California Legal Team
Equal Employment opportunity Commission v. Joe Carlton
00-5150/00-5232
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Nos. 00-5150/00-5232
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellee-Cross-Appellant
JOE CARLTON,
Intervening Plaintiff-Appellee
v.
HARBERT-YEARGIN, INC.
Defendant-Appellant-Cross-Appellee.
On Appeal from the United States District Court
for the Western District of Tennessee
PROOF BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS THE APPELLEE-CROSS-APPELLANT
C. GREGORY STEWART
General Counsel
PHILIP B. SKLOVER
Associate General Counsel
CAROLYN L. WHEELER
Assistant General Counsel
PAULA R. BRUNER
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
1801 L Street, N.W. Rm. 7044
Washington, D.C. 20507
(202) 663-4731
TABLE OF CONTENTS
TABLE OF AUTHORITIES iii
STATEMENT IN SUPPORT OF ORAL ARGUMENT ix
FACT SHEET FOR TITLE VII APPEALS x
STATEMENT OF JURISDICTION 1
STATEMENT OF ISSUES FOR REVIEW 1
STATEMENT OF THE FACTS 2
SUMMARY OF THE ARGUMENT 14
ARGUMENT 17
Appeal No. 00-5150
I. THE DISTRICT COURT PROPERLY UPHELD THE JURY'S VERDICT ON CARLTON'S
SEXUAL HARASSMENT CLAIM 17
A. Louis Davis' harassment of Joseph Carlton was "because of" sex where
the harassment was directed only at men 18
B. The alleged harassment of Carlton was sufficiently severe or pervasive
to alter the conditions of his employment and create an abusive and
hostile work environment 21
C. Harbert-Yeargin's response to Carlton's sexual harassment complaint
was so inadequate and ineffective that the jury properly decided the
company was liable 26
II. THE DISTRICT COURT PROPERLY DENIED A NEW TRIAL BECAUSE UNDER RULE
415 OF THE FEDERAL RULES OF EVIDENCE, THE COMMISSION GAVE TIMELY NOTICE
THAT IT WOULD INTRODUCE ALL RELEVANT EVIDENCE ABOUT INAPPROPRIATE TOUCHING
IN THE WORKPLACE 33
III. THE DISTRICT COURT PROPERLY UPHELD THE JURY'S PUNITIVE DAMAGES
AWARD 36
A. An award of punitive damages was appropriate in this case 37
B. The jury's award of $300,000 is not excessive 44
Cross-Appeal No. 00-5232
THE DISTRICT COURT IMPROPERLY SET ASIDE THE JURY'S VERDICT FOR THE
COMMISSION ON CEDRIC WOODS' CLAIM BECAUSE THERE WAS SUFFICIENT EVIDENCE
OF CONSTRUCTIVE NOTICE TO ESTABLISH EMPLOYER LIABILITY 51
CONCLUSION 59
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
APPELLEE'S DESIGNATION OF JOINT APPENDIX CONTENTS
ADDENDUM OF CASES
TABLE OF AUTHORITIES
CASES
Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664 (10th Cir. 1998) 29, 30
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) 51
Baty v. Williamette Indus., Inc.,
172 F.3d 1232 (10th Cir. 1999) 31
Blankenship v. Parke Care Ctrs., Inc.,
123 F.3d 868 (6th Cir. 1997),
cert. denied, 523 U.S.1110 (1998) 31
BMW v. Gore,
517 U.S. 559 (1995) 41, 45, 46, 49
Bonenberger v. Plymouth Township,
132 F.3d 20 (3d Cir. 1997) 53
*Buckner v. Franco Inc.,
178 F.3d 1293, 1999 WL 232704 (6th Cir. Apr. 12, 1999),
cert. denied, 120 S.Ct. 384 (1999). 30, 48
Burlington Indus., Inc. v. Ellerth,
524 U.S. 742 (1998) 27, 51
Burnett v. Tyco Corp.,
203 F.3d 980 (6th Cir. 2000) 23
Clark v. Metro Health Found., Inc.,
90 F.Supp.2d 976 (N.D. Ind. 2000) 45
Deters v. Equifax Credit Information Servs. Inc.,
202 F.3d 1262 (10th Cir. 2000) 40, 46, 47
*EEOC v. EMC Corp.,
205 F.3d 1339, 2000 WL 19189 (6th Cir. Feb. 8, 2000) 50
EEOC v. Indiana Bell Tel. Co.,
2000 WL 681007 (7th Cir. May 26, 2000) 49, 50
*EEOC v. SBS Transit, Inc.,
172 F.3d 872, 1998 WL 903833 (6th Cir. Dec. 18, 1999) 27
EEOC v. Wal-Mart Stores, Inc.,
187 F.3d 1241 (10th Cir. 1999) 39
Erebia v. Chrysler Plastic Prod. Corp.,
772 F.2d 1250 (6th Cir. 1985),
cert. denied, 475 U.S. 1015 (1986) 32
Evans v. Ford Motor Co.,
768 F. Supp. 1318 (D. Minn. 1991) 54
Fall v. Indiana Univ. Bd. of Trustees,
12 F. Supp.2d 870 (N.D. Ind. 1998) 57
Fall v. Indiana Univ. Bd. of Trustees,
33 F. Supp.2d 729 (N.D. Ind. 1998) 48
Faragher v. City of Boca Raton,
524 U.S. 775 (1998) 27
Fuller v. City of Oakland,
47 F.3d 1522 (9th Cir. 1995) 30
Greenwell v. Boatwright,
184 F.3d 492 (6th Cir. 1999) 17, 33
Hafford v. Seidner,
183 F.3d 506 (6th Cir. 1999) 52
Hall v. Gus Constr. Co.,
842 F.2d 1010 (8th Cir. 1988) 53
Harris v. Forklift Sys., Inc.,
510 U.S. 17 (1993) 18, 21, 22, 26
Hathaway v. Runyon,
132 F.3d 1214 (8th Cir. 1997) 25, 26, 30
Hennessey v. Penril Datacomm Networks, Inc.,
69 F.3d 1344 (7th Cir. 1995) 49
Hirase-Doi v. U.S. West Communications, Inc.,
61 F.3d 777 (10th Cir. 1995) 24, 26, 55
Hurley v. Atlantic City Police Dep't,
174 F.3d 95 (3d Cir. 1999),
cert. denied, 120 S. Ct. 786 (2000) 53
Indest v. Freeman,
168 F.3d 795 (5th Cir. 1999) 27
Ivey v. Wilson,
832 F.2d 950 (6th Cir. 1987) 51
Jackson v. Quanex Corp.,
191 F.3d 647 (6th Cir. 1999) 29, 53
Katz v. Dole,
709 F.2d 251 (4th Cir. 1983) 25
Kim v. Nash Finch Co.,
123 F.3d 1046 (8th Cir. 1997) 40
Kolstad v. American Dental Ass'n,
119 S.Ct. 2118 (1999) 37, 39
Lawyer v. 84 Lumber Co.,
991 F. Supp. 973 (N.D. Ill. 1997) 49
Lee v. Edwards,
101 F.3d 805 (2d Cir. 1996) 42
Libbey-Owens-Ford Co. v. Insurance Co. of North Am.,
9 F.3d 422 (6th Cir. 1993) 38
Lowery v. Circuit City Stores, Inc.,
206 F.3d 431 (4th Cir. 2000) 42
*Martin v. Schwan Sales Enterp., Inc.,
198 F.3d 246, 1999 WL 1111509 (6th Cir. Nov. 24, 1999) 26
Meritor Sav. Bank v. Vinson,
477 U.S. 57 (1986) 22
Moore v. KUKA Welding Sys. & Robot Corp.,
171 F.3d 1073 (6th Cir. 1999) 51
Moreno v. Consolidated Rail Corp.,
63 F.3d 1404 (6th 1995) 36, 44
Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75 (1998) ix, 18, 20, 21, 22, 38
*Pollard v. E.I. Dupont,
2000 WL 680220 (6th Cir. May 26, 2000) 21
Pouillion v. City of Ossowo,
206 F.3d 711 (6th Cir. 2000) 17, 36, 51
Quick v. Donaldson Co.,
90 F.3d 1372 (8th Cir. 1996) 18, 19, 20
Roberts v. Bohac,
574 F.2d 1232 (5th Cir. 1978) 47
Rodgers v. Fisher Body Div., Gen. Motors Corp.,
739 F.2d 1102 (6th Cir. 1984),
cert. denied, 470 U.S. 1054 (1985) 44, 46
Schrand v. Federal Pac. Elec. Co.,
851 F.2d 152 (6th Cir. 1988) 18
Smith v. First Union Nat. Bank,
202 F.3d 134 (4th Cir. 2000) 28
Smith v. Wade,
461 U.S. 30 (1983) 37
Timm v. Progressive Steel Treating, Inc.,
137 F.3d 1008 (7th Cir. 1998) 47, 48
Torres v. Pisano,
116 F.3d 625 (2d Cir.),
cert. denied, 522 U.S. 997 (1997). 55
TXO Production Corp. v. Alliance Resources Corp.,
509 U.S. 443 (1993) 44, 45, 46
United States v. Big D Enterp.,Inc.,
184 F.3d 924 (8th Cir. 1999) 46, 47
Van Jelgerhuis Mercury Finance Co.,
940 F. Supp. 1344 (S.D. Ind. 1996) 55
Vasbinder v. Ambach,
926 F.2d 1333 (2d Cir. 1991) 41
Vasbinder v. Scott,
976 F.2d 118 (2d Cir. 1992) 47
Williams v. General Motors Corp.,
187 F.3d 553 (6th Cir. 1999) 21, 22, 23, 24, 25, 27, 30
Winsor v. Hinckley Dodge, Inc.,
79 F.3d 996 (10th Cir. 1996) 30
Yates v. Avco Corp.,
819 F.2d 630 (6th Cir. 1987) 57
Yeary v. Goodwill Indus.-Knoxville Inc.,
107 F.3d 43 (6th Cir. 1997) 19, 20
STATUTES AND OTHER AUTHORITY
42 U.S.C. � 1981a(b)(1) 37
42 U.S.C. � 1981a(b)(3) 44
42 U.S.C. � 2000e ix
Fed. R. Evid. 415(b) 34
EEOC Compl. Man. (CCH) � 615.2(b)(3) 38
* Cases are provided in Addendum.STATEMENT IN SUPPORT OF ORAL ARGUMENT
Pursuant to 6th Cir. R. 43, the Commission requests oral argument in this
case. The Equal Employment Opportunity Commission ["Commission"] is the
agency charged by Congress with the interpretation, administration, and
enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. �
2000e et seq. The issues raised in appeal No. 00-5150 require this
Court's interpretation and application of Oncale v. Sundowner Offshore
Services, 523 U.S. 75 (1998) as it bears on the issue of when physical
contact between males is actionable harassment, and not congenial
horseplay, and when such harassment is "because of sex." Moreover, it
presents the question of whether ongoing harassment and other company
misconduct were sufficiently egregious to support a punitive damages
award of the statutory maximum. Finally, the cross-appeal No. 00-5232
raises the issue of whether evidence of pervasive harassment
involving or encouraged by management and prior complaints against
the same harasser was sufficient to support the jury's finding that
Harbert-Yeargin knew or should have known about the harassment of Cedric
Woods. The Commission believes that oral argument will assist the Court
in its consideration of these questions, all of which are critical to
the Commission's mission of enforcing workplace nondiscrimination laws.
UNITED STATES COURT OF APPEALS, SIXTH CIRCUIT
FACT SHEET FOR TITLE VII APPEALS
Case name and number: EEOC v. Harbert-Yeargin, Inc., Nos. 00-5150 &
00-5232
Person Reporting: Paula R. Bruner, as counsel for the EEOC
1. Date EEOC complaint filed: Carlton's sexual harassment charge was
filed on February 26, 1996 and his retaliation and constructive discharge
complaint was filed on April 6, 1996.
2. Was any compromise reached by the state civil rights agency? NO
By the EEOC? NO
3. Date EEOC issued a right to sue letter: N/A
4. Date present action filed: May 1, 1997
5. Have all filings been timely? YES
6. Nature of claims of discrimination and date(s) of occurrence: The EEOC
alleged in this same-sex harassment suit that Harbert-Yeargin allowed its
male employees to be subjected to unwelcome and offensive touching on
the basis of sex and that it failed to take effective corrective action,
which created a hostile work environment in violation of Title VII.
