Equal Employment opportunity Commission v. Joe Carlton
 00-5150/00-5232

                          IN THE UNITED STATES COURT OF APPEALS
 FOR THE SIXTH CIRCUIT

 Nos. 00-5150/00-5232

 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
  Plaintiff-Appellee-Cross-Appellant

 JOE CARLTON,
  Intervening Plaintiff-Appellee
 v.

 HARBERT-YEARGIN, INC.
  Defendant-Appellant-Cross-Appellee.

 On Appeal from the United States District Court
 for the Western District of Tennessee

 PROOF BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION AS THE APPELLEE-CROSS-APPELLANT

 C. GREGORY STEWART
       General Counsel

       PHILIP B. SKLOVER
       Associate General Counsel

       CAROLYN L. WHEELER
       Assistant General Counsel

       PAULA R. BRUNER
       Attorney
       EQUAL EMPLOYMENT OPPORTUNITY
       COMMISSION
       1801 L Street, N.W.  Rm. 7044
       Washington, D.C.  20507
       (202) 663-4731

 TABLE OF CONTENTS

 TABLE OF AUTHORITIES  iii

 STATEMENT IN SUPPORT OF ORAL ARGUMENT ix

 FACT SHEET FOR TITLE VII APPEALS x

 STATEMENT OF JURISDICTION 1

 STATEMENT OF ISSUES FOR REVIEW 1

 STATEMENT OF THE FACTS 2

 SUMMARY OF THE ARGUMENT 14

 ARGUMENT 17

 Appeal No. 00-5150

 I.  THE DISTRICT COURT PROPERLY UPHELD THE JURY'S VERDICT ON CARLTON'S
 SEXUAL HARASSMENT CLAIM 17

 A.  Louis Davis' harassment of Joseph Carlton was "because of" sex where
 the harassment was directed only at men 18

 B. The alleged harassment of Carlton was sufficiently severe or pervasive
 to alter the conditions of his employment and create an abusive and
 hostile work environment 21

 C.  Harbert-Yeargin's response to Carlton's sexual harassment complaint
 was so inadequate and ineffective that the jury properly decided the
 company was liable 26

 II.  THE DISTRICT COURT PROPERLY DENIED A NEW TRIAL BECAUSE UNDER RULE
 415 OF THE FEDERAL RULES OF EVIDENCE, THE COMMISSION GAVE TIMELY NOTICE
 THAT IT WOULD INTRODUCE ALL RELEVANT EVIDENCE ABOUT INAPPROPRIATE TOUCHING
 IN THE  WORKPLACE 33

 III.  THE DISTRICT COURT PROPERLY UPHELD THE JURY'S PUNITIVE DAMAGES
 AWARD 36

 A. An award of punitive damages was appropriate in this case 37

 B. The jury's award of $300,000 is not excessive 44

 Cross-Appeal No. 00-5232

 THE DISTRICT COURT IMPROPERLY SET ASIDE THE JURY'S VERDICT FOR THE
 COMMISSION ON CEDRIC WOODS' CLAIM BECAUSE THERE WAS SUFFICIENT EVIDENCE
 OF CONSTRUCTIVE NOTICE TO ESTABLISH EMPLOYER LIABILITY 51

 CONCLUSION 59

 CERTIFICATE OF COMPLIANCE

 CERTIFICATE OF SERVICE

 APPELLEE'S DESIGNATION OF JOINT APPENDIX CONTENTS

 ADDENDUM OF CASES
 TABLE OF AUTHORITIES

 CASES

 Adler v. Wal-Mart Stores, Inc.,
  144 F.3d 664 (10th Cir. 1998) 29, 30

 Anderson v. Liberty Lobby, Inc.,
  477 U.S. 242 (1986) 51

 Baty v. Williamette Indus., Inc.,
  172 F.3d 1232 (10th Cir. 1999) 31

 Blankenship v. Parke Care Ctrs., Inc.,
  123 F.3d 868 (6th Cir. 1997),
  cert. denied, 523 U.S.1110 (1998) 31

 BMW v. Gore,
  517 U.S. 559 (1995) 41, 45, 46, 49

 Bonenberger v. Plymouth Township,
  132 F.3d 20 (3d Cir. 1997) 53

 *Buckner v. Franco Inc.,
  178 F.3d 1293, 1999 WL 232704 (6th Cir. Apr. 12, 1999),
  cert. denied, 120 S.Ct. 384 (1999). 30, 48

 Burlington Indus., Inc. v. Ellerth,
  524 U.S. 742 (1998) 27, 51

 Burnett v. Tyco Corp.,
  203 F.3d 980 (6th Cir. 2000) 23

 Clark v. Metro Health Found., Inc.,
  90 F.Supp.2d 976 (N.D. Ind. 2000) 45

 Deters v. Equifax Credit Information Servs. Inc.,
  202 F.3d 1262 (10th Cir. 2000) 40, 46, 47

 *EEOC v. EMC Corp.,
  205 F.3d 1339, 2000 WL 19189 (6th Cir. Feb. 8, 2000) 50

 EEOC v. Indiana Bell Tel. Co.,
  2000 WL 681007 (7th Cir. May 26, 2000) 49, 50

 *EEOC v. SBS Transit, Inc.,
  172 F.3d 872, 1998 WL 903833 (6th Cir. Dec. 18, 1999) 27

 EEOC v. Wal-Mart Stores, Inc.,
  187 F.3d 1241 (10th Cir. 1999) 39

 Erebia v. Chrysler Plastic Prod. Corp.,
  772 F.2d 1250 (6th Cir. 1985),
  cert. denied, 475 U.S. 1015 (1986) 32

 Evans v. Ford Motor Co.,
  768 F. Supp. 1318 (D. Minn. 1991) 54

 Fall v. Indiana Univ. Bd. of Trustees,
  12 F. Supp.2d 870 (N.D. Ind. 1998) 57

 Fall v. Indiana Univ. Bd. of Trustees,
  33 F. Supp.2d 729 (N.D. Ind. 1998) 48

 Faragher v. City of Boca Raton,
  524 U.S. 775 (1998) 27

 Fuller v. City of Oakland,
  47 F.3d 1522 (9th Cir. 1995) 30

 Greenwell v. Boatwright,
  184 F.3d 492 (6th Cir. 1999) 17, 33

 Hafford v. Seidner,
  183 F.3d 506 (6th Cir. 1999) 52

 Hall v. Gus Constr. Co.,
  842 F.2d 1010 (8th Cir. 1988) 53

 Harris v. Forklift Sys., Inc.,
  510 U.S. 17 (1993) 18, 21, 22, 26

 Hathaway v. Runyon,
  132 F.3d 1214 (8th Cir. 1997) 25, 26, 30

 Hennessey v. Penril Datacomm Networks, Inc.,
  69 F.3d 1344 (7th Cir. 1995) 49

 Hirase-Doi v. U.S. West Communications, Inc.,
  61 F.3d 777 (10th Cir. 1995) 24, 26, 55

