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 _________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _________________________________________________ P. DAVID LOPEZ General Counsel EQUAL EMPLOYMENT LORRAINE C. DAVIS 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . 23 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . 24 TABLE OF AUTHORITIES CASES Page(s) Anderson v. City of Bessemer City, 470 U.S. 564 (1985). . . . . . . . . . . . . . . . . . . . . . . . 19 Berkman v. City of New York, 705 F.2d 584 (2d Cir. 1983). . . . . . . . . . . . . . . . . . 4, 14, 20 Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981) . . . . . . . . . . . . . . . . . . . . 15 Burlington Industries v. Ellerth, 524 U.S. 742 (1998). . . . . . . . . . . . . . . . . . . . . 9, 12-13 Califano v. Yamazaki, 442 U.S. 682 (1979) . . . . . . . . . . . . . . . . . . . . . . . . 21 Cardin v. VIA Tropical Fruits, No. 88-14201, 1993 U.S. Dist. LEXIS 1235 [1993 WL 945324] (S.D. Fla. July 9, 1993). . . . . . . . . . . . . 6-7 EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . 4, 13 EEOC v. Harris Chernin, 10 F.3d 1286 (7th Cir. 1993). . . . . . . . . . . . . . . . . . . . . 7 EEOC v. Massey Yardley Chrysler-Plymouth, 117 F.3d 1244 (11th Cir. 1997) . . . . . . . . . . . . . . . . . . . . 7 EEOC v. Target Corp., 460 F.3d 946 (7th Cir. 2006). . . . . . . . . . . . . . . . . . 10-11 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) . . . . . . . . . . . . . . . . . . . . . 4, 9, 12 LeBlanc-Sternberg v. Fletcher, 67 F.3d 412 (2d Cir. 1995) . . . . . . . . . . . . . . . . . . 17-18 Malarkey v. Texaco, 983 F.2d 1204 (2d Cir. 1993) . . . . . . . . . . . . . . . . . . 5, 19 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 12 Millea v. Metro-North R.R. Co., 658 F.3d 154 (2d Cir. 2011) . . . . . . . . . . . . . . . . . . . . . 17 SEC v. Commonwealth Chemical Securities, 574 F.2d 90 (2d Cir. 1978). . . . . . . . . . . . . . . . . . . . .5, 19 Swanson v. Elmhurst Chrysler-Plymouth, 882 F.2d 1235 (7th Cir. 1989) overruled in part by Saxton v. AT&T, 10 F.3d 526 (7th Cir. 1993). . . . . . . . . . . . . . . . . . . . . 6-7 United States v. W.T. Grant, 345 U.S. 629 (1953). . . . . . . . . . . . . . . . . . . . . 4-5, 14 STATUTES, REGULATIONS and RULES 42 U.S.C. § 2000e-5(b) . . . . . . . . . . . . . . . . . . . . . . . . 16 42 U.S.C. § 2000e-5(f) . . . . . . . . . . . . . . . . . . . . . . . . 16 42 U.S.C. § 2000e-8(c) . . . . . . . . . . . . . . . . . . . . . . . . 10 29 C.F.R. § 1602.14 . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Federal Rule of Civil Procedure 59(c) . . . . . . . . . . . . . . . . . . 6 Federal Rule of Civil Procedure 59(e) . . . . . . . . . . . . . . . . . . 6 OTHER AUTHORITY EEOC Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, §V(C)(1): Effective Complaint Process (June 18, 1999), available at http://www.eeoc.gov.gov/policy/docs/harassment.html . . . . . . 12-13 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 _____________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _____________________________________________________ INTRODUCTION The Commission is appealing an order denying all injunctive relief in this Title VII enforcement action. The jury rendered a verdict finding that KarenKim acted maliciously or with reckless indifference in subjecting at least ten employees, many still in their teens, to a sexually hostile work environment. This environment was caused in large part by the verbal and physical harassment of the then-store manager, Allen Manwaring, who is also engaged to the store owner, Karen Connors. However, notwithstanding the verdict and evidence that the company retaliated against one of the claimants weeks after the trial was over, the court concluded that injunctive relief was unnecessary. The Commission’s opening brief explained why this ruling constitutes an abuse of discretion. We noted that injunctive relief is critical to EEOC’s role in enforcing Title VII and in preventing and remedying violations of the statute. We also argued that the evidence here — including the harasser’s continued presence at the workplace and unrestricted access to female employees, KarenKim’s refusal to admit that it or he had done anything very wrong, the company’s flawed anti- harassment procedures and training program, and its post-verdict mistreatment of one claimant — strongly suggests that without injunctive relief, the discriminatory conduct might well recur. The district court’s contrary ruling is erroneous, we argued, because it was based on the fact that the harasser has been fired, without regard to the fact that he is still present at the store; factual findings that are inconsistent with the verdict; and the supposition that the company must surely have learned its lesson, a supposition unsupported by the record and contrary to the evidence of the post-verdict retaliation. KarenKim’s Brief as Appellee is long on vague assertions but short on specifics, such as citations to the record, applicable legal authority, and/or EEOC’s brief. In light of this overall lack of clarity, it is sometimes difficult to discern exactly what the company is arguing. It appears, however, that the brief makes two main arguments. First, the brief argues that the Commission cannot establish that injunctive relief is necessary because the company is not presently violating the law, as evidenced by the fact that the harasser has been terminated and the Commission has not attempted to “prosecute” any post-verdict Title VII violations. See, e.g., Doc.58, pages 6-8, 10, 11.