                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-1152


MAGALY HERNANDEZ,

                    Plaintiff - Appellant,

             v.

FAIRFAX COUNTY,

                    Defendant - Appellee.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Anthony John Trenga, District Judge. (1:16-cv-00502-AJT-MSN)


Argued: December 5, 2017                                          Decided: January 30, 2018


Before KEENAN, DIAZ, and HARRIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Ellen Kyriacou Renaud, SWICK & SHAPIRO, P.C., Washington, D.C., for Appellant.
Jamie Marie Greenzweig, FAIRFAX COUNTY ATTORNEY’S OFFICE, Fairfax,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

         Magaly Hernandez, a female firefighter employed by Fairfax County, Virginia

(the County), appeals from the district court’s award of summary judgment in favor of

the County in her action alleging a hostile work environment and retaliation under Title

VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e through 2000e-17.

After reviewing the record of proceedings in the district court, we conclude that there are

genuine disputes of material fact with respect to both of Hernandez’s claims. 1 We

therefore vacate the district court’s judgment and remand for further proceedings.


                                            I.

         We construe the evidence in the light most favorable to Hernandez, the

nonmoving party, and draw all reasonable inferences in her favor. Rosetta Stone Ltd. v.

Google, Inc., 676 F.3d 144, 150 (4th Cir. 2012) (citation omitted). For more than 10

years, Hernandez has worked as a firefighter with the Fairfax County Fire and Rescue

Department. In October 2013, she began working at Fire Station 42 where Jon Bruley

was the station captain. Bruley, in turn, reported to Cheri Zosh, who served as a battalion

chief.

         Within the first few months of Hernandez’s work at Fire Station 42, Bruley

engaged in inappropriate conduct toward her, including blocking her path in the hallway,


         1
        Although Hernandez alleged two counts relating to sexual harassment and hostile
work environment, the district court correctly treated these counts as one interrelated
count. Hernandez has not challenged this construction of her complaint.


                                            2
placing his chin on her shoulder, and positioning his body “right up against” her. Bruley

engaged in this conduct despite Hernandez’s repeated requests that she did not “like

people that close to [her.]” Bruley also made several statements to Hernandez indicating

his desire to see her in a bathing suit, and once asked Hernandez whether she would “be

able to handle that big hose,” a comment that Hernandez construed as being sexual in

nature.

          When Hernandez first reported this conduct to Zosh in April 2014, Zosh

confronted Bruley directly.       After speaking with Zosh, Bruley did not again make

inappropriate comments to Hernandez or physically invade her personal space.

Nevertheless, Bruley began monitoring and tracking Hernandez’s activities and

movements at work, and this behavior continued for many months. Hernandez later filed

a formal complaint with the County’s equal rights office.

          After Hernandez transferred to a different fire station, she was involved in a verbal

confrontation with a male firefighter during a basketball game at the station (the

basketball incident). The disagreement arose after the male firefighter aggressively and

repeatedly threw a basketball at an unsteady backboard, disregarding Hernandez’s

requests to stop. Based on this incident, the County conducted an investigation and later

issued Hernandez a written reprimand for workplace violence and unbecoming conduct.

The reprimand stated that during the verbal confrontation, Hernandez exhibited

“aggressive” behavior by “challeng[ing] the [male] firefighter verbally,” and by

“violating his body space with [her] aggressive head and arm gestures.”



                                                3
       In June 2016, Hernandez filed an amended complaint in the district court under

Title VII alleging a hostile work environment based on sexual harassment and

discrimination and a separate claim of retaliation. After the County filed a motion for

summary judgment and the district court held a hearing, the court determined that

Hernandez had failed to satisfy her burden of proof for either claim. Hernandez now

appeals.



                                            II.

       We review the district court’s award of summary judgment de novo. Rosetta

Stone Ltd., 676 F.3d at 150. Summary judgment is appropriate only “if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

                                            A.

       We begin by addressing Hernandez’s hostile work environment claim. Title VII

states that “[i]t shall be an unlawful employment practice for an employer . . . to

discriminate against any individual with respect to [her] . . . terms, conditions, or

privileges of employment, because of . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Because an

employee’s work environment is a term or condition of employment, harassment based

on sex is actionable under Title VII. See EEOC v. R&R Ventures, 244 F.3d 334, 338 (4th

Cir. 2001) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 73 (1986)). To

succeed on a hostile work environment claim based on sexual harassment, a plaintiff

must show that the offensive conduct (1) was unwelcome, (2) was based on her sex, (3)

                                             4
was “sufficiently severe or pervasive to alter [her] conditions of employment and to

create an abusive work environment,” and (4) was imputable to her employer. Crockett

v. Mission Hosp., Inc., 717 F.3d 348, 354 (4th Cir. 2013) (citation omitted).

