertains to comments and remarks made by
Smith, there is also evidence that other BFI supervisors made racially
derogatory remarks as well, even after Smith’s departure from BFI.
See White J.A. at 125-31; Gaskins J.A. at 132-38; see also supra at
12-13. At this stage, we simply cannot declare as a matter of law that
any hostile work environment at BFI dissipated upon Smith’s depar-
ture. A triable issue of fact exists not only as to whether a hostile
work environment existed at BFI at all, but also as to (i) whether it
ceased upon Smith’s departure and never commenced anew, (ii)
whether it ceased upon Smith’s departure but then commenced anew
at some later date (in which case recovery under Title VII for the ear-
lier hostile work environment would be time-barred, although recov-
ery for the later hostile work environment would be permissible, see
Morgan, 536 U.S. at 118), or (iii) whether it existed continuously,
even despite Smith’s departure (in which case recovery would be per-
missible under Morgan for the entire hostile work environment, even
to the extent it concerned events outside the limitations period, see
id.).
CONCLUSION
For the foregoing reasons, the grants of summary judgment below
are affirmed with respect to appellants’ claims of racial discrimination
in compensation, but reversed with respect to appellants’ claims of a
hostile work environment. Additionally, we reverse the grant of the
motion to dismiss in the White case insofar as it limited White’s Title
VII hostile work environment claim contrary to the Supreme Court’s
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decision in Morgan, and insofar as it limited White’s section 1981
claims in a manner contrary to the Supreme Court’s recent decision
in Jones. These cases are now remanded for further proceedings not
inconsistent with this opinion.
AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED
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