Nos. 06 -5430(L) & 08-4308 (XAP) _____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee-Cross-Appellant, v. EVERDRY MARKETING AND MANAGEMENT, INC., and EVERDRY MANAGEMENT SERVICES, INC., Defendants-Appellants-Cross-Appellees. ______________________________________________________ On Appeal from the United States District Court for the Western District of New York _____________________________________________________ RESPONSE BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE AND PRINCIPAL BRIEF AS CROSS-APPELLANT __________________________________________________________ RONALD S. COOPER EQUAL EMPLOYMENT OPPORTUNITY General Counsel COMMISSION 131 M Street, N.E., Fifth Floor VINCENT J. BLACKWOOD Washington, D.C. 20507 Acting Associate General Counsel 202/663-4727 (office) SUSAN L.P. STARR 202/663-7090 (fax) Attorney TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv JURISDICTIONAL STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Nature of the Case and Course of Proceedings. . . . . . . . . . . . . . . 3 B. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1. Integrated Enterprise. . . . . . . . . . . . . . . . . . . . . . . 6 2. Sexual Harassment. . . . . . . . . . . . . . . . . . . . . . . . 15 C. Decisions Below. . . . . . . . . . . . . . . . . . . . . . . . . . . 31 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 I. SUBSTANTIAL EVIDENCE SUPPORTS THE JURY'S FINDING THAT EMM AND EMS CONSTITUTED A SINGLE INTEGRATED ENTERPRISE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . 35 B. Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 II. THE AWARD OF PUNITIVE DAMAGES SHOULD BE AFFIRMED. . . . . . . . . . . . 44 A. Because EMM Failed to Challenge the Sufficiency of the Evidence Supporting Punitive Damages, the Punitive Damages Instruction, and the Amount of the Punitive Damage Award in the District Court, the Award of Punitive Damages Must Be Affirmed Unless It Is Infected With Plain Error That Would Result in a Miscarriage of Justice. . . . . . . . . . . . . . . . . . . . . . 45 B. The District Court's Rulings on Punitive Damages Do Not Constitute Plain Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 III. [CROSS APPEAL] THE DISTRICT COURT ABUSED ITS DISCRETION IN DENYING INJUNCTIVE RELIEF WHERE THE RECORD DEMONSTRATES THERE EXISTS A DANGER OF FUTURE TITLE VII VIOLATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . 50 B. Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). . . . . . . . . . . . . . . 50 Arculeo v. On-Site Sales & Marketing, Inc., 425 F.3d 193 (2d Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . 36, 41 Armbruster v. Quinn, 711 F.2d 1332 (6th Cir. 1983). . . . . . . . . . . . . . 39 Berkman v. City of New York, 705 F.2d 584 (2d Cir. 1983). . . . . . . . . . . 51 Brady v. Wal-Mart Stores, Inc., 531 F.3d 127 (2d Cir. 2008). . . . . . . . . 36 Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235 (2d Cir. 1995). . . . 36-37, 40 Cruz v. Local Union Number 3, 34 F.3d 1148 (2d Cir. 1994). . . . . . . . . 35 Cush-Crawford v. Adchem Corp., 271 F.3d 352 (2d Cir. 2001). . . . . . . . . 49-50 EEOC v. Ethan Allen, Inc., 44 F.3d 116 (2d Cir. 1994). . . . . . . . . . . . . 35 EEOC v. Joint Apprenticeship Committee of Joint Industry Bd, 164 F.3d 89 (2d Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . 51, 54 Fernot v. Crafts Inn, Inc., 895 F. Supp. 668 (D Vt. 1995). . . . . . . . . 40 Girden v. Sandals Int'l, 262 F.3d 195 (2d Cir. 2001). . . . . . . . . 48-49, 51 Jacques v. DiMarzio, Inc., 386 F.3d 192 (2d Cir. 2004). . . . . . . . . . . 46-47 Laurin v. Poloik, No. 02 Civ. 1938, 2004 WL 513999 (SDNY March 15, 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Local Union Number 38, Sheet Metal Workers' Intern. Ass'n, AFL- CIO v. Pelella, 350 F.3d 73 (2d Cir. 2003). . . . . . . . . . . . . . . 46, 49 Luciano v. Olsten Corp., 110 F.2d 210 (2d Cir. 1997). . . . . . . . . . . . 35 Parker v. Columbia Pictures, Indus., 204 F.3d 326 (2d Cir. 2000). . . . . . 40 Radio and Television Broadcast Technicians Local 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255 (1965). . . . . . . . . . . . . . . . . 37 United States v. City of New York, 359 F.3d 83 (2d Cir. 2004). . . . . . . . . 41 United States v. New York State Dept of Motor Vehicles, 82 F. Supp. 2d 42 (EDNY 2000). . . . . . . . . . . . . . . . . . . . . . . 40 United States v. Olano, 507 U.S. 725 (1993). . . . . . . . . . . . . . . . . . 49 FEDERAL STATUTES 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. §§ 1331, 1337, 1343. . . . . . . . . . . . . . . . . . . . . . . . 1 Fed.R.Civ.P. 50. . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Fed.R.Civ.P. 59(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Fed. R. App. P. 4(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . 2 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . . . . . . . . . 2 Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. . . . passim IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _________________________________ Nos. 06-5430 & 08-4308 ________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee-Cross-Appellant, v. EVERDRY MARKETING AND MANAGEMENT, INC., and EVERDRY MANAGEMENT SERVICES, INC., Defendants-Appellants-Cross-Appellees. ______________________________________________________ On Appeal from the United States District Court for the Western District of New York _____________________________________________________ RESPONSE BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE AND PRINCIPAL BRIEF AS CROSS-APPELLANT __________________________________________________________ JURISDICTIONAL STATEMENT This is an appeal and cross-appeal from a final judgment of the district court entered after a jury verdict in this government enforcement action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"). The district court had jurisdiction under 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. §§ 1331, 1337, 1343, and 1345. On October 27, 2006, after a three-week trial, the jury returned a verdict in favor of the plaintiff and awarded backpay and damages to 13 individual victims of discrimination. SPA 17-19, 321-23.<1> The court entered judgment on November 7, 2006. SPA 314-320. On November 10, 2006, defendants jointly filed a motion to amend the judgment by lowering the amount of damages and, on November 17, 2006, the plaintiff filed a motion to amend the judgment by increasing damages and awarding injunctive relief. SPA 20. On November 24, 2006, the defendants filed a joint notice of appeal before the district court had ruled on the post-judgment motions. Id. On May 30, 2008, the district court granted the defendants' post-judgment motion and granted EEOC's motion in part and entered an amended judgment. SPA 353-55. On August 1, 2008, defendants filed a second notice of appeal. SPA 26. On September 26, 2008, the Equal Employment Opportunity Commission (EEOC) filed a timely notice of cross-appeal. See Fed. R. App. P. 4(a)(1)(B) and 4(a)(3). This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether substantial evidence supports the jury's finding that EMM and EMS constituted a single, integrated enterprise for purposes of Title VII liability. 2. Whether EMM waived its right to challenge the sufficiency of the evidence to support an award of punitive damages, the jury instructions on punitive damages and the amount of the award by failing to raise these issues below. 3. Whether the district court's rulings relating to punitive damages constitute plain error that would result in a miscarriage of justice. 3. [Cross-Appeal] Whether the district court abused its discretion when it declined to award injunctive relief against defendants notwithstanding substantial evidence that female employees endured egregious and persistent sexual harassment and that defendants' management ignored repeated complaints. STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings This is an appeal and cross-appeal from a final judgment following a jury verdict against defendants Everdry Marketing and Management (EMM) and Everdry Management Services (EMS). EEOC commenced this enforcement action by filing a complaint on June 27, 2001, alleging that EMM and EMS violated Title VII by subjecting 13 female employees of EMS to a hostile work environment based on sex. SPA 35-40. The complaint alleges that both EMM and EMS are liable for this discrimination because they are an integrated enterprise for purposes of Title VII. Id. On February 1, 2005, the district court denied EMM's motion for summary judgment, holding, in relevant part, that "there are triable issues of fact as to whether EMM and EMS should be treated as a single employer/integrated enterprise." EEOC-SPA<2> 13-15. A jury trial commenced on October 10, 2006, and on October 19, after EEOC rested its case, both defendants orally moved for judgment as a matter of law under Federal Rules of Civil Procedure 50. SPA 276- 309. EMM's only argument was that the evidence was insufficient to support a finding that it was part of a single, integrated enterprise with EMS. SPA at 276- 300. EMS argued that there was "no proof of causation of any damage." SPA 300-09. EMS did not raise the integrated enterprise issue. Id. The district court reserved ruling on EMM's Rule 50 motion and denied EMS's motion. On October 25, 2006, after all parties had rested, the EEOC moved for judgment as a matter of law on the ground that there were no legally sufficient evidentiary bases for a reasonable jury to find that the defendants established their asserted affirmative defenses. SPA 263-75. EEOC also moved for judgment as a matter of law that EMM and EMS are an integrated enterprise. SPA 273. On the same day, both EMM and EMS orally renewed their Fed. R. Civ. P. 50 motions. SPA 314-20. The district court reserved ruling on EEOC's motion regarding the affirmative defenses, and denied EEOC's motion on integrated enterprise. The court also reserved ruling on EMM's motion on integrated enterprise. Finally, the court denied EMS's renewed Fed. R. Civ. P. 50 motion. SPA 273-75. On October 27, 2006, the jury returned a verdict in favor of EEOC, finding that the defendants comprised an integrated enterprise, that they were jointly and severally liable for the backpay and compensatory damages and that each was liable for punitive damages. SPA 321-23. After the