No. 11-3309 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. KARENKIM, INC., d/b/a PAUL'S BIG M, d/b/a PAUL'S BIG M GROCERY, Defendant-Appellee. ____________________________________________________ On Appeal from the United States District Court for the Northern District of New York The Honorable Norman A. Mordue, District Judge ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________________ P. DAVID LOPEZ General Counsel EQUAL EMPLOYMENT CAROLYN L. WHEELER OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 131 M St., N.E., 5th Floor DANIEL T. VAIL Washington, DC 20507 Acting Assistant General Counsel 202-663-4721 barbara.sloan@eeoc.gov BARBARA L. SLOAN (FAX) 202-663-7090 Attorney TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings. . . . . . . . . . . . 3 2. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . 5 a. The Harassment . . . . . . . . . . . . . . . . . . . . . . . 6 b. Complaints. . . . . . . . . . . . . . . . . . . . . . . . . . . 13 c. The Verdict. . . . . . . . . . . . . . . . . . . . . . . . . . 24 d. Post-Verdict Conduct. . . . . . . . . . . . . . . . . . . . . 26 3. The Post-Judgment Motions . . . . . . . . . . . . . . . . . . . . . 28 4. The District Court's Post-Judgment Ruling. . . . . . . . . . . . . . . 31 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 ARGUMENT IN LIGHT OF THE TRIAL RECORD AND KARENKIM'S POST-TRIAL CONDUCT, THE DISTRICT COURT ABUSED ITS DISCRETION IN REFUSING TO ORDER ANY INJUNCTION RELIEF. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 61 ADDENDUM District Court's Post-Judgment Ruling CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). . . . . . . . . . . . 38-40, 46 Berkman v. City of New York, 705 F.2d 584 (2d Cir. 1983). . . . .36, 38-40, 43, 59 Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981). . . . . . . . . . . . . . . . .47 Burlington Industries v. Ellerth, 524 U.S. 742 (1998). . . . . . . . . . . .25, 33 Burlington Number & Santa Fe Railway v. White, 548 U.S. 53 (2006). . . . . . 52 Collins v. Suffolk County Police Department, 349 F. Supp. 2d 559 (E.D.N.Y. 2004), vacated in part on other grounds, 2009 WL 2596885 (E.D.N.Y. Jan. 7, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . 43 EEOC v. General Lines, 865 F.2d 1555 (10th Cir. 1989). . . . . . . . . . . . . .43 EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539 (9th Cir. 1987). . .41, 45, 54, 58 EEOC v. Local 628, 565 F.2d 31 (2d Cir. 1977). . . . . . . . . . . . . . . . . .40 EEOC v. Massey Yardley Chrysler-Plymouth, 117 F.3d 1244 (11th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . .41, 45, 49 EEOC v. Sunbelt Rentals, 521 F.3d 306 (4th Cir. 2008). . . . . . . . . . . . . .52 EEOC v. V & J Foods, 507 F.3d 575 (7th Cir. 2007). . . . . . . . . . . . . . . 55 EEOC v. Wilson Metal Casket Co., 24 F.3d 836 (6th Cir. 1994). . . . . . . . . 58 Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . . . . . . . . . 25, 39 Franks v. Bowman Transport Co., 424 U.S. 747 (1976). . . . . . . . . . . . . . .41 Galdamez v. Potter, 415 F.3d 1015 (9th Cir. 2005). . . . . . . . . . . . . . . 46 General Telegraph Co. v. EEOC, 446 U.S. 318 (1980). . . . . . . . . . . . . . . 41 Gibson v. America Broadcast Cos., 892 F.2d 1128 (2d Cir. 1989). . . . . . . . . 38 Kasten v. St. Gobain Performance Plastics, 131 S. Ct. 1325 (2011). . . . . . . .56 Katz v. Dole, 709 F.2d 251 (4th Cir. 1983). . . . . . . . . . . . . . . . . . 52 LeBlanc-Sternberg v. Fletcher, 67 F.3d 412 (2d Cir. 1995). . . . . . . . . . . .44 Lockard v. Pizza Hut, 162 F.3d 1062 (10th Cir. 1998). . . . . . . . . . . . . . 46 Malarkey v. Texaco, 983 F.2d 1204 (2d Cir. 1993). . . . . . . . . . . . . . .38-39 National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). . . . . . . . . 56 Petrosino v. Bell Atlantic, 385 F.3d 210 (2d Cir. 2004). . . . . . . . . . . . 52 Pucino v. Verizon Wireless Communications, 618 F.3d 112 (2d Cir. 2010). . . . . 53 United States v. W.T. Grant Co., 345 U.S. 629 (1953). . . . 41, 43-44, 48, 52, 54 FEDERAL STATUTES AND RULES 42 U.S.C. §§ 2000e et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-5(f). . . . . . . . . . . . . . . . . . . . . . . . . .2, 38, 55 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 28 U.S.C. § 1292(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. §§ 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Fed. R. Civ. P. 59(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Fed. R. App. P. 4(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . 2 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _________________________ No. 11-3309 _________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. KARENKIM, INC., d/b/a PAUL'S BIG M, d/b/a PAUL'S BIG M GROCERY, Defendant-Appellee. _____________________________________________________ On Appeal from the United States District Court for the Northern District of New York The Honorable Norman A. Mordue, District Judge _____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _____________________________________________________ STATEMENT OF JURISDICTION This is an appeal from the denial of injunctive relief following a jury verdict for plaintiffs in a suit alleging sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The order denying injunctive relief was entered on June 17, 2011. Appendix page number ("Apx")-000024 (District court docket entry number ("R.")131). The Commission filed a timely notice of appeal under Federal Rule of Appellate Procedure 4(a)(1)(B) on August 15, 2011. Apx-000047 (R.162). The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1345 and 42 U.S.C. § 2000e-5(f). This Court has jurisdiction under 28 U.S.C. § 1292(a) for the denial of an injunction. In addition, the Court has jurisdiction under 28 U.S.C. § 1291, the final judgment rule. After the June 17, 2011 order, defendant filed a motion denominated as under Rule 59(e) as well as Rule 60. However, that motion did not toll the time for appeal because it was untimely; it was not filed within 28 days of even the amended judgment, which was entered on May 11, 2011. Fed. R. Civ. P. 59(e) (motion must be filed "no later than 28 days after entry of the judgment"). STATEMENT OF THE ISSUE Whether the district court abused its discretion in refusing to order any injunctive relief where (a) the jury found that the defendant acted with malice or reckless indifference in failing to prevent the store manager, who is also the owner's fiancé, from sexually harassing at least ten female employees, many still in their teens; (b) the company's current sexual harassment policy and complaint procedure are inadequate to prevent similar violations in the future; (c) the defendant remains recalcitrant and still has not acknowledged that the harassment actually occurred; and (d) even after the adverse jury verdict, defendant displayed hostility towards one claimant and her husband by ordering them never to enter the store again. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from an order of the United States District Court for the Northern District of New York, Mordue, J., denying injunctive relief following a jury verdict for plaintiffs in a Title VII sexual-harassment case involving multiple claimants. In September 2008, the Commission brought this enforcement action against KarenKim, doing business as Paul's Big M Supermarket, in Oswego, New York. The Commission alleged inter alia that over a multi-year period, defendant subjected a class of female employees, many still in their teens, to a sexually hostile work environment caused in large part by the physical and verbal harassment by Store Manager Allen Manwaring. Apx-000001 (R.1). Three employees, Andrea Bradford, Judith Goodrich, and Deborah Haskins, intervened, alleging claims of sexual harassment against KarenKim under Title VII and against KarenKim, Manwaring, and Store Owner Karen Connors under state law; Bradford also alleged retaliation. R.11; see also R.15 (amended complaint in intervention). The case was tried to a jury over ten days in January 2011. On January 20, the jury returned a verdict against KarenKim and for the Commission and Plaintiff- Intervenors on the sexual harassment claims and against Manwaring on the state law claims. Apx-000008 (R.103, Verdict Form, also rejecting other claims of Plaintiff-Intervenors ). The jury awarded all ten victims a total of $10,080 in compensatory damages and $1,250,000 in punitive damages. Apx-000008 (R.103, Verdict Form). Judgment was entered the same day. Apx-000019 (R.104); see also Apx-000023 (R.128 (Corrected Judgment, listing damage awards). On February 11, the Commission timely moved to alter and amend the judgment under Rule 59(e). Apx-000020 (R.110). The Commission sought broad injunctive relief to ensure that the discriminatory conduct would not recur. In addition, the Commission requested that the damages for claimants in the EEOC's case be reduced to the applicable caps of $50,000 per claimant under 42 U.S.C. § 1981a(b).<1> Defendants generally opposed the requested injunctive relief but did not object to reducing the damage awards to the caps or to an order prohibiting KarenKim from reemploying or compensating Manwaring as an employee, supervisor, or consultant. R.114-116. Defendants did not file a separate Rule 59(e) motion at that time.<2> On June 17, 2011, the district court issued a memorandum decision and order granting the motion to reduce the damage awards but refusing to order any injunctive relief. Apx-000024 (R.131, Memorandum and Order). The court reasoned that the conduct constituted only "isolated instances" of harassment; neither the harasser nor the victims were still employed at KarenKim; and although defendant had recently barred one of the claimants and her husband from ever entering the store, such conduct "falls more appropriately into the class of 'petty slights [and] minor annoyances.'" Apx-000035, 000038-39 (citation omitted). 