Equal Employment Opportunity Commission v. Harbert-Yeargin, Inc. 00-5150/005232 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Nos. 00-5150/00-5232 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee-Cross-Appellant JOE CARLTON, Intervening Plaintiff-Appellee v. HARBERT-YEARGIN, INC. Defendant-Appellant-Cross-Appellee. On Appeal from the United States District Court for the Western District of Tennessee PROOF REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS THE APPELLEE-CROSS-APPELLANT C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 TABLE OF CONTENTS TABLE OF AUTHORITIES iii INTRODUCTION 1 ARGUMENT 3 CONCLUSION 13 CERTIFICATE OF SERVICE APPELLEE'S DESIGNATION OF JOINT APPENDIX CONTENTS TABLE OF AUTHORITIES EEOC v. Indiana Bell Tel., 2000 WL 681007 (7th Cir. May 26, 2000) 5 Farley v. American Cast Iron Pipe Co., 115 F.3d 1548 (11th Cir. 1997) 4 Furnco Construction Co. v. Waters, 438 U.S. 567 (1978) 6 Graham v. Bendix Corp., 585 F. Supp. 1036 (N.D. Ind. 1994) 6 Hall v. Gus Constr. Co., 842 F.2d 1010 (8th Cir.1988) 11 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) 2 Hathaway v. Runyon, 132 F.3d 1214 (8th Cir. 1997) 7 Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999) 7 Meadows v. Guptill, 856 F. Supp. 1362 (D. Ariz. 1993) 8 Torres v. Pisano, 116 F.3d 625 (2d Cir.), cert. denied, 522 U.S. 997 (1997) 9, 10 Williams v. General Motors Corp., 187 F.3d 553 (6th Cir. 1999) 4, 7 Yates v. Avco Corp., 819 F.2d 630, 636 (6th Cir. 1987) 4 INTRODUCTION In its opening brief on the cross-appeal, the Equal Employment Opportunity Commission ("EEOC" or "Commission") argued that the district court erred in setting aside the jury's verdict for the EEOC on its claim that Harbert-Yeargin is liable for the sexual harassment of Cedric Woods. Specifically, the Commission asserted that, viewing the facts in the light most favorable to the Commission and considering the totality of the circumstances, there was sufficient evidence from which reasonable jurors could, and did, conclude that Harbert-Yeargin should have known Davis was sexually harassing Cedric Woods and hence subjected him to a hostile work environment so severe or pervasive as to alter his working conditions. EEOC Br. at 51-58. Harbert-Yeargin should have known about the harassment because there was evidence that Davis had a history of harassing male employees, his harassment of Woods and others was witnessed by other employees and was widespread, harassment of the same nature was pervasive, and management personnel were either present or participated in conduct similar to the harassment at issue. Id. at 52-56. In response, Harbert-Yeargin contends that the district court properly found that there was insufficient evidence that it "knew or should have known" of the sexual harassment of Cedric Woods. Harbert-Yeargin ("HY") Br. at 23. Ignoring the rule that finding an actionable hostile work environment requires an assessment of the totality of the circumstances, Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993), Harbert-Yeargin views Woods's claim of harassment as solely based on being "touched 'once or twice' in an inappropriate manner by Davis. " HY Br. at 23. Consequently, Harbert-Yeargin contends that, since no management personnel were present during the taxi incident, Woods could not name the people who were present and saw Davis touch him, and Woods did not complain to Davis when the incident occurred, it did not know about the harassment. Harbert-Yeargin also notes that Woods goosed employees, general superintendent Don Bomar never saw Davis goose or touch anyone below the waist, Woods never saw Davis touch any other employee below the belt, and the entire time Davis was employed by Harbert-Yeargin he only had one harassment complaint registered against him, and asserts that these facts support the district court's determination that Harbert-Yeargin was not liable for the sexual harassment of Cedric Woods. Id. at 24-25. None of these facts are sufficient to justify overriding the jury's conclusion that Harbert-Yearing should have known about Davis's harassing behavior directed at Woods. For the reasons discussed below (and in its main brief), the Commission urges this Court to reverse the district court's vacatur of the punitive damages award on Woods's sexual harassment claim. ARGUMENT In arguing that there is not sufficient evidence to have provided Harbert-Yeargin with constructive notice of the sexual harassment of Woods, Harbert-Yeargin mischaracterizes the scope of Woods's claim of sexual harassment by Davis. Harbert-Yeargin asserts that "Woods claims he was touched 'once or twice' in an inappropriate manner," HY Br. at 23, and those few incidents could not have provided it with notice of the harassment. Id. Woods's sexual harassment claim, however, goes