 Hurley v. Atlantic City Police Dep't,
  174 F.3d 95 (3d Cir. 1999),
  cert. denied, 120 S. Ct. 786 (2000) 53

 Indest v. Freeman,
  168 F.3d 795 (5th Cir. 1999) 27

 Ivey v. Wilson,
  832 F.2d 950 (6th Cir. 1987) 51

 Jackson v. Quanex Corp.,
  191 F.3d 647 (6th Cir. 1999) 29, 53

 Katz v. Dole,
  709 F.2d 251 (4th Cir. 1983) 25

 Kim v. Nash Finch Co.,
  123 F.3d 1046 (8th Cir. 1997) 40

 Kolstad v. American Dental Ass'n,
  119 S.Ct. 2118 (1999) 37, 39

 Lawyer v. 84 Lumber Co.,
  991 F. Supp. 973 (N.D. Ill. 1997) 49

 Lee v. Edwards,
  101 F.3d 805 (2d Cir. 1996) 42

 Libbey-Owens-Ford Co. v. Insurance Co. of North Am.,
  9 F.3d 422 (6th Cir. 1993) 38

 Lowery v. Circuit City Stores, Inc.,
  206 F.3d 431 (4th Cir. 2000) 42

 *Martin v. Schwan Sales Enterp., Inc.,
  198 F.3d 246, 1999 WL 1111509 (6th Cir. Nov. 24, 1999) 26

 Meritor Sav. Bank v. Vinson,
  477 U.S. 57 (1986) 22

 Moore v. KUKA Welding Sys. & Robot Corp.,
  171 F.3d 1073 (6th Cir. 1999) 51

 Moreno v. Consolidated Rail Corp.,
  63 F.3d 1404 (6th 1995) 36, 44

 Oncale v. Sundowner Offshore Servs., Inc.,
  523 U.S. 75 (1998) ix, 18, 20, 21, 22, 38

 *Pollard v. E.I. Dupont,
  2000 WL 680220 (6th Cir. May 26, 2000) 21

 Pouillion v. City of Ossowo,
  206 F.3d 711 (6th Cir. 2000) 17, 36, 51

 Quick v. Donaldson Co.,
  90 F.3d 1372 (8th Cir. 1996) 18, 19, 20

 Roberts v. Bohac,
  574 F.2d 1232 (5th Cir. 1978) 47

 Rodgers v. Fisher Body Div., Gen. Motors Corp.,
  739 F.2d 1102 (6th Cir. 1984),
  cert. denied, 470 U.S. 1054 (1985) 44, 46

 Schrand v. Federal Pac. Elec. Co.,
  851 F.2d 152 (6th Cir. 1988) 18

 Smith v. First Union Nat. Bank,
  202 F.3d 134 (4th Cir. 2000) 28

 Smith v. Wade,
  461 U.S. 30 (1983) 37

 Timm v. Progressive Steel Treating, Inc.,
  137 F.3d 1008 (7th Cir. 1998) 47, 48

 Torres v. Pisano,
  116 F.3d 625 (2d Cir.),
  cert. denied, 522 U.S. 997 (1997). 55

 TXO Production Corp. v. Alliance Resources Corp.,
  509 U.S. 443 (1993) 44, 45, 46

 United States v. Big D Enterp.,Inc.,
  184 F.3d 924 (8th Cir. 1999) 46, 47

 Van Jelgerhuis Mercury Finance Co.,
  940 F. Supp. 1344 (S.D. Ind. 1996) 55

 Vasbinder v. Ambach,
  926 F.2d 1333 (2d Cir. 1991) 41
 Vasbinder v. Scott,
  976 F.2d 118 (2d Cir. 1992) 47

 Williams v. General Motors Corp.,
  187 F.3d 553 (6th Cir. 1999) 21, 22, 23, 24, 25, 27, 30

 Winsor v. Hinckley Dodge, Inc.,
  79 F.3d 996 (10th Cir. 1996) 30

 Yates v. Avco Corp.,
  819 F.2d 630 (6th Cir. 1987) 57

 Yeary v. Goodwill Indus.-Knoxville Inc.,
  107 F.3d 43 (6th Cir. 1997) 19, 20

 STATUTES AND OTHER AUTHORITY

 42 U.S.C.  1981a(b)(1) 37

 42 U.S.C.  1981a(b)(3) 44

 42 U.S.C.  2000e ix

 Fed. R. Evid. 415(b) 34

 EEOC Compl. Man. (CCH)  615.2(b)(3) 38

 * Cases are provided in Addendum.STATEMENT IN SUPPORT OF ORAL ARGUMENT

  Pursuant to 6th Cir. R. 43, the Commission requests oral argument in this
  case. The Equal Employment Opportunity Commission ["Commission"] is the
  agency charged by Congress with the interpretation, administration, and
  enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
  2000e et seq.   The issues raised in appeal No. 00-5150 require this
  Court's interpretation and application of Oncale v. Sundowner Offshore
  Services, 523 U.S. 75 (1998) as it bears on the issue of when physical
  contact between males is actionable harassment, and not congenial
  horseplay, and when such harassment is "because of sex."  Moreover, it
  presents the question of whether ongoing harassment and other company
  misconduct were sufficiently egregious to support a punitive damages
  award of the statutory maximum.  Finally, the cross-appeal No. 00-5232
  raises the issue of whether evidence  of  pervasive harassment
  involving or encouraged by management and prior complaints against
  the same harasser was sufficient to support the jury's finding that
  Harbert-Yeargin knew or should have known about the harassment of Cedric
  Woods.  The Commission believes that oral argument will assist the Court
  in its consideration of these questions, all of which are critical to
  the Commission's mission of enforcing workplace nondiscrimination laws.