In relevant part, the Commission alleged that Louis Davis, a male
supervisor, sexually harassed Joseph Carlton by grabbing his genitals
and poking his finger in Carlton's anal cavity in February 1996.
The Commission further alleged that Davis sexually harassed Cedric
Woods by grabbing his genitals approximately around November 1995 and
continuing inappropriately to touch or attempt to grab Woods below the
belt until Woods left the company in July 1996.
7. Disposition below: The jury returned a verdict for the EEOC and Joseph
Carlton on his claim of sexual harassment and awarded $1 in compensatory
damages and $300,000 in punitive damages. The jury returned a verdict
for the EEOC on its sexual harassment claim seeking relief for Cedric
Woods and awarded $1 in compensatory damages and $50,000 in punitive
damages. The jury returned a verdict for Harbert-Yeargin on Carlton's
claims of constructive discharge and retaliation and on the EEOC's
sexual harassment claims seeking relief for two other male employees.
Harbert-Yeargin and the EEOC filed post-judgment motions. The district
court denied Harbert-Yeargin's motion for judgment as a matter of law
with respect to Carlton's sexual harassment claim and granted its motion
with respect to Commission's sexual harassment claim seeking relief
for Woods. The district court subsequently denied the Commission's
motion for reconsideration of its judgment setting aside the Woods
verdict and denied the Commission's motion for injunctive relief.
STATEMENT OF JURISDICTION
The Commission incorporates by reference the appellant's statement of
subject matter and appellate jurisdiction, adding: This Court also has
jurisdiction over the EEOC's cross-appeal pursuant to 28 U.S.C. � 1291,
since the appeal is from the final judgment of the district court and
was timely filed pursuant to Fed. R.App. P. 4(a) (1)(B).
STATEMENT OF ISSUES FOR REVIEW
Appeal No. 00-5150
1. Whether the district court properly denied Harbert-Yeargin's motion
for judgment as a matter of law on Carlton's sexual harassment claim.
2. Whether the district court properly denied Harbert-Yeargin's motion
for a partial new trial where the EEOC provided timely notice of its
intent to introduce evidence of similar misconduct under evidentiary
Rule 415.
3. Whether the district court properly upheld the jury's punitive damages
award.
Cross-Appeal No. 00-5232
Whether the district court erred in granting Harbert-Yeargin's motion
for judgment as a matter of law when it ruled that Harbert-Yeargin was
not liable for the sexual harassment of Cedric Woods because it lacked
constructive notice of the harassment, despite sufficient contrary
evidence on which the jury based its verdict.
STATEMENT OF THE FACTS
A. The Workplace Environment
In 1996, Harbert-Yeargin provided maintenance services at a Jackson,
Tennessee construction site under contract with Proctor & Gamble.
Harbert-Yeargin had a harassment policy and a sexual harassment policy,
(R.149, Ex.13, 14,Apx. __), posted on a bulletin board. (R.130,
Cooper Dep. at 92, Apx. __). According to corporate procedures,
employees were to be informed of the anti-harassment policies during the
orientation following their hire, (id. at 100,Apx. _), but enforcement
of the orientation requirements was sporadic, and in early 1996,
may not have occurred at all. (Id. at 142,Apx. __). In fact, some
employees testified that they either were not aware of the policies
or had not received any training concerning sexual harassment.
(Joseph Carlton-R.147,TR1 at 221,Apx. (never saw bulletin
board, but received safety book addressing only horseplay); Cedric
Woods-R.148,TR2 at 34,Apx. __ (did not see policy or have training
concerning sexual harassment); William Doyle-id. at 76,Apx. __ (knew
about sexual harassment policy on bulletin board but did not read it and
only received training on safety precautions); Terry Dotson-R.149,TR3
at 45,Apx. __ (saw sexual harassment policy but did not receive any
sexual harassment training)). Sexual harassment training was required
for managers and supervisors, and Gerald Freeman and Dale Markham were
responsible for conducting it. (Harold Scott-Id. at 112-14,Apx. __).
But site superintendent Harold Scott testified that he had never been
to any training conducted by Freeman or Markham, even though they had
been assigned the task since 1994. (Id. at 115-16,Apx. __).
Despite Harbert-Yeargin's policy against sexual harassment and horseplay,
such conduct was prevalent at the Jackson site. Male employees grabbed
or hit at the genitals of their coworkers. Others poked or probed fellow
employees in the buttocks. And, according to foreman Davis, "goosing,"
which included getting poked, patted, or prodded in the buttocks or
thumped in the crotch or genitals, occurred at Harbert-Yeargin "every
day," and no one was ever disciplined for that conduct. (R.148,TR2 at
108-09,113,128,Apx. __). For example, William Doyle said he was slapped,
patted and poked on the buttocks, (id. at 71-73,Apx. __), and saw a few
employees prodded, poked, and slapped on the "rear end" over the course
of five to six weeks. (Id. at 75,77,Apx. __). Terry Dotson said he was
grabbed by two coworkers nicknamed Possum and Smurf, who would "come
up to you, catch you by surprise, pinch you on the thigh or grab you
up between the legs and startle you." (R.149,TR3 at 37-39,Apx. __).
He said that Smurf pinched and grabbed him several times a week and
Possum grabbed him in the genitals sometimes several times a day. (Id. at
67-68,Apx. __). According to Dotson, in over a year's time, several men
grabbed and pinched him below the belt and coworker David Yager tried
to pinch him two or three times. (Id.at 41,Apx. __).
Supervisors and managers either participated in or witnessed this
conduct. Foreman Davis admitted that he goosed male employees and
testified that he saw site superintendent Scott "goose" an employee,
and employee Anthony Smith "goose" Joseph Carlton in the buttocks.
(R.148,TR2 at 108-09,116,128,Apx. __). Larry Lindley, a pipefitter,
said he saw Davis grab Carlton's genitals and buttocks and hit at
another employee's crotch. (Id. at 9-11,Apx. __). He also revealed
that Davis tried to grab him once. (Id. at 18,Apx. __). Terry Dotson
testified that during the entire time he worked in the fab shop at
Harbert-Yeargin "there was a lot of grabbing and poking" and that some
of this conduct occurred in front of the foremen. (R.149,TR3 at 35,
38,Apx. __). He explained that coworkers would come up behind someone,
reach between his legs, and pinch him, while the foremen stood around
and laughed about it. He recalled that on one occasion, two men had
another man on the floor trying to grab him by the testicles, and that
on another occasion, another man took a tape measure, pulled it out,
and stuck it between another employee's legs. (Id. at 36-37,Apx. __).
Dotson also saw Smurf and Possum grab employees in the presence of
foremen William Irvin and Gary Stewart, who just laughed about it.
(Id. at 38,Apx. __). Dotson explained that he did not report any of
these incidents since a foreman was standing there when some of them
happened and did not do anything to stop it. ( Id. at 42,56,Apx. __).
Similarly, employee Tony Warren said he also saw people grabbing
employees in the crotch at Harbert-Yeargin, and that he saw site manager
Harold Scott do it as well as foremen Davis and Irvin. (R.149,TR3 at
169,Apx. __). Specifically, Warren said that he saw Scott grab at
people, touch and poke his finger into employees' buttocks when they
were going up and down the steps, and slap at their crotches. Id. at
169,173,Apx. __; R.150,TR4 at 59-60,65-66,Apx. __). He also saw Davis
and Irvin grab employees and poke at their buttocks and crotches while
they were bent over, and he saw Davis touch Scott on his buttocks.
(id. at 170,174,177,Apx. __; R.150,TR4 at 67,Apx. __). Further, Warren
said that both Davis and Irvin did these things to him. He revealed
that approximately six or eight times Davis "slapped at him, hit his
crotch, and a time or two made contact." He also said that Davis grabbed
his nipples and pinched and twisted them. ( Id. at 170-72,Apx. __;
R. 150,TR4 at 23-25,Apx. __ ). Irvin, on the other hand, slapped at
Warren's crotch and hit him in the crotch with a screwdriver once.
(Id. at 174,Apx. __).
In 1996, Harbert-Yeargin had 292 employees of whom three
were women. (R.149,Employee List,Ex.32,Apx. ). The three
women were Donna Kinman, Christina Freeman, and Sonya Neisler.
All three worked at the Jackson site in the administrative office.
(R.148, TR2 at 139(Donna Kinman), 149(Christina Freeman),155(Sonya
Neisler),Apx. __). Two of them also worked in the site's Brass
Alley area.<1> (Id. at 139(Kinman),156(Neisler),Apx. __). All of
them testified that they had contact with the construction workers,
(Id. at 139-40(Kinman),152-53(Freeman),156(Neisler),Apx. __), but Freeman
added that she actually had more contact with the foremen because of her
specific job duties. (Freeman-id. at 152,Apx. ). They said that the
male employees never said anything inappropriate to them or touched
them. (Id. at 143-44(Kinman), 52(Freeman),157(Neisler),Apx. __).
Freeman and Neisler testified that they knew Louis Davis
and that he had never touched them inappropriately. (id. at
153-54(Freeman),157(Neisler),Apx. __). Davis confirmed that he had not
touched any of the female employees,<2> noting that if he had, he would
not have touched them below the belt. (Davis-id. at 134-35,Apx. __).
Harold Scott, the site manager, stated that although he had hit at
the genitals of one male employee and grabbed another man's crotch, he
would never do that to any women. (Scott-R.149,TR3 at 128-33,Apx. __).
B. The Claims on Appeal
1. Joseph Carlton
Joseph Carlton, a welder, began work at Harbert-Yeargin on January 8,
1996. (Carlton-R.147,TR1 at 220,Apx. ). He was assigned to work on
a crew under the supervision of Louis Davis. (Id. at 177,180,Apx. ).
He worked daily with Larry Lindley, a pipefitter. (Id. at 177,Apx.
; Davis-R.148,TR2 at 123,Apx. __).
According to Carlton, Davis began to touch him as early as January 8,
1996, and it "bothered him a little." He said that it seemed as if
Davis had to have his hands on him, touching him "on his upper thigh
area almost on a daily basis," and that the touching got progressively
worse. (Carlton-R.147,TR1 at 181,228,Apx. __). On February 6, 1996,
Davis grabbed Carlton's genitals. (Id. at 182,225,Apx. __). Carlton did
not report the incident since he had only been working there a couple
of weeks, he needed the job, and he had no eyewitnesses. Thereafter,
Davis "kept trying to get close" to him. Carlton said "[i]t was an
everyday thing," and it made it difficult for him to do his work.
Davis' behavior particularly bothered him because he could not figure
out what he had done to make Davis think he could put his hands on him.
(Id. at 184-86,Apx. __).
The next incident occurred on Thursday, February 22, 1996,
when Davis grabbed Carlton's genitals and poked his finger into
Carlton's "rectum." (Carlton-R.147,TR1 at 187,227,Apx. __; R.149,
Bomar Statement, Ex.15,Apx. __; Lindley-R.148,TR2 at 9, Apx. __).
Carlton was "outraged," and found the touching to be painful and
humiliating. (Carlton-R.147,TR1 at 188-93,Apx. __). He experienced
sleeplessness and crying jags. (Id. at 191-92,Apx. __). Since Lindley
had witnessed the incident, (Lindley,R.148,TR2 at 9,Apx. __), Carlton
reported it to Don Bomar, the general superintendent. (Carlton-R.147,TR1
at 189,Apx. __). Bomar laughed, but said he would look into the matter.
(Id.) He testified that it did not surprise him to hear that Davis
had "goosed" someone. (R.149,Bomar, TR3 at 80,Apx. __).
Bomar contacted his superior, Harold Scott,<3> and Scott directed
Bomar to notify the home office. (Bomar-R.149, TR3 at 87,Apx. __).
Scott testified that, based on his reading of the company's
policies, he believed that Carlton had been harassed. (Scott-id. at
109,159,Apx. __). Bomar called the home office. (R.149, Bomar
Statement,Ex.15,Apx. __). During that phone conversation, Robert
Cooper, a human resources official, instructed Bomar to transfer
Carlton to another crew. (Bomar-R.149,TR3 at 88,Apx. __).