verdict, EMM orally renewed its Fed. R. Civ. P. 50 motion on integrated enterprise and the court denied that motion. SPA 314-20. At that time, the EEOC stated it would be seeking injunctive relief. SPA at 319-20. On November 10, 2006, EMM and EMS filed a joint motion to reduce the damage awards for 4 of the claimants so that they did not exceed Title VII's $50,000 monetary cap for employers who have more than 14 but fewer than 100 employees. SPA 324-27. No other issues were raised by defendants in that motion. On November 17, 2006, the EEOC filed a motion to include pre-judgment interest on the damages awarded and, on November 30, 2006, the EEOC filed a motion to amend the judgment to add injunctive relief. SPA 20. On November 24, 2006, before the district court had ruled on these motions, EMM and EMS jointly filed a notice of appeal. Id. On March 12, 2007, the district court held an evidentiary hearing to determine the number of employees at EMM and EMS during the relevant time for purposes of determining the appropriate statutory cap on the damage awards. SPA 23. On February 19, 2008, the court issued an order provisionally granting defendants' motion to reduce the awards consistent with the statutory cap for an employer with less than 101 employees absent a submission by EEOC to the contrary. SPA 24. After reviewing EEOC's submissions, on May 30, 2008, the district court granted EMM and EMS's joint motion to reduce the awards to $50,000 for the 4 identified claimants, finding that the defendants had fewer than 101 employees. SPA 330-52. In addition, the court granted EEOC's motion for pre-judgment interest on the backpay award, denied such interest on the awards of compensatory damages and then denied EEOC's motion to enjoin EMM or EMS from future discriminatory practices. SPA 330-352. On August 1, 2008, EMM and EMS filed jointly an amended notice of appeal. SPA 356. EEOC filed a notice of cross-appeal on September 2, 2008. EEOC-SPA 1. B. Statement of Facts 1. Integrated Enterprise EMM is an Ohio corporation that developed a system for waterproofing basements, patented as "Everdry." SPA 181. EMM franchises this waterproofing system to franchisees who, in turn, market it to the public. Id. EMM executes a franchise agreement with each franchisee setting out the terms of the franchise. EMS, also an Ohio corporation, takes over troubled Everdry franchises and manages them until they can be sold to a new franchisee. EEOC-SPA 73-74; SPA 190. When EMS assumed ownership of a struggling franchise, it did not execute a franchise agreement with EMM. EEOC-SPA 278, 342. Nicholas DiCello was the sole owner of both EMM and EMS. SPA 179-80. In addition, EMM and EMS had the same corporate officers: DiCello as President and Judith Garvin as Secretary/Treasurer. SPA 179-80, 189. EMM and EMS both list their principal place of business at the same address in Ohio and no other entity is located at that address. EEOC-SPA 69-70, 286-87. EMM and EMS were both represented by Peter C. Nelson and Sanford R. Shapiro, partners in the same law firm, from at least 1999 through the middle of 2004.<3> EEOC-SPA 274-75; SPA 2- 3. Nelson represented EMM and EMS during EEOC's investigation of the charge on which this suit is based, and during the initial phases of the litigation. EEOC- SPA 274-75. In 1996, the independent owners of EMM's Rochester franchise relinquished ownership of the franchise to EMS. EEOC-SPA 73-74. EMS ran the business for eight years until August 2004, when it sold the business assets to an independent buyer. EEOC-SPA 72-74. On the same day, EMM sold an "Everdry franchise" to the buyer. Id. EMM and EMS shared a number of employees, mostly management officials. In 2000, EMM's Tim Rose became EMS's general manager, taking over the job from David Bowers. On the day of his departure, Bowers introduced Rose to EMS staff, explained that he was from "the corporate office" and was coming in as EMS's new general manager. EEOC-SPA 379. After working as EMS's general manager in 2000 and 2001, Rose returned to EMM. EEOC-SPA 295-96. EMM paid EMM employees for work performed at EMS. EEOC-SPA 21, 26-29, 362-64, 375. Garvin, listed as Treasurer for both EMM and EMS, wrote checks, signed documents and prepared payroll for EMS. EEOC-SPA 362-64. Garvin never received compensation from EMS for her services. Id. EMM paid Rose for his work as EMS's general manager. EEOC-SPA 375. Rose received a few checks from EMS but the checks came "without any explanation" and he had no "understanding why." Id. Carl Moore was an EMM employee throughout the years at issue in this lawsuit, including 1998 when he served as EMS's Vice President and was "actively participating in the running of" EMS. EEOC-SPA 21, 26-29. There is no evidence that he was ever paid by EMS for his work. During the years at issue in this lawsuit, most of EMS's managers or top officials either were listed on EMM's employee lists while working for EMS or listed on both EMM's and EMS's employee lists for the same years. In addition to EMM's Moore who was EMS's Vice President in 1998 and on EMS' employee list for that year (EEOC-SPA at 40), Bowers, EMS's general manager in Rochester from 1998 through May 2000, is listed on EMM's list of employees for 1999 and 2000. EEOC-SPA 26-28. Rose, EMS's general manager between June and December 2000 and again between April and July 2001, was listed by EMM as its employee in 2000 and 2001. EEOC-SPA 28-29, 279. Installer Jack Myers was on EMM's 2000 and 2001 employee lists, but ran EMS's construction department for three to four months sometime after July 2000 and before April 2001. EEOC-SPA 28-29, 289, 323, 326-27. Jack Jones was EMS's president in January 1998 and listed as an EMM employee throughout 1998. EEOC-SPA 24, 357-58. EMM's director of marketing, Paul Trecarichi, is listed on both EMM's and EMS's 1998 employee list (EEOC-SPA 24-25, 30-42, 359-60); EMM's head of confirmation, Caryn Thompson, is listed on both EMS's and EMM's employee lists for 1998 (EEOC-SPA 24-25, 30-42); EMM's head of telemarketing, Theresa Neitzel, is listed on both EMM's and EMS's employee lists for 1998 (EEOC-SPA 24-25, 30-42, 350); EMM's Michelle Trick, senior management in EMS's telemarketing and confirmations departments, is listed on both EMM's and EMS's employee lists for 1998, 1999 and 2000. EEOC-SPA 24-28, 30-55, 445, 448. EMM managers were heavily involved in EMS's daily operations in Rochester, routinely instructing and supervising EMS managers. EMM's director of telemarketing between 1998 and 2002, Neitzel, had "control" over EMS's telemarketing office, receiving daily updates and monitoring EMS's daily staff meetings. EEOC-SPA 335-36, 341-44, 377-78. Neitzel was a "direct supervisor" to EMS telemarketing managers David Molinaro, Stevenson and Jessica Buckner. EEOC-SPA 324, 341, 377-78, 442. After moving to EMS's confirmation department, both Molinaro and Stevenson were closely supervised by EMM's head of confirmation, Caryn Thompson. Thompson "oversaw th[e] whole" confirmation operation at EMS, closely monitored the department's performance and required EMS to submit daily progress reports. EEOC-SPA 338-40, 344-45, 433-36. During his time in confirmation, Molinaro also received detailed oversight from EMM's second in command, Trecarichi, who, along with Neitzel, instructed him on phone style, what to ask and what not to ask, and how to properly match customers and salesmen. EEOC-SPA 338-40, 430, 441. EMM's head of recruitment, Ricky Williams, supervised and received daily updates from EMS's Jessica Buckner. EEOC-SPA 940. EMM's director/manager of production between 1998 and 2002, Moore, received EMS's weekly sales volume reports (EEOC-SPA 355), and met monthly with EMS's general manager Bowers and DiCello to review EMS's monthly sales numbers and create new targets. EEOC- SPA 280-81. Both EMM and EMS officials interviewed and hired EMS employees. EMM's Rose interviewed and hired Stevenson as EMS's telemarketing manager (EEOC-SPA 1389-90); Rose also interviewed applicants for sales positions at EMS. EEOC-SPA 372, 431. EMM's director of telemarketing, Neitzel, interviewed and "gave the okay" to hire Jessica Buckner and Molinaro as telemarketing managers. EEOC-SPA 290, 293-95, 331-32. Neitzel created an entire telemarketing shift at EMS - she interviewed and hired telemarketers and eventually hired a manager to run the shift. EEOC-SPA 432-33. EMM's finance director, Sandy Speare, hired EMS's finance manager. EEOC-SPA 437. EMM was perceived by EMS employees to have the final say in hiring. For example, after EMS fired Jay Lang, Lang wrote to EMM's Trecarichi, and asked to be reinstated as EMS's telemarketing manager. EEOC-SPA 276-77. At times EMM barred EMS from hiring without EMM's pre-approval. EMS's Molinaro was expressly prohibited from hiring anyone without following EMM's hiring procedures and obtaining EMM's Neitzel's approval. EEOC-SPA 345-47. EMM trained EMS general managers and staff in all aspects of the business. EEOC-SPA 282. For example, EMM's Neitzel was directly responsible for making sure that EMS's Jessica Buckner and Stevenson were properly trained as telemarketing managers. EEOC-SPA 293-95, 324, 432. EMM's director of recruiting, Williams, trained both Jessica Buckner and Stevenson when they were assigned recruiting responsibilities. EEOC-SPA 297, 439-40. EMM's Trecarichi and Thompson trained EMS's Molinaro, Stevenson and Jack Sharpe in confirmations. EEOC-SPA 333-35, 337-40, 351, 433-36. After being selected to become EMS's general manager, Sharpe was trained on his duties by EMM's Rose. EEOC-SPA 335, 372. Rose also trained EMS salesmen. EEOC-SPA 431. EMM's head of finance, Speare, trained EMS's finance manager. EEOC-SPA 437. EMM managers promoted EMS employees, approved their pay raises and transfers and made decisions about discipline. EEOC-SPA 375-76, 431. EMM's Neitzel promoted EMS's Stevenson and gave her a pay raise. EEOC-SPA 380-81, 432. Later EMM's Rose offered Stevenson a position in confirmation. EEOC- SPA 382. EMM's Rose and Trecarichi transferred EMS's Molinaro to telemarketing. EEOC-SPA 348-49. EMM's Thompson instructed EMS's Molinaro which salesmen should be given awards and which should be disciplined based on their sales performance. EEOC-SPA 339. Finally, EMM's Trecarichi gave final approval