No. 11-30403 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________________________________ JOHN CHERRY, Plaintiff-Appellant, v. SHAW COASTAL, INC., Defendant-Appellee. __________________________________________ On Appeal from the United States District Court for the Middle District of Louisiana Hon. James J. Brady, U.S. District Judge __________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT AND REVERSAL __________________________________________ P. DAVID LOPEZ EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel VINCENT BLACKWOOD 131 M St. NE, Rm. 5NW10P Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4870 JAMES M. TUCKER James.Tucker@EEOC.gov Attorney TABLE OF CONTENTS TABLE OF AUTHORITIES.....................................................................ii STATEMENT OF INTEREST.....................................................................1 STATEMENT OF THE ISSUES...................................................................1 STATEMENT OF THE CASE.....................................................................2 I. Statement of the Facts......................................................2 II. District Court Decision....................................................8 SUMMARY OF THE ARGUMENT..................................................................10 ARGUMENT.................................................................................12 I. THERE IS SUFFICIENT EVIDENCE TO SUPPORT THE JURY'S FINDING THAT REASONER'S HARASSMENT OF CHERRY WAS "BECAUSE OF" CHERRY'S SEX................12 II. THERE IS SUFFICIENT EVIDENCE TO SUPPORT THE JURY'S FINDING THAT REASONER'S HARASSMENT OF CHERRY WAS SUFFICIENTLY SEVERE OR PERVASIVE TO CREATE A HOSTILE WORK ENVIRONMENT..............................................................19 III. THERE IS SUFFICIENT EVIDENCE TO SUPPORT THE JURY'S CONCLUSION THAT DEFENDANT'S RESPONSE TO REASONER'S CONDUCT WAS INSUFFICIENT TO SHIELD IT FROM LIABILITY................................................25 CONCLUSION...............................................................................30 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases page(s) Brown v. Bryan County, Okla., 219 F.3d 450 (5th Cir. 2000)........................................16-18, 21, 22 Cherry v. Shaw Coastal, Inc., No. 08-228 (M.D. La. Aug. 3, 2010).........................................passim EEOC v. WC & M Enters., Inc., 496 F.3d 393 (5th Cir. 2007)...................................................29 Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344 (5th Cir. 2008)...................................................14 Frank v. Xerox Corp., 347 F.3d 130 (5th Cir. 2003)...............................................23, 24 Harrington v. Harris, 118 F.3d 359 (5th Cir. 1997)...................................................16 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993).........................................................16, 24 Harvill v. Westward Commc'ns, L.L.C., 433 F.3d 428 (5th Cir. 2005)...........................................19, 22, 25 Hockman v. Westward Commc'ns, L.L.C., 407 F.3d 317 (5th Cir. 2004)...............................................27, 28 La Day v. Catalyst Tech., Inc., 302 F.3d 474 (5th Cir. 2002)...............................................passim Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).............................................................19 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998).....................................................12, 13, 16 Richardson v. BFI Waste Sys. of N. Am., 232 F.3d 207 (5th Cir. 2000)...................................................18 Sharp v. City of Houston, 164 F.3d 923 (5th Cir. 1999)...................................................25 Snyder v. Trepagnier, 142 F.3d 791 (5th Cir. 1998)...............................................17, 21 Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337 (5th Cir. 2007)...................................................22 Worth v. Tyer, 276 F.3d 249 (7th Cir. 2001)...................................................19 Statutes page(s) 42 U.S.C. § 2000e.........................................................................1 42 U.S.C. § 2000e-2(a)(1)................................................................12 STATEMENT OF INTEREST The Equal Employment Opportunity 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., and other federal antidiscrimination statutes. In this case, the district court vacated the jury's verdict in favor of the plaintiff on his claim that he was subjected to a hostile work environment due to sexual harassment by a male co-worker. The court held, inter alia, that the evidence did not support the jury's finding that the harassment occurred "because of" the plaintiff's sex. Because the important question of what evidence suffices to establish that harassment by a person of the same sex is motivated by the sex of the victim has caused confusion in the courts, we offer our views to the Court. STATEMENT OF THE ISSUES <1> I. Whether the district court erred in concluding that the evidence was insufficient to support the jury's finding that the harassment the plaintiff was undertaken "because of" his sex. II. Whether the district court erred in concluding that the evidence was insufficient to support the jury's finding that the harassment was sufficiently severe or pervasive to violate Title VII. III. Whether the district court erred in concluding that the evidence was insufficient to support the jury's finding that the defendant was liable for the harassment by plaintiff's co-worker. STATEMENT OF THE CASE I. Statement of Facts Shaw Coastal is an engineering firm headquartered in Baton Rouge, Louisiana. John Cherry first worked for Shaw briefly in 2006, and then returned in January 2007. Record on Appeal ("ROA") 1982-83. Shortly after beginning his stint at Shaw Coastal in 2007, Cherry began working on a survey crew with Scott