On February 26, Bomar prepared a statement about Carlton's
complaint. (R.149,Bomar Statement, Ex.15,Apx. __). Thereafter, he told
Davis that Carlton had filed a complaint. (Bomar-TR3 at 74-76,Apx. __).
In response, Davis grinned and denied that he had done anything to
Carlton. (Id. at 74-75,Apx. __).<4> Davis suggested that Carlton may
have been upset because he had been admonished about the quality of
his welding on February 19. (Id. at 82,Apx. __; R.130,Cooper Dep. at
134,Apx. _ ). Although he admitted it was contrary to company procedures,
Bomar directed Davis to document the February 19 warning and put it in
Carlton's file. (Id. at 83-84,Apx. __).
On February 29, 1996, Cooper was assigned to investigate Carlton's
complaint. (R.130,Cooper Dep. at 6,30,Apx. _). Cooper and Roby Miller,
the corporate human resources manager, reviewed Bomar's statement and
called Bomar and Scott to schedule the onsite investigation. (Id. at
30-31,Apx. __).
On March 4, 1996, Cooper arrived at the Jackson site to investigate
Carlton's allegations of sexual harassment. (R.130,Cooper Dep. at
37,Apx. _). In conducting this investigation, Cooper did not interview
Carlton because Carlton would not speak without his counsel present.
On advice of counsel, Cooper made no effort to contact Carlton's
attorney, even though Carlton had provided his number. (Id. at
41-45,67-68,Apx. __). Cooper also did not speak to Larry Lindley,
who had witnessed the incident, or anyone else on Davis' crew, even
though he had a list of their names. (Id. at 48-49,Apx. __).<5> In
addition, based on the company lawyer's counsel, Cooper made no attempt
to identify any other potential witnesses to Carlton's incident, Davis'
behavior, or the prevalence of the charged conduct to determine the
veracity of Carlton's allegations. (Id. at 49-52,131-32,Apx. __).
Cooper said he did not see the "relevance" of asking which pipefitter
Carlton worked with and did not attempt to corroborate Carlton's
allegations because Carlton was "uncooperative." (Id. at 48-49,Apx. __).
Instead, Cooper questioned Bomar and Scott about Carlton and Davis,
and they informed him that "horseplay" was occurring at the worksite.
(Id. at 38-39,58,Apx. __). Cooper also spoke to Davis, who said
that horseplay happened, but that he only poked Carlton "in the ribs."
(Id. at 49-52,Apx. __). Contrary to company policy,<6> none of these
interviews were recorded even though Cooper had a notebook and laptop
computer with him, and no written statements were requested. (Id. at
39,54-56,Apx. __). At the conclusion of his investigation, Cooper
admonished Bomar and Scott about the "rampant" horseplay and the fact
that it violated company policy. He also warned them to prevent any
retaliation against Carlton. (Id. at 70-74,Apx. __). He submitted
a report to Miller, concluding that no harassment had occurred.
(Id. at 138,Apx. __). Consequently, Davis was neither reprimanded nor
disciplined, even though he had admitted to violating the company's
policy against horseplay. (Id. at 137,140,Apx. __; Davis-R.148,TR2 at
113,Apx. __).
After Carlton was placed on another crew, Davis began to stare at him and
"stalk" him "like a predator." (Carlton-R.147,TR1 at 194,Apx. __). When
the other employees learned about Davis' behavior, they began to
taunt Carlton about it by grabbing and "hunch[ing]" on each other.
(Id. at 194-95,Apx. __). They laughed at him and called him "Louie's
girlfriend." (Warren-R.150,TR4 at 21,Apx. __). They also began to treat
Carlton like he had the "plague." (Carlton-R.147,TR1 at 198,Apx. __).
According to one employee, foremen and supervisors also mocked Carlton
about the harassment and were present when his coworkers made fun of him.
They said that if Carlton were a "real man" he would have settled the
matter in a way other than filing a lawsuit. (Warren-R.149,TR3 at
184-85,Apx. _; R.150, TR4 at 16-21,Apx. __). Carlton informed Bomar
about the ridicule and that Davis was stalking him, but Davis continued
to stalk him two to three times a day and the ridicule worsened.
(Carlton-R.147,TR1 at 199-200,Apx. __). Carlton quit his job in April
1996, feeling both mentally and physically drained by the harassment.
(Id. at 200,220,Apx. __).
2. Cedric Woods
Cedric Woods worked for Harbert-Yeargin from May 22, 1995 to July 11,
1996. (R.149,Ex. 32-Employee List,TR3 at 155-56,Apx. __; R.139,Woods
Dep. at 59,Apx. __). He testified that on his first day or second
day on the job an employee told him to "watch out" for Louis Davis.
(Woods-R.148,TR2 at 45, Apx. __). According to Woods, Davis had a
bad habit of getting up close to him and touching him "a lot" on parts
of his body "two or three times a day." (Id. at 21,23,27,Apx. __).
He said that the first time Davis touched him was six months after he
began working at Harbert-Yeargin. ( Id. at 23,25,Apx. _). He said that,
while he was in a taxi truck full of passengers, Davis got on the truck,
put his arms around Woods, and placed his hands on Woods's "privates."
(Id. at 24,Apx. __). Disliking this behavior, Woods removed Davis's
hand, and got out of the truck. Davis laughed and everyone began to joke
about the incident. ( Id. at 24-25,Apx. __). After the truck incident,
Davis touched his genitals more than once and his buttocks at least once
or twice a day. (Id. at 28,47,Apx. __). Woods did not like Davis touching
his "privates," (id. at 24,Apx. _), and felt "uncomfortable" about Davis
touching him at all. ( Id. at 29,43-44,Apx. __). Consequently, when
Woods saw Davis coming towards him, he would get up and run. (Id. at
27,Apx. __). He said he would see Davis three or four times in a single
day, (id. at 26, Apx. __), but was willing to "run all day" if necessary
because he believed that Davis was up to no good. (Id. at 52,59,Apx. _).
C. The EEOC Investigation and Post-filing Conduct
In the summer of 1996, the EEOC came to the Jackson site to investigate
Carlton's sexual harassment charge. (R.130,Cooper Dep. at 96,Apx. __).
Tony Warren testified that when his supervisor Irvin and manager Bomar
learned that Warren was to be interviewed by the Commission, Irvin
told him it would be best if he did not talk about the things he had
seen on the job site and that it would look better for the company
if he did not tell the truth. (Warren-R.150,TR4 at 92-93, Apx. __).
Feeling pressured and afraid he would lose his job, Warren agreed to
lie to the EEOC but warned Irvin that if the case went to court, he
would tell the truth. After being assured by Irvin that the case would
not go to court , Warren lied to the EEOC. (Id. at 23-27,Apx. __).
In the winter of 1998, Warren was subpoenaed to testify in a deposition
administered by Harbert-Yeargin. Advised to tell the truth before the
case progressed further, Warren contacted Carlton's lawyer and told him
he had lied in the Commission's administrative investigation. (Id., at
29-34,Apx. __). He testified that when Irvin, Davis, and other employees
learned that Carlton had filed a lawsuit, they laughed and joked about
it, calling it a "cocksucking court" case, and considered Carlton to be
both "weird and stupid" for bringing the lawsuit. (Id. at 36,Apx. __).
In Davis' view, getting hit in the private parts was "one of the things
that's in construction work, . . .[a]nd if you are going to work in
construction work, [you] better take it or else get out," but never
report it because it would make trouble and cause problems at work.
(Davis-R.148,TR2 at 109-110,Apx. __).
SUMMARY OF THE ARGUMENT
The district court properly affirmed the jury's verdict on Joseph
Carlton's sexual harassment claim because there was substantial evidence
in the record to support it. Only men were grabbed by their genitals
or poked in the buttocks and sufficient evidence revealed that Carlton
was targeted for this conduct because he is a man. Therefore, the
conduct was gender-based. In addition, grabbing a man's genitals and
poking a finger into his anal cavity is sufficiently severe physical
invasive conduct to alter the working conditions of a reasonable person
in Carlton's position. Moreover, evidence that this physical conduct
was prevalent in the workplace, that no perpetrators were disciplined,
that management and supervisory personnel participated in or condoned
the conduct and discouraged complaints supports the jury's finding that
the conduct was pervasive enough to create a hostile work environment.
Finally, evidence of management's initial inadequate response and
total unresponsiveness to Carlton's second complaint was sufficient
to support the jury's finding that Harbert-Yeargin failed to take
effective remedial action and should be held liable for the harassment.
Therefore, the district court properly denied Harbert-Yeargin's
post-trial motion for judgment as a matter of law on Carlton's sexual
harassment claim.
The district court's denial of a partial new trial on the sexual
harassment claim also was proper. Evidence of prior misconduct is
admissible in a sexual harassment case so long as the party offering
the evidence discloses a summary of the evidence to the other party
at least fifteen days before trial. The EEOC made clear in its 1996
letter of determination following the conclusion of its administrative
investigation and in its 1997 complaint that it believed and intended to
prove that Harbert-Yeargin was responsible for creating and maintaining a
sexually hostile and abusive work environment that altered the conditions
of employment for Carlton and a class of male employees. Trial commenced
in 1999. Therefore, the Commission provided sufficient notice of its
intent to offer evidence of alleged sexual misconduct beyond Davis'
harassment of Carlton long before fifteen days prior to trial.
Finally, the district court's denial of Harbert-Yeargin's Rule 50(b)
motion as to punitive damages was also proper because there was
sufficient evidence to support the jury's finding that Harbert-Yeargin
acted with reckless disregard for Carlton's Title VII rights. Evidence
of management's inadequate response and inaction after receiving sexual
harassment complaints, its discouraging use of its complaint process,
its involvement in false statements being made to the EEOC during the
agency's investigation of Carlton's charge, and the accused harasser's
continued harassment of Carlton and other employees with impunity met the
Commission's burden of proving Harbert-Yeargin's reckless indifference
to the federal rights of the victim. Moreover, that evidence combined
with the financial wealth of the company supported the jury's decision
that $300,000 was required to punish Harbert-Yeargin for its past
misconduct and to deter it from permitting future sexual harassment of
its employees. Hence, the district court properly determined that the
punitive damages award of $300,000 was appropriate and reasonable.
With respect to the cross-appeal, however, the district court erred
in vacating the jury's verdict finding Harbert-Yeargin liable for the
sexual harassment of Cedric Woods because there was substantial evidence
in the record from which the jury could have concluded that the company
knew or should have known that Davis was sexually harassing Woods.
Evidence that genital-grabbing and other similar physical conduct was
rampant in the workplace, that Davis had a history of harassing male
employees, that employees witnessed Davis grabbing Woods, and that
Harbert-Yeargin received a complaint against Davis concerning the same
conduct all could have led the jury to conclude that Harbert-Yeargin
had actual or constructive notice of the harassment and failed to
take corrective action. Therefore, in that this evidence defies the
conclusion that there was no evidence in the record to support the
verdict, judgment as a matter of law in favor of Harbert-Yeargin was
inappropriate.
ARGUMENT
Appeal No. 00-5150
I. THE DISTRICT COURT PROPERLY UPHELD THE JURY'S VERDICT ON CARLTON'S
SEXUAL HARASSMENT CLAIM
Once the district court has denied a motion for judgment as a matter
of law after a verdict has been returned, the standard of review on
appeal is de novo. Pouillion v. City of Ossowo, 206 F.3d 711, 719 (6th
Cir. 2000). In reviewing the record, this Court must make all reasonable
inferences in the light most favorable to the non-moving parties, in
this case the EEOC and Joseph Carlton. Greenwell v. Boatwright, 184
F.3d 492, 498 (6th Cir. 1999). In so doing, the Court is not to weigh
the evidence, evaluate the credibility of the witnesses, or substitute
its judgment for that of the jury. Schrand v. Federal Pac. Elec. Co.,
851 F.2d 152, 154-55 (6th Cir. 1988).
A. Louis Davis's harassment of Joseph Carlton was "because of" sex
where the harassment was directed only at men
The Commission met its burden of demonstrating that Davis's grabbing
Carlton by the genitals and poking his finger into Carlton's anus created
a basis for a reasonable jury to conclude that Carlton was targeted
for abuse because he is a man. To begin with, it is irrelevant to the
determination of whether Davis's conduct was gender-based whether there
was enough evidence to show that Davis is a homosexual<7> or that he was
hostile to the presence of men in the workplace. See Harbert-Yeargin
("HY") Br. at 19. As the Supreme Court in Oncale reiterated, the
"'critical issue . . . is whether members of one sex are exposed to
disadvantageous terms or conditions of employment to which members of the
other sex are not exposed.'" 523 U.S. at 80 (quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 25 (1993)). In other words, when the harassment
in question is not obviously based on sexual attraction or motivated by
gender animus, the plaintiff need only show that only male employees
were the primary target of the harassment or that persons outside the
plaintiff's protected class were not exposed to the challenged conduct
to establish that the harassment occurred more likely than not because
of the plaintiff's gender. See Yeary v. Goodwill Indus.-Knoxville Inc.,
107 F.3d 443, 447 (6th Cir. 1997) (where plaintiff put up with harassment
women did not have to endure, there is little question the harassment
was because of sex); Quick, 90 F.3d at 1378 ("[e]vidence that members
of one sex were the primary targets of the harassment is sufficient to
show that the conduct was gender based").