 UNITED STATES COURT OF APPEALS, SIXTH CIRCUIT
 FACT SHEET FOR TITLE VII APPEALS

 Case name and number: EEOC v. Harbert-Yeargin, Inc., Nos. 00-5150 &
 00-5232
 Person Reporting: Paula R. Bruner, as counsel for the EEOC
 1.  Date EEOC complaint filed: Carlton's sexual harassment charge was
 filed on February 26, 1996 and his retaliation and constructive discharge
 complaint was filed on April 6, 1996.
 2.  Was any compromise reached by the state civil rights agency?  NO
       By the EEOC?  NO
 3.  Date EEOC issued a right to sue letter: N/A
 4.  Date present action filed: May 1, 1997
 5.  Have all filings been timely?  YES
 6.  Nature of claims of discrimination and date(s) of occurrence: The EEOC
 alleged in this same-sex harassment suit that Harbert-Yeargin allowed its
 male employees  to be subjected to unwelcome and offensive touching on
 the basis of sex and that it failed to take effective corrective action,
 which created a hostile work environment in violation of Title VII.
 In relevant part, the Commission alleged that Louis Davis, a male
 supervisor, sexually harassed Joseph Carlton by grabbing his genitals
 and poking his finger in Carlton's anal cavity in February 1996.
 The Commission further alleged that Davis sexually harassed Cedric
 Woods by grabbing his genitals approximately around November 1995 and
 continuing inappropriately to touch or  attempt to grab Woods below the
 belt until Woods left the company in July 1996.
 7.  Disposition below: The jury returned a verdict for the EEOC and Joseph
 Carlton  on his claim of sexual harassment and awarded $1 in compensatory
 damages and $300,000 in punitive damages.  The jury returned a verdict
 for the EEOC on its sexual harassment claim seeking relief for Cedric
 Woods and awarded $1 in compensatory damages and $50,000 in punitive
 damages.  The jury returned a verdict for Harbert-Yeargin on Carlton's
 claims of constructive discharge and retaliation and on the EEOC's
 sexual harassment claims seeking relief for two other male employees.
 Harbert-Yeargin and the EEOC filed post-judgment motions.  The district
 court denied  Harbert-Yeargin's motion for judgment as a matter of law
 with respect to Carlton's sexual harassment claim and granted its motion
 with respect to Commission's sexual harassment claim seeking relief
 for Woods.  The district court subsequently denied the Commission's
 motion for  reconsideration of its judgment setting aside the Woods
 verdict and denied the Commission's motion for injunctive relief.

 STATEMENT OF JURISDICTION

  The Commission incorporates by reference the appellant's statement of
  subject matter and appellate jurisdiction, adding: This Court also has
  jurisdiction over the EEOC's cross-appeal pursuant to 28 U.S.C.  1291,
  since the appeal is from the final judgment of the district court and
  was timely filed pursuant to Fed. R.App. P. 4(a) (1)(B).

 STATEMENT OF ISSUES FOR REVIEW

 Appeal No. 00-5150
 1.  Whether the district court properly denied Harbert-Yeargin's motion
 for judgment as a matter of law on Carlton's sexual harassment claim.
 2.  Whether the district court properly denied Harbert-Yeargin's motion
 for a partial new trial where the EEOC provided timely notice of its
 intent to introduce evidence of similar misconduct under evidentiary
 Rule 415.
 3. Whether the district court properly upheld the jury's punitive damages
 award.
 Cross-Appeal No. 00-5232
 Whether the district court erred in granting  Harbert-Yeargin's motion
 for judgment as a matter of law when it ruled that Harbert-Yeargin was
 not liable for the sexual harassment of Cedric Woods because it lacked
 constructive notice of the harassment, despite sufficient contrary
 evidence on which the jury based its verdict.