Thornton and Michael Reasoner, surveying in ditches and waterways. ROA 1984-87. Cherry worked as an "instrument man," Thornton worked as the "Party Chief" who directed assignments in the field and took care of the equipment, and Reasoner performed Hydrograph duties. ROA 1986-87, 2445-46. In relevant part, the company's harassment policy provides that employees who feel they have been subjected to harassment should report the conduct to their supervisors, or they can report it to human resources. ROA 2137. In March 2007, Reasoner began harassing Cherry. ROA 1988. Reasoner started out by occasionally brushing against Cherry in a manner that Cherry described as "weird." ROA 1988. Reasoner then began commenting to Cherry, while they were out on a boat doing survey work, that Cherry could take his shirt or pants off and get a tan if he'd like. ROA 1988-89. Reasoner also commented to Cherry that he was "not a bad looking guy," "a nice looking older fellow," and "maybe [he] work[s] out." ROA 1989. Cherry responded by telling Reasoner that he didn't "play like that" and to keep his comments to himself. ROA 1990. Cherry also told Thornton that he needed to tell Reasoner to "get off" him, that he was bothered and uncomfortable with the conduct, and that if Reasoner was just joking, it had gone too far. Tr. I at 137. On April 19, Reasoner then sent Cherry a text message stating, "I want cock." ROA 1990. The next day, Reasoner sent Cherry a text message stating, "ur 2 sexy. U drive me insane. I lov u so much, my heart is in pain. Ur sexy voice puts me to slumber. Aww shit. I got the wrong number." ROA 1995. On May 7, Reasoner sent Cherry another text message, stating "your [sic] missing the dipper." ROA 1993-96. Reasoner had previously said "you're missing the Dipper" or stated that he had to "shake the Dipper" to Cherry on various occasions involving Reasoner urinating or talking about having to urinate, such that Cherry knew that "the Dipper" was the name by which Reasoner referred to his penis. ROA 1993-97. Cherry stated that he did not have the type or relationship with Reasoner where this type of conduct was appropriate, and had repeatedly told Reasoner that he did not want to talk to him. ROA 1997-98. Reasoner also repeatedly touched Cherry in a sexual manner. Cherry testified that Reasoner: touched Cherry's leg and shoulder and rubbed his hair when Cherry was sitting in the driver's seat of the boat; touched Cherry's back and shoulder when they were at the boat launch; touched Cherry's knee and, on some occasions, "if [Cherry] wasn't paying attention" touched Cherry's inner thigh. ROA 1998, 2012-13. Cherry repeatedly told Reasoner "to keep his hands off" of him, to no effect. ROA 1998-99, 2012. Reasoner repeatedly touched Cherry when Cherry was asleep in the truck on the drive back to office. ROA 2011. On these occasions, Cherry awoke to find Reasoner rubbing Cherry's shoulders. ROA 2011. Reasoner would also run his hand through Cherry's hair while he was sleeping. ROA 2011. Thornton was aware of the conduct, such that he preferred Reasoner to drive so that Reasoner would keep his hands off Cherry. ROA 2011-12. Thornton witnessed much of Reasoner's harassment of Cherry, and described the physical conduct as Reasoner touching Cherry "like I do my wife." ROA 2343. On another occasion when Cherry was bending over to put a strap or chain on the boat, Reasoner walked up and "put his hand on [Cherry's] butt" ROA 2011. Cherry stood up and went to push Reasoner in response, Thornton stepped between the men and told Cherry he would get fired if he hit Reasoner. ROA 2012. On May 21 or 22, while on another job assignment with Reasoner and Thornton that required a long drive, Reasoner asked Cherry to stay overnight at Reasoner's house. ROA 2030, 2032-33. When Cherry responded that he would not stay at Reasoner's house and that he did not bring a change of clothes, Reasoner replied "you don't need to wear any clothes. You can wear my underwear." ROA 2033. Thornton was the first person to complain to Shaw Coastal about the harassment. Thornton reported the conduct-particularly, the physical conduct-to Michael D'Angelo, the project manager supervising the survey crew, approximately ten times, beginning in March. ROA 2339-43, 2349, 2447-48. On April 16, after witnessing Reasoner touch Cherry's buttocks, Thornton contacted D'Angelo and again reported Reasoner's harassment of Cherry. ROA 2336-39. Thornton went to D'Angelo because Thornton had told Reasoner to stop harassing Cherry but the conduct continued. ROA 2336-37. In addition, on May 1, Thornton reported the harassment to Jeff Pena, manager of the office engineering activities and D'Angelo's superior. ROA 2350, 2447-48. Nevertheless, the harassment continued and there is no evidence that Pena took any action on Thornton's report. In fact, despite Shaw Coastal's policy requiring managers to report harassment of which they are aware to human resources, ROA 2878-79, there is no evidence that D'Angelo or Pena reported any of these complaints to human resources. On May 2 or 3, Cherry made his own complaint to D'Angelo about Reasoner's conduct. ROA 2009. Cherry reported to D'Angelo the specific conduct Reasoner engaged in toward him, and told D'Angelo that he was not trying to get Reasoner fired but he nevertheless wanted Reasoner to leave him alone. ROA 2010. D'Angelo responded that he wasn't sure what was going on, and questioned whether it was serious, or if Reasoner was just "horsing around." ROA 2010. On May 6 or 7, Cherry again complained to D'Angelo about Reasoner's conduct, and offered to show D'Angelo the text messages from Reasoner.