in 1999 for a routine salary increase for EMS's Molinaro. EEOC-SPA 22. EMM management was involved in firing EMS employees. EMM's Trecarichi and Thompson decided whom to fire in EMS's confirmation department. EEOC-SPA 335, 339-40, 441. EMM's Rose fired EMS's Stevenson. EEOC-SPA 426-28, 443. EMM's head of finance, Speare, fired an EMS finance employee. EEOC-SPA 437. EMM's Trecarichi created a downsizing plan for EMS. Trecarichi instructed EMS employees in the roles they would play. EEOC-SPA 348-49, 430. In connection with the downsizing, Trecarichi fired numerous EMS employees, decided whom to retain and moved employees around. EEOC-SPA 349-49, 440- 41. EMM managers created and implemented EMS's personnel policies. EMM's Carl Moore was "instrumental" in shaping EMS's harassment policy, initially revising it in 2000 through 2001 and finalizing a more formal policy in 2002. EEOC-SPA 362-62(a). The policy lists as a point of contact for EMS employees who want to report harassment "Corporate Human Resources in Macedonia, Ohio" and gives EMM's telephone number. EEOC-SPA 328-30. EMM's Trecarichi investigated one complaint alleging sexual harassment by an EMS supervisor at EMS. EEOC-SPA 276-77. EMM also created managerial tests for EMS. EMM administered the tests and required that they be successfully completed before EMM permitted promotion to EMS management. EEOC-SPA 237-39, 345-47. In addition, EMM administered certain benefits for EMS such as COBRA. EEOC-SPA 23, 365-66. Garvin transferred money between EMM and EMS. EEOC-SPA 367-68. Garvin wrote checks, signed documents and prepared payroll for EMS. Id. EMM's head of payroll, Gay Shrom, routinely received payroll information from EMS's Buckner and Stevenson. EEOC-SPA 204, 292, 325, 377-78, 437-38. EMM's head of finance, Speare, often requested EMS documents and closely monitored EMS's finances. EEOC-SPA 436-37. For example, Stevenson faxed to Speare IRS W-4 forms completed by EMS's newly hired employees. EEOC-SPA 438-39. Speare trained EMS at least one finance manager and reviewed EMS's financial documents. EEOC-SPA 436-37. EMM's relationship with franchises was distinctly different from its relationship with EMS. While EMM employees trained EMS staff in all aspects of the business, when it came to franchises, EMM interacted only with franchise owners. Compare EEOC-SPA 293-95, 297-297a, 333-35, 351, 432-36 with EEOC-SPA 282. Once the franchise owner was trained, the owner was then solely responsible for training its employees. EEOC-SPA 282. After this initial training of owners, EMM went to the franchises "once a year per franchise" to inspect the work. EMM's other contacts with franchises were limited to when franchise owners attended its seminars or workshops, or when the owners solicited EMM's assistance or guidance. EEOC-SPA 283-85. EMM did not train any franchise staff. Id. Unlike its relationship with EMS where it shared managerial employees, there is no evidence that EMM shared employees with any franchisee. Other than Rose's training of some franchisee salesmen,<4> there is no evidence that EMM's managers had any interaction with franchisee personnel. EEOC-SPA 372-73. There is no evidence that any EMM employee was on the employee list of any franchise. Although there is evidence that EMM management personnel received daily updates, and closely supervised EMS's personnel in telemarketing, confirmation, recruitment and sales, there is no evidence that EMM was involved in any similar way with the running of comparable departments in any of the various franchises. Neither EMM nor EMS presented evidence that any of EMM's employees were involved, on any level, in any franchisee's interviewing, hiring, promoting, pay raises, transfers, discipline or termination of employees. Similarly, there is no evidence that EMM orchestrated any franchisee's employment practices such as reductions in force or reorganizations. And there is no evidence that EMM created, implemented or was involved in any way in the personnel policies, employment agreements, payroll issues or the financial management of any franchisee. 2. Sexual Harassment Between 1998 and 2002, female employees at EMS's Rochester operation, who were mostly high school students between the 16-years old and older, were subjected to daily, incessant physical and verbal sexual harassment. EEOC-SPA 190-91, 207-08, 214. A sexually hostile work environment created mostly by immediate supervisors and upper level management, existed in virtually every department at EMS: telemarketing, confirmation, construction/production and sales. Jay Lang was EMS's telemarketing manager for the afternoon shift. After being terminated for sexual harassment in the telemarketing room, he was hired as an EMS salesman's driver and, in that role, he returned to the telemarketing room and continued to harass the young female telemarketers. EEOC-SPA 166, 208-09, 222-23, 418-21. Lang routinely spoke about women's body parts, his body parts and sexual acts he wanted to perform on the telemarketers. For example, he commented daily on 17-year-old Stephanie DiStasio's breasts, calling them "tits," said she had a nice "bush," said multiple times to her, and to teenagers Danielle Doty and Anna Pompakidis that he wanted to "fuck the shit out of" them, asked to take DiStasio into the back room for a "quickie," and said he wanted DiStasio to "sit on his face." EEOC-SPA 133, 143, 165, 261, 422-26. He spoke about the size of his penis and feigned ejaculating in front of Nancy Hoffmeier and the entire telemarketing room. EEOC-SPA 252-53. Lill Cociliva heard Lang make "continuous sexual comments" to the teenage telemarketers when he was their supervisor, and Anna Stevenson heard Lang make the same non-stop comments when he returned to EMS after being fired for sexual harassment, including "sit on my face," "eat me," and come kiss "kermie or hermie," as he sat at the front of the telemarketing room, touching his genitals. EEOC-SPA 165, 191-95, 198, 420-21. Lang made "a lot of degrading jokes about females in general," to telemarketer subordinates including: Catherine Clauss (EEOC-SPA 208-11, 214- 15), Nina Stanoevski (EEOC-SPA 371), Joelle Loiacano (EEOC-SPA 369), Sarah Docks (EEOC-SPA 420-21), Hoffmeier (EEOC-SPA 253-54), Meghan Power (EEOC-SPA 272), Doty (EEOC-SPA 261-64), Kyley O'Brien (EEOC-SPA 219, 223-24), Lorraine Backus (EEOC-SPA 222), and Jennifer Zazzaro (EEOC-SPA 175-77, 185-88). Lang also made sexual gestures or drew graphically explicit pictures of sexual acts on the white board in the front of the telemarketing room. EEOC-SPA 186-87, 222-23, 271. Telemarketer Doty watched as, behind the backs of other telemarketers, Lang stuck his tongue out like he was licking them as they walked by, made a "jerking off motion," a motion feigning oral sex or "humping." EEOC-SPA 263-64. Lang touched and grabbed his subordinates constantly, pinching or hitting their bottoms as they walked by. EEOC-SPA 165. He flashed money at 16-year- old telemarketer Docks and said he would pay her to take off her shirt. PA 177-84, 265-66. And, on her first day on her first job, Lang told another 16-year-old telemarketer, Zazzaro, that if she would let him suck her toes, he would let the entire shift off early. He grabbed her foot and sucked her toes. EEOC-SPA 177- 84, 562. He put his hand down or lifted up the shirts of Cociliva, DiStasio, and Stanoevski, and commented on their bras or breasts, causing at least DiStasio to cry. EEOC-SPA 142-43, 193-94, 198-99. He grabbed teenager Loiacano's breast inside her shirt and tried to put his hands down her pants. EEOC-SPA 369-70. He slapped the bottom of virtually all the female telemarketers as they walked by, including Cociliva and Doty (EEOC-SPA 165-66, 173-74, 194-96), he snapped the bra straps of the telemarketers daily as he walked up and down the aisle (EEOC- SPA 271-72), and he tried to get male co-workers to look down Clauss's pants to see her underwear (EEOC-SPA 209-10, 212). When he was told to stop, he typically laughed and continued. EEOC-SPA 173, 211, 420. David Molinaro, a telemarketing manager and later head of the confirmation department, also sexually harassed young female employees between 1999 and 2001. Molinaro's physical and verbal harassment was daily. Molinaro assaulted his subordinate, assistant telemarketing manager Nancy Hoffmeier, between shifts when no one was around. EEOC-SPA 237-38. Molinaro twice came up from behind her and rubbed his penis against her. EEOC-SPA 240-42. At other times, Molinaro grabbed Hoffmeier, turned his chair to face hers and then rubbed her thighs. Id. Molinaro frequently rubbed Stevenson's and Jessica Buckner's thighs, shoulders and backs, and hit them on their bottoms. EEOC-SPA 228-29, 298, 309- 11, 319. Molinaro also grabbed one of the teenage telemarketers, Michelle Acito, and wrestled with her trying to unzip her jacket. EEOC-SPA 243-44. Molinaro, along with either general manager David Bowers or assistant telemarketing manager Brad Shean, frequently commented in graphic detail on the shapes, sizes and relative attractiveness of the body parts of the female telemarketers and managers, sometimes in front of the telemarketers, including Hoffmeier and Doty, and sometimes behind their backs. EEOC-SPA 249-51, 255. Molinaro also repeatedly told Stevenson that he wanted to have sex with some of the youngest telemarketers, such as Krystal Handy, Docks, Acito, and Jessica Bruckner. EEOC-SPA 388-95. Molinaro's sexually explicit comments grew more severe when the women were alone. For example, in addition to constantly speaking about her appearance and asking her on dates, Molinaro told Jessica Buckner he would sell more of her leads to ensure she would get a bonus check if she had sex with him. EEOC-SPA 298, 312-13. Molinaro approached 16 year-old Melanie Buckner on her first day at work, glared at her breasts and commented on their size and stopped only after he was warned by Melanie's older sister Jessica. EEOC-SPA 226-27. On several occasions, Molinaro instructed Stevenson to lean over to get something rather than handing it to her and, when she did so, he tried to look down her top and said something like "your tits look good," or "I like that bra." EEOC-SPA 227-28. When 16 year-old Docks walked by, Molinaro sniffed the air and told her he could smell