 STATEMENT OF THE FACTS

 A.  The Workplace Environment
  In 1996, Harbert-Yeargin provided maintenance services at a Jackson,
  Tennessee construction site under contract with Proctor & Gamble.
  Harbert-Yeargin had a harassment policy and a sexual harassment policy,
  (R.149, Ex.13, 14,Apx. __), posted on a bulletin board. (R.130,
  Cooper Dep. at 92, Apx. __).  According to corporate procedures,
  employees were to be informed of the anti-harassment policies during the
  orientation following their hire, (id. at 100,Apx. _), but enforcement
  of the orientation requirements was sporadic,  and in early 1996,
  may not have occurred at all.  (Id. at 142,Apx. __).  In fact, some
  employees testified that they either were not aware of the policies
  or had not received any training concerning sexual harassment.
  (Joseph Carlton-R.147,TR1 at 221,Apx.      (never saw bulletin
  board, but received safety book addressing only horseplay); Cedric
  Woods-R.148,TR2 at 34,Apx. __ (did not see policy or have training
  concerning sexual harassment); William Doyle-id. at 76,Apx. __ (knew
  about sexual harassment policy on bulletin board but did not read it and
  only received training on safety precautions); Terry Dotson-R.149,TR3
  at 45,Apx. __ (saw sexual harassment policy but did not receive any
  sexual harassment training)).  Sexual harassment training was required
  for  managers and supervisors, and Gerald Freeman and Dale Markham were
  responsible for conducting it.   (Harold Scott-Id. at 112-14,Apx. __).
  But site superintendent  Harold Scott testified that he had never been
  to any training conducted by Freeman or Markham, even though they had
  been assigned the task since 1994.  (Id. at 115-16,Apx. __).
  Despite Harbert-Yeargin's policy against sexual harassment and horseplay,
  such conduct was prevalent at the Jackson site.  Male employees grabbed
  or hit at the genitals of their coworkers.  Others poked or probed fellow
  employees in the buttocks.  And, according to foreman Davis,  "goosing,"
  which included getting poked, patted, or prodded in the buttocks or
  thumped in the crotch or genitals, occurred at Harbert-Yeargin "every
  day," and no one was ever disciplined for that conduct.  (R.148,TR2 at
  108-09,113,128,Apx. __).  For example, William Doyle said he was slapped,
  patted and poked on the buttocks, (id. at 71-73,Apx. __), and saw a few
  employees prodded, poked, and slapped on the "rear end" over the course
  of five to six weeks. (Id. at 75,77,Apx. __).   Terry Dotson said he was
  grabbed by two coworkers nicknamed Possum and Smurf,  who would "come
  up to you, catch you by surprise, pinch you on the thigh or grab you
  up between the legs and startle you."  (R.149,TR3 at 37-39,Apx. __).
  He said that Smurf pinched and grabbed him several times a week and
  Possum grabbed him in the genitals sometimes several times a day. (Id. at
  67-68,Apx. __). According to Dotson, in over a year's time, several men
  grabbed and pinched him below the belt and coworker David Yager tried
  to pinch him two or three times. (Id.at 41,Apx. __).
   Supervisors and managers either participated in or witnessed this
   conduct. Foreman Davis admitted that he goosed male employees and
   testified that he saw site superintendent Scott "goose" an employee,
   and employee Anthony Smith "goose" Joseph Carlton in the buttocks.
   (R.148,TR2 at 108-09,116,128,Apx. __).   Larry Lindley, a pipefitter,
   said he saw Davis grab Carlton's genitals and buttocks and hit at
   another employee's crotch. (Id. at 9-11,Apx. __).  He also revealed
   that Davis tried to grab him once. (Id. at 18,Apx. __).  Terry Dotson
   testified that during the entire time he worked in the fab shop at
   Harbert-Yeargin "there was a lot of grabbing and poking" and that some
   of this conduct occurred in front of the foremen. (R.149,TR3 at 35,
   38,Apx. __).  He explained that coworkers would come up behind someone,
   reach between his legs, and pinch him, while the foremen stood around
   and laughed about it.  He recalled that on one occasion, two men had
   another man on the floor trying to grab him by the testicles, and that
   on another occasion, another man took a tape measure, pulled it out,
   and stuck it between another employee's legs.  (Id. at 36-37,Apx. __).
   Dotson also saw Smurf and Possum grab employees in the presence of
   foremen William Irvin and Gary Stewart, who just laughed about it.
   (Id. at 38,Apx. __).   Dotson explained that he did not report any of
   these incidents since a foreman was standing there when some of them
   happened and did not do anything to stop it. ( Id. at 42,56,Apx. __).
  Similarly, employee Tony Warren said he also saw  people grabbing
  employees in the crotch at Harbert-Yeargin, and that he saw site manager
  Harold Scott do it as well as foremen Davis and Irvin.  (R.149,TR3 at
  169,Apx. __).  Specifically, Warren said that he saw Scott grab at
  people, touch and poke his finger into employees' buttocks when they
  were going up and down the steps, and slap at their crotches.   Id. at
  169,173,Apx. __; R.150,TR4 at 59-60,65-66,Apx. __).   He also saw Davis
  and Irvin grab employees and poke at their buttocks and crotches while
  they were bent over, and he saw Davis touch Scott on his buttocks.
  (id. at 170,174,177,Apx. __; R.150,TR4 at 67,Apx. __).  Further, Warren
  said that both Davis and Irvin did these things to him.   He revealed
  that approximately six or eight times Davis "slapped at him, hit his
  crotch, and a time or two made contact."  He also said that Davis grabbed
  his nipples and pinched and twisted them.  ( Id. at 170-72,Apx. __;
  R. 150,TR4 at 23-25,Apx. __ ).  Irvin, on the other hand, slapped at
  Warren's crotch and hit him in the crotch with a screwdriver once.
  (Id. at 174,Apx. __).
  In 1996, Harbert-Yeargin had 292 employees of whom three
  were women.  (R.149,Employee List,Ex.32,Apx.    ).  The three
  women were Donna Kinman, Christina Freeman, and Sonya Neisler.
  All three  worked at the Jackson site in the administrative office.
  (R.148, TR2 at 139(Donna Kinman), 149(Christina Freeman),155(Sonya
  Neisler),Apx. __).  Two of them also worked in the site's Brass
  Alley area.<1>  (Id. at 139(Kinman),156(Neisler),Apx. __).  All of
  them testified that they had contact with the construction workers,
  (Id. at 139-40(Kinman),152-53(Freeman),156(Neisler),Apx. __), but Freeman
  added that she actually had more contact with the foremen because of her
  specific job duties. (Freeman-id. at 152,Apx.     ). They said that the
  male employees never said anything inappropriate to them or touched
  them.  (Id. at 143-44(Kinman), 52(Freeman),157(Neisler),Apx. __).
  Freeman and Neisler testified that they knew Louis Davis
  and that he had never touched them inappropriately.  (id. at
  153-54(Freeman),157(Neisler),Apx. __). Davis confirmed that he had not
  touched any of the female employees,<2> noting that if he had, he would
  not have touched them below the belt. (Davis-id. at 134-35,Apx. __).
  Harold Scott, the site manager, stated that although he had hit at
  the genitals of one male employee and grabbed another man's crotch, he
  would never do that to any women.  (Scott-R.149,TR3 at  128-33,Apx. __).
 B.  The Claims on Appeal
 1. Joseph Carlton
  Joseph Carlton, a welder, began work at Harbert-Yeargin on January 8,
  1996.  (Carlton-R.147,TR1 at 220,Apx.     ).  He was assigned to work on
  a crew under the supervision of Louis Davis. (Id. at 177,180,Apx.      ).
  He worked daily with Larry Lindley, a pipefitter. (Id. at 177,Apx.
  ; Davis-R.148,TR2 at 123,Apx. __).
  According to Carlton, Davis began to touch him as early as January 8,
  1996, and it "bothered him a little."   He said that it seemed as if
  Davis had to have his hands on him,  touching him "on his upper thigh
  area almost on a daily basis," and that the  touching got progressively
  worse. (Carlton-R.147,TR1 at 181,228,Apx. __).  On February 6, 1996,
  Davis grabbed Carlton's genitals. (Id. at 182,225,Apx. __).  Carlton did
  not report the incident since he had only been working there a couple
  of weeks, he needed the job, and he had no eyewitnesses.   Thereafter,
  Davis "kept trying to get close" to him.  Carlton said "[i]t was an
  everyday thing," and it made it difficult for him to do his work.
  Davis' behavior particularly bothered him because he could not figure
  out what he had done to make Davis think he could put his hands on him.
  (Id. at 184-86,Apx. __).
  The next incident occurred on Thursday, February 22, 1996,
  when Davis  grabbed Carlton's genitals and poked his finger into
  Carlton's "rectum." (Carlton-R.147,TR1 at 187,227,Apx. __; R.149,
  Bomar Statement, Ex.15,Apx. __; Lindley-R.148,TR2 at 9, Apx. __).