       Like the district court, we initially conclude that Hernandez satisfied the first two

factors of her hostile work environment claim. Accordingly, we focus our analysis on the

remaining issues whether Bruley’s offensive conduct was sufficiently severe or

pervasive, and whether his conduct was imputable to the County. We address these

factors in turn.

                                             i.

       Hernandez argues that Bruley’s harassing conduct threatened her physical safety

and humiliated her to such a degree that a jury could conclude that Bruley’s conduct

created a hostile work environment. In response, the County contends that Bruley’s

conduct, while offensive, was too insignificant to support Hernandez’s claim when

viewed objectively. Further, the County submits that Hernandez’s “near total lack of

awareness” regarding Bruley’s monitoring of Hernandez’s activities further supported the

district court’s conclusion that Bruley’s conduct was legally insufficient to support the

claim of a hostile work environment. We disagree with the County’s position.

       A hostile work environment exists “[w]hen the workplace is permeated with

discriminatory 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.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015)

(en banc) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). In assessing the

                                             5
legal sufficiency of a plaintiff’s claim, we focus on whether the work environment, when

viewed both subjectively and objectively, can be perceived as being hostile or abusive.

See id. (citing Harris, 510 U.S. at 22). “Whether the environment is objectively hostile

or abusive is judged from the perspective of a reasonable person in the plaintiff’s

position.” Id. (internal quotation marks and citation omitted). Our inquiry requires

consideration of “the totality of the circumstances, including the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or

a mere offensive utterance; and whether it unreasonably interferes with an employee’s

work performance.” Okoli v. City of Balt., 648 F.3d 216, 222 (4th Cir. 2011) (internal

quotation marks and citation omitted).

       The district court concluded that a reasonable jury could determine that for about

one year, Hernandez subjectively felt humiliated every day at work, felt pressure not to

report the harassing conduct, and felt fearful of Bruley’s “inappropriate, boorish,

insensitive, and demeaning” behavior. However, the court held that Bruley’s conduct,

from an objective perspective, was not sufficiently severe or pervasive to support

Hernandez’s claim.

       We reach a contrary conclusion and hold that the full record of Bruley’s conduct

could support a jury determination that, viewed objectively, Hernandez was subjected to

a hostile work environment based on her sex. In less than one year, Bruley physically

invaded Hernandez’s personal space on numerous occasions and made sexually

suggestive comments to her. Bruley also informed various colleagues that he suspected

that Hernandez and Zosh were engaged in an inappropriate sexual relationship. Bruley

                                             6
repeated his offensive actions despite the fact that Hernandez repeatedly asked him to

stop this conduct.

       Also, importantly, we consider evidence of the extent to which Hernandez knew

that Bruley was continuing to monitor her movements and activities. Hernandez was

aware before she transferred to another station that Bruley “started tracking what [she]

was doing at the station, who [she] was talking to, how [she] was doing certain things,

who [she] was giving hugs to.” After Hernandez transferred to a different fire station,

other employees informed her that Bruley continued to monitor her and knew when she

was working. The record additionally showed that Bruley compiled multiple binders

with information he had collected about Hernandez.

       In view of the full range of Bruley’s offensive conduct, we hold that a reasonable

jury could conclude that Bruley’s actions, when viewed objectively, created a hostile and

abusive work environment. Accordingly, the record shows disputed issues of material

facts regarding the question whether Bruley’s conduct was sufficiently pervasive and

severe to support Hernandez’s claim.

                                           ii.

       We turn to consider the issue whether Bruley’s conduct was imputable to the

County. Hernandez argues that there are disputed questions of fact regarding whether the

County disciplined Bruley in a reasonable manner for his harassing conduct.          The

County, however, contends that the record conclusively shows that the County took

prompt and appropriate disciplinary action against Bruley upon learning of Hernandez’s

allegations. We again disagree with the County’s position.

                                           7
       An employer will be liable for an employee’s harassing conduct of another

employee when the employer had actual or constructive knowledge of the hostile work

environment. EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008). “Once

the employer has notice, then it must respond with remedial action reasonably calculated

to end the harassment.” Id. (internal quotation marks and citation omitted).