2. Statement of Facts KarenKim, doing business as Paul's Big M Supermarket, is a grocery store in Oswego, New York, owned by Karen Connors. Marlene Davis is the long-time office manager and family friend, having started at the store in the 1970s while it was owned by Connors' father. Apx-000348-350. At all relevant times, many of the store's employees were students, in their first jobs, working part-time during school or on holidays. See, e.g., Apx-001945. In January 2001, KarenKim hired Allen Manwaring, who was then in his mid-30s (see Apx-001555, mid-40s at trial) as Store Manager; within months, he and Connors had become "romantically involved." Apx-001851. They have been engaged since 2006 and have a young son. Apx-001852. At trial, Manwaring indicated that he is in his mid-forties. Apx-001555. Despite his relationship with Connors, however, the harassment at issue in this case began shortly after Manwaring started working at the company. a. The Harassment At trial, a string of witnesses testified that Manwaring repeatedly harassed female employees, both verbally and physically. The verbal harassment consisted mainly of comments, questions, and innuendos. Emily Anderson, for example, testified that she started working as a cashier at KarenKim when she was 16 years old. Apx-000533 (first job). Soon thereafter, Manwaring's conduct began making her feel "uncomfortable." Apx-000536-537. He would comment on her looks, saying she was "sexy," her lips were "gorgeous," and how great her "ass" looked in her pants. Apx-000542-544 (adding that he once commented to a stock boy, "look at that ass," as she walked by). He also asked personal questions such as whether her boyfriend "pleased" her and how large his penis was. Apx-000538- 541. He then laughed as she silently walked away. Apx-000541. Once, after seeing Anderson's mother at the store, Manwaring insinuated that he would like a three-some with himself, Anderson, and her mother. Apx-000547-548 ("if I could get you two alone ..."). Similarly, Anna Miller, also age 16 when she started at KarenKim, testified that, on a daily basis, Manwaring would say that she was "hot," "gorgeous," had a "nice ass" or "tits," and an "amazing body." Apx-001017. He also told her that if he were her boyfriend, he would never "let her out of his sheets" (Apx-001026) and commented in the break room that, "if I were 10 years younger, I'd be on top of you." Apx-001013-1014. On another occasion, when he passed by "extremely closely" and she recoiled, he said, "Honey, the only way I would knock you over was if I was knocking you onto my bed." Apx-001027. In addition, after informing her that Connors likes to "get off once" and then stop having sex, he asked Miller if she liked to "keep going after getting off." See Apx-001031. In addition, Andrea Bradford testified that, among other things, Manwaring told her he felt "sexually deprived" because of his sex life with Connors; commented that "one of these days he was "going to pick [her (Bradford)] right up and fuck [her] brains out"; and when she asked for medical leave for a urinary track infection, he whispered in her ear that if she "let [him] put his clean dick in [her], it would be the cleanest dick [she] ever had"). See Apx-000877-879, 0000883-884, 000898-899. Amanda Cole, who likewise started as a cashier at age 16, also described comments she found offensive. Once, as Manwaring was coming out of the men's room, zipping up his pants, he said, "it's like an anaconda, got to roll it back up, big enough to make you scream." Apx-000613. Then, as she was stocking candy, he motioned to her with his index finger. She walked towards him and asked what he wanted. He responded: "I just wanted to see if I could make you come with one finger." Apx-000626. She felt thoroughly disgusted since he was her "supervisor" and had just "offered pretty much to please [her] sexually." Apx-000627. Much of the physical harassment took place when Manwaring found an employee alone in a non-public area - e.g., the tiny front office, the small break room, behind the deli counter, and other areas in the back of the store. For example, Anna Miller testified that when she was working in the front office, Manwaring would come in and brush her breast when reaching for something, come up behind her and put his crotch in her buttocks and whisper in her ear or breathe on her neck, put his hands on her hips and squeeze, rub her shoulders, put his arm around her and hug, or walk by so closely that his hand would brush her buttocks. Apx-001022-1023. Similarly, Emily Anderson testified that Manwaring touched her almost every time he found her in the back or break room. He would massage her shoulders, rub the small of her back close to her "behind," and sometimes touch the back of her hair. He also repeatedly put his arm around her shoulder and allowed his hand to dangle down in front, grazing her breast. She further described how he frequently would sit down beside her on the bench in the break room and begin rubbing up her thigh, starting at the knee, until she moved away up against the wall. Apx-000549-554. Eventually, she started avoiding the break room and taking her breaks in her car. Apx-000563. See also Apx-000670-6776 (Deborah Haskins: three times Manwaring gave her a hug from the side, put his arm over her shoulder, and grabbed her breast; twice he came up behind her as she was pushing produce up a narrow ramp and, saying "get going," pushed his groin up against her back side; and once he came up behind her and grabbed her breasts).<3> The physical harassment was not restricted to the employee-only areas of the store, however. Witnesses testified, for example, that Manwaring would also stand too close or otherwise touch employees inappropriately in the aisles or by the cash register. By way of illustration, Abigail Murray testified that at least half the time when Manwaring was talking to her, he would stand "really close," put his hand on her shoulder, and "lean in," invading her "personal space bubble" and causing her to "cringe away." Apx-000396. Rachel (Sivers) Johnson echoed this testimony, stating that, when speaking to her, Manwaring would "oftentimes" stand very close with his arm bent and a hand on her shoulder, and would pull her closer until they were face to face. See Apx-000487-49) (appropriate distance only for a "very, very close friend"). Similarly, Amanda Cole testified that when she needed to have a check approved, Manwaring would "squeeze" in behind her in the tiny alcove by the cash register and "press" against her, "body to body almost," instead of standing in the aisle as other managers did. Appx-000620-623. Manwaring also often came up behind employees, including Cole and Anderson, as they were stocking shelves and massaged or squeezed their shoulders or neck. Apx-000624-625. Anderson testified that she found these massages especially distressing because she has a "sensitive neck" and does not let anyone touch her there. Apx-000552. Like other teenage employees, Anderson found Manwaring's conduct "disgusting," particularly because he was so much older than she and her coworkers were. Apx-000556; cf. Apx-000396 (Murray: "creeped out" that a man over twice her age was "hitting on" her); Apx-001024 (Anna Miller: Manwaring's touching "completely creeped [her] out"; he had a daughter her age). Anderson knew, however, that since he was her manager, she could not be rude, so she "just kind of would move away." Apx-000551.<4> Because the conduct sometimes took place openly, other employees were aware that it was happening. Witnesses stated, for example, that they observed Manwaring harassing young female employees and/or shared experiences amongst themselves. Former Manager Carol (Wallace) Akers testified that "pretty often, ... maybe at least twice a week," she saw Manwaring "giving [female employees] hugs, ... standing behind them, giving them a back rub, putting his hands on their shoulders." Apx-000224-225 (adding that this touching was "more lingering" with female than with male employees; Manwaring "would stand there for several minutes with them"). See also Apx-000554-555 (Emily Anderson: saw Manwaring massage the shoulders or backs of two other teenage female employees, both of whom looked "disgusted"); Apx-0000491-494 (Rachel (Sivers) Johnson: saw Manwaring rubbing Miller's shoulders, and whispering into other female cashiers' ears or rubbing their hands intimately). Amanda Cole testified that she often discussed Manwaring's conduct with other employees, explaining that it was "chattered almost on a regular daily basis" when employees had down time. Apx-000632. She stopped, however, after Manwaring called her into the stock room and confronted her about "rumors that he heard that [she] was spreading about him sexually harassing employees," adding that she was "lucky he didn't fire [her] then and there." Apx-000638. Afraid she would be terminated from her first job, she started crying. Manwaring then hugged her, kissed her on the cheek, and whispered in her ear that "if he was gonna sexually harass anybody, it would be [her]." Apx-000637-638. In contrast to this testimony, when Manwaring took the stand, he denied that he had sexually harassed any female employee. He stated that he might whisper in an employee's ear, for example, to avoid embarrassing a customer if the customer's check was bad (Apx-000580-1584); that he hugged employees since he is a "friendly" guy (Apx-001587, 001679, 001724, 001731); and that he might also put a "soft hand" on an employee's shoulders or pat an employee's back. Apx- 001579. In addition, he admitted complimenting people on their looks since, he opined, most people enjoy getting compliments. Apx-001586. But he "absolutely" denied ever intentionally touching an employee's "buttocks," breast, or thigh (e.g., Apx-001581-1582), or hugging an employee in a sexual way. Apx- 001527 (never hugged "inappropriately), Apx-001588 (hugs not "meant to be sexual in nature"). Nor, he testified, did he make "inappropriate" comments or ask inappropriate questions. See, e.g., Apx-001614-15 (discussing Emily Anderson); Apx-001669-70 (discussing Angela Hamlin). Testimony to the contrary was "all lies" - "manufactured." Apx-001672-74 (discussing Miller). In his view, the "only issue" he had "was allowing to any extent people joking at the store in any sort of sexual nature." See Apx-001718; cf. Apx-001585-1586 (stating that rude or sexual jokes and remarks are "good fun" unless someone is offended). b. Complaints It was undisputed that KarenKim had no anti-harassment policy until mid- 2007 and no formal complaint procedure at any time. Employees were assumed to know there was an "open door" policy. See Apx-000357 (Marlene Davis). If they had a problem, they could go to Connors, Marlene Davis, or any other manager. See, e.g., Apx-0015776 (Manwaring). Witnesses testified, however, that this policy, if it existed, was ineffective. When complaints were made, the conduct would nevertheless recur or, worse, the employee would "end[] up getting fired" (Apx-000439, Meghan Whitmarsh). Several employees complained to their supervisors or a second-level manager. However, the first to do so, Angela Hamlin, was terminated for absenteeism shortly after complaining to her manager, Carol (Wallace) Akers, that Manwaring touched her inappropriately and asked questions such as how much she charged for a blow job and whether she was shaved. See, e.g., Apx-00195-206. Hamlin then filed a discrimination charge with a state agency. Apx-000229. As her manager, Akers was asked to write up exactly what had happened. She testified that Manwaring was critical of the response when he saw it, saying she should have simply written that "there was no sexual harassment" and then signed it. Apx-000238-239 (Akers, adding that she also discussed the complaint with Conners). After this incident, witnesses including Andrea Bradford testified that they were warned not to complain because the company would find some reason to get rid of them. See, e.g. Apx-000880 (Bradford). Thus, when Deborah Haskins later complained about harassment to Andrea Bradford, Bradford got "upset" and said that "stuff had happened to her" as well; she had complained but "it didn't go nowhere," and "she didn't know what to do." Apx-000676-679 (Haskins). Akers also testified that, sometime after the Hamlin incident, Anna Miller complained to her and Marlene Davis that Manwaring had told Miller she was "so pretty and young" that anyone would want to "sleep with" her. Apx-000244. In response, Akers and Davis "pulled [Manwaring] aside" and attempted to explain that he probably "just didn't realize ... that certain things were inappropriate." Manwaring thanked them, saying he would "work on it." Apx-000245. Akers doubted his sincerity, however, when employees continued to complain about him. Apx-00246-247.