  Carlton was "outraged," and found the touching to be painful and
  humiliating. (Carlton-R.147,TR1 at 188-93,Apx. __).  He experienced
  sleeplessness and crying jags.  (Id. at 191-92,Apx. __).  Since Lindley
  had witnessed the incident, (Lindley,R.148,TR2 at 9,Apx. __), Carlton
  reported it to Don Bomar, the general superintendent. (Carlton-R.147,TR1
  at 189,Apx. __).  Bomar laughed, but said he would look into the matter.
  (Id.)  He testified that it did not surprise him to hear that Davis
  had "goosed" someone.  (R.149,Bomar, TR3 at 80,Apx. __).
   Bomar contacted his superior, Harold Scott,<3> and Scott directed
   Bomar to notify the home office. (Bomar-R.149, TR3 at 87,Apx. __).
   Scott testified that, based on his reading of the company's
   policies, he believed that Carlton had been harassed.  (Scott-id. at
   109,159,Apx. __).  Bomar called the home office. (R.149, Bomar
   Statement,Ex.15,Apx. __).   During that phone conversation, Robert
   Cooper, a human resources official, instructed Bomar to transfer
   Carlton to another crew.  (Bomar-R.149,TR3 at 88,Apx. __).
  On February 26, Bomar prepared a statement about Carlton's
  complaint. (R.149,Bomar Statement, Ex.15,Apx. __).  Thereafter, he told
  Davis that Carlton had filed a complaint.  (Bomar-TR3 at 74-76,Apx. __).
  In response, Davis grinned and denied that he had done anything to
  Carlton. (Id. at 74-75,Apx. __).<4> Davis suggested that Carlton may
  have been upset because he had been admonished about the quality of
  his welding on February 19. (Id. at 82,Apx. __; R.130,Cooper Dep. at
  134,Apx. _ ). Although he admitted it was contrary to company procedures,
  Bomar directed Davis to document the February 19 warning and put it in
  Carlton's file. (Id. at 83-84,Apx. __).
  On February 29, 1996, Cooper was assigned to investigate Carlton's
  complaint.  (R.130,Cooper Dep. at 6,30,Apx. _).  Cooper and Roby Miller,
  the corporate human resources manager, reviewed Bomar's statement and
  called Bomar and Scott to schedule the onsite investigation. (Id. at
  30-31,Apx. __).
  On March 4, 1996, Cooper arrived at the Jackson site to investigate
  Carlton's allegations of sexual harassment.  (R.130,Cooper Dep. at
  37,Apx. _).  In conducting this investigation, Cooper did not interview
  Carlton because Carlton would not speak without his counsel present.
  On advice of counsel, Cooper  made no effort to contact Carlton's
  attorney, even though Carlton had provided his number. (Id. at
  41-45,67-68,Apx. __).   Cooper also did not speak to Larry Lindley,
  who had witnessed the incident, or anyone else on Davis' crew, even
  though he had a list of their names.  (Id. at 48-49,Apx. __).<5>   In
  addition, based on the company lawyer's counsel, Cooper made no attempt
  to identify any other potential witnesses to Carlton's incident, Davis'
  behavior, or the prevalence of the charged conduct to determine the
  veracity of Carlton's allegations.  (Id. at 49-52,131-32,Apx. __).
  Cooper said he did not see the "relevance" of asking which pipefitter
  Carlton worked with and did not attempt to corroborate Carlton's
  allegations because Carlton was "uncooperative."  (Id. at 48-49,Apx. __).
  Instead, Cooper questioned Bomar and Scott about Carlton and Davis,
  and they informed him that "horseplay" was occurring at the worksite.
  (Id. at 38-39,58,Apx. __).   Cooper also spoke to Davis, who said
  that horseplay happened, but that he only poked Carlton "in the ribs."
  (Id. at 49-52,Apx. __).  Contrary to company policy,<6> none of these
  interviews were recorded even though Cooper had a notebook and laptop
  computer with him, and no written statements were requested. (Id. at
  39,54-56,Apx. __).   At the conclusion of his investigation, Cooper
  admonished Bomar and Scott about the "rampant" horseplay and the fact
  that it violated company policy.  He also warned them to prevent any
  retaliation against Carlton. (Id. at 70-74,Apx. __).  He submitted
  a report to Miller, concluding that no harassment had occurred.
  (Id. at 138,Apx. __).  Consequently, Davis was neither reprimanded nor
  disciplined, even though he had admitted to violating the company's
  policy against horseplay.  (Id. at 137,140,Apx. __; Davis-R.148,TR2 at
  113,Apx. __).
  After Carlton was placed on another crew, Davis began to stare at him and
  "stalk" him "like a predator." (Carlton-R.147,TR1 at 194,Apx. __). When
  the other employees learned about Davis' behavior, they began to
  taunt Carlton about it by grabbing and "hunch[ing]" on each other.
  (Id.  at 194-95,Apx. __).  They laughed at him and called him "Louie's
  girlfriend." (Warren-R.150,TR4 at 21,Apx. __).   They also began to treat
  Carlton like he had the  "plague." (Carlton-R.147,TR1 at 198,Apx. __).
  According to one employee, foremen and supervisors also mocked Carlton
  about the harassment and were present when his coworkers made fun of him.
  They said that if Carlton were a "real man" he would have settled the
  matter in a way other than filing a lawsuit.  (Warren-R.149,TR3 at
  184-85,Apx. _; R.150, TR4 at 16-21,Apx. __).  Carlton informed Bomar
  about the ridicule and that Davis was stalking him, but Davis continued
  to stalk him two to three times a day and the ridicule worsened.
  (Carlton-R.147,TR1 at 199-200,Apx. __).  Carlton quit his job in April
  1996, feeling both mentally and physically drained by the harassment.
  (Id. at 200,220,Apx. __).
 2.  Cedric Woods
  Cedric Woods worked for Harbert-Yeargin from May 22, 1995 to July 11,
  1996. (R.149,Ex. 32-Employee List,TR3 at 155-56,Apx. __; R.139,Woods
  Dep. at 59,Apx. __).  He testified that on his first day or second
  day on the job an  employee told him to "watch out" for Louis Davis.
  (Woods-R.148,TR2 at 45, Apx. __).  According to Woods,  Davis had a
  bad habit of getting up close to him and touching him "a lot" on parts
  of his body  "two or three times a day."  (Id. at 21,23,27,Apx. __).
  He said that the first time Davis touched him was six months after he
  began working at Harbert-Yeargin. ( Id. at 23,25,Apx. _).  He said that,
  while he was in a taxi truck full of passengers, Davis got on the truck,
  put his arms around Woods, and placed his hands on Woods's "privates."
  (Id. at 24,Apx. __).  Disliking this behavior, Woods removed Davis's
  hand, and got out of the truck.  Davis laughed and everyone began to joke
  about the incident.  ( Id. at 24-25,Apx. __).   After the truck incident,
  Davis  touched his genitals more than once and his buttocks at least once
  or twice a day. (Id. at 28,47,Apx. __). Woods did not like Davis touching
  his "privates," (id. at 24,Apx. _), and felt "uncomfortable" about Davis
  touching him at all.  ( Id. at 29,43-44,Apx. __).   Consequently, when
  Woods saw Davis coming towards him, he would get up and run.  (Id. at
  27,Apx. __).  He said  he would see Davis three or four times in a single
  day, (id. at 26, Apx. __),  but was willing to "run all day" if necessary
  because he believed that Davis was up to no good. (Id. at 52,59,Apx. _).
 C.  The EEOC Investigation and Post-filing Conduct
  In the summer of 1996, the EEOC came to the Jackson site to investigate
  Carlton's sexual harassment charge.  (R.130,Cooper Dep. at 96,Apx. __).
  Tony Warren testified that when his supervisor Irvin and manager Bomar
  learned that Warren was to be interviewed by the Commission, Irvin
  told him it would be best if he did not talk about the things he had
  seen on the job site and that it would look better for the company
  if he did not tell the truth. (Warren-R.150,TR4 at 92-93, Apx. __).
  Feeling pressured and afraid he would lose his job, Warren agreed to
  lie to the EEOC but warned Irvin that if the case went to court, he
  would tell the truth. After being assured by Irvin that the case would
  not go to court , Warren lied to the EEOC.   (Id. at 23-27,Apx. __).
  In the winter of 1998, Warren was subpoenaed to testify in a deposition
  administered by Harbert-Yeargin.  Advised to tell the truth before the
  case progressed further, Warren contacted Carlton's lawyer and told him
  he had lied in the Commission's administrative investigation.  (Id., at
  29-34,Apx. __).  He testified that when Irvin, Davis, and other employees
  learned that Carlton had filed a lawsuit, they laughed and joked about
  it, calling it a "cocksucking court" case, and considered Carlton to be
  both "weird and stupid" for bringing the lawsuit.  (Id. at 36,Apx. __).
  In Davis' view, getting hit in the private parts was "one of the things
  that's in construction work, . . .[a]nd if you are going to work in
  construction work, [you] better take it or else get out," but never
  report it because it would make trouble and cause problems at work.
  (Davis-R.148,TR2 at 109-110,Apx. __).