       The district court correctly observed that when Hernandez first reported Bruley’s

harassing conduct in April 2014, Zosh immediately addressed the concerns with Bruley.

After this meeting, Bruley’s physically intimidating behavior and inappropriate

comments toward Hernandez ceased. However, a jury could determine that the County’s

later responses to Bruley’s continued inappropriate conduct were inadequate. During the

County’s investigation into Hernandez’s equal rights complaint against Bruley, the

County became aware that Bruley had been monitoring Hernandez’s activities.

Nevertheless, the County did not review Bruley’s binders of notes regarding Hernandez’s

activities.

       Between August and November 2015, when supervisors discussed with Bruley his

conduct of tracking Hernandez’s movements, those supervisors generally told Bruley to

“focus on his work.” Bruley interpreted his supervisors’ comments as permitting his

continued documentation of Hernandez as needed to support his own complaint of

discrimination. In fact, the County did not specifically direct Bruley to “cease any

tracking” of Hernandez until March 3, 2015. At that point, Bruley received a written

reprimand and was threatened with termination.



                                            8
      On this record, a reasonable jury could conclude that the County’s responses prior

to the March 2015 reprimand were inadequate and were not reasonably calculated to end

the harassing conduct. Thus, we conclude that the district court erred in determining as a

matter of law that Bruley’s conduct was not imputable to the County. Accordingly,

because disputed issues of fact exist regarding whether Bruley’s harassment (1) was

sufficiently severe and pervasive and (2) was imputable to the County, we hold that the

district court erred in awarding summary judgment to the County on Hernandez’s hostile

work environment claim.

                                           B.

      Finally, we consider Hernandez’s claim of retaliation. Hernandez contends that a

jury could determine that the County issued her a written reprimand after the basketball

incident because of her complaints about Bruley. The County argues in response that

Hernandez’s inappropriate conduct during the basketball incident was the basis for the

written reprimand, negating any basis for a finding of retaliation. We disagree with the

County’s arguments.

      Under Title VII, it is unlawful to discriminate against an employee because she

has opposed any unlawful employment practice or because she has made a charge or has

participated in an investigation.   42 U.S.C. § 2000e-3(a).      A prima facie case of

retaliation requires proof that: (1) the plaintiff engaged in protected activity; (2) she

suffered an adverse employment action; and (3) there was a causal connection between

the protected activity and the adverse action. Foster v. Univ. of Md.-E. Shore, 787 F.3d

243, 251-53 (4th Cir. 2015) (explaining that Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.

                                            9
Ct. 2517 (2013), did not heighten the causation standard for a prima facie case involving

indirect evidence of retaliation, and that the “but for” standard applies only to rebut a

defendant’s showing of pretext).

       The district court correctly concluded that Hernandez engaged in protected activity

under Title VII when (1) she made her initial report to Zosh regarding Bruley’s conduct,

and (2) she filed her official complaint with the County in August 2014. We also agree

with the district court’s determination that the written reprimand issued in June 2015,

which would remain on Hernandez’s permanent record for three years and rendered her

ineligible for any promotions for at least one year, qualifies as an adverse employment

action. Thus, we turn to focus on the question whether there was a causal connection

between the protected activity and the adverse employment action.

       At the outset, we observe that the written reprimand Hernandez received for

“[w]orkplace violence” and “unbecoming conduct” arose from a verbal disagreement.

On its face, the severity of the reprimand appears disproportionate to the brief, non-

physical altercation. The County employee who investigated the basketball incident

described it as “minor” when compared with other altercations between firefighters that

he had investigated in the past.

       Furthermore, the basketball incident and following investigation took place about

four months after Hernandez had filed a formal complaint with the County’s equal rights

office. Although this length of time might not be sufficient on its own to establish a

causal connection, we conclude that based on the relative severity of the reprimand, its

timing, and the other evidence in the record leading up to Hernandez’s protected activity,

                                           10
a reasonable jury could determine that the County retaliated against Hernandez. 2

Accordingly, we conclude that there are disputed issues of material fact with respect to

Hernandez’s retaliation claim against the County.



                                          III.

      For these reasons, we vacate the district court’s award of summary judgment to the

County and remand for further proceedings.


                                                          VACATED AND REMANDED




      2
         We also observe that the record presents disputed issues of fact regarding
whether the County’s proffered non-retaliatory reasons for the reprimand were pretextual.
See Foster, 787 F.3d at 252 (discussing the burden-shifting framework applicable in
cases involving indirect evidence of retaliation).


                                           11
