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