<2> ROA 2010. D'Angelo refused to look at the text messages, and stated that Reasoner was just "horsing around." ROA 2010. On May 21 or 22, after Cherry had an argument with Reasoner, he again complained to D'Angelo and asked to never work with Reasoner again. ROA 2012-13. After that complaint, Cherry and Reasoner did not work together. ROA 2013. On May 29 Cherry emailed D'Angelo regarding Reasoner, reiterating that he had previously spoken to D'Angelo about "the problem I've had with Mike Reasoner touching [sic] and comments he's done [sic] and said." ROA 2008-09. Cherry reported that, even though he was no longer working with Reasoner, Cherry was "still getting looks from him which make me very uncomfortable. Just today I was doing some field notes at Carl's desk as he walks by and coughs. I look up to see who it is and [Reasoner's] looking right at me smiling. This needs to stop." ROA 2009. Cherry then got up from the desk and went directly to D'Angelo, telling him, "that's it; I'm done. I can't take it anymore. I want something done right now." ROA 2013. D'Angelo and Cherry then went to discuss the situation with Pena. ROA 2013. Cherry reported the harassment to Pena, who responded, "[a]re you sure that [Reasoner] is not just horsing around?" ROA 2015-17. Pena then contacted Nikki Jordan in Shaw Coastal's human resources department, and Jordan opened an investigation into Cherry's complaint. ROA 2725-28. Ultimately Shaw Coastal concluded that it could not determine whether the conduct had in fact occurred as alleged by Cherry, because it was "one [person's] word against the other." ROA 2780. Shaw Coastal took no action other than meeting with Cherry and Reasoner on July 24 to share the results of the investigation and tell them "to continue to work together and be professional and that no retaliation should take place." ROA 2039, 2780-81. After May 22, when Cherry encountered Reasoner in the office, Reasoner would make gestures at Cherry, laugh at him, and "flip[] [him] off." ROA 2018-19. Cherry reported all this conduct to D'Angelo, whose only response was that they had already spoken to Pena. ROA 2019. On August 30, Reasoner assaulted Cherry in the office, striking Cherry in the chest with his shoulder when the two passed each other in a hallway. ROA 2048-49. Cherry immediately reported this incident to Pena, who reported the assault to human resources, but the company did not take any action against Reasoner. ROA 2049, 2054. Reasoner again assaulted Cherry on September 25, striking Cherry with his shoulder as he had on August 30. ROA 2061-62. Cherry again reported the assault to Shaw Coastal management, and on September 27 submitted a resignation letter, citing the harassment by Reasoner and the company's failure to address it as the reasons for his departure. ROA 2063, 2068-70. Jordan contacted Cherry and informed him that Shaw Coastal had terminated Reasoner, and urged Cherry to reconsider his resignation. ROA 2070. However, the next day, when Cherry contacted Oscar Pena, Jeff Pena's supervisor, and informed him that he wished to withdraw his resignation, Pena refused to allow him to do so. ROA 2071, 2447. II. District Court Decision The district court vacated the jury's verdict on Shaw Coastal's renewed motion for judgment as a matter of law. ROA 1714. The court first addressed the sufficiency of the evidence that Reasoner's conduct toward Cherry was "because of" Cherry's sex. ROA 1716. According to the court, "in order to show sexual discrimination, Cherry had to provide evidence of both a sexual proposal and that Reasoner was homosexual." ROA 1717. The court concluded that Reasoner's conduct toward Cherry "by itself does not amount to evidence establishing that Reasoner has a sexual interest in men." ROA 1717-19. The court characterized the "poem" text message as "clearly a joke and any reasonable person would have taken it as such"; asserted that the "I want cock" and "your [sic] missing the Dipper" messages Reasoner sent to Cherry, "although regarding sexual matters, are not propositions"; and characterized Reasoner's offer that Cherry stay at his house and wear Reasoner's underwear as "offered at least in part to save driving long distances" and not a sexual proposal. ROA 1718. The court concluded that, while Reasoner's conduct was "sexually tinged and certainly juvenile . . . the record does not reflect that it was based on Cherry's gender." ROA 1719. Turning to whether the harassment was sufficiently severe or pervasive, the court discussed a number of cases in which this Court found the challenged conduct insufficiently severe or pervasive to support a harassment claim, and concluded that the conduct to which Cherry was subjected was, "if taken at its worst, . . . no more severe or pervasive" than the conduct at issue in those cases. ROA 1719-20. The court noted that the touching took place over a period of only fourteen days and did not involve touching of genitalia. ROA 1722. The court added that "the fact that Cherry is overly sensitive to homoerotic teasing, if not homophobic, does not change teasing into severe or pervasive sexual harassment." ROA 1722. The court also concluded that the evidence did not support the jury's conclusion that Shaw failed to respond appropriately to Cherry's complaints. The court noted that Cherry first told D'Angelo that he did not want D'Angelo to report the harassment to management unless Reasoner continued his conduct; that, when Cherry reported more harassment by Reasoner the following week, D'Angelo promptly reported the conduct up the chain of command; that Cherry was required under Shaw's harassment reporting policy to report the conduct to HR directly if he was not satisfied with management's response to his complaint, but he never made such a complaint to HR; and that Cherry was never again subjected to "sexual" conduct after he complained to D'Angelo. ROA 1723-24 (emphasis in original). SUMMARY OF THE ARGUMENT In granting Shaw Coastal's motion for judgment as a matter of law, the district court failed to examine the evidence under the appropriate standard of review, erroneously concluding that no reasonable jury could have rendered a verdict in Cherry's favor. Under well-established precedent, a court assessing