her period, causing her to go back to her desk and put her head down. EEOC-SPA 228a. He routinely discussed, in sexual terms, the bodies of Stevenson, Buckner, Hoffmeier, Acito, Doty, Docks, and Handy. EEOC-SPA 227- 231, 243-48, 298-310, 385-94. Molinaro also witnessed his subordinates being harassed and took no action. For example, although he was sitting approximately three feet away, Molinaro said nothing as his assistant telemarketing manager Shean grabbed and stroked Hoffmeier's thigh over her objections. EEOC-SPA 250-51. The harassment extended beyond the telemarketing room, infiltrating virtually the entire business. In the production department, pictures of naked or scantily dressed women were on the walls and pornographic magazines were in the bathroom. EEOC-SPA 424-25. In construction, workers called out to Acito, a teenager, calling her "cunt" and "bitch," reducing her to tears. EEOC-SPA 320-21. In sales and production, the men walked out of their departments and around the building talking about sex and sexually harassing employees. EEOC-SPA 232-33. Women from telemarketing, including Acito, Stevenson, Jessica Buckner and Melanie Buckner, would go to the break area for a cigarette and "within a minute" men approached talking about sex. EEOC-SPA 152-53, 234-35. Others from sales and production walked down EMS's hallways, brazenly talking about sex. EEOC-SPA 232-33. They spoke about the "sex that they had with their wife, their girlfriend, the girl they met at the bar, sometimes even prostitutes that they had sex with. And they would talk about positions." Id. In addition, "[t]hey would walk into the telemarketing room and continue these conversations. Other times they would . . . ask [telemarketers] what positions they liked . . . , things like do you suck dick, would you suck mine . . . [y]ou look really good in that shirt . . . it makes your boobs look bigger." Id. Salesmen Gene Ake and Joe Dentino verbally and physically harassed women generally, and targeted some specifically. Ake, a top performing salesman, was known by EMS's general manager Bowers as someone who routinely spoke in a sexually graphic and aggressive manner. EEOC-SPA 151, 217-18. Ake spoke to the telemarketers about his sexual conquests and exploits. EEOC-SPA 164. He joined Lang often in the telemarketing room, laughing along with him as he verbally dissected the telemarketers' bodies and offered a 16-year-old money to take off her shirt. EEOC-SPA 418-22. Ake targeted Stevenson and Backus. Ake routinely kissed, grabbed, slapped, put his arms around, and rubbed up against Stevenson. EEOC-SPA 400- 06. He rarely walked by her without grabbing her, trying to kiss her, or saying something about how she looked. EEOC-SPA 400-01, 403. Ake told Stevenson about his sexual exploits and went into great detail about the different sex acts he and Lang performed with a prostitute. EEOC-SPA 407. Ake's harassment of Backus extended off-premises to her home. Ake got Backus's unlisted telephone number and address from her supervisor, Jay Lang. 153-54. Ake showed up at Backus's house ostensibly to discuss business, entered her living room, disrobed to his underwear, grabbed his genitals and asked Backus "when was the last time [she] had any." EEOC-SPA 153-61. Salesman Dentino repeatedly sexually harassed Stevenson. Dentino routinely spoke obscenely towards her, grabbed her, slapped her bottom, tried to kiss her, asked her about her sexual relations with her husband, and talked about his sexual prowess. EEOC-SPA 408-12. When Stevenson was pregnant, Dentino put his hand very low on her stomach, saying he wanted to rub where the baby comes out. Id. EMS general managers also engaged in sexually offensive behavior. When Hoffmeier told general manager Bowers she had identified telemarketing applicants she wanted to hire, he asked, "[W]ell, are they good looking? If they're not, I don't want them here." EEOC-SPA 258-59. Bowers also instructed Hoffmeier not to fire an employee because she was "hot." EEOC-SPA 260. Bowers orchestrated nightly meetings with Molinaro and Hoffmeier for telemarketing purposes and, during those meetings, Bowers and Molinaro described the young telemarketers in sexually explicit terms, such as "how Amy's ass looked in white pants . . . or how Tatiana was the hugest girl in there with the smallest waist." EEOC-SPA 255. On a weekly basis Bowers called DiStasio into his office as soon as she entered the building and asked her to "do a little spin so he can see what [she] was wearing today and check [her] out." EEOC-SPA 140. On one occasion, Bowers, while meeting with two male sales representatives, called DiStasio into his office and said, "let's see what you're wearing today . . . . [I]f we give you $200, will you get up on the table and do a little dance for us?" EEOC-SPA 20, 140-41. At least three to four times, DiStasio left meetings with Bowers in tears. EEOC-SPA 256. In August 1999, during a meeting headed by Bowers and attended by EMS's sales department employees and others, a stripper entered and performed, disrobing for 15-20 minutes. EEOC-SPA 353. The stripper was hired by EMS's finance manager and paid for by "all the managers for all the departments." EEOC-SPA 167-68, 352-54. Both EMS general managers Tim Rose and Jack Sharpe spoke to female subordinates about their bodies and the bodies of other women and discussed their sex life with their spouses and others. EEOC-SPA 413-15, 422-24. Rose told Stevenson, who was pregnant, that he was going to send her home if she wore maternity clothes because then she "would not be office eye candy anymore." EEOC-SPA 423-24. Sharpe spoke to Stevenson repeatedly about her appearance and the bodies of the other telemarketers. EEOC-SPA 413-17. Sharpe also asked Stevenson questions about her sex life, talked about his sex life, and told her that he had sex in Bowers's office and it was videotaped. Id. Female employees were told they were denied promotions because they were women. Rose told Stevenson that she was rejected for a promotion in favor of Molinaro because she was a woman, stating, "It's the way it is in the workplace. I'm glad I'm not a woman so I don't have to deal with it." EEOC-SPA 383-84. Rose also told her that she was being fired for "making waves" and raising too many complaints. EEOC-SPA 427-28. A sales manager named Scott told Jessica Buckner that "the reason there are no female salesman is because [they] can't do it as well as the males can; and that women should be home in the kitchen, barefoot and pregnant." EEOC-SPA 322-23 972-73. When Backus asked if she could work in sales, Bowers scoffed and said that the head of EMM directed him not to hire women in sales. EEOC-SPA 169. Throughout these years, the victims of the offensive conduct frequently complained to EMM and EMS management, but the harassment continued unabated. See e.g. EEOC-SPA 139-41, 161a-164, 399-400. As noted above, the three general managers of EMS during the relevant time, Bowers, Rose and Sharpe, all sexually harassed subordinates and the subordinates, either at the time or later, objected directly to them about their treatment. EEOC-SPA 140, 257, 422-24. In addition, many of these same employees went to these general managers complaining about the harassment committed by others. Between 1998 and 2000, Bowers received a number of these complaints. EEOC-SPA 279. DiStasio complained to Bowers about Lang's daily verbal and physical harassment approximately four to five months after she began working. EEOC-SPA 138. Bowers responded, "Stephanie, look at Jay, he can't do anything else, you're going to have to deal with it." EEOC-SPA 139. When Bowers received complaints from Hoffmeier on at least three different occasions that she was tired of being sexually harassed by Molinaro and Shean, Bowers "giggled," and said "well, maybe are you taking it the wrong way?" EEOC-SPA 256-57. When she insisted she was not, he stated he would "take care of it," but the harassment continued. EEOC-SPA 257-58. Sometime between mid-1998 and April 1999, Cocilova wrote a letter to Bowers, detailing Lang's harassment in the telemarketing room. EEOC-SPA 203. Cocilova put the letter in Bowers's office mailbox. Id. Also around that time, Cocilova wrote a letter to Gay Shrom, EMM's head of payroll, stating she was sexually harassed by Lang. EEOC-SPA 204. In July 1999, DiStasio wrote a letter to Bowers with copies to "Jack Jones/Corporate Management" and the EEOC stating that she was "forced to resign" because of ongoing sexual harassment from her "immediate supervisor" and her "general manager," EEOC-SPA 19. That same day DiStasio followed up a phone conversation with EMM's Jones with a letter to him, detailing specific instances of physical and verbal harassment from supervisor Lang and general manager Bowers. EEOC-SPA 20, 148-49. EMS telemarketer Doty also wrote a letter in July 1999 to EMM's Jones, detailing her eye-witness account of DiStasio being sexually harassed. EEOC-SPA 268-69. Except for Jones's initial request to DiStasio for specifics, no one from EMM or EMS responded to any of these letters. EEOC-SPA 145-46, 193-204, 269. As EMS's general manager from June 2000 through December 2000 and again from April 2001 to July 2001, Rose received sexual harassment complaints from telemarketers. EEOC-SPA 279. For example, after working at EMS for approximately two months, Jessica Buckner complained to Rose that Molinaro repeatedly slapped her bottom, requested dates and propositioned her for sex. EEOC-SPA 310-13. Rose said he would take care of it. EEOC-SPA 313-14. After a two-week period during which Molinaro exhibited anger towards Buckner, Molinaro's harassment resumed. EEOC-SPA 314. When Stevenson complained to Rose about Molinaro's daily sexually inappropriate remarks, his hitting, grabbing, looking down her shirt, and other unwanted touchings, Rose laughed and told her "that was Dave and I should get used to it; that was Dave's personality." EEOC-SPA 385-95. Rose and Sharpe (then working as head confirmer) witnessed Molinaro harass Stevenson. EEOC-SPA 395. Both Rose and Sharpe laughed and Sharpe responded to Stevenson's complaints by saying "that's just Dave." EEOC- SPA 395-96. When Sharpe left the confirmations department to be trained as general manager and Molinaro replaced him as head