beyond being inappropriately touched once or twice. Rather, evidence undergirding Woods's claim includes not only Davis's harassment of Woods in the taxi truck in March 1995 but also Davis's stalking him and touching him "a lot" on parts of his body, including his genitals and buttocks, up to "two or three times a day" until he left in July 1996. (R.148, TR2 at 21, 23-28, 47). Moreover, Woods's testimony that he considered it to be inappropriate every time Davis touched him after the taxi incident and that Davis made attempts to touch him three or four times a day establishes that Davis's harassment of him was pervasive as well as severe. (Id. at 26-27, 43-44, 48). Given the ongoing nature of the harassment, which the jury and the district court found established a hostile work environment sufficient to alter the work conditions of Woods's employment, Harbert-Yeargin's argument that it could not have derived notice of Davis's propensity to harass male employees, such as Woods, from Carlton's complaint because the complaint was registered after the taxi incident involving Woods, must fail. Carlton filed his sexual harassment complaint on February 22, 1996. Davis's harassment of Woods continued after the taxi incident in March 1995 until he left in July 1996. Hence, Harbert-Yeargin had actual notice that Davis was a sexual harasser of male employees during the same period he was harassing Woods. Had Harbert-Yeargin conducted an adequate investigation of Carlton's complaint, it would have learned of Davis's harassment of Woods (as the EEOC's investigation disclosed). Yates v. Avco Corp., 819 F.2d 630, 636 (6th Cir. 1987) (an employer is liable for sexual harassment when it "knew, or upon reasonably diligent inquiry should have known," of the harassment) (emphasis added); accord Farley v. American Cast Iron Pipe Co., 115 F.3d 1548, 1554 (11th Cir. 1997) (an employer has an obligation to make reasonable efforts to know what is going on with its own employees). Moreover, had Harbert-Yeargin taken effective remedial action against Davis, Davis would have been deterred from harassing anyone, including Woods. Because Harbert-Yeargin abdicated its duty to conduct a thorough investigation and to take effective remedial action as mandated by Title VII and its own company manual, it must be held liable for the perpetuation of a hostile work environment. See Williams v. General Motors Corp., 187 F.3d 553, 561 (6th Cir. 1999) ("it is no longer enough for an employer to take corrective action; employers now have an affirmative duty to prevent sexual harassment by supervisors"); also see EEOC v. Indiana Bell Tel., 2000 WL 681007 *23 n.5 (7th Cir. May 26, 2000) ("[a]n employer has a clear responsibility under Title VII to act reasonably to end sexual harassment and to protect its employees from harassing behavior"). Consequently, a reasonable jury could conclude that Harbert-Yeargin is liable to any employee who was affected by such hostile work environment and decide that Woods is entitled to relief. Further, contrary to Harbert-Yeargin's assertion, HY Br. at 25, the absence of any prior formal complaints against Davis other than the one registered by Joseph Carlton does not relieve Harbert-Yeargin of liability for the harassment of Woods. Because Harbert-Yeargin received Carlton's complaint alleging harassment of a similar and severe nature during the same period Woods was being continuously harassed by Davis, that complaint alone is sufficient to convey actual or constructive knowledge of Davis's harassing behavior, and once aware of the harassment, to trigger its duty to take remedial action to protect Woods. EEOC Br. at 55-57. In other words, when an employer knows of incidents of harassment of one employee, it is under a duty to protect other employees from being subjected to the same treatment. See Graham v. Bendix Corp., 585 F. Supp. 1036, 1047 (N.D. Ind. 1994)("[t]he duty not to discriminate is owed each minority employee, and discrimination against one of them is not excused by a showing the employer did not discriminate against all of them, or there was one he did not abuse")(citing Furnco Construction Co. v. Waters, 438 U.S. 567, 579 (1978)). In like manner, Harbert-Yeargin's assertion that the evidence is insufficient to support a finding of constructive notice because Woods "did not voice any complaint to Davis when the alleged incident occurred but rather . . . laughed about the incident and thought it was a joke," HY Br. at 24, is also without merit. Neither Woods's failure to complain nor his laughter following the taxi incident immunizes Harbert-Yeargin from liability. Obviously, an employer can be held liable for sexual harassment even when no formal complaint has been filed so long as it had constructive notice of the harassment and failed to take prompt