Here, the Commission presented sufficient evidence that only male
employees were the targets of genital-grabbing and other inappropriate
touching. Louis Davis, the accused harasser, said that he had not
touched any of the female employees in any manner. (R.148,TR2 at
134-35,Apx. __). Harold Scott, who admitted engaging in similar
conduct, stated that while he had hit at and grabbed the genitals of
male employees, he would never do that to any of the women. (R.149,TR3
at 128-33, Apx. ___).<8> Moreover, all of the women in the workforce
testified that, while they had contact with the foremen and their crews,
none of the men, including Davis, had ever inappropriately touched
them. (R.148,TR2 at 143-44(Kinman),152-54(Freeman),157(Neisler),Apx. __).
This evidence is sufficient to demonstrate that men and women were
treated differently in the workplace.<9> See Quick, 90 F.3d at 1379
(where court found male employees were exposed to a disadvantageous
practice ("bagging") to which female employees were not, it ruled
"a fact-finder could reasonably conclude that the treatment of men
at Donaldson was worse than the treatment of women"); cf. Yeary, 107
F.3d at 448 (where male plaintiff was repeatedly subjected to sexual
propositions, advances, and touching by a male co-worker who was a
homosexual and "was notorious for harassing male employees of Goodwill,"
treatment constituted sexual harassment covered by Title VII because
he "had to put up with abuse and harassment that women there did not
have to endure").
In that the record in this case contains evidence that male employees
were treated worse than female employees, and that Carlton was subjected
to conduct directed only to men, the district court properly concluded
that there was sufficient evidence to support the jury's finding that
the conduct was because of sex.<10>
B. The alleged harassment of Carlton was sufficiently severe or pervasive
to alter the conditions of his employment and create an abusive and
hostile environment
Harbert-Yeargin argues that Carlton was not subjected to a hostile work
environment because he was touched inappropriately in his genitals and
buttocks only two times and the "sporadic and isolated nature of these
two incidents" negates "any finding of a pervasively abusive environment
. . . ." HY Br. at 28. Harbert-Yeargin's argument lacks merit.
The determination of whether a plaintiff has established a hostile or
abusive workplace environment requires the court to consider all of the
circumstances, but particularly those concerning (1) the frequency of the
discriminatory conduct; (2) its severity; (3) whether it is physically
threatening or humiliating rather than a mere offensive utterance;
and (4) whether it unreasonably interferes with an employee's work
performance. Harris, 510 U.S. at 23. Further, in all harassment cases,
including same-sex cases, the requirement of objectively offensive,
severe or pervasive harassment is regarded as the "crucial" method of
ensuring "that courts and juries do not mistake ordinary socializing
in the work place -- such as male-on-male horseplay or intersexual
flirtation -- for discriminatory 'conditions of employment."' Oncale,
523 U.S. at 81. While conduct must be evaluated in context, it is clear
that no one is to be left unprotected from harassment merely because
of where he or she chooses to work. Meritor Sav. Bank v. Vinson,
477 U.S. 57, 67 (1986) (neither a man nor a woman is required to run
a "'gauntlet of sexual abuse in return for the privilege of being
allowed to work and make a living'") (citation omitted); Williams,
187 F.3d at 564 ("[s]urely women working in the trades do not deserve
less protection from the law than women working in a court house.").
Here, the district court properly determined that the Commission and
Carlton presented sufficient evidence from which a jury could conclude
that Carlton was subjected to a hostile work environment. Carlton
testified that Davis had been touching him since the beginning of his
employment, that it "progressively got worse," that Davis grabbed his
genitals a couple of weeks after he began working, that on a daily basis,
he kept trying to get close to Carlton, and that a few weeks after the
first grabbing incident, Davis grabbed Carlton's genitals again and poked
his finger into Carlton's rectum. (R.166,JNOV Order at 10-11,Apx. __);
supra at 8-9. Unwelcome physical contact is generally considered severe.
Burnett v. Tyco Corp., 203 F.3d 980, 986 (6th Cir. 2000) (Martin,
C.J., dissenting) ("severity of . . . act is enhanced because this was
unwelcome physical contact of a very personal form"). Moreover, this
"element of physical invasion" exceeds conduct that is "merely crude,
offensive, and humiliating." Williams, 187 F.3d at 563. In that Davis
made physical contact with Carlton's genitals on more than one occasion,
the severity of these incidents could be viewed by reasonable jurors
as sufficient to create a humiliating and abusive work environment.
In addition, even if the physical invasion of Carlton's genitals and
rectum alone were not sufficiently severe to be actionable, there was
sufficient evidence to support the belief of reasonable jurors that
the treatment to which Carlton was subjected after the grabbing and
poking incidents, particularly in light of sensitivities heightened
by the earlier objectionable conduct, created a hostile environment.
Williams, 187 F.3d at 563 ("a holistic perspective is necessary,
keeping in mind that each successive episode has its predecessors,
that the impact of the separate incidents may accumulate, and that the
work environment created thereby may exceed the sum of the individual
episodes"). Here, the Commission and Carlton submitted evidence that
when Carlton complained, Bomar laughed at him. After his complaint,
Davis began to stalk and stare at him.<11> Upon learning Carlton had
complained about Davis's sexual harassment, the other employees began
to tease, taunt, and ridicule him by grabbing and "hunch[ing]" on each
other and treating him like the "plague." Despite a second complaint,
this abusive and ongoing sexual taunting worsened. These actions in
conjunction with the intrusive touching could be viewed by a reasonable
jury as sufficiently "humiliating and offensive" conduct to meet the
standard of severe harassment. Williams, 187 F.2d at 563. In addition,
the jury could have concluded from the same evidence that the conduct
was pervasive since the abuse and derision occurred on a "daily
basis" and supervisors and managers condoned and even participated in
it.<12> See Hathaway v. Runyon, 132 F.3d 1214, 1222-23 (8th Cir.1997)
(holding in sexual harassment case that it was reversible error for
trial court to vacate jury verdict in favor of the plaintiff where
two "sexually suggestive" touchings combined with later laughter and
"suggestive noises" were sufficient to establish a hostile environment
because "harassing conduct need not be . . . continuous in order to
[be] pervasive" ); Katz v. Dole, 709 F.2d 251, 254 (4th Cir. 1983)
(when sexual harassment is condoned or carried out by supervisory
personnel, it becomes an illegal and discriminatory condition of
employment that poisons the work environment). Moreover, a jury
considering the evidence of all of the offensive and abusive treatment
Carlton received, as well as Carlton's testimony about his feelings of
outrage, anxiety, sleeplessness, mental and physical exhaustion, and
humiliation, and his testimony that when he complained to a manager, the
manager reacted with laughter could reasonably find that Carlton's work
environment was "permeated with 'discriminatory intimidation, ridicule,
and insult,'" Harris, 510 U.S. at 21 (internal citation omitted), and
that the totality of the ongoing harassment created and sustained an
objectively hostile work environment that interfered with Carlton's
job performance. See Martin v. Schwan Sales Enterp. Inc., 198 F.3d
246, 1999 WL 1111509 **2 (6th Cir. Nov. 24, 1999) (unpublished) ("even
if conduct occurred only briefly each day, the continual day-after-day
exposure to this type of behavior may interfere with job performance
sufficiently to be actionable"); Hathaway, 132 F.3d at 1222 ("[a]
work environment is shaped by the accumulation of abusive conduct");
Hirase-Doi, 61 F.3d at 780-83 (a few incidents of unwelcome physical
touching combined with winks and intimidating stares with possible
sexual overtones is sufficient to establish a hostile environment).
Therefore, since the record contained sufficient evidence to support
the jury's finding of sexual harassment, the district court properly
let the jury's verdict stand. Hathaway, 132 F.3d at 1221 ("[t]here is
no bright line between sexual harassment and merely unpleasant conduct
so a jury's decision must generally stand unless there is trial error").
C. Harbert-Yeargin's response to Carlton's sexual harassment complaint
was so inadequate and ineffective that the jury properly decided the
company was liable
When a supervisor harasses an employee but takes no tangible employment
action against him, the employer is liable unless it meets its burden of
proving the affirmative defense.<13> The affirmative defense comprises
two necessary elements: (a) that the employer exercised reasonable care
to prevent and correct promptly any sexually harassing behavior, and (b)
that the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to
avoid harm otherwise. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998);
Williams, 187 F.3d at 567. The evidence in this case overwhelmingly
demonstrates that Harbert-Yeargin cannot meet either prong of this
defense.
First, the evidence could have led the jury to decide that
Harbert-Yeargin did not exercise reasonable care to prevent harassment
despite the fact that it had a sexual harassment policy. Sexual
harassment training was sporadic or non-existent despite the severity
and pervasiveness of the harassment. Employees testified that they
either were unaware of the company's sexual harassment policy or they
had received no training regarding it. See supra at 2-3. Further,
site manager Harold Scott testified that, even though Gerald Freeman and
Dale Markham were responsible for conducting mandatory sexual harassment
training of supervisors and managers since 1994, he had never been
to any training conducted by them. Id. at 3. Moreover, despite the
prevalence of employees engaging in inappropriate touching of genitals
and buttocks, no one was ever disciplined for the harassment even
when it occurred in the presence of management. Id. at 3-5. In fact,
testimonial evidence revealed that managers and supervisors demonstrated
a lackadaisical attitude toward sexual harassment and discouraged the use
of the complaint process because they expected the male employees to be
"real men" and not report the harassment. See, e.g.,(Davis-R.148,TR2 at
109-110,Apx. __; Warren- R.149,TR3 at 184-85,Apx. __); Smith v. First
Union Nat. Bank, 202 F.3d 234, 245 (4th Cir.2000) ("[e]mployers cannot
satisfy the first element of the Faragher-Ellerth affirmative defense
if [their] management-level employees are discouraging the use of
the complaint process"). Accordingly, reasonable jurors could have
determined that Harbert-Yeargin's sexual harassment policy was unenforced
and therefore ineffective.
Second, a jury could have concluded from Davis's continued harassment
of Carlton that Harbert-Yeargin failed to exercise reasonable
care to correct Davis's harassing behavior. This Court judges
the appropriateness of an employer's response by the frequency and
severity of the alleged harassment. Jackson v. Quanex Corp., 191
F.3d 647, 663 (6th Cir. 1999). An adequate response is one that is
reasonably calculated to stop the harassment. Id. Such reasonable
responses include "prompt investigation of the allegations, proactive
solicitation of complaints, scheduling changes and transfers, oral or
written warnings to refrain from harassing conduct, reprimands, and
warnings that future conduct could result in progressive discipline,
including suspension and termination." Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 676-77 (10th Cir. 1998). If the harassment continues,
the employer is obliged to respond to any repeat conduct; and whether
the next employer response is reasonable will depend upon whether the
employer progressively stiffens its discipline, or vainly hopes that
no response, or the same response as before, will be effective. Id.
In this case, Carlton complained to management about the harassment
but the harassment continued. Although Harbert-Yeargin claimed that
it investigated the complaint and concluded that no harassment had
occurred, the jury could have decided from the evidence presented that
management did not conduct a complete investigation into Carlton's
complaint. Notably, Harbert-Yeargin blames those deficiencies on
Carlton's refusal to talk without his attorney present, but the jury
could have believed it was unreasonable for Cooper to refuse to call
Carlton's attorney. Hathaway, 132 F.3d at 1223 (jury could have
found investigation inadequate where plaintiff was required to report
harassment to biased supervisor, no one interviewed "her only witness
to the physical touchings," investigator did not produce written report
of investigation or inform plaintiff of results, and harassment did
not stop); also see Buckner v. Franco Inc., 178 F.3d 1293, 1999 WL
232704 (6th Cir. Apr. 12, 1999) (jury found employer liable for sexual
harassment even though victim's mother did not allow her to participate
in company's investigation), cert. denied, 120 S.Ct. 384 (1999).