 SUMMARY OF THE ARGUMENT

  The district court properly affirmed the jury's verdict on Joseph
  Carlton's sexual harassment claim because there was substantial evidence
  in the record to support it. Only men were grabbed by their genitals
  or poked in the buttocks and sufficient evidence revealed that Carlton
  was targeted for this conduct because he is a man.  Therefore, the
  conduct was gender-based.  In addition, grabbing a man's genitals and
  poking a finger into his anal cavity is sufficiently severe physical
  invasive conduct to alter the working conditions of a reasonable person
  in Carlton's position.  Moreover, evidence that this physical conduct
  was prevalent in the workplace, that no perpetrators were disciplined,
  that management and supervisory personnel participated in or condoned
  the conduct and discouraged complaints supports the jury's finding that
  the conduct was pervasive enough to create a hostile work environment.
  Finally, evidence of management's initial inadequate response  and
  total unresponsiveness to Carlton's second complaint was sufficient
  to support the jury's finding that  Harbert-Yeargin failed to take
  effective remedial action and  should be held liable for the harassment.
  Therefore, the district court properly denied Harbert-Yeargin's
  post-trial motion for judgment as a matter of law on Carlton's sexual
  harassment claim.
  The district court's denial of a partial new trial on the sexual
  harassment claim also was proper.  Evidence of prior misconduct is
  admissible in a sexual harassment case so long as the party offering
  the evidence discloses a summary of the evidence to the other party
  at least fifteen days before trial.  The EEOC made clear in its 1996
  letter of determination following the conclusion of its administrative
  investigation and in its 1997 complaint that it believed and intended to
  prove that Harbert-Yeargin was responsible for creating and maintaining a
  sexually hostile and abusive work environment that altered the conditions
  of employment for Carlton and a class of male employees.  Trial commenced
  in 1999.  Therefore,  the Commission provided sufficient notice of its
  intent to offer evidence of alleged sexual misconduct beyond Davis'
  harassment of Carlton long before fifteen days prior to trial.
  Finally, the district court's denial of Harbert-Yeargin's Rule 50(b)
  motion as to punitive damages was also proper because there was
  sufficient evidence to support the jury's finding that Harbert-Yeargin
  acted with reckless disregard for Carlton's Title VII rights.  Evidence
  of management's inadequate response and inaction after receiving sexual
  harassment complaints, its discouraging use of its complaint process,
  its involvement in false statements being made to the EEOC during the
  agency's investigation of Carlton's charge, and the accused harasser's
  continued harassment of Carlton and other employees with impunity met the
  Commission's burden of proving Harbert-Yeargin's reckless indifference
  to the federal rights of the victim.  Moreover, that evidence combined
  with the financial wealth of the company supported the jury's decision
  that $300,000 was required to punish Harbert-Yeargin for its past
  misconduct and to deter it from permitting future sexual harassment of
  its employees.  Hence, the district court properly determined that the
  punitive damages award of $300,000 was appropriate and reasonable.
  With respect to the cross-appeal, however, the district court erred
  in vacating the jury's verdict finding Harbert-Yeargin liable for the
  sexual harassment of Cedric Woods because there was substantial evidence
  in the record from which the jury could have concluded that the company
  knew or should have known that Davis was sexually harassing Woods.
  Evidence that genital-grabbing and other similar physical conduct was
  rampant in the workplace, that Davis had a history of harassing male
  employees, that employees witnessed Davis grabbing Woods, and that
  Harbert-Yeargin received a complaint against Davis concerning the same
  conduct all could have led the jury to conclude that Harbert-Yeargin
  had actual or constructive  notice  of the harassment and failed to
  take corrective action.  Therefore, in that this evidence defies the
  conclusion that there was no evidence in the record to support the
  verdict, judgment as a matter of law in favor of Harbert-Yeargin was
  inappropriate.