the sufficiency of the evidence to support a verdict must view the evidence in the light most favorable to the prevailing party and in support of the verdict, making all reasonable inferences and credibility determinations in favor of the verdict. When so viewed, the evidence the jury heard in this case is sufficient to support the verdict. First, there is abundant evidence supporting the jury's conclusion that Reasoner's harassment of Cherry was perpetrated because of Cherry's sex. From Reasoner's favorable comments about Cherry's personal appearance, to his "I want cock" and other text message to Cherry regarding Reasoner's penis, to his repeated physical rubbing, caressing, and other touching of Cherry's body, including touching Cherry's buttocks while he was bending forward, and his inviting Cherry to spend the night at his home and wear Reasoner's underwear, the jury could reasonably find that Reasoner was either explicitly or implicitly proposing sexual activity with Cherry. Similarly, viewing the evidence in the light most favorable to the verdict, there is ample evidence supporting the jury's finding that Reasoner's harassment of Cherry was sufficiently severe or pervasive to create a hostile work environment. In reaching the contrary conclusion, the district court improperly interpreted the evidence in a light favorable to the defendant. Finally, the district court also overlooked evidence supporting the jury's conclusion that the company failed to respond to the harassment in a manner that would preclude liability. ARGUMENT I. THERE IS SUFFICIENT EVIDENCE TO SUPPORT THE JURY'S FINDING THAT REASONER'S HARASSMENT OF CHERRY WAS "BECAUSE OF" CHERRY'S SEX. Title VII makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). This protection against discriminatory treatment because of one's sex extends to harassment based on sex, and is not limited to harassment perpetrated by a member of the opposite sex. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-80 (1998); La Day v. Catalyst Tech., Inc., 302 F.3d 474, 477-78 (5th Cir. 2002). As Oncale recognizes, "[c]ourts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex." 523 U.S. at 80. In Oncale, the Supreme Court described several evidentiary avenues available to a plaintiff seeking to establish that harassment by a member of the plaintiff's sex was harassment because of sex. Id. at 80-81. In particular, the Court observed that the aforementioned "easy" inference of sexual harassment based on explicit or implicit proposals of sexual activity is available in cases of same-sex harassment where there is "credible evidence that the harasser was homosexual." Id. at 80; see also La Day, 302 F.3d at 478 (same). The Court cautioned, however, that, "[w]hatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted "discriminat[ion] . . . because of . . . sex." Id. at 81 (emphasis in original). The evidence presented at trial in this case was sufficient to support the jury's finding that Reasoner's conduct constituted implicit proposals for sexual activity and credible evidence that he is homosexual, such that the harassment of Cherry was because of his sex. This Court has recognized that while it is "not possible . . . to specify all the possible ways in which a plaintiff might prove that an alleged harasser acted out of homosexual interest . . . there are two types of evidence that are likely to be especially 'credible' proof that the harasser may be homosexual." La Day, 302 F.3d at 480. For purposes of the instant appeal, the most important of these is "evidence suggesting that the harasser intended to have some kind of sexual contact with the plaintiff rather than merely humiliate him for reasons unrelated to sexual interest." Id. The evidence does not, however, need to show that the harasser explicitly stated his desire to have sexual relations with the victim in order to make such a showing. See id. at 479-80 (concluding that there was "credible evidence of [the harasser's] sexual interest in [the victim]," even though the harasser "did not explicitly state his desire to have sexual relations with the victim"). In the instant case, there is ample evidence that Reasoner intended to have some kind of sexual contact with Cherry. First, the text message bluntly stating "I want cock" can reasonably be interpreted on its face as an implicit proposal by Reasoner of sexual activity with Cherry. A jury could reasonably conclude that this graphic sexual statement, made by Reasoner regarding his desire for the male sexual organ and directed squarely at Cherry, was an invitation by Reasoner for Cherry to engage in some type of sexual activity with Reasoner. In fact, the bluntness and clarity of Reasoner's desire for "cock" suggests it is more akin to direct evidence-evidence "that, if believed, proves the fact . . . without inference of presumption," Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 349 (5th Cir. 2008) (citation omitted)-that Reasoner sought sexual contact with Cherry and/or was homosexual. Second, viewing all of Reasoner's conduct toward Cherry collectively strongly supports the conclusion that Reasoner sought to have sexual contact with Cherry. See La Day, 302 F.3d at 480 (concluding that the harasser sought sexual contact with the victim based on an examination of all the evidence of harassment that had been directed toward the victim). Reasoner's favorable comments about Cherry's appearance; his requests that Cherry partially disrobe in Reasoner's presence; the repeated touching of Cherry's hair, knee, and inner thigh, as well as the rubbing of Cherry's shoulders and stroking of his hair while Cherry slept in the truck; the grabbing of Cherry's buttocks by Reasoner while Cherry was bending forward; the invitation for Cherry to spend the night at Reasoner's house and wear Reasoner's underwear; the text messages that Cherry was "missing" Reasoner's penis, and the "ur 2 sexy. U drive me insane" poem message; and