of confirmations, Stevenson complained to Sharpe about worsening harassment from Molinaro. EEOC-SPA 396-97. Sharpe laughed and said "that was part of Dave's personality. Get used to it, don't make waves . . . Dave's not somebody you want to make waves about. People like Dave. He's on his way up." Id. As EMS's general manager in 2001, Sharpe received complaints about Molinaro's harassment from Jessica Buckner. EEOC-SPA 316. Sharpe shrugged it off, telling Buckner "its only Dave, its just Dave." EEOC-SPA 314-16. Molinaro's conduct remained unchanged. EEOC- SPA 317. And when Buckner complained to Sharpe about Ake's incessant grabbing, hitting, kissing and hugging, Sharpe "shrugged it off," and Ake's harassment continued. EEOC-SPA 317-18. EMM's Michelle Trick supervised EMS's morning shift in telemarketing. EEOC-SPA 199. Trick's responsibilities included reporting to "David Bowers and corporate" if she ever received a sexual harassment complaint. EEOC-SPA 445. Trick received complaints about Lang when Lang was supervising EMS's afternoon shift. EEOC-SPA 199-200. Telemarketer Cocilova complained to her about Lang, asking Trick if she could work for her during the morning shift because of Lang's "inappropriate behavior." Id. And when Backus told Trick about Ake's intrusion into her house, Trick instructed her not to tell general manager Bowers because she would take care of it. EEOC-SPA 161-62. Several young telemarketers, including Zazzaro, Ashley Houghton, Clauss and O'Brien, did not know to whom to complain because the only management personnel they knew were the men who harassed them. EEOC-SPA 174, 188, 214a, 225. Others such as Doty said it would be "pointless" to complain because the general manager was in the room when the harassment occurred and did nothing. EEOC-SPA 267-68. In addition to failing to take complaints seriously, management warned employees not to complain. After Stevenson made numerous detailed complaints to Rose about harassment from Molinaro, Rose cautioned "you don't want to make waves, [sic] you'll lose your job." EEOC-SPA 398-99. Further, both Sharpe and Rose expressly directed Stevenson not to tell the salesmen to stop speaking to her in sexually demeaning language or to object in any way to their sexually offensive touching. EEOC-SPA 401-08. Both Sharpe and Rose "instructed" Stevenson "not to respond to salesmen if they . . . touched me, if they did anything . . . . I wasn't allowed to say anything to them." EEOC- SPA 401-02. According to Rose and Sharpe, it was Stevenson's "job to keep them happy," and objecting to their verbal and physical harassment "was not part of the job." Id. Sharpe once called Stevenson into his office to reprimand her for resisting Ake's advances, saying she was lucky that Ake went to his appointment. EEOC-SPA 406. Stevenson continued to complain. She complained to Molinaro about five or six times, going into detail about what Ake had been doing, and told him she was instructed not to do anything to stop it. EEOC-SPA 407-08. Stevenson also went to Sharpe again. She said that, while she understood that Sharpe wanted her to give salesmen virtually free reign to act as they please, Dentino had "gone too far. He literally did touch where the baby comes out." EEOC-SPA 411-12. Sharpe "brushed [her] off." EEOC-SPA 412. There was no change in Dentino's behavior. Id. After learning about DiStasio's July 1999 letters alleging Lang and Bowers sexually harassed her, DiCello eventually told Bowers to investigate the allegations against Lang. EEOC-SPA 214c-214d. Neither DiCello nor anyone else at EMM or EMS ever said anything to Bowers about the allegations against him. EEOC- SPA 451. Bowers eventually interviewed managers about DiStasio's complaints but neither he nor anyone from EMM or EMS ever contacted DiStasio or Cociliva before, during or after the investigation. EEOC-SPA 146, 203-04, 214c-214d. Bowers concluded that Lang "did do what this young lady said he did." EEOC- SPA 214d. Lang was fired in July 1999 for sexual harassment. EEOC-SPA 214d, 449. After EMS fired Lang, Lang wrote a letter to EMM's Trecarichi, requesting his EMS job back. EEOC-SPA 276. Trecarichi conducted a subsequent investigation, and, shortly thereafter, Lang was hired as Ake's driver. EEOC-SPA 276-77, 418. During his employment as Ake's driver, Lang returned to the telemarketing room to verbally harass the teenage telemarketers. EEOC-SPA 418- 23. EMS had an employee handbook with a sexual harassment policy. Bowers, as the general manager, and DiCello, as the owner, were responsible for implementing EMS's policy. EEOC-SPA 355-56, 362-62a. EMM's Carl Moore who was "instrumental" in revising EMS's harassment policy stated the only training he received was from the information he gathered as he was working on the policies. EEOC-SPA 356. Although charged with implementing the policy, Bowers received no training on any equal employment laws, including laws regarding sexual harassment, either from EMM or EMS, nor did he make any efforts to procure such training for EMS staff. EEOC-SPA 214b-214c. No one at EMS received sexual harassment training. EEOC-SPA 131, 170, 206, 214(b)-214(c), 288, 355-56. No one received a copy of an employee handbook or a copy of the sexual harassment policy for them to retain. E.g., EEOC-SPA 132, 151, 188, 189-90, 205-06, 220-221, 236, 270. After working at EMS for 3-4 months, Rose told Jessica Buckner to sign a sexual harassment policy and, after she signed it, Rose took it away. EEOC-SPA 291. Rose did not return a copy of the policy to Buckner. Id. That was the only time she ever saw the policy. Id. C. District Court Decision and Order On May 30, 2008, the district court granted EMM and EMS's joint Fed. R. Civ. P. 59(e) motion, and reduced the awards of four claimants to $50,000 based on Title VII's statutory cap. The court found that the evidence failed to establish that the defendants had more than 100 employees during the time relevant to this lawsuit. SPA 333-42. The court also granted EEOC's Fed. R. Civ. P. 59(e) motion for pre-judgment interest on the backpay award but denied it as to compensatory damages, holding that it was "unnecessary" to make claimants whole. SPA 342-446. Finally, the court denied EEOC's motion to enjoin EMM and EMS from engaging in future violations of Title VII. SPA 351-52. The court stated, "[b]ased upon the trial record, I would easily conclude that injunctive relief against EMS is appropriate if EMS were still operating the Everdry franchise in Rochester." SPA 347. However, EMS could not be enjoined because it "no longer operates" the business and thus there is no possibility of recurrence. SPA 346-49. The court denied an injunction against EMM, stating that EMS employees were not harassed at EMM's Ohio office and EMM employees were not harassed. The court also stated that none of the claimants still works for EMM or the Rochester franchise and none of the harassers continue to work at the Rochester location. SPA 350-51. Based on these facts, the court denied the injunction against EMM, concluding that "the likelihood of future violations [in Rochester] is remote." SPA at 351. SUMMARY OF ARGUMENT The district court correctly denied judgment as a matter of law on EEOC's claim that EMM and EMS violated Title VII by subjecting 13 female employees to a hostile work environment because of their sex. Viewed most favorably to the EEOC, as required on appeal from a jury verdict, the evidence at trial demonstrated that, although they are superficially distinct, EMM and EMS constituted a single integrated enterprise under the four-prong test this Court applies in Title VII cases. EMM and EMS had the same owners, the same officers and the same management officials. Between 1998 and 2002, EMM managers headed the departments in which all the claimants worked, "control[ling]" telemarketing, confirmation and recruitment. EMM shared its management employees with EMS, including those working as EMS's general managers. Three of EMS's top officials were paid by EMM. EMM performed EMS's administrative functions, such as payroll, oversaw and directed EMS's finances, bookkeeping and record keeping. EMM interviewed, hired, trained, promoted, approved pay raises and discipline, transferred and fired EMS employees. EMM implemented personnel policies and practices, including EMS's sexual harassment policy. All of this evidence is sufficient to support the jury's verdict. EMM waived the remaining arguments it raises on appeal. EMM raised two narrow objections below - one pertaining to the sufficiency of the evidence on the integrated enterprise issue and the other pertaining to the number of employees for purposes of Title VII's statutory cap on damages. At no time did EMM ever challenge the sufficiency of the evidence supporting the punitive damage award, the jury instructions or whether the awards were excessive. Moreover, even if this Court reviewed for manifest injustice, EMM presents no evidence to demonstrate that upholding the award would be grossly unjust where the evidence demonstrated that EMM management officials sexually harassed EMS employees and, despite complaint after complaint to EMM management, including EMM's owner, the harassment continued unabated. The only direct action EMM took throughout the four-year period was to remove temporarily one of the harassers, an EMS employee, only to let him return to the premises a short time later and resume the harassment. Similarly, the district court did not plainly err in charging the jury on punitive damages by specifying the correct legal standard and making it clear that each defendant's actions should be assessed separately. And, EMM fails to point to any evidence to suggest that a punitive damage award of $16,000 per claimant is excessive, particularly in light of the egregious and ongoing harassment and EMM's utter indifference to the repeated complaints. Injunctive relief is mandatory when a violation of Title VII is found unless the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated. In denying injunctive relief against EMM, the district court overlooked key evidence and ignored the significance of the jury's finding that EMM and EMS constituted a single enterprise. As a single enterprise, EMM is liable for EMS's harassment because they are legally one