 ARGUMENT

 Appeal No. 00-5150
 I.  THE DISTRICT COURT PROPERLY UPHELD THE JURY'S VERDICT ON CARLTON'S
 SEXUAL HARASSMENT CLAIM

  Once the district court has denied a motion for judgment as a matter
  of law after a verdict has been returned, the standard of review on
  appeal is de novo.  Pouillion v. City of Ossowo, 206 F.3d 711, 719 (6th
  Cir. 2000).  In reviewing the record, this Court must make all reasonable
  inferences in the light most favorable to the non-moving parties, in
  this case the EEOC and Joseph Carlton.  Greenwell v. Boatwright, 184
  F.3d 492, 498 (6th Cir. 1999).  In so doing, the Court is not to weigh
  the evidence, evaluate the credibility of the witnesses, or substitute
  its judgment for that of the jury.  Schrand v. Federal Pac. Elec. Co.,
  851 F.2d 152, 154-55 (6th Cir. 1988).
 A.  Louis Davis's harassment of Joseph Carlton was "because of" sex
 where the harassment was directed only at men

  The Commission met its burden of demonstrating that Davis's grabbing
  Carlton by the genitals and poking his finger into Carlton's anus created
  a basis for a reasonable jury to conclude that Carlton was targeted
  for abuse because he is a man.  To begin with, it is irrelevant to the
  determination of whether Davis's conduct was gender-based whether there
  was enough evidence to show that Davis is a homosexual<7> or that he was
  hostile to the presence of men in the workplace.  See Harbert-Yeargin
  ("HY") Br. at 19.   As the Supreme Court in Oncale reiterated,  the
  "'critical issue . . . is whether members of one sex are exposed to
  disadvantageous terms or conditions of employment to which members of the
  other sex are not exposed.'" 523 U.S. at 80 (quoting Harris v. Forklift
  Sys., Inc., 510 U.S. 17, 25 (1993)).  In other words, when the harassment
  in question is not obviously based on sexual attraction or motivated by
  gender animus, the  plaintiff need only show that only male employees
  were the primary target of the harassment or that persons outside the
  plaintiff's protected class were not exposed to the challenged conduct
  to establish that the harassment occurred more likely than not because
  of the plaintiff's gender.  See Yeary v. Goodwill Indus.-Knoxville Inc.,
  107 F.3d 443, 447 (6th Cir. 1997) (where plaintiff put up with harassment
  women did not have to endure, there is little question the harassment
  was because of sex); Quick, 90 F.3d at 1378 ("[e]vidence that members
  of one sex were the primary targets of the harassment is sufficient to
  show that the conduct was gender based").
  Here, the Commission presented sufficient evidence that only male
  employees were the targets of genital-grabbing and other inappropriate
  touching.  Louis Davis, the accused harasser, said that he had not
  touched any of the female employees in any manner.  (R.148,TR2 at
  134-35,Apx. __).  Harold Scott, who admitted engaging in similar
  conduct, stated that while he had hit at and grabbed the genitals of
  male employees, he would never do that to any of the women.  (R.149,TR3
  at 128-33, Apx. ___).<8>  Moreover, all of the women in the workforce
  testified that, while they had contact with the foremen and their crews,
  none of the men, including Davis,  had ever inappropriately touched
  them. (R.148,TR2 at 143-44(Kinman),152-54(Freeman),157(Neisler),Apx. __).
  This evidence is sufficient to demonstrate  that men and women were
  treated differently in the workplace.<9>  See Quick, 90 F.3d at 1379
  (where court found male employees were exposed to a disadvantageous
  practice ("bagging") to which female employees were not, it ruled
  "a fact-finder could reasonably conclude that the treatment of men
  at Donaldson was worse than the treatment of women"); cf. Yeary, 107
  F.3d at 448 (where male plaintiff was repeatedly subjected to sexual
  propositions, advances, and touching by a male co-worker who was a
  homosexual and "was notorious for harassing male employees of Goodwill,"
  treatment constituted sexual harassment covered by Title VII because
  he "had to put up with abuse and harassment that women there did not
  have to endure").
  In that the record in this case contains evidence that male employees
  were treated worse than female employees, and that Carlton was subjected
  to conduct directed only to men, the district court properly concluded
  that there was sufficient evidence to support the jury's finding that
  the conduct was because of sex.<10>
 B.  The alleged harassment of Carlton was sufficiently severe or pervasive
 to alter the conditions of his employment and create an abusive and
 hostile environment