<1> Second, the brief argues that the district court’s denial of injunctive relief and underlying “factual findings” should not be disturbed “unless grossly erroneous.” Thus, the brief argues, even if this Court finds there is a serious risk of “future discriminatory conduct,” the “matter should [nevertheless] be left to the discretion of the trial court” that saw no need for injunctive relief. See, e.g., Doc.58, page 9, 10, 12. As explained more fully below, these arguments are based on faulty reasoning and incorrect legal standards. Applying proper analysis, it is clear that injunctive relief is necessary in order to ensure that the conditions that led to this lawsuit do not recur. ARGUMENT 1. In our opening brief, we argued that ample evidence demonstrates the need for injunctive relief in this case. We pointed out that Title VII’s primary objective is to “prevent discrimination from occurring” (Berkman v. City of New York, 705 F.2d 584, 594 (2d Cir. 1983)) and “to avoid harm.” Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998) (“avoid harm” and “prevent violations” of the statute). Consistent with that objective, we argued that particularly where, as here, it has proved a serial violation of the statute, the Commission normally seeks injunctive relief aimed at assuring compliance and deterring future violations with the law as well as protecting the rights of both current victims and other similarly- situated employees as a class. EEOC Brief at 39-41; cf. Doc.58, page 8 (citing EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539 (9th Cir. 1987), for the proposition that injunctive relief may provide “protection of similar employees in the future”). In keeping with these goals, we argued, injunctive relief is presumptively available where the employer “has intentionally engaged in . . . an unlawful employment practice” and, considering all of the circumstances, there exists “some cognizable danger” that the discriminatory conduct might well recur. See EEOC Brief at 40-41 (citing, e.g., U.S. v. W.T. Grant, 345 U.S. 629, 633 (1953)). Factors relevant to that determination include the “character of the past violations,” whether the conduct was “isolated” or “widespread,” and the “bona fides” of the employer’s “expressed intent to comply.” See id.; see also W.T. Grant, 345 U.S. at 633 (“bona fides,” “character of the past violations”); Malarkey v. Texaco, 983 F.2d 1204, 1215 (2d Cir. 1993) (whether misconduct was “isolated” or “widespread”); SEC v. Commonwealth Chem. Securities, 574 F.2d 90, 100 (2d Cir. 1978) (“fact that defendant has been found liable for illegal conduct,” “whether infraction is an isolated occurrence,” “whether defendant continues to maintain that [its] past conduct was blameless”). Applying that standard here, we argued, the evidence strongly supports a finding that the harassment could recur and, if it did, KarenKim would be unlikely to respond effectively. See, e.g., EEOC Brief at 42. Specifically, we noted that although Manwaring has been fired, he remains a frequent presence as a customer, supplier of produce, Connors’s fiancé, and the father of their child. See Apx- 000061. Moreover, the harassment was widespread, harming at least ten employees, and the company has never acknowledged that its conduct or Manwaring’s was unlawful. Nor has Connors promised that the company henceforth will comply with the law. See generally Apx-000060-63. In any event, we concluded, any such promise would be suspect in light of the undisputed evidence that some six weeks after trial, in front of customers and other employees, the company publicly banned claimant Lorraine Warren and her husband from ever entering the store again. Apx-000081-82.