entity. Moreover, even looking at the acts EMM personnel committed, the court ignored the jury's finding that EMM management sexually harassed EMS subordinates and turned a deaf ear to incidents of sexual harassment brought to the attention of EMM management. Given this record, where egregious, non-stop sexual harassment was compounded by EMM's profound indifference to it, the district court abused its discretion when it found that EMM met its burden of demonstrating that there was no likelihood that these Title VII violations would recur. ARGUMENT I. SUBSTANTIAL EVIDENCE SUPPORTS THE JURY'S FINDING THAT EMM AND EMS CONSTITUTED A SINGLE INTEGRATED ENTERPRISE A. Standard of Review 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. JMOL should be granted only if the court concludes that, with credibility assessments made against the moving party and all inferences drawn against the moving party, "a reasonable juror would have been compelled to accept the view of the moving party." EEOC v. Ethan Allen, Inc., 44 F.3d 116, 119 (2d Cir. 1994) (emphasis added) (internal citation omitted). Thus, EMM and EMS are not entitled to prevail in seeking judgment as a matter of law unless "there exists 'such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture,' or the evidence in favor of the moving party is so overwhelming 'that reasonable and fair minded [persons] could not arrive at a verdict against [it].'" Luciano v. Olsten Corp., 110 F.2d 210, 214 (2d Cir. 1997) (quoting Cruz v. Local Union No. 3, 34 F.3d 1148, 1154 (2d Cir. 1994)). This Court "reviews de novo a district court's denial of a motion for judgment as a matter of law," and "must give deference to all credibility determinations and reasonable inferences of the jury, and may not weigh the credibility of witnesses or otherwise consider the weight of the evidence." Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir. 2008) (citations omitted). B. Argument "A single employer situation exists where two nominally separate entities are actually part of a single integrated enterprise." Arculeo v. On-Site Sales & Marketing, Inc., 425 F.3d 193, 198 (2d Cir. 2005) (internal citations omitted). "In such circumstances, of which examples may be parent and wholly-owned subsidiary corporations, or separate corporations under common ownership and management, the nominally distinct entities can be deemed to constitute a single enterprise." Id. (citing Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir. 1995) (emphasis added)). Further, "in appropriate circumstances, an employee, which is deemed to be part of a larger "single-employer" entity, may impose liability for certain violations of employment law not only on the nominal employer but also on another entity comprising part of the single integrated enterprise." Arculeo, 425 F.3d at 198 (citing Cook, 69 F.3d at 1240-41); see EEOC Compliance Manual § 2-III(B)(1)(A)(iii)(a) ("The separate entities that form an integrated enterprise are treated as a single employer for purposes of both coverage and liability."). In Cook, this Court held that to determine whether nominally separate entities should be treated as a single employer, a court should consider four factors: 1) interrelation of operations; 2) centralized control of labor relations; 3) common management; and 4) common ownership. Cook, 69 F.3d at 1240; see also Radio and Television Broadcast Technicians Local 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256 (1965) (establishing same four part test under NLRA). This Court, like most courts of appeals, applies this test with an emphasis on "centralized control of labor relations" as the most important factor. Cook, 69 F.3d at 1240 (internal citations omitted). In the end, the degree of control one company has over the other is critical. Id. Applying this four-prong test, the record is sufficient for a jury to find that EMM and EMS constitute a single, integrated enterprise. As detailed supra, at 6- 15, there is ample evidence that the operations of EMS and EMM were extensively interrelated. EMM managers were deeply involved in EMS's daily operations, routinely instructing and supervising EMS employees in production, recruitment, distribution, sales and marketing. Both EMS's telemarketing and confirmation departments, the two areas in which the claimants worked, were "controlled" by EMM directors Theresa Neitzel and Caryn Thompson respectively. See supra at 9- 10. Further, EMM and EMS shared many employees all the way up EMS's chain of command, including EMS general managers; EMM maintained EMS's payroll and oversaw its finances, reviewing and directing EMS in its bookkeeping and recordkeeping practices. There is also extensive evidence that EMM had substantial control over EMS's labor relations. See supra, at 9-13. The centralized control of human resources and personnel policies was evident in virtually every EMS department. EMM management interviewed, hired, trained, promoted, approved pay raises and discipline, transferred, and fired. EMM's second in command, Trecarichi, developed and then implemented a reduction in force at EMS, instructing EMS employees on what to do. In addition, Trecarichi personally fired, retained and transferred EMS employees. EMM created and implemented personnel policies, including EMS's sexual harassment policy, and performed administrative functions for EMS. Furthermore, it is undisputed that the defendants were under common management and common ownership. EMM and EMS each had the same officers, they shared the same corporate address, and they were both solely owned by the same individual, Nicholas DiCello. Thus, examining the four factors together, the district court correctly concluded that substantial evidence supports the jury's finding that EMM and EMS constituted an integrated enterprise. The two entities were highly integrated with respect to ownership and operations. The evidence demonstrated a top-down control by EMM over EMS's employment decisions. In short, EMM and EMS functioned under anything but an arm's length relationship. Armbruster v. Quinn, 711 F.2d 1332, 1338-39 (6th Cir. 1983) (describing policy behind single employer doctrine as "the fairness of imposing liability for labor infractions where two nominally independent entities do not act under an arm's length relationship"). In their joint brief, EMM and EMS simply ignore most of the evidence of EMM's involvement in most, if not all, facets of EMS's operations. They then advance three arguments in an effort to discount the probative value of the evidence they acknowledge. First, although the defendants correctly set forth the four-part test for integrated enterprise, they immediately deviate from it. The defendants initially argue that there is no legally sufficient evidentiary basis to support a reasonable jury's finding that they comprise a single, integrated enterprise because EMM and EMS do not have a parent/subsidiary relationship. Ds' br. at 15-18. The defendants identify no legal authority to suggest that the presence or absence of a parent/subsidiary relationship has any bearing on the integrated enterprise analysis. That is because there is none. EMM and EMS simply ignore this Court's authority that makes clear that whether two entities constitute a single, integrated enterprise is not label- dependent. This Court has expressly stated that the integrated enterprise doctrine is not limited to parent/subsidiary relationships. Rather, this Court has stated, "separate corporations under common ownership and management" may properly be treated as a single employer under Title VII if they are sufficiently interrelated. Arculeo, 425 F.3d at 198. Defendants attempt to support their argument by citing to cases where a parent and subsidiary were found to constitute an integrated enterprise. Ds' br. at 16-18. However, none of these decisions holds that a parent/subsidiary relationship is necessary to find an integrated enterprise. See Parker v. Columbia Pictures, Indus., 204 F.3d 326 (2d Cir. 2000) (Court examines whether subsidiaries constitute single integrated enterprise, examining facts under Cook's four-part test) (ADA); Laurin v. Poloik, No. 02 Civ. 1938, 2004 WL 513999, at *6, *8 (SDNY Mar. 15, 2004) (court examines "interrelatedness" to determine whether sole proprietorship and corporation constitute a single integrated employer) (ADEA). In fact, the only cases the defendants cite that discuss this question hold, as defendants recognize, that a parent/subsidiary relationship is not required. Ds' br. at 16-18; United States v. N.Y. State Dep't of Motor Vehicles, 82 F. Supp. 2d 42, 53 n.8 (EDNY 2000) (single employer doctrine "is not limited to the technical relation of parent to subsidiary corporation") (internal citation omitted); Fernot v. Crafts Inn, Inc., 895 F. Supp. 668, 686 (D.Vt. 1995) ("The single employer doctrine is not limited to parent-subsidiary relationships.") (internal citation omitted). Thus, defendants' assertion that "a parent-subsidiary relationship is necessary to construe two separate entities as a single employer" has no legal support and is contrary to the law of this Court. Ds' br. at 15. Next, defendants cite a series of cases not dealing with the integrated enterprise issue but rather answering a decidedly different question. Ds' br. at 22- 23, 30. The issue in those cases was under what circumstances an individual employed by one entity could be considered to be an employee of another admittedly separate entity for Title VII purposes. See e.g., United States v. City of New York, 359 F.3d 83 (2d Cir. 2004) (whether welfare recipient is a city employee for Title VII purposes where the recipient is required to work as a condition of receiving welfare benefits). This is a totally different theory of liability and the cited cases have no relevance to the question in this case. Defendants also point to cases involving franchisor-franchisee relationships, citing them for the proposition that, although the franchisor exerts some control over the franchisee, the amount of control typifying such a relationship does not rise to the level necessary to support an integrated enterprise analysis. Ds' br. at 24-26. First, conspicuously missing from that discussion is the uncontested fact that EMM and EMS do not have a franchise agreement. Id.; supra at 6. Given