the "I want cock" message, read collectively, reasonably suggest that Reasoner intended some type of sexual contact with Cherry. See supra pp. 2-5. This evidence of Reasoner's conduct toward Cherry can be reasonably interpreted as implicit proposals for sexual activity with Cherry. In fact, the evidence in the instant case is more substantial on these points than the evidence this Court found sufficient in La Day and amply supports the jury's conclusion that Reasoner's conduct included an explicit or implicit sexual proposal and establishes that he was sexually interested in men. In La Day, the harassing conduct consisted of one comment to the victim that the harasser was jealous of the victim's girlfriend, and one incident where the harasser "approached [the victim] from behind while he was bending down and fondled his anus," whereupon the victim "turned around immediately and told [the harasser] not to touch him that way." La Day, 302 F.3d at 476. This Court concluded that, viewing the evidence in the light most favorable to the plaintiff, "it is reasonable to conclude that [these two incidents] constituted 'explicit or implicit proposals of sexual activity'" sufficient to preclude summary judgment in favor of the defendant on the "because of" sex element of the plaintiff's claim. Id. at 481. The evidence in this case indicates even more clearly that Reasoner's conduct constituted an explicit or implicit sexual proposal, and that he was sexually interested in men, than the evidence found sufficient to establish these points in La Day. Accordingly, there is ample evidence to support the jury's verdict on the element of whether Reasoner's harassment of Cherry was "because of" Cherry's sex. Oncale, 523 U.S. at 80 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J. concurring)). In reaching the opposite conclusion, the district court failed to apply the proper standard in considering the evidence. "A motion for judgment as a matter of law . . . in an action tried by jury is a challenge to the legal sufficiency of the evidence supporting the jury's verdict." Brown v. Bryan County, Okla., 219 F.3d 450, 456 (5th Cir. 2000) (omission in original) (quoting Harrington v. Harris, 118 F.3d 359, 367 (5th Cir. 1997)). In assessing such a motion, a court must consider all of the evidence, drawing all reasonable inferences and resolving all credibility determinations in the light most favorable to the non-moving party. Id. (citation omitted). This standard of review with respect to a jury verdict is intended to be "especially deferential," id., and the verdict is to be left undisturbed unless it is "not supported by substantial evidence, meaning 'evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions'-that is, if "no reasonable jury would have arrived at the verdict." Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998). Under this deferential standard of review, it cannot be said that the evidence of Reasoner's conduct toward Cherry was not of such "quality and weight" that no reasonable jury could have arrived at the conclusion that Reasoner's conduct indicated that he wanted to have sexual contact with Cherry. In concluding otherwise, the district court failed to view the evidence, draw all inferences, and make all credibility determinations in the light most favorable to Cherry as nonmovant. For example, the court summarily declared that the "I want cock" text message was "not [a] proposition[]." ROA 1718. This conclusion was made, however, without any apparent regard for the fact that the statement "I want cock," directed specifically at Cherry by Reasoner, is on its face susceptible to the altogether reasonable interpretation that Reasoner not only desired some man's sexual organ, he desired Cherry's male sexual organ and was propositioning Cherry. The jury was entitled to draw such an inference from this evidence, and accordingly this evidence should have been interpreted in favor of the plaintiff and in support of the verdict, rather than in favor of the defendant and against the verdict. The district court further erred in asserting that Cherry's knowledge that Reasoner is married to a woman negates the bounty of evidence that he was implicitly or explicitly proposing sexual activity with Cherry. It is far from an unusual phenomenon in our society for some men who are married to women to also seek, and engage, in homosexual conduct. As such, evidence of Reasoner's marriage does not preclude a finding that he was interested in having sexual relations with a man. See Richardson v. BFI Waste Sys. of N. Am., 232 F.3d 207, at *2 (5th Cir. 2000) (Unpub.) (rejecting argument that evidence the harasser had six children by four different women eliminates fact question of whether the harasser is "sexually oriented toward members of the same sex"). Rather, this issue presents a credibility determination-Reasoner's assertion that he is not homosexual versus Cherry's and other witnesses' attestations of Reasoner's sexual conduct toward Cherry-that must be resolved in the nonmovant's favor for purposes of determining whether Shaw Coastal was entitled to judgment as a matter of law. See Brown, 219 F.3d at 456 (recognizing that in the context of a motion for judgment as a matter of law, courts are to consider all of the evidence, draw all reasonable inferences and resolve all credibility determinations in the light most favorable to the non-moving party). II. THERE IS SUFFICIENT EVIDENCE TO SUPPORT THE JURY'S FINDING THAT REASONER'S HARASSMENT OF CHERRY WAS SUFFICIENTLY SEVERE OR PERVASIVE TO CREATE A HOSTILE WORK ENVIRONMENT. In order for sex harassment to be actionable under Title VII, the harassing conduct must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Harvill v. Westward Commc'ns, L.L.C., 433 F.3d 428, 434 (5th Cir. 2005) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). An allegation that same-sex harassment rose to the level of a hostile work environment