<5> Despite the alleged "open door" policy, employees generally were unwilling to complain to Connors, given her relationship with Manwaring. As Abigail Murray explained, "[W]ho's she gonna believe? A 17-year-old girl or the person she's in love with?" Apx-000401. Nevertheless, a number of employees testified that they did attempt to inform Connors about Manwaring's harassment. Most of them were eventually either fired or otherwise left the company. Connors, for the most part, denied that she had received any complaints. Lorraine Warren, for example, testified that on Christmas Eve in 2005, as she was bending over putting away some rolls in the deli, Manwaring came up behind her, reached down and pulled up her underwear, saying "I should have known you'd be wearing a thong." Apx-000282-285 (adding that, while sniffing a deli roll he called a "vagina roll," Manwaring would often say, "I wonder what you're like" or "what you smell [or] taste like"). At her parents' urging, Warren brought this conduct to Connors' attention. While Warren was describing what had happened, however, Connors sat straight-faced, taking no notes. Warren then followed up twice with Connors over the next few weeks, but learned that nothing was being done. Apx-000286-288. She was then fired. As Connors stood silently by, Manwaring accused her of making it all up. When Warren went in to pick up her last paycheck, Manwaring warned her that if she continued to say he had sexually harassed her, he would sue her for slander. Apx-000288-292. When asked whether Warren ever complained to her, Connors asserted, "Never"; "Absolutely not." Apx-001968. Nor did Connors have any recollection of Hamlin's or any other complaints that Akers said had been discussed with Connors. Compare Apx-000238-239 (Akers describing discussions) with Apx- 001954 (Connors: no recollection of Hamlin's harassment complaints or Akers' discussions about that).<6> Then, in 2007, Bradford, along with Haskins, Goodrich, and assistant office manager Janina Chetney, approached Connors in her office and described specific incidents of Manwaring's misconduct. See, e.g., Apx-000901-904, Apx-000906 (Bradford); Apx-000746-749 (Goodrich). Connors cried and initially appeared to believe them. Apx-000904 (adding that Connors said, "I'm the stupid one" and walked away). She quickly decided, however, that the complaints were "unfounded" both because Manwaring told her that "none of it ever happened" (Apx-000749) and because Connors' father "investigated" and could find no corroborating evidence. Apx-001890-1894, Apx-001922-1923. She therefore opted not to discipline Manwaring further for this conduct. Plaintiff-Intervenors left the company shortly thereafter. Apx-000686-687 (Haskins, describing the employees' departures). Finally, when Anna Miller quit in 2009, she left a letter for Connors complaining both that her hours had been cut and that Manwaring had been harassing her for years; most recently, he had told a stock boy, who was also Miller's friend, that he "would like to eat [Miller's] pussy." Apx-001034. Connors testified that, while she recalled the letter, she did not consider it to be a "complaint." Apx-001985. After discussing the letter with Manwaring, who "denied everything," Connors concluded that Miller was "just retaliating against her hours being cut" (Apx-001983-1984), and that the comments about harassment were simply lies. Apx-001672; see also Apx-1186 (Kim Davis: Connors told her Miller was a "liar"); see also Apx-001786-1787 (Manwaring: Miller was just a "disgruntled employee," angry about losing hours). Despite the complaints of Plaintiff-Intervenors, as well as Miller, Connors testified at trial that she recalled only two reported incidents of possible harassment between 2002 and 2010. She indicated that both incidents were handled appropriately. The first, involving Kelsey Rose, occurred in 2007. See Apx-001957 (agreeing that "incident with Kelsey Rose was the first time anything like this had ever happened"). Rose was a junior in high school when she started working as a cashier in 2006. As was true for many KarenKim employees, it was Rose's first real job. Apx-001128. Rose testified that, as she had observed him doing with other girls, Manwaring often put his arm around her and asked how she was doing. He also once asked how she would feel if he were "chewing on [her] panties," a question that "shocked" her and caused her to complain to a supervisor. Apx- 001129-1130. Then, in May 2007, as she was sitting on the bench in the break room talking on the phone to her boyfriend, she suddenly looked up and Manwaring was beside her. He then leaned over and stuck his tongue in her mouth, touching his tongue to hers. Apx-001132-1134. Rose testified that this was "not [accidental] at all." Manwaring stuck his tongue in her mouth and then walked away "with a smirk on his face." Apx- 001133-1134. He did not apologize. Apx-1159. "Crying hysterically" (Apx- 001134-1135), she ran to the office and, because her mother was away, called her mother's friend. Soon the police arrived. The next day, she talked to Connors, telling her she was "shocked, didn't really know how to handle it, horrified, hurt"; she denied saying it was "no big deal." Apx-001138. She was also "very surprised" that she "would have to go through anything like that" on her "first job," given that he was her "boss." Apx-001135. Rose gave a police statement implicating Manwaring and never returned to work at KarenKim. Apx-001136.<7> Manwaring was charged with second degree harassment. He pleaded guilty and was sentenced to community service. Apx- 001635-1637. He maintained, however, that, despite pleading guilty, "in [his] heart [he] always felt it was an accidental joking incident" (Apx-001663) and told his counselor that he "felt victimized by the publicity." Apx-001718-1719. Cf. Apx-001178 (Kim Davis: overheard Manwaring say that Rose "was lying and that nothing ever had happened"). According to Manwaring, when he saw Rose on the phone that afternoon, he started making kissing noises and flicking his tongue at her. Then, inexplicably, he lost his balance, and his tongue accidently touched "like the side of her lip or something like that." According to Manwaring, he then backed off and left the room immediately. A little later, he returned to apologize and had "like a little two-minute embrace - or two-second embrace" with Rose. Apx-001628-1630. Connors, as always, accepted Manwaring's version of the incident. E.g., Apx-001957 (noting that Manwaring said he "fell into" Rose). Connors also stated that the day after the incident, despite filing charges, Rose told her that it was "no big deal"; she was "not upset at all," adding that Manwaring had never done anything that made her uncomfortable. Id. Thus, as the jury heard, Connors stated in her deposition that she did not believe Manwaring had done anything really wrong. See, e.g., Apx-001957-1958. Nevertheless, she suspended Manwaring for 30 days with pay - although he went in to work a few times during the suspension (Apx-001647)). Apx-001642 (30 days); Apx-001666 (with pay). She also told him to get counseling if he had any "issues" (Apx-001717-1718 (Manwaring)), and warned him that he would be fired if she received another complaint of harassment, "no matter how frivolous." Apx-001724 (Manwaring). As a result of the Rose incident and the resulting adverse publicity, KarenKim drafted an employee handbook which contained a sexual-harassment policy. Employees were required to take a copy of the handbook home, sign a form acknowledging that they had read the handbook, and return the book with the signed form to KarenKim. Employees were not permitted to keep the handbook, but copies were available in the offices. Apx-001700 (Manwaring); Apx-1863- 1865 (Connors). The harassment policy applies to "conduct of a sexual nature" and specifies that employees who believe that actions of an employee or third party constitute sexual harassment should report their concerns to Connors. Apx- 001702; Apx-000050-51 (Plaintiff's Ex. 8 (Handbook § 207)). The second incident that Connors responded to involved Kim Davis and occurred in May 2010, just nine months before trial in this case. Davis' problems with Manwaring began in 2008, around the time that EEOC's suit was filed. She told the jury that Manwaring repeatedly called her "sexy," said "he wanted to fuck [her]," "grabbed [her] butt," invited her to his house to "party," and said he loved how her dress "grabbed her ass." Apx-1173-1175. He also told her about his sex life with Connors. Apx-1174. Feeling "very uncomfortable and intimidated," Davis complained several times to the night manager, who agreed that Manwaring was "disgusting" and should not be doing such things but took no steps to stop the harassment. Apx-001175-1178. Davis stated that she did not complain to Connors because Connors had shown her Anna Miller's resignation letter, saying that Miller's comments about Manwaring were all lies. Davis was "scared" that Connors would also assume that her complaints were lies, and she "didn't want to be called a liar" too. Apx-001186-1187. In May 2010, Davis had a fight with her boyfriend. Seeing her upset, Manwaring said, "Why don't you tell Steve that I've been wanting to fuck you for a year and a half now?" Apx-001179. Deciding that she could no longer work with him, Davis complained to Chetney, who told Marlene Davis, who told Manwaring. Manwaring called Kim Davis twice, urging her to say nothing since it was a "joke." Apx-001181-1182. She refused and, on a day she knew Manwaring would not be there, went in to work and told Connors everything that Manwaring had been doing, adding that she was quitting. Connors cried. Apx-001183-1184. An hour later, Connors called and asked her to come back; she had fired Manwaring because "she couldn't afford to lose [Davis] but could afford to lose [Manwaring]." "Really happy and relieved," Davis agreed to return. Apx-001184- 1185. In light of the pending EEOC lawsuit, Davis stated that Connors asked her "to lie and tell everybody that [Manwaring] was farming" on his farm, instead of saying that he had been fired for sexual harassment. In addition, Connors asked her not to seek a protective order against Manwaring, explaining that "if [Davis] were to come forward, [Connors] would lose everything and she would lose the store." Apx-001188. If Davis agreed, Connors "promised [that she] would never have to see [Manwaring] again." Apx-001185. Davis agreed. The first time EEOC learned that Manwaring had been fired for sexual harassment was at Connors' deposition, three weeks before trial. Apx-001996. In early November 2010, Connors encouraged Davis to write a "statement" for the suit; at Connors' request, Davis included the sentences: "The only harassment I have received is from the EEOC. [EEOC's trial attorney] will not stop trying to contact me." Apx-00194-95. At trial, Davis admitted that these sentences were "not true" because she had in fact been harassed by Manwaring. Apx-1196. Soon after Davis prepared her statement, Manwaring started reappearing around the store. Davis saw him only once, but her supervisor told her he had been there several other times and once conveyed the message that "Allen says hi." Apx-001193. In light of Connors' promise, this made Davis "very angry," "upset," and "uncomfortable." Id. In late November, Davis was fired for smoking marijuana on her break. Apx-00197-1198. She agreed to testify in this lawsuit, she said, because she no longer had anything to lose and, moreover, "wanted to help put a stop [to Manwaring] doing this in the future to people."