that fact, these cases are inapposite. Moreover, to the extent that EMM and EMS argue their relationship is typical of a franchisor-franchisee relationship, such an argument is belied by the evidence. The level of interconnection between EMM and EMS goes way beyond the typical franchise relationship. This is demonstrated by the difference between EMM's relationship with its franchisees as compared with its relationship with EMS. As noted above, there is no evidence that EMM shared employees with any franchisee, that they trained franchisee personnel or that they were involved in the day-to-day management of the business of any of their franchisees. As support for their argument that EMM and EMS operated independently, the defendants make a series of sweeping statements, many of which are directly contradicted by the record. For example, notwithstanding the extensive evidence that EMM management exercised detailed daily oversight and supervision of EMS's operations, particularly the telemarketing and confirmation departments that they "controlled" (supra at 9-10), defendants baldly assert that "EMM was not 'involved directly' with the day to day operations of EMS." Ds' br. at 27. Similarly, ignoring the evidence that EMM management interviewed, hired, trained, promoted, approved pay raises and discipline, transferred, and fired EMS employees, including at least some of the claimants in this action, defendants assert that EMM "at no time controlled the terms and conditions of any of the claimants' employment in a direct, substantial and demonstrable way." Ds' br. at 31-32. Further, despite the fact that Tim Rose and David Bowers were listed as EMM employees while they were EMS general managers, the defendants state that "all major employment decisions regarding EMS employees were made by the EMS general manager, not EMM." Ds' br. at 31. Notwithstanding evidence that EMM paid the salaries of at least some persons holding official positions with EMS and performing significant work for that company, including Judith Garvin, Tim Rose and Carl Moore, defendants state that "EMM at no time issued paychecks to EMS employees." Ds' br. at 29. Although David Bowers, Jack Myers, Jack Jones, Caryn Thompson, Theresa Neitzel and Michelle Trick were idenified as employees of both EMM and EMS during the same time period, defendants state that "EMM and EMS did not share employees." Ds' br. at 28. Finally, although both EMM and EMS list the identical address as their principal place of business, defendants assert that EMM and EMS did not have a "common . . . mailing address." Ds' br. at 28. In addition to misstating the record, defendants parse facts in a misleading way. For example, while the defendants are correct that the claimants were "hired, employed and paid" by EMS, it is also true that EMS needed EMM's approval to hire, promote, transfer and fire employees when those decisions were not directly made by personnel listed on both EMM and EMS employee lists. And although EMS had a separate bank account and paychecks were issued under its name, EMM issued paychecks under its name to EMM personnel holding official titles with and performing work for EMS. In addition, EMM closely monitored EMS's financial books, transferred monies between the companies, issued checks, signed documents and prepared payroll for EMS. The defendants' alternative argument that no reasonable jury could have found that EMM and EMS were integrated enterprises except during two narrow spans of time is equally unpersuasive. Defendants' argument is based on the faulty premise that a finding of integrated enterprise can be sustained only when EMM employee Tim Rose ran EMS. To the contrary, the record is replete with evidence that EMM's exertion of substantial influence and control over EMS and the claimants extended well beyond Rose's tenure as general manager of EMS. There is ample evidence that EMM had daily control over EMS and this control impacted the claimants. For example, Neitzel, EMM's director of telemarketing throughout the relevant period, "controlled" EMS's telemarketing room. She had final hiring and promotion approval; she provided direct, daily and hands-on supervision to EMS managers Molinaro, Stevenson, Hoffmeier and Buckner who, in turn, either supervised the claimants or were claimants themselves. And Caryn Thompson, EMM's head of confirmations, "oversaw th[e] whole" confirmation operation at EMS, which included detailed, daily oversight while Stevenson worked there. Similarly, Buckner was supervised daily by EMM's head of recruitment Ricky Williams. EMM and EMS have utterly failed to meet their burden before this Court to demonstrate that there is no legally sufficient evidentiary basis for the jury's finding that EMM and EMS constitute a single, integrated enterprise. Therefore, the verdict should be affirmed. II. THE AWARD OF PUNITIVE DAMAGES SHOULD BE AFFIRMED. The district court considered EMM's two post-verdict motions - one for sufficiency of the evidence on the integrated enterprise issue and the other for a reduction of damages of four identified claimants solely because their awards exceeded the statutory cap. EMM advanced no other arguments below. A. Because EMM Failed to Challenge the Sufficiency of the Evidence Supporting Punitive Damages, the Punitive Damages Instruction, and the Amount of the Punitive Damage Award in the District Court, the Award of Punitive Damages Must Be Affirmed Unless It Is Infected With Plain Error That Would Result in a Miscarriage of Justice. The remaining issues raised in this appeal are raised solely by EMM. EMM challenges in this Court the punitive damages awards on several grounds. Because EMM failed to present these issues to the district court, it has waived its right to have these challenges heard by this Court. EMM's challenge to the sufficiency of the evidence regarding punitive damages cannot be considered by this Court. As this Court has held, in the absence of a Rule 50 motion, an "appellate court [i]s without power to direct the District Court to enter judgment contrary to the one it had permitted to stand." Jacques v. DiMarzio, Inc., 386 F.3d 192, 199 (2d Cir. 2004) (internal citation omitted). Similarly, EMM waived its right to challenge the jury instructions or argue that the punitive damage award was excessive. A party who is dissatisfied with any portion of the jury instructions must inform the district court of the specific objection and the grounds for the objection before the jury retires to deliberate. Local Union No. 38, Sheet Metal Workers' Intern. Ass'n, AFL-CIO v. Pelella, 350 F.3d 73, 86-87 (2d Cir. 2003) (right to seek appellate review of jury instruction is waived when appellant failed to raise issue below). Further, this Court "generally will not review a party's contention that the damages award is excessive or insufficient where the party has failed to allow the district court to rule on the matter." Pelella, 350 F.3d at 89 (internal citation omitted). B. The District Court's Rulings on Punitive Damages Do Not Constitute Plain Error. As to any issue on which no proper Fed. R. Civ. P. 50 motion was made, JMOL cannot be ordered by an appellate court unless the jury's verdict cannot be supported in the law so that reversal is necessary "to prevent a manifest injustice." Jacques, 386 F.3d at 199 (internal citation omitted). EMM does not argue that this Court's failure to reverse the punitive damage award would result in a manifest injustice. Nor could it have. The district court correctly concluded that the evidence presented at trial supports the jury's finding that EMM violated Title VII when supervisory employees of EMS sexually harassed their subordinates and both EMM and EMS officials failed to make any effort to stop the rampant sexual harassment when it was brought to their attention. EMM's assertions that the record is "overwhelmingly silen(t) as to any malice or reckless indifference by EMM," and that there is "no proof that EMM was aware of the conduct . . . or that it had any reason to know of any degree of harmful conduct to any EMS employee" are belied by the record. Ds' br. at 35. While there is no evidence that EMM employees harassed anyone at EMM, there is ample evidence that EMM management employees engaged in sexual harassment at EMS. David Bowers and Tim Rose, both of whom were listed by EMM as EMM employees, repeatedly harassed women while working at EMS. Bowers and Rose also received numerous complaints about harassment by others. They responded with malicious indifference. General Manager Bowers often giggled when hearing or witnessing the harassment. He told one woman "you're going to have to deal with it," and told another that she was "taking it the wrong way." And when Rose worked as EMS's general manager, he threatened Stevenson that she would be fired if she objected or tried to stop the men from touching her. Rose told one complaining manager "that [is] Dave and [you] should get used to it," and he, too, routinely laughed at the women's complaints. In addition, another EMM supervisor told the women who came to her with harassment complaints not to lodge the complaints with anyone else in management. No action was taken on these oral complaints. Similarly, no one responded to the letters sent to EMM officials complaining about harassment. Eventually, one harasser, Lang, was fired but after he asked EMM for his job back, he was hired as a driver and permitted to return to EMS's telemarketing room where he resumed his offensive conduct. DiCello read a letter detailing Bowers's harassment of Stephanie DiStasio and did nothing. Even when he met with Bowers about the letter, DiCello said absolutely nothing about the allegations against Bowers. Imposing punitive damages on EMM based on this record of offensive conduct and gross indifference would not result in a miscarriage of justice. EMM also argues for the first time on appeal that the jury instructions on punitive damages were erroneous and the amount of the punitive damages awarded was excessive. Challenges for the first time on appeal to jury instructions and awards as excessive are reviewed only for plain error. Girden v. Sandals Int'l, 262 F.3d 195, 206 (2d Cir. 2001) (jury instructions only entitled to plain error review when not properly preserved); Pelella, 