<2> At various points in its brief, without explanation, KarenKim asserts different formulations of the legal standard for obtaining injunctive relief. At least initially, however, it appears that the company does not materially disagree with the standard that the Commission and the courts apply. See, e.g., Doc.58, pages 8 (“likelihood of future discriminatory or similar conduct exists”), 11 (“deter future violative conduct”). But see Doc.58, page 9 (“[i]njunctions are available only to prevent threatened future or presently offensive conduct”) (citing Cardin v. VIA Tropical Fruits, No. 88-14201, 1993 U.S. Dist. LEXIS 1235 [1993 WL 945324] (S.D. Fla. July 9, 1993)) (citing Swanson v. Elmhurst Chrysler-Plymouth, 882 F.2d 1235 (7th Cir. 1989), overruled in part on other grounds by Saxton v. AT&T, 10 F.3d 526 (7th Cir. 1993));<3> Doc.58, pages 11-12 (requiring, without citation, a current violation or “ongoing” discrimination, a very different standard discussed infra at pp.13-17). Regardless of how the brief characterizes the appropriate standard, however, the company’s bottom line is that the district court properly refused to order any injunctive relief. In arguing against imposing an injunction, KarenKim relies heavily on the fact that Manwaring has been fired. See generally Doc.58, pages 6-7, 8, 10, 11. The district court also found this fact persuasive. Apx-000035. We agree that, in an ordinary case, terminating a lone sexual harasser would likely ensure that at least that individual would no longer pose a threat to other employees in the workplace. Once terminated, the individual would have no reason to come to work and, indeed, would most likely be barred from the premises. But this is not the ordinary case. Here, the harasser has an ongoing relationship, both business and personal, with the company and its owner. As noted above, KarenKim makes clear that, despite his termination, Manwaring remains welcome at the store and will continue to spend significant periods of time there. See Apx-000061. Nothing in Connors’s affidavit suggests that the company now either acknowledges that Manwaring’s actions and proclivities ever posed a threat to female employees or that the company has taken any steps to ensure that he will not resume verbally and/or physically harassing employees while on site. To the contrary, KarenKim’s brief asserts that both the company and Connors “lack control” over Manwaring and his speech. Doc.58, page 8. And, as our opening brief points out, without an injunction, the company is even free to reemploy Manwaring in any capacity once the case is over. EEOC Brief at 47. Under the circumstances of this case, therefore, the fact that Manwaring no longer works at KarenKim offers little assurance that the harassment will not recur. 2. KarenKim also argues that its post-verdict adoption of “addition[al] training . . . along with substantial new person[nel] and complaint policies” undercuts any argument that discrimination will recur. Doc.58, 10, see also id. at 8-9 (noting “complaint procedure” and “person[nel] procedures” as well as new “training and warnings given to employees that would avail themselves of agencies or statutory remedies”).<4> As spelled out in our opening brief, however, the new complaint procedure and training materials have significant deficiencies. See EEOC Brief at 52-58. Although KarenKim elsewhere seems to view this as a “dispute as to ‘best practice’” (Doc.58, page 10), the company neither rebuts nor responds to any of the specific points we made on this issue. KarenKim does assert that it should not be ordered to amend its policies and training module because they do not violate the law. See Doc.58, page 10, 11. That misses the point. Employers do training and adopt anti-harassment policies and complaint procedures to avoid violating the law. As the Supreme Court explained, employers have an “affirmative obligation” to “prevent and promptly correct any sexually harassing behavior.” Faragher v. City of Boca Raton, 524 U.S. 775, 806-07 (1998) (citing earlier version of EEOC Guidelines). To that end, the Court strongly encouraged employers to adopt anti-harassment policies and complaint procedures, adding that if they are effective, such policies and procedures will help employers to avoid liability if harassment does occur. Id. at 807-08; see also Burlington Indus. v. Ellerth, 524 U.S. 742, 764 (1998) (explaining that encouraging the creation of effective anti-harassment policies and grievance mechanisms will effectuate Congress’s intent as well as “EEOC’s policy of encouraging the development of grievance procedures”) (citing 1990 EEOC Sexual Harassment Guidance). Our concern here is that, in their present state, KarenKim’s training materials and complaint procedure are unlikely to prove effective. KarenKim asserts that “when new policies comply with the law and are designed to assure future compliance, an injunction is not merited as a matter of law,” citing, without explanation, EEOC v. Target Corp., 460 F.3d 946 (7th Cir. 2006). Doc.58, page 11. Initially, we note that, while KarenKim’s proposed statement of law may reflect the reasoning of the district court in Target (460 F.3d at 954), that court’s decision granting summary judgment was reversed on appeal. Id. at 955. In any event, the case is inapposite for several reasons. In Target, the Commission alleged that the employer failed to retain job applications, a substantive violation of Title VII’s record-keeping provisions for which injunctive relief may be the appropriate remedy. 