                             UNPUBLISHED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.
Vacated and remanded by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.




                                2
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


                                          3
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


                                               4
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


                                          5
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


                                        6
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


                                        7
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


                                  8
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


                                                9
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.




                                             10
                                              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.


                                               11
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


                                       12
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


                                             13
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.




                                        14
      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,


                                                 15
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




                                         16
incident to Adams in his stead. 2             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.”).

     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

     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.




                                         17
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


                                                18
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.


                                       19
                                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.




                                20