The fact that Carlton was subjected to further harassment by Davis and
other employees and that Harbert-Yeargin was completely unresponsive
to Carlton's second complaint about the continued harassment is
sufficient to support a finding that Harbert-Yeargin's earlier
response was inadequate, Adler, 144 F.3d at 677 (repeat conduct shows
the unreasonableness of prior responses); Winsor v. Hinckley Dodge,
Inc., 79 F.3d 996, 1002 (10th Cir.1996) (where offensive conduct
continued throughout plaintiff's employment, defendants' actions were
plainly ineffective), and that Harbert-Yeargin abdicated its duty
to prevent future harassment. Williams, 187 F.3d at 561 ("it is no
longer enough for an employer to take corrective action; employers now
have an affirmative duty to prevent sexual harassment by supervisors");
Fuller v. City of Oakland, 47 F.3d 1522, 1528-29 (9th Cir. 1995) (even
if alleged harasser ceases offensive conduct, employer's response to
sexual harassment must also be sufficient to deter "future harassment -
by the same offender or others").
The jury also could have decided that Harbert-Yeargin's decision
not to discipline Davis following the first or second sexual
harassment complaints and his continued harassment of Carlton and
other employees demonstrated the ineffectiveness of that decision.
See Baty v. Williamette Indus., Inc., 172 F.3d 1232, 1242 (10th
Cir. 1999) (employer's response to plaintiff's claims of harassment
"could reasonably be regarded as a sham" where no employee was ever
disciplined for harassment and harassment continued). Cf. Blankenship
v. Parke Care Ctrs., Inc., 123 F.3d 868, 874 (6th Cir. 1997) (employer
responded appropriately to plaintiff's first complaint by asking members
of plaintiff's department if they witnessed alleged harassment and
monitoring the coworker; employer responded appropriately to plaintiff's
second complaint by threatening to terminate the harasser; and employer
responded appropriately to plaintiff's third complaint by informing
plaintiff that it concluded the co-worker had not engaged in further
harassment), cert. denied, 552 U.S.1110 (1998).
Hence the jury properly found Harbert-Yeargin was liable for the
harassment, even though Davis stopped touching Carlton, where
instead Davis resorted to threatening stares and stalking him and
other employees and supervisors subjected Carlton to daily ridicule.
Erebia v. Chrysler Plastic Prods. Corp., 772 F.2d 1250, 1258 (6th
Cir. 1985) ("jury's finding of intentional discrimination is supported
by substantial evidence" where "[m]anagement was aware of plaintiff's
many complaints of harassment and condoned the situation by taking no
steps to improve conditions and by seeking to intimidate plaintiff"),
cert. denied, 475 U.S. 1015 (1986).
Finally, with respect to the second prong of the affirmative defense, a
reasonable jury could have concluded that Carlton did not unreasonably
fail to take advantage of any preventive opportunities provided by
Harbert-Yeargin. Carlton complained immediately after Davis grabbed
his genitals the second time. According to the managers, he complied
with the company's sexual harassment policy when he reported the matter
to Bomar. He did not allow Bomar's laughter to deter him from pursuing
his grievance. This evidence could have led the jury to conclude that
Carlton was serious about preventing further harassment. Moreover,
despite Harbert-Yeargin's argument that Carlton acted unreasonably
when he failed to file a complaint after the first grabbing incident,
HY Br. at 37n.11, the jury could have found that it was not unreasonable
for Carlton to wait until after the second incident to complain since
he had no witnesses to the first incident, the complaint was against
a veteran supervisor, and he had been working at Harbert-Yeargin less
than a month. Further, contrary to Harbert-Yeargin's argument, Id. at
37, the jury could have concluded that Carlton did not unreasonably
fail to take advantage of any corrective opportunities when he did not
participate in Harbert-Yeargin's investigation. The jury could have
decided that it was not unreasonable for Carlton to desire to have his
attorney present during the interview and it could have found Carlton's
testimony that he would have spoken to Cooper if his attorney was present
to be credible. Lastly, a reasonable jury could have found that Carlton
exercised reasonable care to otherwise avoid harm when he accepted the
transfer to another crew and when he made attempts to avoid contact
with Davis despite Davis's stalking. Thus, because Carlton exercised
reasonable care in his use of the company's policies and procedures
to prevent and correct the harassment, the jury could have reasonably
concluded that Harbert-Yeargin failed to meet its burden under the
affirmative defense and therefore was liable to Carlton.
II. THE DISTRICT COURT PROPERLY DENIED A NEW TRIAL BECAUSE UNDER RULE
415 OF THE FEDERAL RULES OF EVIDENCE, THE COMMISSION GAVE TIMELY NOTICE
THAT IT WOULD INTRODUCE ALL RELEVANT EVIDENCE ABOUT INAPPROPRIATE TOUCHING
IN THE WORKPLACE
The district court's denial of Harbert-Yeargin's motion for a partial
new trial is reviewed for abuse of discretion. Boatwright, 184 F.3d at
499. Harbert-Yeargin argues that the district court erred in admitting
certain testimony because the EEOC failed to comply with Rule 415(b)
when it did not disclose its intent to offer evidence of "goosing"
or "touching" of employees other than Carlton by employees other
than Louis Davis. Harbert-Yeargin concedes that it had reason to
know that there would be evidence that Davis touched people other
than Carlton, but that it did not know there would be evidence that
other employees had "engaged in alleged sexual harassment of other
employees." HY Br. at 59. Harbert-Yeargin takes particular issue
with the admission of testimony concerning touching by Harold Scott
and Don Bomar, claiming it was "unfairly prejudiced" by the lack of
notice. Id. at 58-60. This argument is specious.
Rule 415(b) requires disclosure of evidence of similar conduct
including witness statements or a summary of the substance of their
testimony "at least fifteen days before the scheduled date of trial."
Fed. R. Evid. R. 415(b). The trial in this matter commenced on
April 26, 1999. On September 30, 1996, the EEOC issued a letter of
determination following the conclusion of its investigation of Carlton's
charge. In that determination, the EEOC informed Harbert-Yeargin that
its investigation "revealed that the Charging Party was sexually harassed
by his male supervisor and that it was pervasive for males to touch
other males at the worksite." (R.37, Def.Mot. for Sum.Judgment,Ex. 2-EEOC
Determination at 1,Apx. __). Consequently, Harbert-Yeargin was given
notice almost two years before trial that if the Commission sued,
it would not be limiting its evidence of inappropriate touching to the
Davis-Carlton incident.
Even if defendant did not comprehend that such relevant evidence would
be introduced, the EEOC's complaint filed on May 1, 1997, averred that
"Defendant has engaged in unlawful employment practices at its Jackson,
Tennessee facility in violation . . . of Title VII," which included
"subjecting Carlton and a class of male employee[s] to sexual harassment,
including offensive and unwelcome touching because of sex (male)."
(R.1,Complaint at 2-3,Apx. __). Hence, in alleging that Defendant
"creat[ed], condon[ed], and maintain[ed] a sexually intolerable,
offensive, and hostile work environment," (id. at 3,Apx. __), the
Commission's complaint necessarily provided sufficient notice that
it would introduce all available evidence of inappropriate touching.
(R.166, JNOV Order at 24,Apx. __).
Harbert-Yeargin knew the identity of all the witnesses who would
testify at trial well before the trial date, and had deposed all
of them. Even if Harbert-Yeargin did not realize they would testify
about widespread touching, there is absolutely no evidence of prejudice
to Harbert-Yeargin. No damages were awarded to anyone except Carlton
and Woods, who were touched only by Davis. No one touched by any
other employees succeeded in establishing sexual harassment. Thus,
none of the other individuals who may have engaged in inappropriate
touching increased Harbert-Yeargin's liability for sexual harassment.
Consequently, the district court properly rejected Harbert-Yeargin's
request for a partial new trial.
III. THE DISTRICT COURT PROPERLY UPHELD THE JURY'S PUNITIVE DAMAGES
AWARD
Harbert-Yeargin asks this Court to vacate the jury's punitive damages
award on the ground that it is either against the weight of the evidence
or excessive. HY Br. at 38-53. Review of the district court's denial
of a motion for judgment as a matter of law on the punitive damages
claim is de novo. Pouillion, 206 F.3d at 719. The issue before
this Court is whether, viewing all the evidence in the nonmovants'
favor, no reasonable jury could find that Harbert-Yeargin acted with
malice or reckless indifference to Carlton's right to be free from
intentional discrimination. In making this determination, this Court
is not to substitute its judgment for that of the jury. Even if this
Court would have drawn a different conclusion from the evidence,
the only inquiry is whether a reasonable jury could have found in
the Commission's and Carlton's favor. If so, the jury verdict must
stand. See Moreno v. Consolidated Rail Corp., 63 F.3d 1404, 1419 (6th
Cir. 1995). Applying these standards, this Court should conclude that
the evidence was sufficient to permit a reasonable jury to impose an
award of punitive damages.
Title VII allows a jury to award punitive damages "if the complaining
party demonstrates that the respondent engaged in a discriminatory
practice . . . with malice or reckless indifference to [his] federally
protected rights." 42 U.S.C. �1981a(b)(1). Therefore, in order for
Harbert-Yeargin to succeed on its claim that the district court erred
in upholding Carlton's award of $300,000 in punitive damages, it must
demonstrate that there was insufficient evidence to create a triable
issue that Harbert-Yeargin engaged in the creation and maintenance of
a sexually hostile workplace "with malice or reckless indifference" to
Carlton's federally protected rights. Harbert-Yeargin has not met this
burden.
A. An award of punitive damages was appropriate in this case
Punitive damages are available in Title VII actions to punish unlawful
conduct and to deter its repetition. Smith v. Wade, 461 U.S. 30, 49
(1983) ("deterrence of future egregious conduct is a primary purpose
of ... punitive damages"). The Supreme Court clarified in Kolstad
v. American Dental Ass'n, 119 S.Ct. 2118, 2124 (1999), that punitive
damages can be imposed in a Title VII action upon establishing "malice
or reckless indifference" and that there is no requirement that a
plaintiff show "egregious or outrageous discrimination independent of
the employer's state of mind." To be liable for punitive damages,
the employer must discriminate in the face of a perceived risk that
its actions will violate federal law, not its awareness that it is
engaging in discrimination. Id. The Court noted that there may
be some instances where intentional discrimination does not support
punitive damages. Id. Harbert-Yeargin argues that it is entitled to
the benefit of one of those exceptions because it was unaware of the
federal prohibition against same-sex harassment because the theory was
either novel or poorly recognized. HY Br. at 41-42. This argument
is utterly unconvincing.<14> Sexual harassment has been a recognized
form of gender discrimination since the mid-seventies and when the
Supreme Court unanimously observed that the respective genders of the
harasser and victim were irrelevant to a claim of sexual harassment,
it relied on settled principles of Title VII jurisprudence. See Oncale,
523 U.S. at 78 (citing decisions from 1977 and 1987 that hold Title VII
can be violated by members of the same race or gender as the victim
of discrimination). See also EEOC Compl. Man. (CCH) � 615.2(b)(3)
(stating EEOC's long-standing view that Title VII covers same-gender
harassment so long as the "harasser does not treat employees of the
opposite sex the same way"). Moreover, Harbert-Yeargin could not have
been completely unaware that the harassment violated Title VII since
its supervisory personnel directed an employee to lie to the EEOC about
the unlawful activity occurring in the workplace.
Since Harbert-Yeargin cannot avail itself of the exceptions to an
award of punitive damages, the only question is whether the evidence
supported the award. Here, the Commission presented sufficient evidence
to establish Harbert-Yeargin's liability for punitive damages. First,
when Davis grabbed Carlton's genitals and poked his finger into Carlton's
rectum, Carlton experienced serious sexual assault, and such outrageous
conduct is sufficient to establish the evil motive required for punitive
damages. Kolstad, 119 S. Ct. at 2126 (egregious or outrageous acts may
support inference of evil motive required to impose punitive damages).