460 F.3d at 954 (citing 42 U.S.C. § 2000e- 8(c); 29 C.F.R. § 1602.14). But the Commission was not challenging Target’s record-keeping policy per se as much as it was challenging the company’s implementation of that policy: evidence showed that managers either did not know about the policy or failed to follow it. See id. at 955 (noting that company’s new record-keeping policies did not “ensure ‘on [their] face’ that Target will not commit further violations”) (alterations in original). Nothing in Target stands for the proposition that merely having a “policy” on paper — even assuming the policy itself is adequate — eliminates the need for injunctive relief in appropriate cases. Injunctive relief may still be necessary to ensure that managers are complying with the policy. That is not the issue here. Here, the problem is more fundamental: the actual terms of the complaint procedure and training program are deficient. Accordingly, injunctive relief is needed not merely to ensure that KarenKim managers adhere to its policies but, more importantly, to reform the complaint procedure and training program themselves — by, for example, eliminating the time limit and writing requirement for employee complaints and adopting a training program that ensures that employees clearly understand their rights and responsibilities and know what to do if they are harassed. And, unlike in Target, where the injunction was sought to correct a violation of the statute, here, the desired relief is prophylactic. It is aimed at preventing future harassment and insuring that any harassment that does occur is quickly and properly redressed. KarenKim also complains that the Commission’s use of its sexual harassment guidelines as a measure for the likely “efficacy” of the company’s new complaint procedures and training materials constitutes “self-serving audacity.” Doc.58, page 8, apparently referring to EEOC Brief at 56 (citing EEOC Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, § V(C)(1): Effective Complaint Process (June 18, 1999), available at http://www.eeoc.gov.gov/policy/docs/harassment.html). While the Guidelines are not binding, they do provide a roadmap for creating effective anti-harassment policies and procedures and, thus, are relevant in any sexual harassment case. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986) (“[W]hile not controlling upon the courts by reason of their authority, [EEOC Guidelines] do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”) (citation omitted). As a primary enforcer of Title VII, the Commission draws on its expertise and experience to promulgate guidance documents to assist employers in complying with the statute. The Guidelines at issue here “provide guidance” to employers on satisfying the two-part affirmative defense set forth in Faragher, 524 U.S. at 807, and Ellerth, 524 U.S. at 765. See 1999 EEOC Enforcement Guidance at § I. As noted above, the Ellerth Court quoted with favor an earlier EEOC guidance document urging employers to “‘take all steps necessary to prevent sexual harassment from occurring.’” Ellerth, 524 U.S. at 764. The reference in our brief to the Guidelines, therefore, was entirely appropriate. KarenKim asserts that the Commission “seeks to substitute its own discretion for that of the district court” regarding the “efficacy” of the procedures and training materials. Doc.58, page 8. However, the company points to nothing in the decision to indicate that the court actually considered and endorsed the materials created by the company after the verdict was rendered. In our view, a better reading of the decision is that the court considered the company’s anti- harassment policy adopted in 2007 but nothing thereafter. See Apx-000035 (noting that KarenKim had “no written policy … during much of the time period at issue”; suit was filed in 2008 and covered conduct back several years). In fact, curative actions taken after liability has been found do not normally provide sufficient assurances that the unlawful conduct will not recur. See EEOC Brief at 54 (citing, e.g., EEOC v. Goodyear Aerospace, 813 F.3d 1539, 1544 (9th Cir. 1987)). 