<8> Apx-001196. Connors denied telling Davis to lie or dictating the language in Davis' statement. Apx-001930-1931. However, she admitted giving Davis' statement to her lawyer even though she knew that Davis had in fact been harassed at work and that the lawyer would forward the statement to EEOC. Apx-001993-1196; Apx- 001728-1729 (Manwaring, admitting that he had forwarded Davis' statement despite having made one "inappropriate comment" to her). At trial, Connors refused to say whether she believed Manwaring's account of the Davis incident - that he made one inappropriate remark. Apx-001989-1990 ("I don't know what happened. ... Didn't matter [if I believed him], I fired him."); see also Apx-001990 (admitting that termination notice references only "sexual joking"). c. The Verdict After a ten-day trial, the jury returned a verdict for the Commission and intervenors, finding that the company and/or Manwaring were liable for "creating or maintaining a sexually hostile work environment" with "malice or reckless indifference to the federally protected rights" of the claimants and intervenors. Apx-000008 (verdict form)). While it was instructed in accordance with Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries v. Ellerth, 524 U.S. 742 (1998), that KarenKim could avoid liability by proving both that it took reasonable care to stop and prevent sexual harassment and that employees unreasonably failed to complain about any harassment that occurred (Apx-002201- 2205), the jury implicitly rejected that defense. Each claimant and intervenor was awarded a small amount of compensatory damages and substantial punitive damages. See generally Apx-000008-000018. This was consistent with testimony that the women generally had suffered little lasting injury but wanted justice - an end to the harassment so that no one else would ever have to go through what they had experienced. See, e.g., Apx-000444 (Whitmarsh: participating in the case because it "gave me a chance to stand up for myself ... because I feel like I never stood up for myself"); Apx-000564, 000579- 82 (Anderson: stating that she didn't "think the case is about money at all," agreeing that she "want[s] the individual to change the way he treats people and ... the store to change its policies," and hoping that by participating in the case "no other girls will have to feel uncomfortable going to work"); Apx-000641-642; Apx-000656-657 (Cole: stating that "money" is not "the point"; by participating in the case, "I just kind of hope it doesn't happen to anybody else ... [I] don't want them to be able to make anyone else feel like ... the way he did to me and to my coworkers," adding, "I'd like to be able to shop there comfortably, not feel like ... I'm walking into a place where I know that every ... cashier has dealt with that"); Apx-001158 (Miller: testifying "because it's the right thing to do," adding, "I have a conscience and if I hadn't come forward and told the truth, then I would have to live with that, and God forbid something had happened down the road and I hadn't stood up and said what I had to say, then I would feel like it was my fault and I was responsible"). d. Post-Trial Conduct After judgment was entered in the case, KarenKim, which had never offered any anti-harassment or discrimination training, adopted a requirement that employees and supervisors complete a short on-line training module and submit a certificate of completion. Apx-000065 (R.114-1); see also http://goer.state.ny.us/Training_Development/Online_Learning/SH/intro.html and http://www.goer.state.ny.us/Training_Development/Online_Learning/SH/2d1.asp. However, the modules were designed as a "refresher course" for New York state employees and supervisors. Apx-000079(R.122-2, Ex. A). In addition, by logging into the modules, EEOC's trial attorney learned that a certificate of completion can be obtained in under three minutes simply by clicking rapidly through all the pages and giving random, even nonsensical answers to the questions. Apx-000076 (R.122-1 (2d Declaration of Markus Penzel)). In addition, on reaching the end of the module, one employee can print out multiple certificates with different names. Id. After judgment was entered, the company, which had no harassment complaint procedure, also adopted a "Process for Complaint of Discrimination (including sexual harassment)." Apx-000067(R.114-1). The procedure applies to complaints about any "unlawful discrimination." Id. Complaints are divided into "informal" and "formal" complaints. Apx-000068. Employees are required to make both informal and formal complaints "within 30 days of the date which the Complainant first knew or reasonably should have known" of the "unlawful discriminatory act." Id. The procedure does not explain what would happen if a complaint were made after 30 days. Further, the procedure states that, except in "rare" circumstances, the company will "act on" only "formal" complaints, which must be in writing on a special form. Id. In an interview shortly after the trial, Manwaring denied that KarenKim had "created a sexually hostile work environment for [its] employees." He stated: "We were stunned [by the adverse verdict]. We were questioning whether the jury even heard the defense's arguments." He did not express any remorse for any of the conduct, including the Rose and Davis incidents. See Apx-000054-055 (R.110-3, Ex. B (print-out of web page, accessed on 2/7/11): http://centralny.ynn.com/ content/top_stories/532456/oswego-grocery-store-plans-lawsuit-appeal/). In early March 2011, approximately six weeks after the trial, Claimant Lorraine Warren and her husband attempted to enter KarenKim as customers to cash a check. (At trial, Warren had testified that, despite the harassment and her termination, she still shopped at KarenKim since it was close to her house and was "cordial" to Manwaring whenever she saw him. Apx-000299-300.) To their embarrassment, however, in front of several other customers, the Warrens were ordered to "leave immediately" and told they were "no longer allowed in the store." Apx-000081-82 (R.126-1 (Warren Aff. ¶¶6-9)). 3. The Post-Judgment Motions Defendants did not file a Rule 50 motion challenging the sufficiency of the evidence as to liability or damages. Nor did they move for a new trial or to alter and amend the judgment under Rule 59 at that time. In contrast, the Commission timely moved to alter or amend the judgment under Rule 59(e) on two grounds. R.110 & 110-1; see Apx-000020 (notice of motion). The Commission argued that the damage awards for claimants who did not have state law claims should be reduced to the applicable Title VII cap of $50,000, 42 U.S.C. §1981a(b). In addition, the Commission sought broad injunctive relief aimed at ensuring that the hostile work environment would not recur. Specifically, the Commission requested that the court enter a consent decree, lasting for ten years, pursuant to which KarenKim would be enjoined inter alia from creating and maintaining a hostile work environment and from retaliating against individuals for engaging in protected activity. In addition, KarenKim could not rehire Manwaring, employ or compensate him in any capacity, or allow him in the building except to deliver produce. Further, the company would produce and distribute copies of a notice and letter from Connors along with Manwaring's photo, amend its policy and complaint procedure, train employees, and monitor the company's compliance. In arguing that this type of injunctive relief was necessary, the Commission pointed to the jury verdict, the long history of harassment, the ongoing relationship between Connors and Manwaring, the evidence that Connors, Manwaring, and KarenKim all continued to deny any wrongdoing, the lack of any meaningful training on harassment or an effective complaint procedure, and the fact that Warren had been barred from the store (evincing KarenKim's lingering hostility and propensity to retaliate against individuals who had opposed discriminatory conduct at the store). The Commission also took the position that defendant bore the burden of proving no injunctive relief was needed. R.110-1; see also R.122 (Reply). Defendants did not object to reducing the damage awards or to issuance of a no-rehire order, but did oppose everything else, arguing that the injunctive relief the EEOC sought was unnecessary, overly vague, burdensome, redundant, unconstitutional, and/or moot. R.116. As support, Defendants submitted an affidavit from Connors. Apx-000060 (R.114). She attested that she would not oppose an injunction prohibiting the store from retaining Manwaring as an employee or paid consultant or prohibiting his supervision of any KarenKim employee "in any capacity." Apx-000061 (¶4). Connors asserted, however, that she has an "unalienable right" to associate with anyone she wants outside the store, that her speech as well as Manwaring's "cannot be curtailed by injunctive relief" (¶¶5-6), and that Manwaring should be allowed to enter the store (¶7, noting that he has routinely purchased products or delivered produce there). She stressed that she is "aware of the costs involved in violation of [discrimination] statutes but because the risk of such violations "rests squarely on the business," EEOC should not be permitted to "take de facto control" of the business. Apx-000061-062(¶9; see also ¶8 (opining that "relief sought is obviously punitive, rather than curative")). She also stated that KarenKim now has on-line training and an anti-harassment policy, adopted in an effort "to somehow alleviate [EEOC's] unending concerns" and asserted that "nothing further is required by statute . . . or should be imposed." Apx-000062(¶¶10-11). Connors expressed no remorse for the sexually hostile environment in which KarenKim employees had been forced to work, nor did she provide any assurances that the company would take reasonable steps to ensure that those conditions would not recur. 