in violation of Title VII is subject to the same standard applied in cases of opposite-sex harassment. La Day, 302 F.3d at 481. Whether a plaintiff's work environment is sufficiently permeated with offensive conduct to meet this standard "'depends on "all the circumstances," including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" La Day, 302 F. 3d at 482 (citations omitted). Of particular relevance here, this Court has observed in the context of unwanted touching by a harasser of the plaintiff's body, including the buttocks, that "[u]ndoubtedly, the deliberate and unwanted touching of [the plaintiff's] intimate body parts can constitute severe sexual harassment." Harvill, 433 F.3d at 436 (citing Worth v. Tyer, 276 F.3d 249, 268 (7th Cir. 2001), for the proposition that "direct contact with an intimate body part constitutes one of the most severe forms of sexual harassment"). This Court has further concluded that one incident of briefly fondling the anus of the victim and one comment that the harasser was jealous of the victim's girlfriend was sufficient to satisfy the severe or pervasive requirement. La Day, 302 F.3d at 476, 483. The evidence before the jury in this case was sufficient to meet this Court's requirements for a showing that same sex harassment was sufficiently severe or pervasive to violate Title VII. From March to near the end of May 2007, Cherry was subjected to repeated and unwanted sexual comments and physical contact of a sexual nature by Reasoner, ranging from statements that he was good looking and should take off his shirt or pants in Reasoner's presence, to explicit text messages regarding Reasoner's genitalia and expressing his desire for "cock," to Reasoner's repeated touching of Cherry's hair, shoulders, knee, inner thigh, and even grabbing Cherry's buttocks, with much of the touching being done in a manner described by a witness as the way a husband touches his wife.<3> See supra pp. 2-5. Again, this Court has clearly recognized that in assessing the merit of a renewed motion for judgment as a matter of law courts are to accord a high level of deference to the conclusions the jury drew from the evidence, drawing all reasonable inferences and resolving all credibility determinations in the light most favorable to the non-moving party. Brown, 219 F.3d at 456. The jury's verdict is to be left undisturbed unless it is so unsupported by evidence that "no reasonable jury would have arrived at the verdict." Snyder, 142 F.3d at 795. Under this extremely deferential standard of review, it cannot fairly be said that the jury was unreasonable in concluding that this litany of repeated sexual conduct by Reasoner was sufficiently severe or pervasive to create a hostile work environment for Cherry, or that no reasonable jury could have arrived at such a conclusion on this record. In fact, in La Day this court strongly suggested the exact opposite, recognizing that an objectively more modest level of harassment-one incident of briefly fondling the anus of the victim while he was bending down and one comment that the harasser was jealous of the victim's girlfriend-was sufficient to support a finding that the harassment created a hostile work environment. 302 F.3d at 476, 483. In concluding otherwise, the district court again failed to examine the evidence in the light most favorable to Cherry and draw all reasonable inferences and make credibility determinations in support of the jury's verdict. For example, the court concluded that the text messages and comments were simply juvenile and boorish epithets, without any acknowledgement that a message of a highly sexual nature-"I want cock"-sent to a coworker could reasonably be interpreted as a sexual proposition. ROA 1718. The fact that such an interpretation of that message is supported by other evidence indicating Reasoner found Cherry physically attractive shows that the district court's interpretation of the evidence did not reflect a proper examination of all the evidence. See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 347 (5th Cir. 2007) ("We determine whether a hostile work environment exists using a totality-of-the-circumstances test."). Another example of the court's unduly narrow interpretation of the evidence was its conclusion that the harassment occurred "only" for fourteen days. To the contrary, there was evidence that the harassment persisted from Reasoner's first comments and touching in March 2007 through the second physical assault on Cherry in late September 2007. See supra pp. 2-5, 8. Even if the court was only referring to Reasoner's overtly sexualized comments and touching, there was evidence that Cherry endured such harassment for two months, not two weeks. The district court also emphasized that Reasoner never touched Cherry's genitalia. ROA 1722. However, contact with genitalia is not required in order to establish that harassment is severe or pervasive. In Harvill this Court addressed a harasser who touched the buttocks and other body parts of his victim, and characterized the buttocks as an intimate body part "the deliberate and unwanted touching of [which] can constitute severe sexual harassment." 