3. In its final argument, KarenKim appears to abandon its earlier view and advocate for a more rigorous standard for injunctive relief. Specifically, the company asserts, “an injunction is inappropriate” without “a statutory violation” or evidence of a current violation. Doc.58, page 11 (“ongoing evidence of violations”). And, the argument goes, because the company “is clearly in statutory compliance, the offending employee [has been] terminated and new policies [are] in place,” the court properly refused to order any injunctive relief. Doc.58, page 10. That is incorrect. Setting aside KarenKim’s apparent assumption that the Commission and this Court must take the company at its word that it now “is clearly in statutory compliance” (Doc.58, page 10), neither a current violation nor active discrimination is required. See, e.g., W.T. Grant, 345 U.S. at 633 (noting that “court’s power to grant injunctive relief survives discontinuance of the illegal conduct” because the “purpose of an injunction is to prevent future violations”); cf. Berkman, 705 F.2d at 595 (stating that injunctive relief is “designed to erase the discriminatory effect of the challenged practice and to assure compliance with Title VII in the future”). Nevertheless, premised on this faulty standard, the company then goes on to argue that the “most telling” proof that injunctive relief is unnecessary is the fact that the Commission “has failed to act or prosecute” any “post-verdict instances of supposed discriminatory conduct.” Doc.58, page 9, 11. According to the company, “the Plaintiff argues a non-sequitor [sic]. Continued violations exist: we are not prosecuting any continued violations.” Id. at 11 (adding that this “position is non-sensical and a mere attempt to bolster a baseless, seeming frivolous request for injunctive relief”). This argument makes no sense. To be clear, aside from expressing concern about the company’s treatment of the Warrens, the Commission has not alleged that KarenKim has violated Title VII post-verdict; nor do we suggest the company is presently violating the statute. Instead, we have consistently stressed that the purpose of the injunctive relief sought in this case is to deter and prevent future discriminatory conduct. As our opening brief stated, “[c]ommon sense tells us that [harassers] may well have ceased their actions solely because of the pendency of … [the] lawsuit.” EEOC Brief at 47 (citing Bundy v. Jackson, 641 F.2d 934, 946 n.13 (D.C. Cir. 1981)). Indeed, a remarkable feature of this case is that the company did engage in post- verdict vindictive conduct that could easily chill other complaints about discrimination. KarenKim has not denied that it took action against the Warrens, by publicly banning them from the store, simply because Lorraine Warren participated as a claimant and trial witness in the Commission’s harassment suit against the company. Furthermore, without an injunction, the Commission has no current means of monitoring the company’s compliance with the statute. The Commission’s Title VII enforcement authority is charge-driven. The Commission may “prosecute” instances of harassment only after it receives a charge, investigates, finds cause, and attempts without success to conciliate the charge. 42 U.S.C. §§ 2000e-5(b),(f). In this case, that process took slightly over two years, during which time the harassment continued. Absent an injunction, EEOC’s authority to investigate discrimination arising out of those charges and to “prosecute” such discrimination ended, at the very latest, with the trial. Accordingly, even if new incidents of harassment or retaliation were occurring — and those victims were willing to come forward and complain despite what happened to the Warrens — the Commission could not redress that conduct without reinitiating the lengthy and laborious enforcement process and then bringing yet another lawsuit. Thus, the fact that the Commission has not “prosecuted” any “post-verdict instances of supposed discriminatory conduct” provides no support at all for KarenKim’s argument that injunctive relief is unnecessary. In contrast, the company’s egregious past conduct, its inadequate in-house anti-harassment policies and training, its stated inability to rein in the harasser and apparent unwillingness to recognize any need to do, and its very recent mistreatment of someone who dared to complain about the harassment provide strong support for the Commission’s concern that, once the case is over, the discriminatory treatment will recur. The district court invited the Commission to recommence the enforcement process if it believes that the harassment or retaliation has recurred. Apx-000041. Wholly apart from the fact that the Commission cannot unilaterally initiate proceedings, however, a far more efficient and effective solution would be to grant meaningful injunctive relief at this point in the case. See LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 434 (2d Cir. 1995) (rejecting, as ground for denying injunctive relief, district court’s conclusion that government and private plaintiffs could file another lawsuit if defendant discriminated again in the future). 4. A district court abuses its discretion when it “bases its decision on an error of law or uses the wrong legal standard” or “bases its decision on a clearly erroneous factual finding.” Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (adding, as a third ground, where the court “reaches a conclusion that, though not necessarily the product of a legal error or a clearly erroneous factual finding, cannot be located within the range of permissible decisions”) (citation omitted). In our opening brief, we argued that the district court’s decision here constitutes an abuse of discretion on both grounds. Specifically, we argued that the court abused its discretion by making factual findings that were inconsistent with the jury verdict. See LeBlanc-Sternberg, 67 F.3d at 432 (noting that failure to apply a controlling principle of law constitutes abuse of discretion). It is well settled that where, as here, legal and equitable claims are tried together, one to the judge and one to the jury, “principles of collateral estoppel prevent the judge from making findings of fact contrary to those of the jury.” Id. (reversing denial of injunctive relief, based on lower court’s own factual findings which were inconsistent with jury verdict in the same case, and explaining that the rule “safeguard[s] the parties’ Seventh Amendment rights with respect to claims triable to a jury”). Thus, for example, by finding the company liable for “creating and maintaining a sexually hostile work environment” and by awarding compensatory and punitive damages to all ten claimants and intervenors, the jury clearly found that Manwaring was a serial harasser who subjected at least these ten women and teenage girls to unwelcome severe or pervasive sexual harassment over a multi- year period.<5> Apx-000008-18. Yet, in denying all injunctive relief, the court found only “isolated instances” of harassment (Apx.000035). See EEOC Brief at 43-44. The court’s improper rejection of that jury finding is significant because one factor militating against injunctive relief is that “the infraction is an isolated occurrence.” See, e.g., Commonwealth Chem. Securities, 574 F.2d at 100; accord Malarkey, 983 F.2d at 1215. Similarly, we argued that the court abused its discretion by assuming or speculating that certain facts were true even though they were, at best, without foundation in the record and, at worst, actually contrary to record evidence. Cf. Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985) (citation omitted) (stating that findings are clearly erroneous when, “although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been made”). We pointed out, for example, that the court speculated that KarenKim had learned its lesson and would now take harassment complaints “seriously.” Apx-000036. Yet, Connors’s affidavit — the only evidence KarenKim submitted in opposing the motion for injunctive relief — makes no such statement. Moreover, the mistreatment of the Warrens suggests instead that the company will continue its past practice of penalizing those who make complaints. See, e.g., EEOC Brief at 47-48. In its response, KarenKim simply asserts that the district court acted within its “broad discretion” in making factual findings and denying injunctive relief based on those findings. Doc.58, pages 6, 9, 10 (noting, e.g., that “court resolved these factual allegations to its own satisfaction”; “factual determinations were left to the sound discretion of the trial court” since jury “made no specific factual findings”). And, the company argues, this “[d]iscretion should not be disturbed unless grossly erroneous.” Doc.58, page 10 (citing Berkman v. City of New York, 705 F.2d 584 (2d Cir. 1983)); see also id. (“some form of glaring error”). There are two problems with this argument. First, the standard for reversal is not “gross” or “glaring” error but rather abuse of discretion. Indeed, Berkman, 705 F.2d at 594, cited by the company, uses the traditional “abuse of discretion” standard. Second, as noted above, the court was not free simply to “resolve[] factual allegations to its own satisfaction” (Doc.58, page 6) in light of the Seventh Amendment and the requirement that factual findings have an evidentiary foundation. In defending the court’s decision, KarenKim does not acknowledge that many of the relevant facts had already been found by the jury but rather asserts that all fact-finding was fair game for the court. Nor does the company supply a record basis for those “findings” that we argued were based solely on speculation. Because the company has failed to explain why the “factual findings” on which the denial of injunctive relief is based “should not be disturbed” (Doc.58, page 9), this Court should decline KarenKim’s invitation to affirm the decision below whether or not it “find[s] that such conduct does exist.” Doc.58, page 12. To the contrary, because the evidence strongly suggests that the discriminatory conduct could recur, the Court should find that the court abused its discretion in refusing to order reasonable injunctive relief.<6> 5. Finally, we note that KarenKim continually stresses that injunctive relief is not meant to be “punitive” and argues that the Commission is seeking to punish the company indefinitely for its egregious past conduct. Doc.58, pages 7, 9, 11.