4. The District Court's Post-Judgment Ruling The district court denied all injunctive relief, concluding that the relief the Commission was seeking was overly burdensome, its "arguments specious and the evidence relied on in support of its claims tenuous or non-existent." Apx-000037; see Apx-000024 (R.131 (Memorandum Decision and Order)). Initially, the court held that the Commission bore the burden of proving that injunctive relief was necessary because the conduct was continuing or likely to recur and that the defendant did not have to prove that it would not recur. The court then decided that the Commission had not carried this burden. Apx-000036-37. In general, the court concluded that "there is no indication, much less evidence, that [the challenged] conduct is likely to occur" again. Apx-000036 . First, the court reasoned, the "discriminatory and unlawful actions" found by the jury were "isolated instances involving [only a single] manager ... and employees who are no longer employed by the company, occurring during a period when the company did not have clearly established anti-harassment policies." Apx-000035. Second, the court noted, the company has now distributed a handbook, including a sexual harassment policy, to each employee. Id. Third, the court found "no indication that the personal relationship between Karen Connors and Allen Manwaring [would] result in the resurrection of the hostile work environment that existed at KarenKim prior to his termination." Apx-000037. Accordingly, the court concluded, "[g]iven the existence of an anti-harassment policy ... and the company's now keen awareness of the issue, the Court is hard-pressed to imagine that should complaints by employees concerning sexual harassment or employment discrimination of any other kind arise in the future, that [sic] KarenKim will not take them seriously." Id. Indeed, the court found itself "at a loss to understand EEOC's pressing need to prevent - in addition to Manwaring's future employment by KarenKim - his very presence on the premises of the store." Id. The court acknowledged that Warren's affidavit might "remotely suggest[] the possibility of ongoing harassment." Apx-000038.<9> However, the court noted, "the alleged refusal of defendant KarenKim to cash a check for Ms. Warren does not contemplate any of the rights or privileges envisioned by Title VII and thus cannot constitute retaliation as a matter of law." Apx-000039. The court reasoned that Warren did not state that the incident would have prevented her from participating in the lawsuit, and while "'bad blood' may have developed between the parties to the present litigation," Title VII "was not designed to police these types of personal disputes." Apx-000040. "Indeed," the court opined, the incident "falls more appropriately into the class of 'petty slights [and] minor annoyances' carved out by [Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53 (2006)], as beyond the purview of Title VII." Id. Finally, the court noted that it was "keenly aware of the egregious conduct by Allen Manwaring" and recognized that "the jury in this case believed wholeheartedly the testimony offer by the various claimants and plaintiffs concerning his behavior." Apx-000040-41. Nevertheless, the court noted, the victims, none of whom still works at KarenKim, all received substantial monetary awards, and the store has fired Manwaring and revised its sexual harassment policy. Apx-000041. The court concluded, "[i]n the unlikely event that ... harassing conduct were to recur at Paul's Big M, EEOC is certainly free to commence further investigative proceedings and litigation to address those concerns. Presently, however, plaintiff's EEOC's request for injunctive relief against defendant KarenKim will be denied." Id. SUMMARY OF ARGUMENT In this appeal, the Commission is asking this Court to overturn the district court's refusal to order any injunctive relief in this Title VII enforcement action. The Commission alleged that KarenKim violated Title VII by condoning and maintaining a sexually hostile work environment caused by the conduct of Store Manager Allen Manwaring, who was also the fiancé of Karen Connors, the owner of the store. During the ten-day trial, the jury heard testimony establishing that Manwaring verbally and physically sexually harassed at least ten female employees, many in their teens, and that, despite repeated complaints, KarenKim took no steps to stop or effectively prevent this conduct from continuing. The jury also heard Manwaring swear that he had not sexually harassed anyone - that any statements to the contrary were lies or misrepresentations - and heard Connors testify that she believed even the most implausible explanations that Manwaring offered for his behavior. Based on this evidence, the jury found that KarenKim had violated Title VII and, moreover, that the company acted maliciously or with reckless indifference so as to justify an award of punitive damages to the ten female victims. KarenKim has not appealed that verdict. The Commission's motion for injunctive relief is based in large part on this same evidence as well as some additional evidence proffered post-trial in support and opposition to the motion. This evidence includes an affidavit from Lorraine Warren, one of the victims, who attested that, some six weeks after the trial, she and her husband had attempted to enter the store as customers, but were ordered, very publically, to "leave immediately" because they were "no longer allowed in the store." The evidence also included an affidavit from Connors making clear that her relationship with Manwaring remained firm; that the company has taken no steps to rein in his conduct or even to limit his access to female employees; and that, despite his termination, he would continue to be an important presence around the store; and leaving open the question of whether even now the company and Connors acknowledge that their conduct violated Title VII. This evidence, taken as a whole, strongly suggests that there is some cognizable danger that, absent an injunction, the sexually hostile work environment could recur. Nevertheless, the district court refused to order any injunctive relief - not even an order barring KarenKim from rehiring or compensating Manwaring, something KarenKim did not oppose. This constitutes reversible error. As this Court has held, once a Title VII violation has been established, "compliance relief" - that is, injunctive relief "designed to erase the discriminatory effect of the challenged practice and to assure compliance with Title VII in the future," Berkman, 705 F.2d at 595 - is presumptively appropriate, at least in the absence of any evidence showing that there is no reasonable probability of further noncompliance with the law. Accordingly, here, given the jury verdict, including the punitive damages award, and the absence of any evidence that the company acknowledges its past wrongdoing and will henceforth comply with the law, the court clearly should have ordered some form of compliance relief to deter the company from again permitting a hostile work environment to occur and to protect the rights of female employees as a class to be free from such harassment. Significantly, none of the reasons offered by the court justifies its refusal to award injunctive relief. Contrary to the decision, the "discriminatory and unlawful actions" found by the jury were not "isolated instances"; the jury found that Manwaring was a serial harasser who victimized at least ten female employees, many of whom were young enough to be his daughter. In addition, contrary to the decision, all of the evidence cited above demonstrates that there is good reason to suspect that the "personal relationship" between Connors and Manwaring could allow "resurrection" of the hostile work environment. As noted above, neither KarenKim nor Connors has ever acknowledged that Manwaring's - or the company's - conduct violated Title VII or expressed remorse for the pain experienced by his victims. Absent an injunction, Manwaring will continue to be free to roam about the store, potentially victimizing additional young workers. Indeed, KarenKim expects that he will remain a presence at the store, as he did even during his suspension and immediately after his termination. Further, there is nothing to suggest that Connors is likely to be any more receptive now to investigating new complaints of harassment involving Manwaring. Indeed, contrary to the district court's ruling, the company's treatment of the Warrens strongly suggests that the company has not turned over a new leaf. In addition to embarrassing and inconveniencing the Warrens, such treatment sends a strong message to other employees that even now - even after a jury verdict found KarenKim liable for violating Title VII - they complain of harassment and pursue claims against the company at their peril. This undermines enforcement of the statute. Therefore, KarenKim should be enjoined from violating the statute in the future. Accordingly, this Court should find that injunctive relief is necessary in this case to ensure that another sexually hostile work environment will not develop at the company. The case should be remanded with instructions to issue all appropriate orders enjoining KarenKim from further harassment and retaliation consistent with Title VII's "prophylactic" purposes of preventing discrimination and achieving equal employment opportunity in the future. ARGUMENT IN LIGHT OF THE TRIAL RECORD AND KARENKIM'S POST- TRIAL CONDUCT, THE DISTRICT COURT ABUSED ITS DISCRETION IN REFUSING TO ORDER ANY INJUNCTIVE RELIEF. Standard of Review The district court's decision to grant or deny injunctive relief is normally reviewed for abuse of discretion. See Malarkey v. Texaco, 983 F.2d 1204, 1214 (2d Cir. 1993). In the context of Title VII, specifically, this Court has held that a district court has "broad, although not unlimited, power to fashion the relief it believes appropriate." Berkman v. City of New York, 705 F.2d 584, 594 (2d Cir. 1983); see also Albemarle Paper Co. v. Moody, 422 U.S 405, 416 (1975) (stating that "discretionary choices are not left to a court's inclination but to its judgment, and its judgment is to be guided by sound legal principles"); Gibson v. Am. Broad. Cos., 892 F.2d 1128, 1133 (2d Cir. 1989) (stating that 1972 amendments to Title VII "aimed to give courts broad discretion, in the exercise of their equitable powers, to fashion the most complete relief possible for victims of discrimination"). The "bounds of the court's discretion are set by the purposes of Title VII." Berkman, 705 F.2d at 594. Argument Title VII, enacted in 1964 and amended in 1972 as part of an ongoing congressional effort to eradicate discrimination, reflects a societal condemnation of invidious bias in employment decisions. To this end, Title VII requires that victims of past discriminatory practices be "made whole" for the