Second, a reasonable jury could conclude that the company's management
personnel acted "in the face of a perceived risk that [their] actions
[would] violate federal law." Id. at 2125. See also EEOC v. Wal-Mart
Stores, Inc., 187 F.3d 1241, 1246 (10th Cir.1999) (holding that because
store manager testified he was familiar with the requirements of the ADA
a reasonable jury could have concluded that the employer intentionally
discriminated against plaintiff in the face of a perceived risk that
its action would violate federal law and upholding award of punitive
damages). Despite Carlton's complaints, management failed to take
effective remedial action. In fact, even though site manager Scott,
who was responsible for enforcing the company's policy against sexual
harassment, see supra note 3, testified that he believed Davis had
harassed Carlton, he did not discipline Davis. (Scott-R.149, TR3 at
109,159, Apx. __); Deters v. Equifax Credit Information Serv., Inc.,
202 F.3d 1262, 1269 (10th Cir. 2000) ("recklessness and malice are
to be inferred when a manager responsible for setting or enforcing
policy in the area of discrimination does not respond to complaints,
despite knowledge of serious harassment"). Carlton was exposed
to further harassment by Davis and to abuse and ridicule by his
coworkers. Supervisory personnel participated in or condoned the
continuing harassment of Carlton, and notwithstanding Harbert-Yeargin's
policies against sexual harassment and horseplay, no perpetrator was
disciplined. Furthermore, because the jury knew that human resources
official Cooper disregarded company procedures by failing to question
Carlton and refusing to seek out potential eyewitnesses to corroborate
Carlton's allegations, even though he believed that if proven Davis's
conduct would have violated Carlton's Title VII rights, it could have
believed Cooper's conduct exhibited the requisite reckless state of
mind to warrant a punitive damages award. Kim v. Nash Finch Co.,
123 F.3d 1046, 1066 (8th Cir. 1997) (affirming punitive damages award
where "[t]here was evidence that [the defendant] knew what constituted
unlawful employment practices" and where the discrimination was engaged
in by supervisors or management).
Third, the jury could have found Harbert-Yeargin's conduct reprehensible
based on evidence of Davis's continued harassment of Cedric Woods and
other employees after Carlton's complaint because the fact that the
company was on notice of the harassment and that Davis nonetheless
engaged in repeated instances of misconduct with respect to other
employees demonstrates the company's total disregard for whether Davis's
actions violated the law. See BMW v. Gore, 517 U.S. 559, 577 (1995)
("repeated misconduct is more reprehensible than an individual instance
of malfeasance" and supports argument that "strong medicine is required
to cure defendant's disrespect for the law").
Fourth, evidence that Bomar encouraged Davis to place a written negative
evaluation in Carlton's file after he complained of sexual harassment
even though the incident leading to the negative evaluation had taken
place a week earlier and Davis originally had no intention to reprimand
Carlton is sufficient to support a punitive damages award. See Vasbinder
v. Ambach, 926 F.2d 1333, 1343 (2d Cir.1991) (finding affirmative steps
taken by defendant, including filling plaintiff's record with damaging
personnel actions, as sufficient to support jury's finding of punitive
damages in section 1983 case).
Fifth, a supervisor's directive to a subordinate to lie to the EEOC,
management personnel's derisive reaction to learning that Carlton was
pursuing his sexual harassment claim in court and their total disrespect
for the gravity of the matter evidenced by their referring to it as a
"cocksucking court" case equally demonstrates a reckless indifference to
the fact that the harassment violated Title VII. Lee v. Edwards, 101
F.3d 805, 809 (2d Cir. 1996) (conduct sufficient to warrant a finding of
a high degree of reprehensibility includes "whether a defendant acted
with deceit or malice as opposed to acting with mere negligence").
On the evidence presented, a reasonable jury could have found that
Harbert-Yeargin manifested a complete disregard for Carlton's civil
rights.
Finally, there was sufficient evidence from which the jury could
have decided that Harbert-Yeargin is not shielded by the "good faith"
exception to damages liability merely because it had a policy against
sexual harassment. It is not enough to simply have a nondiscrimination
policy in place. See Lowery v. Circuit City Stores, Inc., 206 F.3d
431, 446 (4th Cir. 2000) ("While an employer's institution of a
written policy against race discrimination may go a long way toward
dispelling any claim about the employer's reckless or malicious state
of mind ... such a policy is not automatically a bar to the imposition
of sanctions."). For the good faith exception to apply, there must be a
policy of nondiscrimination both in words and in practice. Here, the jury
heard testimony that the policy was not widely or routinely available
to employees and training opportunities were sporadic. See, e.g.,
(R.130,Cooper Dep. at 142,Apx. _; Scott-R.149,TR3 at 112-16,Apx. __).
Evidence showed that the company's managers never made any attempt during
the investigation into Carlton's initial sexual harassment complaint
to obtain corroborative or eyewitness testimony, and that even after a
second complaint, did nothing to investigate his claim that Davis was
stalking him and that his coworkers were taunting and ridiculing him.
See supra at 10-13. Further, the company never disciplined Davis even
though its managers knew that his conduct violated company policies,
since beyond Bomar's "talk" with Davis, he was never warned, suspended,
or threatened with termination. Id. at 12-13. The jury could have
viewed this negligent indifference to a serial harasser's misconduct
to constitute, by extension, an indifference to Carlton's and others'
federally protected rights.
Viewing the evidence in the light most favorable to the EEOC and Carlton,
the district court properly determined that there was a sufficient
basis for the jury to conclude that Harbert-Yeargin acted in reckless
disregard for Carlton's Title VII right to a workplace free of unlawful
harassment. Therefore, this Court should affirm that ruling.
B. The jury's award of $300,000 is not excessive
A jury's punitive damages award is entitled to "a strong presumption
of validity" when that award is the product of a process which
includes "review ... by the trial judge who also heard the testimony."
TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 456-57
(1993). This Court has emphasized that, in reviewing an award of
punitive damages, it must take care "not to substitute [its] judgment
for that of the jury." Moreno, 63 F.3d at 1419. Consequently, a
punitive damage award is excessive only if it "shocks the conscience"
of this Court. Rodgers v. Fisher Body Div., 739 F.2d 1102, 1106
(6th Cir. 1984), cert. denied, 470 U.S. 1054 (1985). Harbert-Yeargin
argues that under the factors outlined in Gore for assessing whether a
damages award offends the due process clause, the award in this case is
excessive. HY Br. at 46-53. We note that the Gore analysis is arguably
inapplicable to this case in which damages were awarded pursuant to
a specific statutory scheme with monetary caps designed by Congress.
Any award within the statutory caps is presumptively reasonable because
Congress already established those parameters calibrated to the size of
the employer. See 42 U.S.C. � 1981a(b)(3). In any event, if the award
in this case is scrutinized in light of the Gore factors, it clearly
withstands the test. The Supreme Court indicated that this Court should
consider factors such as: (1) the degree of reprehensibility; (2) the
relationship of the punitive damage award to the compensatory damage
award; and (3) its relationship to the criminal sanctions generally
imposed by society for comparable misconduct. Gore, 517 U.S. at 574.
The degree of reprehensibility is, however, the most important indicator
of the reasonableness of an award. Id. at 575.
Here, the degree of reprehensibility that supports the imposition of
a punitive damages award of the statutory maximum is met by
evidence that management told an employee to make false statements to the
EEOC, failed to take corrective action once aware of the harassment, and
refused to discipline perpetrators, and that supervisors participated in,
encouraged and condoned ongoing harassment, and dissuaded employees from
using the complaint process. See TXO, 509 U.S. at 462 (stating large
punitive damage award was supported by tortfeasor's "fraud, trickery
and deceit"); Clark v. Metro Health Found., Inc., 90 F. Supp.2d 976,
986 (N.D. Ind. 2000) (holding that punitive damages of $150,000 to
two plaintiffs are not disproportionate to the reprehensibility of
conduct where there was evidence "of bad faith, of false statements,
of affirmative misconduct, and concealment of improper motive in the
sense of manufacturing false paperwork and making false statements to
the Michigan City Human Rights Commission to conceal the discriminatory
motive").
The conclusion that the evidence of reprehensible conduct supports the
punitive damages award is not undermined by the jury's award of $1 in
compensatory damages. Compensatory damages are based on the victim's
injury; punitive damages are based on the company's conduct. Hence,
"punitive damages . . . stand independently of compensatory damages,"
Rodgers, 739 F.2d at 1109, and the amount of the punitive damages award
need not be proportionate to the amount of the compensatory damages
award. Gore, 517 U.S. at 582 (low awards support a higher ratio than
high awards "if, for example, a particularly egregious act has resulted
in only a small amount of economic damages"). Consequently, although
the jury determined that Carlton had no actual, compensable injury,
the degree of reprehensible conduct in this case was so great that it
is reasonable that the 300,000 to 1 ratio did not shock the conscience
of the district court. See TXO, 509 U.S. at 462 (when court considers
"potential loss" to victim had the company "succeeded in its illicit
scheme[,]. . . the disparity between the punitive award and the potential
harm does not . . . 'jar one's constitutional sensibilities'") (internal
cite omitted); Deters, 202 F.3d at 1272-73 (noting that Gore ratios
are "most applicable to purely economic injury cases where injury is
not hard to detect" and that "where the injury is primarily personal, a
greater ratio may be appropriate"); United States v. Big D Enterp., Inc.,
184 F.3d 924, 933 (8th Cir. 1999) ("[i]n cases where the other factors
are weak, a 4 to 1 ratio may test the outer limits of acceptability[;]
. . . [i]n cases where the other factors are strong, a 526 to 1 ratio
may be appropriate"); Timm v. Progressive Steel Treating, Inc., 137 F.3d
1008, 1010 (7th Cir. 1998) (punitive damages are available in a Title
VII sexual harassment case even in the absence of actual damages).
Carlton was subjected to physical assault for which no punishment was
meted out. In addition, he was subjected to continuous harassment that
supervisors encouraged or condoned. Roberts v. Bohac, 574 F.2d 1232,
1233 (5th Cir. 1978) (evidence of the campaign of continuing harassment
would support an inference of malice and the award of punitive damages).
Further, the jury was aware that Raytheon is an $11.8 billion company and
that it had the financial ability to pay the judgment. Big D Enters.,
184 F.3d at 932 (evidence of a defendant's financial worth and ability to
pay is traditionally admissible for the purpose of evaluating the amount
of punitive damages that should be awarded). More importantly, knowing
the company's worth, the jury might have determined that $300,000 was
the amount of damages reasonably necessary to fulfill the twin purposes
of punishment and deterrence without risking "financial ruin of the
defendant." Vashbinder v. Scott, 976 F.2d 118, 121 (2d Cir.1992);
Deters, 202 F.3d at 1273 (finding unremitted punitive damages award
of $1 million reasonable in sexual harassment case and agreeing with
district court that defendant's "gross operating revenue of $1.8 billion
in 1996 could be considered in levying a substantial punitive damages
award" when fulfilling purposes of punishment and deterrence). Hence,
the district court properly considered these factors and did not err
when it upheld the award.
Notably, Harbert-Yeargin cites cases in which substantially lower
punitive damages awards were deemed adequate, but those citations are
unpersuasive and scarcely pertinent. See HY Br. at 49-51. For example,
Harbert-Yeargin's reliance on Timm is misplaced because the Seventh
Circuit held punitive damages of $15,000 to be appropriate in a sexual
harassment case, but addressed only the fact of punitive damages,
not their adequacy. 137 F.3d at 1010. The court held punitive damages
could be awarded without a compensatory damage award, id., a principle
that supports the award here. Also see Buckner, 1999 WL 232704 at **7
(Moore, J., dissenting) ("a jury may award punitive damages in a Title
VII claim when no compensatory damages were awarded")
In Fall v. Indiana Univ. Bd. of Trustees, 33 F.Supp.2d 729
(N.D. Ind.1998), cited by defendant, the court ordered a remittitur of
punitive damages from $800,000 to $50,000. That decision is inapposite.
First, punitive damages were awarded for a single 30-second event
caused by a single individual, id. at 745-46, while Carlton's award
was for conduct that spanned several months and included management's
negligent response to Carlton's complaints. Second, the Fall court
imposed punitive damages against individual defendants, while the liable
defendant here is a corporation with substantial income.