433 F.3d at 436. Moreover, the touching of Cherry's buttocks occurred in a manner similar to the brief anal touching this Court found sufficiently severe or pervasive in La Day, where this Court noted that the brief fondling of the victim's anus in that case "was physically 'humiliating,' . . . [and] arguably severe," to the extent that, in conjunction with one comment by the harasser about his jealousy of the victim's girlfriend, it constituted sufficient evidence to establish that the harassment was severe or pervasive. See 302 F.3d at 482-83. The court further erred in suggesting that there was evidence that Cherry was either homophobic or "overly sensitive to homoerotic teasing" and that this fact made Cherry's reaction to Reasoner's "teasing" unreasonable rather than showing the harassment was severe or pervasive. ROA 1722. While a plaintiff must establish both that the harassment was subjectively and objectively severe or pervasive, Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir. 2003), the evidence of Reasoner's conduct toward Cherry, and Cherry's response thereto, was more than adequate to satisfy each of these requirements. Rather than compelling the conclusion that the harassment was not severe or pervasive, Cherry's reaction-or even overreaction-to that harassment goes to, and here amply satisfies, his burden of showing that he subjectively perceived the conduct as severe or pervasive. The reasonableness of Cherry's reaction, however, has no bearing on the independent assessment of whether the harassment was also objectively severe or pervasive such that a reasonable person would so perceive the conduct. To do otherwise would be to collapse the subjective and objective components into a single subjective inquiry, contrary to well-established controlling precedent. See, e.g., Harris, 510 U.S. at 21-22 (recognizing separate inquiries of whether a reasonable person would find the conduct hostile or abusive, and whether the victim actually perceived the conduct as hostile or abusive); Frank, 347 F.3d at 138 (same). In addition, the district court's assessment of this evidence of Cherry's homophobia neglects the fundamental fact that the jury was free to reject the testimony of the witness who offered this assessment of Cherry. The fact that the district court credited that witness' testimony over that of other witnesses such as Thornton, who witnessed much of the touching and comments and characterized the touching as the way he would touch his wife, and thus having a sexual quality rather than just simple teasing, indicates that the court was impermissibly substituting its assessment of the evidence and the credibility of the witnesses for that of the jury. In sum, the district court's assessment of the evidence shows that the court did not draw all reasonable inferences and resolve all credibility issues in the light most favorable to the non-moving party. When the evidence is viewed in accordance with the proper standard, it is sufficient to support the jury's conclusion that Reasoner's harassment of Cherry was sufficiently severe or pervasive. III. THERE IS SUFFICIENT EVIDENCE TO SUPPORT THE JURY'S CONCLUSION THAT DEFENDANT'S RESPONSE TO REASONER'S CONDUCT WAS INSUFFICIENT TO SHIELD IT FROM LIABILITY. Employers who have actual or constructive knowledge of coworker harassment are required to appropriately respond to that harassment. Harvill, 433 F.3d at 437. The sufficiency of an employer's response to reports of coworker harassment is evaluated on a case-by-case basis, taking into account the nature of the harassment and the remedial steps taken by the employer. Id. An employer's response to coworker harassment is judged under a negligence standard. Sharp v. City of Houston, 164 F.3d 923, 929 (5th Cir. 1999). An employer that takes remedial action calculated to end co-worker harassment as soon as it knew or should have known of the harassment may not be held liable for the actions of its non-supervisory employees. Id. (citation omitted). Liability will attach, however, if the employer's actions are not reasonably calculated to end the harassment. Harvill, 433 F.3d at 437 (citation omitted). In this case, there was evidence supporting the jury's conclusion that Shaw Coastal knew or should have known of Reasoner's harassment of Cherry and failed to respond adequately to Cherry's and Thornton's repeated complaints about the harassment. As early as March 2007, Thornton reported Reasoner's harassment to the survey crew's direct supervisor, D'Angelo. See Sharp, 164 F.3d at 929 (noting that employers have "actual knowledge of harassment that is known to 'higher management' or to someone who has the power to take action to remedy the problem"). By the beginning of May, Cherry was also complaining to D'Angelo about Reasoner's conduct. D'Angelo was obligated by company policy to report the complaints to human resources, but he never did so, and during the two months that D'Angelo did nothing with the complaints Cherry continued to be subjected to sexual comments and sexualized touching by Reasoner.<4> On May 1, Thornton also complained to Jeff Pena, D'Angelo's superior, but, again, the company took no action on the complaint. When human resources became involved in the matter in June, it decided to take no further action to stop the harassment by Reasoner because the men were not assigned to work together on a crew. However, this did not stop Reasoner from continuing to harass Cherry. Cherry reported Reasoner's continuing harassment to management, to no avail. After the July meeting with management regarding Cherry's complaints, in which the company did not discipline Reasoner in any manner, the harassment continued and culminated in two physical assaults on Cherry by Reasoner before the company finally acted to stop the harassment. Accordingly, the evidence shows that the company waited for six months, and until Cherry had been physically assaulted twice, before taking any remedial action against Reasoner, despite receiving numerous complaints from Cherry and Thornton at multiple levels of management, and despite human resources' involvement in addressing those complaints, during that six month period. This evidence is adequate to support the jury's conclusion that Shaw Coastal's response to the harassment was not the prompt remedial action calculated to end the harassment it needed to undertake in order to avoid liability for the consequences of Reasoner's conduct toward Cherry. The district court cited Hockman v. Westward Communications, L.L.C., 407 F.3d 317 (5th Cir. 2004), for the proposition that Cherry had a duty to take his complaints to human resources when his supervisor and his supervisor's supervisor both failed to act