injuries suffered as a result of an employer's illegal acts. See Albemarle Paper, 422 U.S. at 418-19 (explaining Title VII's "make whole" purpose); Malarkey, 983 F.2d at 1214 (court's discretionary authority is to be exercised so as "to fashion remedies designed to ensure that victims of discrimination are made whole"). The statute's primary objective, however, is prophylactic - "to prevent discrimination and achieve equal employment opportunity in the future." Berkman, 705 F.2d at 594; see also Faragher, 524 U.S. at 806 (chief aim of Title VII is "to avoid harm" in the first place). Consistent with that objective, Title VII lists injunctive relief as a quintessential remedy for discrimination. See 42 U.S.C. § 2000e-5(g)(1) (providing that "[i]f the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate"). Interpreting this statutory provision, the Supreme Court has declared that courts in these cases have "not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Albemarle Paper, 422 U.S. at 418 (internal quotation marks omitted) (emphasis added). This Court has used the term "compliance relief" to describe injunctive relief that is "designed to erase the discriminatory effect of the challenged practice and to assure compliance with Title VII in the future." Berkman, 705 F.2d at 595. According to the Court, compliance relief is normally "appropriate whenever a Title VII violation has been found" (id.), at least in the absence of any showing that there is no reasonable probability of further noncompliance with the law. See also EEOC v. Local 628, 565 F.2d 31, 33 (2d Cir. 1977) ("Having found a violation of [Title VII], the district court was not only within its power but under an obligation to fashion a remedy for the violation."). Factors the court should consider include any evidence of "some cognizable danger" that the violation could recur, "the bona fides" of the defendant's "expressed intent" to comply with the law, and "the character of the past violations." See United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953). Injunctive relief is crucial to appropriate enforcement of Title VII and thus critical to the Commission's role as a primary enforcer of Title VII. As the Supreme Court explained, EEOC "exists to advance the public interest in preventing and remedying employment discrimination." General Tel. Co. v. EEOC, 446 U.S. 318, 331 (1980); see also id. at 326 (noting that EEOC was expected "to bear the primary burden of litigation"). "When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination." Id.; see also Franks v. Bowman Transp. Co., 424 U.S. 747, 779 n.40 (1976) (stating "claims under Title VII involve the vindication of a major public interest") (citing legislative history of 1972 amendments to Title VII). Thus, once it proves that a particular employer has violated Title VII, EEOC pursues injunctive relief to vindicate the public interest by deterring the employer from future violations and protecting both the rights of the current victims and those of similarly situated employees as a class. See EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1543 (9th Cir. 1987); accord EEOC v. Massey Yardley Chrysler-Plymouth, 117 F.3d 1244, 1253 (11th Cir. 1997). Accordingly, here, once the jury rendered its verdict finding that KarenKim not only violated Title VII but did so with malice or reckless indifference so as to justify an award of punitive damages, the Commission requested injunctive relief aimed at eliminating all vestiges of the sexually hostile work environment that the jury had found existed and at ensuring that the unlawful conduct would not recur after the case was over. To support its request, the Commission focused inter alia on the long-standing relationship between KarenKim, Store Owner Karen Connors and Manwaring, the harasser. As the jury heard, due largely to that relationship, KarenKim took no steps to stop Manwaring's opportunistic harassment of a string of female employees, many still in their teens. And as the post-trial evidence confirms, while it is certain that Manwaring will remain firmly in the picture despite his termination, it remains unclear despite the verdict whether KarenKim even now acknowledges that either the company or Manwaring has done anything wrong. Apx-000060-62 (expressing no remorse for misconduct or intention to comply with the law henceforth). The Commission also pointed to the treatment of Claimant Warren and her husband, as well as the newly adopted, facially ineffective complaint procedure, to suggest that employees in the future might well be deterred from complaining about any harassment that did occur. Apx-000081- 82. Nevertheless, the district court refused to order any injunctive relief. This was reversible error. In light of the trial and post-trial record, the court should have found that there is a cognizable risk that a violation could recur.<10> With respect to the "character of the past violations" (see W.T. Grant, 345 U.S. at 633), the Title VII violations here were grave, and the evidence establishing the violations was overwhelming. Indeed, the district court stated it was "keenly aware of the egregious conduct by Allen Manwaring" and recognized that "the jury in this case believed wholeheartedly the testimony offered by the various claimants and plaintiff's concerning his behavior." Apx-000040-41. Inexplicably, however, the district court also concluded that this case involved merely "isolated instances" of harassment. Apx-000035. Of course, the jury effectively found otherwise, determining that Manwaring, then a high-level manager, was a serial harasser. Cf. LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 431-32 (2d Cir. 1995) (district court may not second-guess jury findings). The trial testimony established that the harassment went on, unchecked, for years. And it involved numerous victims, many of whom were teenagers, exploring the working world for the first time. See Apx-001696. All ten claimants, many seeking only justice, described their futile efforts to stop Manwaring's incessant misconduct. Rejecting defendants' Faragher/Ellerth defense, the jury found that, throughout a nearly ten-year period, KarenKim violated Title VII by condoning and maintaining an illegal sex-based hostile work environment. See generally Apx-000008-15 (liability verdicts). In addition, the jury further found that the company acted with malice or reckless indifference to the victims' federally protected right to be free from unwelcome sexual harassment. Apx-000016-18. This is precisely the sort of scenario in which injunctive relief is not only appropriate, but necessary. Contrary to the district court's assessment, there still is at least "some cognizable danger" (W.T. Grant, 345 U.S. at 633) that the sexually hostile work environment could recur. In denying the EEOC's request for injunctive relief, the district court emphasized that this case involved "a manager who is no longer employed by the company and employees who are no longer employed by the company, occurring during a period when the company did not have clearly established anti-harassment policies." Apx-000035. However, the district court abused its discretion in relying on these facts to justify a refusal to order injunctive relief. That none of the claimants remains employed at KarenKim has no bearing on whether injunctive relief is appropriate. But see Apx-000035, Apx-000041 (citing this as a reason to deny the motion). The claimants are not seeking injunctive relief; the Commission is. As noted above, in pursuing injunctive relief, the Commission seeks to protect all potential victims of discriminatory practices, not just the specific victims in the particular case. Goodyear Aerospace, 813 F.2d at 1543 (noting injunctive relief "would protect the aggrieved employee and others similarly situated," adding that EEOC seeks injunctive relief in part "to protect employees as a class"); see also Massey Yardley, 117 F.3d at 1253 ("through injunctive relief, [EEOC] seeks to protect not only the rights of the individual claimant, but those of similarly situated employees"). Thus, injunctive relief would normally be appropriate in EEOC enforcement actions whether or not the charging parties and other victims are still employed by the defendant. See Massey Yardley, 117 F.3d at 1253 (EEOC's interests in deterring future discrimination are independent of the claimant's interests). Moreover, here, many of the victims left KarenKim because of the discrimination they suffered there. It would therefore frustrate Title VII's remedial purposes to allow KarenKim - a known violator of Title VII - to evade an injunction designed to deter future illegal conduct on the grounds that the same illegal conduct had forced the victims out of the workplace.<11> Moreover, and signficantly, although Manwaring no longer works for KarenKim, the company clearly contemplates that he will remain a presence at the store - as a customer, supplier, and Connors' fiancé. Apx-000061 (Connors' Aff.); see also Apx-001193 (noting Manwaring's presence at the company even after he was fired). He is thus still in a position to harass KarenKim employees, and KarenKim would be liable for his misconduct just as it would if he were still employed. See, e.g., Lockard v. Pizza Hut, 162 F.3d 1062, 1073-74 (10th Cir. 1998) ("An employer who condones or tolerates the creation of [a hostile work] environment should be held liable regardless of whether the environment was created by a co-employee or a nonemployee [such as a customer] because the employer ultimately controls the conditions of the work environment."); Galdamez v. Potter, 415 F.3d 1015, 1022 (9th Cir. 2005) (discussing harassment by community members and customers, explaining that an "employer may be held liable for the actionable third-party harassment of its employees where it ratifies or condones the conduct by failing to investigate and remedy it after learning of it"). The district court was "at a loss to understand EEOC's pressing need to prevent - in addition to Manwaring's future employment by KarenKim - his very presence on the premises of the store." Apx-000036. But the rationale for this request should be self-evident. Absent an injunction, Manwaring will be free to roam about the store, with ready access to its female employees. He will be able to visit even the employee-only areas like the break room, where teenager workers are often alone (and where Manwaring in the past did much of his harassing). Indeed, he could even be rehired once this case is over. See, e.g., Bundy v. Jackson, 641 F.2d 934, 946 n.13 (D.C. Cir. 1981) (explaining that "[c]ommon sense tells us that [the harassers] may well have ceased their actions solely because of the pendency of ... [a] lawsuit" and "the offending party might be free otherwise to renew that conduct once the court denied the [injunctive] relief" requested). The district court either overlooked this possibility or dismissed it, assuming that KarenKim must have learned its lesson from this lawsuit. The court speculated