The case of Lawyer v. 84 Lumber Co., 991 F.Supp. 973 (N.D. Ill. 1997)
is similarly inapt. There, the district court automatically reduced
the punitive damages award of $250,000 to $150,000 merely because it
had remitted the compensatory damages award resulting in a ratio of 5
to 1. That court's approach is in tension with the Supreme Court's
admonition that there are no strict mathematical formulas or ratios
to follow and the particulars of each case must be considered. Gore,
517 U.S. at 582.
Finally, Harbert-Yeargin's interpretation of the Seventh Circuit's
ruling in Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344,
1355 (7th Cir.1995), "that the statutory cap should be taken into
consideration as the amount to be awarded in the most reprehensible
cases," is infirm. HY Br. at 53. The Seventh Circuit recently clarified
in EEOC v. Indiana Bell Tel. Co., 2000 WL 681007 (7th Cir. May 26,
2000), that, "[a]lthough Hennessy provides support for the idea that
punitive damages awards can be excessive, and that awards at or near
the statutory maximum should be reserved for egregious cases, the Court
in that case limited the decision to its facts and did not purport to
establish a per se rule about the availability of punitive damages at or
near the statutory maximum." Id. at *23 n.4. The Court then noted that,
"[i]t is well-recognized that the amount of damages is largely within the
province of the jury, and that its determination should not generally
be disturbed." Id. Applying that principle, it is clear that this
jury award should not be disturbed because this case has the degree of
reprehensible conduct that clearly justifies an award at the statutory
maximum amount. Indeed, this Court recently upheld a $300,000 award
in a Title VII gender discrimination case that presented less severe
circumstances than those at issue here. See EEOC v. EMC Corp., 205
F.3d 1339, 2000 WL 19189 (6th Cir. Feb. 8, 2000) (unpublished) (finding
sufficient evidence to sustain punitive damages award of $300,000 in
Title VII gender discrimination case where female manager was terminated
allegedly for poor performance, despite being only employee to meet the
company's yearly quotas locally and nationally, and worked in hostile
environment where she was required to attend district meetings held at
a topless bar, crude jokes regarding women were commonplace, and male
sales representatives were taken, and took clients, to topless bars).
Considering all the aggravating circumstances, including the nature
of the harassment and the involvement of managers in it, the lack of
responsiveness to complaints, the failure to train supervisors about
the sexual harassment policy or of on-site managers to enforce it,
misleading the EEOC, and the financial wealth of the company, an award
of punitive damages in the amount of $300,000 is reasonable. Hence,
the district court properly upheld the jury's award to Carlton.
Cross-Appeal No. 00-5232
THE DISTRICT COURT IMPROPERLY SET ASIDE THE JURY'S VERDICT FOR THE
COMMISSION ON CEDRIC WOODS'S CLAIM BECAUSE THERE WAS SUFFICIENT EVIDENCE
OF CONSTRUCTIVE NOTICE TO ESTABLISH EMPLOYER LIABILITY
A district court may set aside a verdict only if the evidence is
"so one-sided that one party must prevail as a matter of law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). In
other words, "[j]udgment as a matter of law is appropriate only when
there is a complete absence of fact to support the verdict, so that
no reasonable juror could have found for the nonmoving party." Moore
v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1078 (6th Cir.1999);
Ivey v. Wilson, 832 F.2d 950, 953 (6th Cir. 1987) ( "a jury verdict
can be set aside if. . . [the] facts and inferences reasonably drawn
from the facts . . . lead to but one conclusion -- that there is a
total failure of evidence to prove the plaintiff's case.'" (internal
citations omitted). Consequently, "[j]ury fact-finding, unlike judicial
fact-finding, is not subject to direct attack as 'clearly erroneous.'"
Ivey, 832 F.2d at 953. Review of the district court's vacatur of the
verdict is de novo. Pouillion, 206 F.3d at 719.
An employer is liable for co-worker harassment of another employee if
the employer knew or should have known of the sexual harassment and
failed to implement prompt and appropriate corrective action. Ellerth,
524 U.S. at 759; Hafford v. Seidner, 183 F.3d 506, 513 (6th Cir. 1999).
In this case, the evidence is sufficient to sustain a finding of
constructive notice because Davis had a history of harassing behavior,
the challenged conduct was witnessed by other employees, the harassment
was pervasive, there was widespread harassment of other employees by
the same harasser, and management personnel were present or participated
in conduct similar to the harassment.
A jury could have concluded that Harbert-Yeargin should have been
aware of Davis's harassment of Woods because there was sufficient
evidence that Davis had a history of harassing male employees. See
supra at 4-15. For example, "on the first day or the second day" of
his employment, an employee warned Woods to "watch out" for Davis.
(Woods-R.148,TR2 at 45,Apx. __). General superintendent Don Bomar
said he was not surprised to learn that Davis "goosed" employees.
(Bomar-R.149,TR3 at 80,Apx. __). Employees Carlton, Lindley and Warren
testified to being grabbed in the crotch by Davis or to observing
him grab other employees' genitals and buttocks. (Carlton-R.147,TR1
at 181-89,227-28,Apx. __; Lindley-R.148,TR2 at 9-11,18, Apx. __;
Warren-R.149,TR3 at 169-77; R.150,TR4 at 23-25,67,Apx. __). And,
Davis himself admitted that he "goosed" employees on a regular basis.
(Davis-R.148,TR2 at 128,Apx. __).
Further, a reasonable jury could have concluded that Harbert-Yeargin
had constructive notice of the harassment of Woods because the truck
was full of passengers who presumably saw Davis grab Woods's genitals
since they reacted with laughter when Woods removed Davis's hand
from his genitals and jumped out of the truck, (Woods-R.148,TR2 at
24-25,Apx. __); cf. Bonenberger v. Plymouth Township, 132 F.3d 20, 26
(3d Cir. 1997) (where ongoing harassment of plaintiff was witnessed by
other employees and immediate supervisor, triable issue on constructive
notice exists), and because inappropriate touching of genitals and
buttocks was widespread at the site. See supra at 3-6. Indeed, foreman
Davis, the harasser, stated that such conduct occurred "every day."
(Davis-R.148,TR2 at 128,Apx. __). Where the harassment is pervasive,
the employer is presumed to have knowledge of it. See Jackson, 191 F.3d
at 663 ("where harassment is pervasive, courts may impute constructive
notice to an employer"); Hurley v. Atlantic City Police Dep't, 174
F.3d 95, 111 (3d Cir. 1999)(evidence of other acts of harassment is
extremely probative as to whether the defendant knew or should have
known that sexual harassment was occurring despite the existence
of an anti-harassment policy), cert. denied, 120 S. Ct. 786 (2000).
Cf. Hall v. Gus Constr. Co., 842 F.2d 1010, 1016, 1018 (8th Cir.1988)
(finding that even if supervisor was not aware of all sexual abuse,
"unrelenting pattern of verbal, physical and psychic abuse" involved
incidents "so numerous" that employer was "liable for failing to discover
what was going on and to take remedial steps to put an end to it").
Moreover, the jury's finding that Harbert-Yeargin should have known
of the harassment is bolstered by the fact that the offensive conduct
involved or occurred in the presence of management. See, e.g., Evans
v. Ford Motor Co., 768 F.Supp. 1318, 1326 (D. Minn. 1991) (employer knew
of unlawful harassment where much of its was carried out by supervisory
and management personnel). Indeed, the record is replete not only
with employee testimony that at Harbert-Yeargin "there was a lot of
grabbing and poking" that occurred in front of the foremen, see, e.g.,
(Dotson-R.149,TR3 at 35,38, Apx. __); supra at 4-6, but it also contains
admissions by manager Scott and foreman Davis that they engaged in
such conduct and did not discipline other perpetrators. See, e.g.,
(Scott-id. at 128-33,Apx. ___ (grabbed and hit at men's genitals);
Davis-R.148,TR2 at 108-09,Apx. __ (admitting he saw an employee
"goose" another employee below the waist and did not discipline him
even though the conduct violated company policy)). In that Scott was
the "top dog" at the Jackson facility responsible for enforcing the
company's anti-harassment and horseplay policies, he qualified as a
proxy for Harbert-Yeargin. See supra at note 3. Hence, his knowledge
is attributable to the company and his duty to stop the harassment
is sufficient, in isolation or combination with the knowledge and
obligations of the other foremen, to hold Harbert-Yeargin accountable for
the unabated harassment to which Woods was subjected. Torres v. Pisano,
116 F.3d 625, 636-37 (2d Cir.) ("[a]n official's actual or constructive
knowledge of harassment will be imputed to the employer" if the "official
is at a sufficiently high level in the company's management hierarchy
to qualify as a proxy for the company" or he "is charged with a duty
to act on the knowledge and stop the harassment"), cert. denied, 522
U.S. 997 (1997).
Finally, the fact that Harbert-Yeargin had already received
Carlton's sexual harassment complaint against Davis describing
the same conduct to which Davis had subjected Woods during the
same time period that Davis repeatedly harassed Woods should have
provided the company with adequate notice. Hirase-Doi, 61 F.3d at
783-84 (evidence of a supervisor's harassment of other women may
be relevant to establish employer liability, even if the plaintiff
was unaware of it, so long as the harassment was similar in nature
and close in time to plaintiff's experiences); Van Jelgerhuis
Mercury Finance Co., 940 F.Supp. 1344, 1364 (S.D. Ind. 1996)
(an "employer may have constructive knowledge of an employee's
harassment by virtue of prior complaints lodged by other victims
regarding the alleged harasser"). Here, Carlton filed a sexual
harassment complaint on February 23, 1996, alleging, among
other things, that Davis had grabbed his genitals. Carlton's
complaint thus referred to the same conduct and identified the
same perpetrator that sexually harassed Woods, and Carlton made
his complaint during the same time period that Woods was being
harassed by Davis. The fact that Carlton was the only employee to
complain of sexual harassment and inappropriate touching by Davis,
(Bomar-R.149,TR3 at 93,Apx. __; Scott-id. at 147,Apx. __), and
that the company investigated the complaint and concluded that no
harassment had occurred, see (R.130,Cooper Dep. at 138,Apx. __),
is not significant where the investigation was grossly inadequate
and failed to comply with the company's investigative procedures.
Among other things,<15> the company procedures required that Cooper
identify and interview potential witnesses, which should include
"co-workers of both the accuser and the accused who worked in the
area in which the alleged misconduct occurred." (R.149,Ex.25 at
20,Apx. __). Yet, Larry Lindley, Carlton's coworker and a witness
to the second grabbing incident, was not interviewed. No one on
Davis' crew was questioned. No other employees were asked if
they had witnessed Davis touching Carlton or suffered similar
conduct at the hands of Davis. Robert Cooper, who was charged
with conducting the investigation, unreasonably refused to contact
Carlton's attorney so that Carlton could talk to Cooper in the
presence of his counsel. See supra at 11. Had Harbert-Yeargin
conducted a reasonable and adequate investigation of Carlton's
complaint, it not only would have concluded that Davis had
engaged in sexual harassment, but also may have learned about
Davis' harassment of Woods. At a minimum, the jury could have
inferred that had Harbert-Yeargin properly disciplined Davis for
the sexual harassment of Carlton, Woods might not have remained a
victim of sexual harassment at the hands of the same perpetrator.
See, e.g., Yates v. Avco Corp., 819 F.2d 630, 635-36 (6th Cir.1987)
(fact that company was aware that supervisor had harassed women in
past and took no remedial action could establish constructive notice
of later harassment because it was evidence of harassing tendencies
and of the failure of company's antiharassment policy). Therefore,
given Harbert-Yeargin's ineffective response to Carlton's complaint
that failed even to prevent Davis from further harassing Carlton,
a reasonable jury could decide that Harbert-Yeargin also is liable
for the ongoing harassment of Woods. See, e.g., Fall v. Indiana
Univ. Bd. of Trustees, 12 F.Supp.2d 870, 884 (N.D. Ind. 1998)
(refusing to grant summary judgment for the employer; although
the employer acted promptly with reasonable care to correct the
sexual harassment, factual issue existed as to whether defendant
was negligent in failing to prevent the harassment where employer
had actual or constructive knowledge of harasser's history of
inappropriate behavior).