on his complaints. ROA 1724. However, Hockman is distinguishable and does not does not support the district court's conclusion. In that case, Hockman complained only once to her supervisor about coworker harassment, and when the supervisor repeatedly followed up with her regarding how to proceed with the complaint, she refused to make a "formal" complaint out of fear of retaliation. Hockman, 407 F.3d at 322. This Court concluded that, because the company had a harassment policy that provided Hockman the opportunity to report her complaint directly to human resources if she was not satisfied with her supervisor's handling of the complaint, and Hockman made no effort to take her complaint to human resources, she unreasonably failed to avail herself of corrective opportunities provided by the company. Id. at 329-30. In stark contrast, Cherry and Thornton repeatedly complained to Shaw Coastal management about Reasoner's conduct, exactly as required under the company's harassment policy-a policy, unlike that in Hockman, which did not require that the complaints be taken to human resources-and asked that something be done to stop the harassment. See supra pp. 5-7. From March 2007 through May 2007 not only did D'Angelo and Pena fail to take any action on those complaints, it was they who failed to follow the company policy requiring managers to report the complaints to human resources.<5> See ROA 2878-79 (harassment policy requires managers and supervisors to report harassment to human resources). Under these circumstances, it cannot be said that Cherry failed in any meaningful way to take advantage of corrective opportunities provided by Shaw Coastal, and thus the jury's conclusion in favor of Cherry on this point is sufficiently supported by the evidence and fully consistent with this Court's precedent. The district court also erred in concluding that, because there was no further openly sexualized conduct by Reasoner toward Cherry once human resources was involved, the "sexual" harassment ceased even though Reasoner continued to harass Cherry in nonsexual terms. ROA 1724. To the contrary, this Court has recognized, in the context of a Title VII race-based hostile work environment claim, that harassing conduct that is not facially based on the victim's protected characteristic may nevertheless contribute to the discriminatory hostile work environment. EEOC v. WC & M Enters., Inc., 496 F.3d 393, 400-01 (5th Cir. 2007) (holding that, in regard to the act of banging on a glass window to startle the victim, "in the context of [the harasser's] other actions toward [the victim,]" a factfinder could reasonably conclude that this conduct also contributed to the race-based hostile work environment). A reasonable factfinder could conclude that Reasoner's nonsexualized harassment of Cherry after human resources became involved nevertheless contributed to the hostile work environment to which Cherry was exposed. Accordingly, it was error for the district court to conclude that because the harassment that occurred after human resources was made aware of the harassment was not overtly sexualized, the jury could not find that the hostile work environment existed after that date. CONCLUSION For the foregoing reasons, the Commission respectfully requests that the Court reverse the judgment of the district court and direct the district court to reinstate the jury's verdict. Respectfully submitted, P. DAVID LOPEZ General Counsel VINCENT BLACKWOOD Acting Associate General Counsel s/ James M. Tucker JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure 29(d) and 32(a)(7)(B), and Fifth Circuit Rule 32. This brief contains 6,993 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. s/ James M. Tucker JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov CERTIFICATE OF SERVICE I hereby certify that on May 19, 2011, this document was electronically served on the counsel listed below via the Court's ECF Notice of Docket Activity system at their electronic addresses of record: Jill Leininger Craft, Esq. Renee G. Culotta, Esq. jcraft@craftlaw.net rculotta@frilot.com Leslie W. Ehret, Esq. lehret@frilot.com s/ James M. Tucker JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov ********************************************************************************** <> <1> The Commission expresses no opinion on any other issues presented in this appeal. <2> The text messages saved on Cherry's phone did not include the "I want cock" message, because Cherry had accidentally deleted that message. ROA 1991. Thornton, however, saw that message on Cherry's phone before it was deleted, and at trial corroborated Cherry's testimony regarding the content of that message. ROA 1990, 2343-44. <3> Similarly, in La Day, this Court observed that the one instance of physical contact in that case had been described by the victim as "similar to 'foreplay with a woman.'" 302 F.3d at 476. <4> D'Angelo testified that, when Cherry complained to him on May 23, Cherry stated that he wanted to keep the complaint "confidential" and he would contact D'Angelo "when he was ready to disclose it and wanted to take further action on it." ROA 2871-72; see also ROA 1723 (district court's statement that Cherry informed D'Angelo on May 22 that "he would like to make a complaint if Reasoner did anything else" (emphasis in original)). However, the jury was free to reject D'Angelo's testimony as it is inconsistent with Cherry's and Thornton's testimony that they each repeatedly complained to D'Angelo prior to May 23 and specifically asked him to do something to stop Reasoner's harassment of Cherry. See supra pp. 5-7. Accordingly, the court was incorrect to credit D'Angelo's testimony over that of Cherry and Thornton which supports the jury's verdict. <5> While D'Angelo testified that this policy did not apply to him, ROA 2879, the plain text of the policy suggests otherwise and the jury was nevertheless free to reject D'Angelo's testimony.