that "[g]iven the existence of an anti-harassment policy at KarenKim and the company's now keen awareness of the issue, the Court is hard-pressed to imagine that should complaints by employees concerning sexual harassment or employment discrimination of any other kind arise in the future, that [sic] KarenKim will not take them seriously." Apx-000036. But the record belies this assumption. Here, the "bona fides" of defendant's "expressed intent to comply with the law" (W.T. Grant, 345 U.S. at 663) are, at best, highly suspect and at worst, simply non-existent. Nothing in the record suggests that Manwaring has reformed. To the contrary, throughout both his employment and the trial, he adamantly denied that he had sexually harassed female employees (e.g., Apx-001581-1582 (never intentionally touched employee's "buttocks," breast, or thigh); Apx-001527 (never hugged "inappropriately")), and threatened to sue Warren for slander if she continued saying that he did (Apx-000291). Indeed, after the trial he even held a press conference at KarenKim stating that virtually all of the accusations against him were lies or fabrications. Apx-000056-57. Moreover, as the Commission argued, there is no evidence that KarenKim itself appreciates the gravity of its actions and is committed to preventing similar violations in the future. The district court disagreed, describing this position as "specious" and noting that the evidence in support of it was "tenuous or non- existent." Apx-000036. Yet, while doubting that Connors' "personal relationship" with Manwaring would allow "resurrection of the hostile work environment" (id.), the court pointed to nothing suggesting that the relationship would not continue to color Connors' perception of her fiancé's behavior and credibility. In fact, the evidence at trial confirmed that Connors cannot be objective about Manwaring or his conduct. Even when his story made no sense - as was true with Rose, for example - or was contradicted by people that she otherwise respected (like Andrea Bradford and Carol Akers), Connors steadfastly believed whatever Manwaring told her and even branded his accusers as "liars." See Apx-001185-86 (Connors told Davis Miller was a liar). Nothing in her Rule 59(e) affidavit indicates that this has changed. At no point has she acknowledged that the harassment occurred or expressed any remorse for allowing her employees to be subjected to a hostile work environment, as the jury found she had. See Massey Yardley, 117 F.3d at 1253 (noting that injunctive relief was appropriate because "no one at the company seems to have admitted to any wrongdoing"). Moreover, evidence also showed that, while the harassment was occurring, employees seldom discussed Manwaring's conduct with Connors because they quickly learned that she could not hear or would not act on their complaints - or worse, employees were punished for complaining. See, e.g., Apx-000880 (Andrea Bradford: if employees complain, management "will find a way to get rid of you"). Connors' affidavit states that since "employees are well aware that Mr. Manwaring is no longer an employee or supervisor, [a]ny employee would have the right to complain of his actions if so merited." Apx-000061 (Connors Aff. ¶7). That misses the point. They always had that "right." Since Connors' personal relationship with Manwaring continues, there is no reason to believe that her reaction to complaints about his conduct would now be any different than it was before. There is, however, evidence that KarenKim's reaction to complaints will not be different. As even the district court grudgingly acknowledged, the affidavit of claimant Lorraine Warren suggests - albeit "remotely" - the "possibility of ongoing harassment." Apx-000037. As noted above, Warren attested (and KarenKim has not disputed) that when she and her husband attempted to enter the store as customers some six weeks after the trial, they were ordered to "leave immediately" and told that they were no longer allowed in the store. Apx-000081- 82. Significantly, KarenKim's treatment of the Warrens strongly suggests that employees and former employees who complain about harassment - and even their families - will suffer negative repercussions. The treatment could therefore, at a minimum, cause employees to think twice before making or supporting a harassment complaint. Oswego is a small town with few grocery stores; employees might well find that being banned from the store where they have shopped for years is more than a trivial inconvenience. Moreover, Warren stated that she and her husband were "embarrass[ed]" by the treatment (Apx-000082), suggesting that KarenKim made no effort to be discreet; as one claimant explained, "news travels fast" in this "small town" (Apx-000398, Abigail Murray). Thus, injunctive relief is necessary to prevent the company from both continuing to take retributive measures against Warren and other individuals who dare to complain, testify, or otherwise participate in harassment proceedings and from discouraging those who would otherwise make or support such a complaint. The district court dismissed the Warren affidavit, viewing the incident as merely a "petty slight" or "minor annoyance" too insignificant to constitute actionable retaliation. The court noted that the company had not, for example, had Warren arrested and charged with trespass. See Apx-000040. But the question is not whether the conduct is independently actionable -- although it might well be. Cf. Burlington No. & Santa Fe Ry. v. White, 548 U.S. 53, 67-68 (2006) (standard for actionable retaliation is whether conduct may well deter a reasonable person from making or supporting a complaint of discrimination). Rather, it is whether the incident provides evidence of "some cognizable danger of recurrent violation" (W.T. Grant, 345 U.S. at 633), so as to support injunctive relief. Clearly, it does. Finally, the district court erred in relying on KarenKim's anti-harassment policy (Apx-000050-51, Handbook § 207) as proof that injunctive relief is unnecessary. The mere existence of an anti-harassment policy is "not necessarily dispositive" of whether an employer has exercised and/or will exercise reasonable care in preventing and promptly correcting any harassment that occurs. See, e.g., Petrosino v. Bell Atlantic, 385 F.3d 210, 226 (2d Cir. 2004) (issue of fact on whether employer exercised reasonable care to prevent and correct harassment where evidence suggested employer did not properly respond to complaints under its policy) (citing Mack v. Otis Elevator Co., 326 F.3d 116, 128 (2d Cir. 2003)); EEOC v. Sunbelt Rentals, 521 F.3d 306, 320 (4th Cir. 2008) ("The mere existence of an anti-harassment policy does not allow [a defendant] to escape liability."); Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983) ("[A]n employer on notice of harassment must do more than indicate the existence of an official policy against such harassment."). Although the court indicated that the policy here was new, it was in fact adopted in 2007 (Apx-001698), but, as the jury implicitly found, the company never made reasonable efforts to enforce it. Cf. Apx-001079 (Miller: did not recall reading harassment policy, only other sections of handbook). In addition, the policy is actually quite narrow in scope. Although Title VII also prohibits other forms of gender-based harassment, as well as harassment based on other protected traits, such as race (See, e.g., Pucino v. Verizon Wireless Communications, 618 F.3d 112, 117-19 (2d Cir. 2010) (gender-based harassment)), KarenKim's policy covers only "conduct of a sexual nature." Apx-001702; Apx-000050-51 (Plaintiff's Ex. 8 (Handbook § 207)). More importantly for this case, it also specifies that employees should complain to Connors. However, particularly given KarenKim's treatment of Warren, it is unclear why employees (including managers and supervisors) would now feel comfortable complaining about harassment to Connors notwithstanding any anti-harassment policy. Despite the court's rosy assessment of its worth, therefore, the policy may have limited utility. While the district court did not explicitly mention two other so-called remedial measures - a complaint procedure and on-line training module - that KarenKim has recently adopted, it is, at best, questionable whether these measures will do much to prevent further harassment and/or lead to prompt correction of any harassment that does occur. Significantly, both were adopted after the jury verdict. Curative actions taken by an employer only after it has been sued do not normally provide sufficient assurances that the unlawful conduct will not recur. See Goodyear Aerospace, 813 F.2d at 1544; cf. W.T. Grant, 345 U.S. at 632-33 (voluntary cessation of challenged practice does not preclude injunctive relief since defendant "is free to return to his old ways"). Furthermore, both measures are seriously flawed. KarenKim's procedure for lodging complaints (Apx-000067-71 (Connors' Aff. Ex. A (§ 207-A) ("Process for complaint of discrimination (including sexual harassment)") seems ill-suited to facilitate harassment complaints, especially those from teenagers. Unlike the harassment policy (§ 207) which uses terms like "verbal or physical conduct of a sexual nature," the complaint procedure generally speaks in vague and undefined terms of "discriminatory acts." Apx-000068-69. However, employees may not readily understand that certain verbal and/or physical abuse is a "discriminatory act" per se. A teenager, working for the first time, might well not realize that she should report as a "discriminatory act" the fact that the boss said she is sexy, that "her ass looks great" in a particular pair of pants, or that the boss's fiancée dislikes oral sex (see Apx-000542-44 (Anderson) - even though such comments might make her uncomfortable and, if repeated often enough, could create a hostile work environment. Cf. EEOC v. V & J Foods, 507 F.3d 575, 578 (7th Cir. 2007) ("Knowing that it has many teenage employees, the company was obligated to suit its procedures to the understanding of the average teenager.") (citation omitted). The procedure itself is also defective. It requires inter alia that complaints, whether "formal" (i.e., written) or "informal" (i.e., oral), be made "within 30 calendar days following the alleged [unlawful] discriminatory act or the date on which the Complainant first knew or reasonably should have known of such act." Apx-000068-69. "It is the Complainant's responsibility to be certain that any complaint is filed within the applicable 30-day period." Apx-00068. In addition, only "in rare instances" will the company fully investigate an oral complaint; ordinarily, it must be in writing on a special form. Id. The Commission questions whether a teenager would or should have to make a written complaint on a special form each time her boss makes an off-color remark or touches her inappropriately. More importantly, there is no basis in the law for imposing a 30-day time limit on complaints of sexual harassment. It is difficult to determine when harassment has become unlawful because the unlawful employment practice "cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). Employees in New York, by contrast, have 300 days from the last incident of harassment in order to file a charge. 