<7> That is not correct. Our concern is that the company maintained a sexually hostile work environment over numerous years by excusing or ignoring Manwaring’s abusive conduct and discouraging employee efforts to alert management to the conduct and make it stop. Our objective, therefore, is to ensure that no employee — especially no teenager in her first real job — is again required to endure such treatment as a condition of employment. Injunctive relief is critical to this objective. And nothing in KarenKim’s brief compels a contrary conclusion. CONCLUSION For the reasons set forth above and in the Commission’s opening brief, the district court’s decision should be reversed and the case should be remanded with instructions to enter all appropriate injunctive relief designed to prevent the recurrence of the hostile work environment that formed the basis of this lawsuit. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS 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 4757 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: 6 February, 2012________ CERTIFICATE OF SERVICE I certify that I filed the foregoing reply brief of the Equal Employment Opportunity Commission with the Clerk of the Court this 6th day of February, 2012, 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 /s/ Barbara L. Sloan____________ Barbara L. Sloan ********************************************************************************** <> <1> Because KarenKim did not paginate its brief (Appellate Docket Doc.58), this Reply Brief will rely on the CM/ECF version of the brief, which has an electronically-imprinted page number at the top of each page. <2> We are puzzled by KarenKim’s references to what it characterizes vaguely as “hearsay affirmations” or “evidence in hearsay form,” submitted in support of EEOC’s Rule 59(e) motion. See Doc.58 at pages 7, 12. The declaration of Lorraine Warren, describing KarenKim’s post-verdict retaliation (Apx-000081- 82), and the declarations of Markus Penzel, discussing the training materials and news articles (Apx-000052-53, 75-76), were all prepared under penalty of perjury. Such documents are the conventional means of submitting evidence to support or oppose a post-trial motion. See, e.g., Fed.R.Civ.P. 59(c) (stating that affidavits supporting new trial motion must be filed with motion). Indeed, KarenKim relied on Connors’s affidavit (Apx-000060-63) in opposing EEOC’s motion. The company does not argue that the evidence was inadmissible. <3> The courts in Cardin and Swanson were focused on an issue not present in this case — whether a private plaintiff (rather than EEOC) is eligible for injunctive relief if she has already left the company for nondiscriminatory reasons. The full statement, only excerpted in KarenKim’s brief, reads: “‘Since Swanson was no longer an employee, the court could not exercise its equitable powers to enjoin the employer from engaging in unlawful conduct, since injunctions are available only to restrain present or threatened unlawful conduct.’” Cardin, 1993 WL 945324, at *21 n.14 (citing Swanson, 882 F.2d at 1237). While the statement may be inartfully drafted, neither circuit requires evidence that a violation is imminent or actually occurring where, as here, the Commission is the party seeking injunctive relief. See EEOC v. Massey Yardley Chrysler-Plymouth, 117 F.3d 1244, 1253-54 (11th Cir. 1997) (after proving discrimination, EEOC is normally entitled to injunctive relief unless the employer proves that the violation is unlikely to recur); EEOC v. Harris Chernin, 10 F.3d 1286, 1291-92 (7th Cir. 1993) (same). <4> Although the brief uses the word “personal,” we assume it refers to “personnel” policies and procedures. <5> Indeed, the jury also found Manwaring personally liable for this conduct in deciding the intervenors’ state law claims. Apx-000010-14. <6> Because KarenKim does not cite the record, we are uncertain what the company is referring to when it alludes to “various uncontroverted facts” (Doc.58, page 6), “new disciplinary procedures” (id.), “various warnings and statutory postings,” (id.), and “warnings” (id. at 9). Accordingly, we do not know whether these allusions are accurate. <7> KarenKim also accuses the Commission of “seek[ing] to act as a policing agent indefinitely.” Doc.58, page 9. In fact, the Commission has neither the resources nor the inclination to “police” any employer “indefinitely.” Rather, the Commission seeks injunctive relief for only a reasonable period of time — just as long as is required to conclude with confidence that the conduct is unlikely to recur. See Califano v. Yamazaki, 442 U.S. 682, 702 (1979) (stating that “[t]he scope of injunctive relief is dictated by the extent of the violation established” and “should be no more burdensome to the defendant than is necessary to provide complete relief to the plaintiffs”).