and remedial action. Further, Woods's admission that he laughed after everyone else on the truck laughed and joked about the incident does not undermine his testimony that he did not laugh because he thought the incident was a joke. (R.148, TR2 at 58, Apx. __). Nor does his laughter detract from the jury's finding that he subjectively found the harassment abusive and unwelcome, or that a reasonable person would feel the same. Indeed, his initial reaction of immediately removing Davis's hand from his genital area and jumping from the truck is sufficient to establish both the subjective and objective severity of the harassment and its unwelcomeness. (R.148, TR2 at 24-25, Apx. __). Hence, as we stated in the main brief in response to Harbert-Yeargin's contention that Davis intended his harassment of Carlton to be a joke, EEOC Br. at 21 n.10, "humor is not a defense under the subjective test if the conduct was unwelcome," (R.166,JNOV Order at 9, Apx. __ (quoting Williams v. General Motors Corp., 187 F.3d 553, 566 (6th Cir. 1999)), and Woods clearly conveyed that he considered Davis's touching to be unwelcome. Next, the fact that management personnel did not witness the taxi incident does not negate the EEOC's argument that a jury could reasonably believe that the openness and notoriety of that particular instance of Davis's harassment of Woods was sufficient to provide Harbert-Yeargin with knowledge of Davis's harassing behavior. Jackson v. Quanex Corp., 191 F.3d 647, 663 (6th Cir. 1999) ("where harassment is pervasive, courts may impute constructive notice to an employer"). Woods's undisputed testimony established that the cab of the taxi truck was full of passengers who witnessed Davis grab his genitals as evidenced by their reaction to and jokes about the incident. (R.148, Woods, TR2 at 24-25). The fact that Woods could not name any of the witnesses does not diminish the relevance of their observation for the purpose of establishing constructive notice. Cf. Hathaway v. Runyon, 132 F.3d 1214, 1222-23 (8th Cir.1997) (holding in sexual harassment case that it was reversible error for trial court to vacate jury verdict in favor of the plaintiff where two "sexually suggestive" touchings combined with later laughter and "suggestive noises" were sufficient to establish a hostile environment because "harassing conduct need not be . . . continuous in order to [be] pervasive" ). Similarly, Harbert-Yeargin's assertion that it should not be found liable because "Woods, himself, acknowledges goosing other employees while working for Defendant," HY Br. at 24, is equally unavailing. In testifying that he may have "goosed people on the job," (R.148, TR2 at 50, Apx. __), Woods stressed that he did not mean he had "touched anyone below the waist" or "anyone's private parts." (Id. at 57-58, Apx. __). Rather, he meant he may have touched someone on the arm. (Id. at 58, Apx. __). Hence, Woods's conduct cannot be compared to Davis's sexual harassment, Meadows v. Guptill, 856 F. Supp. 1362, 1367 (D. Ariz. 1993) ("touchy" behavior, such as grabbing one's arm in conversation, does not invite a return pat on the buttocks or one's more private areas[; t]his is true under any acceptable standards of workplace behavior, even in an informal work environment"), and in no way vitiates the jury's finding that Harbert-Yeargin had constructive knowledge of Davis's harassment and failed to take prompt and remedial action, thereby demonstrating a reckless disregard for Woods's federal rights. Finally, Harbert-Yeargin's argument that it could not have known about Davis's harassment of Woods because "[g]eneral superintendent Don Bomar testified that he never saw Davis goose or touch any employee below the waist," and because Woods never saw Davis touch any employee in the manner in which Davis touched him, HY Br. at 24-25, is untenable. Although Bomar testified that he had not seen Davis "goose" anyone, he also testified that it did not surprise him to hear that Davis had "goosed" someone. (R.149,Bomar, TR3 at 80,Apx. __). A jury could infer from his statement that Bomar had reason to know of Davis's harassing behavior and Bomar's rank is sufficiently high-level to impute that knowledge to the company. Torres v. Pisano, 116 F.3d 625, 636-37 (2d Cir.) ("[a]n official's actual or constructive knowledge of harassment will be imputed to the employer" if the "official is at a sufficiently high level in the company's management hierarchy to qualify as a proxy for the company" or he "is charged with a duty to act on the knowledge and stop the harassment"), cert. denied, 522 U.S. 997 (1997).