42 U.S.C. § 2000e-5. Nor is the distinction between written and oral complaints supportable. In Kasten v. St. Gobain Performance Plastics, 131 S. Ct. 1325, 1336 (2011), for example, the Supreme Court recently rejected a distinction between oral and written complaints for purposes of coverage by Equal Pay Act's retaliation provision. The Court indicated that a complaint may be oral or written as long as it is "sufficiently clear and detailed" to put the company on notice of the challenged conduct. Id. at 1335. See also EEOC Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, §V(C)(1): Effective Complaint Process (stating that "the employer is obligated to investigate [a complaint] regardless of whether it conforms to a particular format or is made in writing"), available at http://www.eeoc.gov/policy/docs/harassment.html. Viewing these two requirements (the 30-day time limit and the need for the complaint to be in writing) together, therefore, the company's policy may actually affirmatively discourage complaints. If employees are not certain that the conduct is unlawful, especially if they must muster up the courage to make a written complaint, the 30-day period could easily elapse before they act. As for training, KarenKim now requires employees and supervisors to do an on-line training module from the State of New York and obtain a certificate of completion. Apx-000063 (Connors' Aff. Ex. A (Handbook § 207-B)). However, the module is denominated a "refresher." Apx-000079. Since the company never previously conducted or provided any sexual harassment training - or, for managers, training in investigating such complaints - more than a mere "refresher" is needed here. In addition, as EEOC's trial attorney learned, even a minimally computer-savvy teen could complete the module in minutes by simply clicking through the pages, without reading any of the questions or commentary. Apx- 000076. Further, one individual can even print out multiple certificates of completion for herself and others. Id. And since employees are permitted to take the "training" at home (Apx-000063 (¶4)), the company has no way of knowing even whether each employee has gone through the minimal motions of paging through the module. Accordingly, because these defective materials will otherwise continue to be used, injunctive relief is needed to ensure that the company instead acquires and uses more appropriate and effective materials.<12> Finally, to the extent the court concluded that the requested injunctive relief was overbroad or burdensome, that cannot justify its refusal to order any injunctive relief at all. To be sure, a district court has broad discretionary power to craft an appropriate injunction tailored to the specific violations to ensure that the employer complies with the law. EEOC v. Wilson Metal Casket Co., 24 F.3d 836, 842 (6th Cir. 1994). The Commission does not suggest that the district court abused its discretion in refusing to order the exact remedial relief the Commission requested. But the court was duty-bound to fashion some substantial remedy to rectify the Title VII violations here. Given the record in this case, the EEOC believes the jury's verdict would justify, at a minimum, "compliance relief" that (1) enjoins KarenKim from engaging in additional acts of sexual harassment and retaliation, and (2) requires the company to adopt an effective anti-harassment policy and complaint procedure, implement an appropriate harassment training program, and ensure that Manwaring has no opportunity or ability to harass or retaliate against any of the company's employees ever again. Such relief is necessary to erase the discriminatory effects of the unlawful hostile work environment and to assure KarenKim's compliance with Title VII in the future. See Berkman, 705 F.2d at 595. Accordingly, the Commission urges this Court to hold that the court abused its discretion by denying any and all injunctive relief. In light of the overwhelming evidence of liability, this Court should order the court instead to fashion a remedy that will eliminate the discriminatory effects of the past and bar like discrimination in the future. CONCLUSION For the foregoing reasons, the district court's denial of injunctive relief should be reversed and the case remanded to the court for further proceedings consistent with this ruling. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel DANIEL T. VAIL Acting Assistant General Counsel /s/ Barbara L. Sloan_____________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street N.E., 5th Floor Washington, DC 20507 202-663-4721 barbara.sloan@eeoc.gov (FAX) 202-663-7090 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 12,945 words from the Statement of Jurisdiction through the Conclusion, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Work 2003 with Times New Roman 14-point font. /s/ Barbara L. Sloan________________ Barbara L. Sloan Attorney for Equal Employment Opportunity Commission Dated:_21 November, 2011__________ ADDENDUM The District Court's Post-Judgment Ruling CERTIFICATE OF SERVICE I certify that I filed the foregoing opening brief of the Equal Employment Opportunity Commission with the Clerk of the Court this 21st day of November, 2011, by uploading an electronic version of the brief via this Court's Case Management/Electronic Case Filing System (CM/ECF). The following participant of the case is a registered CM/ECF user and will be served by the Court's CM/ECF system. David P. Antonucci ANTONUCCI LAW FIRM The Bonadio Building 12 Public Square Watertown, NY 13601 A paper copy of the brief was also served on counsel of record by first-class mail, postage prepaid, on November 21, 2011. _/s/ Barbara L. Sloan____________ Barbara L. Sloan ********************************************************************************** <> <1> Plaintiff-Intervenors' damage awards were not reduced since the amount in excess of the caps could be allocated to their state claims. Apx-000026 (R.131 (Memorandum and Order at 3 n.1)). The women also moved for attorneys fees. R.107. On June 17, 2011, over defendants' objection, the district court awarded costs and fees. Apx-000044-45 (Memorandum and Order at 21-22). <2> After noticing an appeal on January 31, 2011 (R.105), defendants failed to perfect the appeal. The appeal was dismissed, and the mandate issued on May 25, 2011. R.130. <3> See also, e.g., Apx-000879, 882, 887 (Andrea Bradford: Manwaring grabbed her nipple; touched her buttocks, inviting her to touch him there "whenever you want"; cupped his hands while pointing to her chest and saying "those are nice," and then touched her between the legs, saying "that's nice too"); Apx-000395-396 (Abigail Murray (age 17): in the winter Manwaring once sat down beside her in the break room and began rubbing her thigh, saying, "Oh sweetie, are you cold, can I warm up?"). <4> Despite Manwaring's position, Miller and other employees did sometimes tell him that he was "disgusting" or a "pervert," but he would just laugh it off. See, e.g., Apx-001019 (Miller); Apx-000548 (Anderson). Cole stated that, after Manwaring's "anaconda" comment, she mustered up the courage to tell him, "it's not ok what you said to me the other day." He just chuckled, leaving her feeling frustrated and deflated. Apx-000616-618. <5> Emily Anderson testified that she attempted to complain to Davis when a stock boy told her that Manwaring had said he "wanted to stick his dick in [her] mouth." Teary-eyed, she approached Marlene Davis but before she could say much, Davis hurried away, saying she would get back to her later - but she never did. Apx-000559-561, Apx-000570-572. Marlene Davis testified that she did not recall this or other complaints. Apx-000361-362. <6> See also Apx-000888-890 (Andrea Bradford: stating that in September 2005, she told Connors that there were things going on that she had no idea about. Connors did not respond, but Manwaring, who was standing beside Connors at the time, told Bradford to "turn around, shut [her] mouth, and go back to work." Connors never followed up to find out what Bradford was referring to.) See also Apx-001968 (Bradford never told her to investigate Manwaring's conduct). <7> Rose filed a private civil suit, which she settled shortly before the trial in this case. <8> The district court denied EEOC's motion to include Davis as a claimant. Apx-000113. <9> The district court stated erroneously that this incident occurred "in early January," which would be before the trial. In fact, as noted above, it happened in early March, some six weeks after the trial. Apx-000081. <10> The district court held that the Commission bears the burden of proving that injunctive relief was needed. Apx-000036. In reaching this conclusion, the district court cited a district court case, Collins v. Suffolk County Police Department, 349 F. Supp. 2d 559, 563 (E.D.N.Y. 2004), vacated in part on other grounds, 2009 WL 2596885 (E.D.N.Y. Jan. 7, 2009) (unpublished). In Collins, the district court indicated that the likelihood of future violations can be "'inferred from the totality of the circumstances, including the commission of past illegal conduct.'" Id. (quoting EEOC v. Gen. Lines, 865 F.2d 1555, 1565 (10th Cir. 1989)). Similarly here, the "totality of the circumstances," including the jury's findings that KarenKim not only violated Title VII but acted maliciously or with reckless indifference in doing so, strongly suggests a likelihood of future violations. Regardless of who bears the burden of proof on this issue, therefore, some form of "compliance relief" (Berkman, 705 F.2d at 595) was presumptively appropriate. <11> The court also suggested that the fact that claimants received substantial compensatory and punitive damages justified its decision to deny injunctive relief. Apx-000041. That is incorrect. As the Supreme Court explained in Albemarle Paper, both monetary and injunctive relief are critical to achieving Title VII's goals. See 422 U.S. at 417-18. <12> In denying injunctive relief, the district court suggested somewhat facetiously that EEOC "is certainly free to commence further investigative proceedings and litigation" if the harassment were to recur. Apx-000041. Clearly, the purpose of enjoining the employer from further violations at this juncture is to avoid wasting EEOC's limited resources, as well as those of the courts, by forcing the agency to return to the same employer again and again to address the same illegal conduct. In contrast, an injunction would remind the company that it must comply with federal law and subject it to the contempt power of the federal courts if it commits future violations (see Goodyear Aerospace, 813 F.2d at 1544) - a far simpler and more efficient means of forestalling future misconduct and correcting any misconduct that does occur.