On the whole, pervasive harassment can establish constructive
knowledge on the part of the employer, and by extension it is reasonable
to conclude that when an employer knows of incidents of harassment of
some employees, it is under a duty to protect other employees from being
subjected to the same treatment. Therefore, cumulatively or in isolation,
evidence of such pervasive harassment militates against the district
court's determination that no reasonable juror could have concluded that
Harbert-Yeargin should have known that Davis sexually harassed Woods.
Hence, the district court erred in setting the jury's verdict aside
and this Court should reinstate it.
CONCLUSION
This Court should affirm the district court's judgment on the verdict
as to Carlton's sexual harassment claim and award of punitive damages,
but it should reverse the trial court's judgment as to the constructive
notice issue raised in the cross-appeal because there was substantial
evidence in the record on all of these issues to support the jury's
verdict.
Respectfully submitted,
C. GREGORY STEWART
General Counsel
PHILIP B. SKLOVER
Associate General Counsel
CAROLYN L. WHEELER
Assistant General Counsel
PAULA R. BRUNER
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
1801 L Street, N.W. Rm. 7044
Washington, D.C. 20507
(202) 663-4731
CERTIFICATE OF COMPLIANCE
Pursuant to 6th Cir. R. 32(a)(7), the undersigned certifies this brief
complies with the type-volume limitations of 6th Cir. R.32(a)(7)(B).
Exclusive of the exempted portions in 6th Cir. R. 32(a)(7)(B)(iii),
the brief contains 13, 912 words.
The brief has been prepared in monospaced (nonproportionally spaced)
typeface using Corel Wordperfect 8, Times Roman, 14 point.
If the Court so requests, the undersigned will provide an electronic
version of the brief and/or a copy of the work or line printout.
The undersigned understands a material misrepresentation in completing
this certificate, or circumvention of the type-volume limits in 6th
Cir. 32(A)(7) may result in the court's striking the brief and imposing
sanctions against the person signing the brief.
Paula R. Bruner
CERTIFICATE OF SERVICE
This is to certify that on June 14, 2000, one copy of the foregoing
proof brief along with the certificate of service was mailed first class,
postage prepaid, to the following counsel of record:
Thomas L. Henderson, Esq.
LEWIS, FISHER, HENDERSON & CLAXTON, LLP
5050 Poplar Avenue, Suite 1717
Memphis, Tennessee 38157
Michael L. Weinman, Esq.
Tatum & Weinman
124 E. Main Street, P.O. Box 293
Henderson, Tennessee 38157
PAULA R. BRUNER
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
1801 L Street, N.W. Rm. 7044
Washington, D.C. 20507
(202) 663-4731
June 14, 2000
ADDENDUM OF CASESAPPELLEE'S DESIGNATION OF JOINT APPENDIX CONTENTS
Description of Item
File Date
Record No.
Def. Mot. for Sum. Judgment, Ex. 2 - EEOC Determination
4//28/98
37
Deposition of Bob Cooper, pp.6, 30-31, 37-39, 41-45, 48-56, 67-68, 70-74,
86-90, 92, 96, 100, 126-27, 131-32, 134, 137-38, 140, 142
4/29/99
130
Deposition of Cedric Woods, p.59
4/30/99
139
Trial Exhibits to Cooper Dep. 13-16, 21, 25
[admitted at Vol. III, p.27]
4/28/99
149
Testimony of Carlton
Vol. I, pp. 177, 180-82, 184-87, 188-95, 198-200, 220-21, 225, 228
5/26/99
147
Testimony of Woods
Vol. II, pp. 21, 23-25, 27-29, 34, 43-45, 47, 52, 59
5/26/99
148
Testimony of Doyle
Vol. II, pp. 71-77
5/26/99
148
Testimony of Dotson
Vol. III, pp. 35-39, 41-42, 45, 56, 67-68
5/26/99
149
Testimony of Scott
Vol. III, pp. 97-98, 109, 112-16, 128-33, 159
5/26/99
149
Testimony of Davis
Vol. II, pp. 108-110, 113, 116, 123, 128, 134-35
5/26/99
148
Testimony of Lindley
Vol. II, pp. 8-13, 18
5/26/99
148
Testimony of Warren
Vol. III, pp. 169-74, 177, 184-85
5/26/99
149
Testimony of Warren Vol. IV, pp. 16-21, 23-27, 29-34, 36, 59-60, 65-67,
92-93, 105
5/26/99
150
Trial Exhibit 32 (listing of 1996 employees)
5/26/99
149
Testimony of Kinman
Vol. II, pp. 139-40, 143-44
5/26/99
148
Testimony of Freeman
Vol. II, pp. 149, 152-54
5/26/99
148
Testimony of Neisler
Vol. II, pp. 155-57
5/26/99
148
Testimony of Bomar
Vol. III, pp. 74-76, 78, 80, 82-84, 87-88
5/26/99
149
1 Brass Alley is an area where the employees pick up a little piece
of brass that has their employee number on it in the morning and drop
it off in the evening. This piece of brass determines who gets paid,
tracks attendance, and identifies who has tools. (Neisler-R.148,TR2 at
157,Apx. __).
2 Specifically, Davis testified that, even though there were some women
he worked around on a daily basis, he had not touched any of the female
employees at Harbert-Yeargin "in the breasts, buttocks, [or] pubic area."
(Davis-R.148,TR 2 at 111,135,Apx. __).
3 At the Jackson site, Scott was the "top dog" responsible for
enforcing the company's policies and procedures and seeing that the
supervisors/foremen follow them. (Scott-R.149,TR3 at 97-98,Apx. __).
4 Bomar did not question Lindley about the incident. (Bomar-R.149,TR3 at
78,Apx. __).
5 Cooper's failure to identify and interview Lindley and other potential
witnesses was contrary to the company's published directive on how to
conduct investigations. Specifically, the company's manual states:
"In addition to the accuser and the accused, consider for your list
[of potential witnesses] co-workers of both employees who work in the
area in which the alleged misconduct occurred, customers, suppliers, or
others." (R.149, Ex.25,How to Conduct An Investigation at 20,Apx. __).
6 In the company's "How to Conduct an Internal Investigation" manual,
it states: "During the interview [of a potential witness], take detailed
notes." (R.149, Ex.25 at 29,Apx. ___). The manual also instructs the
investigator to "[o]btain a signed statement of witness setting forth
the important facts" because it could be "very useful in responding to
administrative charges and could be used to contradict the witness if
he later changes his story or becomes hostile." (Id. at 30,Apx. __).
7 In Oncale , 523 U.S. 75, the Supreme Court stated that "harassing
conduct need not be motivated by sexual desire to support an inference
of discrimination on the basis of sex." Id. at 80. See also Quick
v. Donaldson Co., 90 F.3d 1372, 1378 (8th Cir. 1996) (reasoning that
because protection under Title VII extends to all employees and
prohibits disparate treatment of an individual, man or woman, based
on that person's sex, there is no requirement to show evidence of an
anti-male or predominantly female work environment).
8 Harbert-Yeargin's reliance on Davis's testimony that he "'probably'
would have 'goosed' women if he had worked around any" is unavailing.
See HY Br. at 26. All that matters is whether Davis in fact did sexually
harass members of both genders. Davis testified that he did not touch,
poke or grab the female employees at Harbert-Yeargin and there is no
evidence to demonstrate otherwise.
9 It is clear that, contrary to Harbert-Yeargin's urgings, HY Br. at
20-23, the employment of three women by Harbert-Yeargin is sufficient
to demonstrate a mixed-sex work environment, and their presence, contact
with the male employees, and different treatment by the alleged harasser
and perpetrators of similar misconduct is sufficient "direct comparative
evidence about how the alleged harasser treated members of both sexes in
a mixed workplace." Oncale, 523 U.S. at 80-81. Harbert-Yeargin cites
no authority for its novel argument that proving a mixed sex workplace
is an element of the plaintiffs' case or that the district court somehow
removed this issue from the province of the jury. The jury was properly
instructed that it must find that the harassment was because of sex,
and it so found based on the difference in treatment of men and women
in this case. There is no requirement in the law or rules of evidence
that there be any particular number of comparators to establish disparate
treatment; thus it is not surprising that Harbert-Yeargin cites no cases
in support of its view.
10 The gender-motivated nature of the harassment is not negated by
Harbert-Yeargin's purported "legitimate, nondiscriminatory reason" that
Davis grabbed Carlton's genitals and poked him in the cavity of his
buttocks because he thought it was "funny." See HY Br. at 26. A similar
misguided effort to analyze a harassment case under the burden-shifting
framework outlined in McDonnell Douglas was recently rejected by this
Court. Pollard v. E.I. Dupont, 2000 WL 680220 (6th Cir. May 26, 2000)
(because there is no legitimate justification for a hostile environment,
recourse to the McDonnell Douglas test is not warranted). The relevant
question in a harassment case is not the harasser's intention, but whether
the conduct meets the test of being objectively offensive and subjectively
unwelcome. The objective component of the sexual harassment inquiry
turns on whether a reasonable person in the victim's position would have
considered the conduct sufficiently offensive to alter the conditions of
his employment, not on the harasser's intent or perception. See Oncale,
523 U.S. at 81; Harris, 510 U.S. at 21. Moreover, as the district court
pointed out, this Court has already held that "humor is not a defense
under the subjective test if the conduct was unwelcome," (R.166,JNOV
Order at 9 (quoting Williams v. General Motors Corp., 187 F.3d 553, 566
(6th Cir. 1999),Apx. __), and the record is clear that Carlton considered
Davis's touching to be unwelcome. (R.147,TR1 at 181-88,Apx. __).
11 While one instance of menacing staring may not rise to sexual
harassment, Davis's intimidating stares on a daily basis following
unwelcome physical invasions of Carlton's genital and anal areas certainly
is sufficiently severe to create an abusive and hostile work environment.
See Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 784 n.3
(10th Cir. 1995) (threatening stares by alleged harasser, in apparent
retaliation for complaints about sexual harassment, were sufficiently
related to prior alleged sexual harassment).
12 See, e.g., (R.149,TR3 at 169-74,Apx. __ (Warren testimony about
seeing foremen and managers grabbing employees in their crotches or
laughing about it when others did it); supra at 3-6 (detailing testimony
concerning nature and frequency of harassment).
13 Harbert-Yeargin's argument that the employer liability rule in
Indest v. Freeman, 168 F.3d 795 (5th Cir. 1999), and not the rule in
Faragher/Ellerth is controlling in this case is without merit. HY Br. at
31-33. This Court has already rejected that argument, holding that the
rationale that "employer liability for sexual harassment is negated if
the employer responds adequately and effectively once it has notice of
the supervisor's sexual harassment . . . is at odds with the employer's
affirmative defense described in Ellerth/Faragher which requires an
employer to prove that it took reasonable care to prevent and correct
promptly any sexually harassing behavior and that the plaintiff employee
unreasonably failed to take advantage of preventative or corrective
opportunities provided by the employer." EEOC v. SBS Transit, Inc., 172
F.3d 872, 1998 WL 903833 at *1 (6th Cir. Dec. 18, 1999) (unpublished).
14 Notably, Harbert-Yeargin never raised this argument in the district
court before the jury received its punitive damages instructions,
attempted to have "reckless disregard" defined in the jury instruction,
submitted an instruction with such definition, or objected to the
jury instructions on this claim. Instead, Harbert-Yeargin raised this
argument for the first time in a footnote in its Rule 50 motion. Given
Harbert-Yeargin's failure to raise its "novel theory" argument in a
timely manner in the district court, this Court should treat the argument
as waived. See Libbey-Owens-Ford Co. v. Insurance Co. of North Am.,
9 F.3d 422, 425-26 (6th Cir. 1993) (where defendant failed to raise
argument "in a substantial enough way that alerted either [trial judge]
to its significance and called for a ruling either . . . before or during
the trial or during the course of presenting the charge to the jury,"
the district court properly considered argument waived).
15 Cooper's failure to take notes of his interviews or request
witness statements from Bomar, Scott and Davis, (R.130,Cooper Dep. at
39,54-56,Apx. __), as required by company policy, (R.149,Ex.25 at
29,Apx. _), may not have directly contributed to the inadequacy of the
investigation. However, a jury could have inferred that his failure to
document the interviews, along with the refusal to interview employees
who may have corroborated Carlton's allegations, demonstrated a less
than sincere effort to get to the full truth.