<1> Further, even if Bomar and Woods had not witnessed Davis's harassment of other employees,<2> site superintendent Harold Scott was aware that genital-grabbing occurred at Harbert-Yeargin and admitted to engaging in such conduct even though he was the official responsible for enforcing the company's anti-harassment and anti-horseplay policies. EEOC Br. at 54. Furthermore, he believed that Davis had sexually harassed Joseph Carlton and he did nothing to stop it. Id. Given Scott's authority over Davis and his power to stop the harassment, Scott's knowledge of Davis's harassment and failure to take corrective action is imputable to the company and sufficient by itself or in combination with the other evidence of pervasiveness to hold Harbert-Yeargin accountable for the sexual harassment of Woods. Torres, 116 F.3d at 636-37. On the whole, there is substantial evidence in the record from which a reasonable jury could conclude that Harbert-Yeargin knew or should have known that Davis sexually harassed Woods. Evidence before the jury indicated that Davis's conduct was open and pervasive. Woods's taxi incident was witnessed by several employees. Davis continued to stalk and touch Woods for a period of fourteen months with impunity, causing Woods to run from him "three to four times" a day. Davis admitted he "goosed" male employees and that goosing occurred all the time. Management personnel witnessed Davis grabbing the buttocks and genitals of other male employees. Employees either witnessed or experienced similar harassment at the hands of Davis, other supervisors, or coworkers. Carlton formally complained about Davis harassing him in a manner similar to the conduct which Woods continued to experience, and Harbert-Yeargin's inadequate response to Carlton's complaint failed to stop Davis from harassing Carlton or Woods. This is substantial evidence from which a reasonable jury could and did conclude that no reasonable employer could or should have remained ignorant of the fact that Davis was harassing Woods. Hall v. Gus Constr. Co., 842 F.2d 1010, 1016, 1018 (8th Cir.1988) (finding that even if supervisor was not aware of all sexual abuse, "unrelenting pattern of verbal, physical and psychic abuse" involved incidents "so numerous" that employer was "liable for failing to discover what was going on and to take remedial steps to put an end to it"). To the extent that this evidence created triable issues regarding whether and to what extent Woods's superiors were aware or should have been aware of the situation, resolution of those factual questions was for the jury. The district court's vacatur of the verdict and punitive damages award for the Commission on Woods's claim is no more than an improper substitution of its judgment for that of the jury based on an improper reweighing of the evidence or reassessment of credibility. Therefore, this Court should reverse the district court's decision and reinstate the verdict and punitive damages award for the EEOC on Woods's sexual harassment claim. CONCLUSION This Court should reverse the trial court's judgment as to the constructive notice issue raised in the cross-appeal because there was substantial evidence in the record to support the jury's verdict and award of punitive damages. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 CERTIFICATE OF SERVICE This is to certify that on July 28, 2000, one copy of the foregoing proof brief along with the certificate of service was mailed first class, postage prepaid, to the following counsel of record: Thomas L. Henderson, Esq. LEWIS, FISHER, HENDERSON & CLAXTON, LLP 5050 Poplar Avenue, Suite 1717 Memphis, Tennessee 38157 Michael L. Weinman, Esq. Tatum & Weinman 124 E. Main Street, P.O. Box 293 Henderson, Tennessee 38157 PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 APPELLEE'S SUPPLEMENTAL DESIGNATION OF JOINT APPENDIX CONTENTS Description of Item File Date Record No. Testimony of Woods Vol. II, pp. 21, 23-31, 43-44, 47-48, 50, 57-58 5/26/99 148 Testimony of Bomar Vol. III, pp. 69-71, 80 5/26/99 149 1 As the general superintendent, Bomar was the "number two person on the site" and he supervised Louis Davis, the harasser. (R.149, TR3 at 69-70, Apx. __). As supervisor, he had the authority to discipline his subordinates when they misbehaved. (Id. at 71, Apx. __). 2 Even though Woods testified that he had not seen Davis touch anyone else "below the belt," he recalled that he saw Davis harassing a new employee on his first day of work. (R.148, TR2 at 29-30, Apx. __). He testified that Davis kept "walking right up beside him" and "when the new guy stopped, Davis stopped." (Id. at 30, Apx. __). Woods said that "Davis asked the new guy if he could be his boyfriend or would the new guy be his boyfriend." (Id.) Woods stated that the new guy told Woods he was not coming back and never returned to work. (Id. at 30-31, Apx. __). This evidence further supports the pervasiveness of Davis's harassing behavior of which a reasonable employer could not have been completely ignorant.