350 F.3d at 89 (this Court "generally will not review a party's contention that the damages award is excessive . . . where the party has failed to allow the district court to rule on the matter"). A plain error is one that affects substantial rights, and such error merits reversal only if it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Girden, 262 F.3d at 206 (citations omitted). EMM fails to demonstrate plain error. EMM argues that the jury instructions were flawed because "the jury was effectively undirected as to any basis to be used for its award of punitive damages against EMM." Ds' br. at 37. However, EMM does not argue that the court's instruction fails to state the correct legal standard, nor does it suggest an alternative instruction and state how the absence of such an instruction "seriously affect[s] fairness." United States v. Olano, 507 U.S. 725, 732 (1993). As a result, EMM's challenge to the jury instructions should be rejected. Finally, any suggestion that the amount of the jury's awards were so excessive that they constituted plain error should be rejected. The punitive damage award against EMM, $16,000 per claimant, cannot be considered excessive under any reasonable measure, especially in light of EMM's utter indifference to the repeated pleas to stop the pervasive and egregious harassment. EEOC-SPA at 321- 23. See Cush-Crawford v. Adchem Corp., 271 F.3d 352, 359-60 (2d Cir. 2001) ($100,000 punitive damage award appropriate in sexual harassment case despite no compensatory damages found where "persistent egregious sexual harassment by a supervisor" continued for over a year after plaintiff had "notified company officials about the harassment"). CROSS APPEAL ARGUMENT THE DISTRICT COURT ABUSED ITS DISCRETION IN DENYING INJUNCTIVE RELIEF WHERE THE RECORD DEMONSTRATES THERE EXISTS A DANGER OF FUTURE TITLE VII VIOLATIONS A. Standard of Review Injunctive relief in Title VII cases is authorized when the court finds that the defendant "has intentionally engaged in or is intentionally engaging in an unlawful employment practice. . . ." 42 U.S.C. § 2000e-5(g). Although the determination of equitable remedies is within the discretion of the district court, "discretionary choices are not left to a court's inclination but to its judgment; and its judgment is to be guided by sound legal principles." Albemarle Paper Co. v. Moody, 422 U.S. 405, 416 (1975) (internal citations omitted). A decision calling for the exercise of judicial discretion "hardly means that it is unfettered by meaningful standards or shielded from thorough appellate review." Id. Argument The most important factor for the district court to consider when determining whether injunctive relief is appropriate in a Title VII action is the likelihood of future violations. Berkman v. City of New York, 705 F.2d 584, 594 (2d Cir. 1983). Once a violation of the statute is proven, the defendant must demonstrate that there is no reasonable expectation that the wrong will be repeated; the defendant's failure to do so renders an injunction mandatory. See EEOC v. Joint Apprenticeship Committee of Joint Industry Bd, 164 F.3d 89, 94 (2d Cir. 1998). The district court recognized that injunctive relief is appropriate to stop future discrimination, but denied the relief here solely on the grounds that EMS was no longer operating the Rochester business and there was no evidence of harassment at EMM's place of business or harassment perpetrated against EMM employees. What the district court overlooked was that the jury found EMM and EMS was a single, integrated enterprise. Therefore, whether the harassers were technically EMM or EMS employees, EMM is fully responsible for their actions. Further, the court ignored the testimony that EMM employees sexually harassed EMS employees at EMS. And the court also overlooked the evidence of EMM's failure to take remedial action to prevent future discrimination despite knowledge of the harassment by EMM officials. The jury found that EMM intentionally discriminated against 13 claimants by harassing them verbally, by threatening them with loss of job if they complained or resisted the sexual advances, by witnessing harassment and either laughing or excusing the behavior, and by telling the women they had to live with it. The incessant and egregious harassment occurred daily in front of and with, not just tacit, but active support from EMS and EMM management for four full years. Even after complaints were lodged with EMS and EMM beginning in December 1998 and after an EEOC charge was filed in July 1999, the harassment continued unabated for three more years. Throughout that entire period, the only significant action taken - the firing of one harasser - was quickly negated when he was soon rehired in a position at EMS and resumed his harassment. The jury also found that EMM failed to take prompt remedial action to correct the harassment. EMM was aware of harassment at EMS since 1998. They received complaints directly, both verbal and written. They responded to none. And, by 1999, EMM was aware that the EEOC was investigating DiStasio's allegations. EMM employees continued to harass and permit others to harass for another three years. In addition to Lang's temporary separation from EMS which was essentially revoked when Lang was allowed to return, the only action EMM took after receiving complaints was in 2000 when EMM began revising EMS's sexual harassment policy; a revision which was not finalized for two years. Even though a policy was in place since 1998, management officials testified that they were completely unfamiliar with the policy and Title VII's requirements. Management stated they had no idea how a sexual harassment policy is enforced. Even the author of the policy never received any sexual harassment training or instruction himself before or during the time he was revising the policy. Finally, EMM did not give any version of the policy to any employees of EMM or EMS during their employment at EMS. Only once, in October or November of 2000, did EMM briefly show the policy to an EMS manager. After requiring her to sign the policy, it was retrieved immediately and she never received a copy. On appeal, EMM does not explain or excuse this behavior. Rather, it ignores it, boldly saying "there is no proof that EMM was aware of the conduct," carefully crafting its denial by saying that EMM was not aware of the harassment by "EMS shift managers at the times that the conduct occurred." Br at 35. EMM's Rose and shared employee Bowers harassed as general managers, not as shift managers. And, because complaints are lodged almost always after something has occurred, EMS employees necessarily complained to EMM of the harassment after it occurred, not while it was occurring. Thus, although EMM's statement is literally correct, it is grossly misleading. EMM's arguments are woefully deficient to meet its burden of demonstrating that there is"no reasonable expectation that the wrong will be repeated." Joint Apprenticeship, 164 F.3d at 94. As such, an injunction was mandatory and the district court's denial of an injunction was an abuse of discretion. The sexual harassment in this case was severe. It went so far as to threaten the physical safety of female employees. Not only was it permitted to continue, but, in one instance, EMM's Rose, along with Sharpe, warned an employee not to object. She was specifically told to permit salesmen to touch and grab her however they wanted or risk losing her job. The inadequacy of EMM's policies and procedures was profound. They were proven to have been wholly ineffective. Thus an injunction was a necessary and appropriate remedy in this case. CONCLUSION For the foregoing reasons, the EEOC respectfully urges this Court to affirm the judgment of the district court as to liability and damages. The Commission also requests this Court to reverse the district court's denial of injunctive relief, remanding that portion of the case for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel __________________ SUSAN L.P. STARR Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street. NE, 5th Fl. Washington, D.C. 20507 (202) 663-4727 susan.starr@eeoc.gov CERTIFICATE OF SERVICE I, Susan L.P. Starr, certify that I filed this brief with the Court by sending, via Federal Express, ten copies together with an e-mail attachment to electronic mailboxes designated according to case type, counseled civil cases, a PDF version of the brief. I also certify that I served two copies of this brief, as well as a copy of the electronic filing sent to the Court containing a PDF version of the brief, this 26th day of January, 2009, by Federal Express, to the following counsel of record: Kenneth B. Baker, Esq. JAVITCH, BLOCK & RATHBONE, LLP 1100 Superior Avenue, 19th Fl Cleveland, OH 44114 Sanford R. Shapiro, Esq. BOYLAN, BROWN, CODE, VIGDOR & WILSON, LLP 2400 Chase Square Rochester, NY 14604 _________________________ SUSAN L.P. STARR Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, 5th Floor Washington, DC 20507 (202) 663-4727 susan.starr@EEOC.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Local Rule 28.1(e)(2)(B) because it contains 11,911 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 with 14 point Times New Roman. ______________________ SUSAN L.P. STARR Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7044 Washington, DC 20507 (202) 663-4727 susan.starr@EEOC.gov *********************************************************************** <> <1> All references to "SPA" are to the corresponding page in defendants' appendix. <2> All references to "EEOC-SPA" are to the corresponding page in EEOC's supplemental special appendix. <3> Sanford R. Shapiro changed firms and then limited his representation to EMS at trial and continues to represent only EMS in this appeal. SPA 2-3. <3> Contrary to Rose's testimony, DiCello testified that only franchise owners and EMS's general managers were trained by EMM on sales. EEOC-SPA 282. According to DiCello, EMM did not train franchise sales staff. Id. Rather, after the owners were trained, they were solely responsible for training their own sales staff. Id. <4> EMS did challenge in the district court the jury instruction on punitive damages but its argument on appeal is specifically limited to the integrated enterprise issue.