  Harbert-Yeargin argues that Carlton was not subjected to a hostile work
  environment because he was touched inappropriately in his genitals and
  buttocks only two times and the "sporadic and isolated nature of these
  two incidents"  negates "any finding of a pervasively abusive environment
  . . . ."  HY Br. at 28.  Harbert-Yeargin's argument lacks merit.
  The determination of whether a plaintiff has established a hostile or
  abusive workplace environment requires the court to consider all of the
  circumstances, but particularly those concerning (1) the frequency of the
  discriminatory conduct; (2) its severity; (3) whether it is physically
  threatening or humiliating rather than a mere offensive utterance;
  and (4) whether it unreasonably interferes with an employee's work
  performance.  Harris, 510 U.S. at 23.   Further, in all harassment cases,
  including same-sex cases, the requirement of objectively offensive,
  severe or pervasive harassment is regarded as the "crucial" method of
  ensuring "that courts and juries do not mistake ordinary socializing
  in the work place -- such as male-on-male horseplay or intersexual
  flirtation -- for discriminatory 'conditions of employment."' Oncale,
  523 U.S. at 81.   While conduct must be evaluated in context, it is clear
  that no one is to be left unprotected from harassment merely because
  of where he or she chooses to work.  Meritor Sav. Bank v. Vinson,
  477 U.S. 57, 67 (1986) (neither a man nor a woman is required to run
  a "'gauntlet of sexual abuse in return for the privilege of being
  allowed to work and make a living'") (citation omitted);  Williams,
  187 F.3d at 564 ("[s]urely women working in the trades do not deserve
  less protection from the law than women working in a court house.").
  Here, the district court properly determined that the Commission and
  Carlton presented sufficient evidence from which a jury could conclude
  that Carlton was subjected to a hostile work environment.  Carlton
  testified that Davis had been touching him since the beginning of his
  employment, that it "progressively got worse," that  Davis grabbed his
  genitals a couple of weeks after he began working, that on a daily basis,
  he kept trying to get close to Carlton, and that a few weeks after the
  first grabbing incident, Davis grabbed Carlton's genitals again and poked
  his finger into Carlton's rectum.  (R.166,JNOV Order at 10-11,Apx. __);
  supra at 8-9.  Unwelcome physical contact is generally considered severe.
  Burnett v. Tyco Corp., 203 F.3d 980, 986 (6th Cir. 2000) (Martin,
  C.J., dissenting) ("severity of . . . act is enhanced because this was
  unwelcome physical contact of a very personal form").   Moreover,  this
  "element of physical invasion" exceeds conduct that is "merely crude,
  offensive, and humiliating."  Williams, 187 F.3d at 563.  In that Davis
  made physical contact with Carlton's genitals on more than one occasion,
  the severity of these incidents could be viewed by reasonable jurors
  as sufficient to create a humiliating and abusive work environment.
  In addition, even if the physical invasion of Carlton's genitals and
  rectum alone were not sufficiently severe  to be actionable, there was
  sufficient evidence to support the belief of  reasonable jurors that
  the treatment to which Carlton was subjected after the grabbing and
  poking incidents, particularly in light of sensitivities heightened
  by the earlier objectionable conduct, created a hostile environment.
  Williams, 187 F.3d at 563 ("a holistic perspective is necessary,
  keeping in mind that each successive episode has its predecessors,
  that the impact of the separate incidents may accumulate, and that the
  work environment created thereby may exceed the sum of the individual
  episodes").  Here, the Commission and Carlton submitted evidence that
  when Carlton complained, Bomar laughed at him.  After his complaint,
  Davis began to stalk and stare at him.<11>   Upon learning Carlton had
  complained about Davis's sexual harassment, the other employees began
  to tease, taunt, and ridicule him by grabbing and "hunch[ing]" on each
  other and treating him like the "plague."  Despite a second complaint,
  this abusive and ongoing sexual taunting worsened.   These actions in
  conjunction with the intrusive touching could be viewed by a reasonable
  jury as sufficiently "humiliating and offensive" conduct to meet the
  standard of severe harassment.  Williams, 187 F.2d at 563.  In addition,
  the jury could have concluded from the same evidence that the conduct
  was pervasive since the abuse and derision occurred on a "daily
  basis" and supervisors and managers condoned and even participated in
  it.<12>  See Hathaway v. Runyon, 132 F.3d 1214, 1222-23 (8th Cir.1997)
  (holding in sexual harassment case that it was reversible error for
  trial court to vacate jury verdict in favor of the plaintiff where
  two "sexually suggestive" touchings combined with later laughter and
  "suggestive noises" were sufficient to establish a hostile environment
  because "harassing conduct need not be . . . continuous in order to
  [be] pervasive" ); Katz v. Dole, 709 F.2d 251, 254 (4th Cir. 1983)
  (when sexual harassment is condoned or carried out by supervisory
  personnel, it becomes an illegal and discriminatory condition of
  employment that poisons the work environment).   Moreover, a jury
  considering the evidence of all of the offensive and abusive treatment
  Carlton received, as well as Carlton's testimony about his feelings of
  outrage, anxiety, sleeplessness, mental and physical exhaustion, and
  humiliation, and his testimony that when he complained to a manager, the
  manager reacted with laughter could reasonably find that Carlton's work
  environment was "permeated with 'discriminatory intimidation, ridicule,
  and insult,'" Harris, 510 U.S. at 21 (internal citation omitted), and
  that the totality of the ongoing harassment created and sustained an
  objectively hostile work environment that interfered with  Carlton's
  job performance.   See Martin v. Schwan Sales Enterp. Inc., 198 F.3d
  246, 1999 WL 1111509 **2 (6th Cir. Nov. 24, 1999) (unpublished)  ("even
  if conduct occurred only briefly each day, the continual day-after-day
  exposure to this type of behavior may interfere with job performance
  sufficiently to be actionable"); Hathaway, 132 F.3d at 1222 ("[a]
  work environment is shaped by the accumulation of abusive conduct");
  Hirase-Doi, 61 F.3d at 780-83  (a few incidents of unwelcome physical
  touching combined with winks and intimidating stares with possible
  sexual overtones is sufficient to establish a hostile environment).
  Therefore, since the record contained sufficient evidence to support
  the jury's finding of sexual harassment, the district court properly
  let the jury's verdict stand.  Hathaway, 132 F.3d at 1221 ("[t]here is
  no bright line between sexual harassment and merely unpleasant conduct
  so a jury's decision must generally stand unless there is trial error").
 C. Harbert-Yeargin's response to Carlton's sexual harassment complaint
 was so inadequate and ineffective that the jury properly decided the
 company was liable

  When a supervisor harasses an employee but takes no tangible employment
  action against him, the employer is liable unless it meets its burden of
  proving the affirmative defense.<13>  The affirmative defense comprises
  two necessary elements:  (a) that the employer exercised reasonable care
  to prevent and correct promptly any sexually harassing behavior, and (b)
  that the plaintiff employee unreasonably failed to take advantage of any
  preventive or corrective opportunities provided by the employer or to
  avoid harm otherwise.  Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
  765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998);
  Williams, 187 F.3d at 567.  The evidence in this case overwhelmingly
  demonstrates that Harbert-Yeargin cannot meet either prong  of this
  defense.
  First, the evidence could have led the jury to decide that
  Harbert-Yeargin did not exercise reasonable care to prevent harassment
  despite the fact that it had a sexual harassment policy.  Sexual
  harassment training was sporadic or non-existent despite the severity
  and pervasiveness of the harassment.  Employees testified that they
  either were unaware of the company's sexual harassment policy or they
  had received no training regarding it.  See  supra at 2-3.   Further,
  site manager Harold Scott testified that, even though Gerald Freeman and
  Dale Markham were responsible for conducting mandatory sexual harassment
  training of supervisors and managers since 1994, he had never been
  to any training conducted by them. Id. at 3.  Moreover, despite the
  prevalence of employees engaging in inappropriate touching of genitals
  and buttocks, no one was ever disciplined for the harassment even
  when it occurred in the presence of management.  Id. at 3-5.  In fact,
  testimonial evidence revealed that managers and supervisors demonstrated
  a lackadaisical attitude toward sexual harassment and discouraged the use
  of the complaint process because they expected the male employees to be
  "real men" and not report the harassment.  See, e.g.,(Davis-R.148,TR2 at
  109-110,Apx. __; Warren- R.149,TR3 at 184-85,Apx. __);  Smith v. First
  Union Nat. Bank, 202 F.3d 234, 245 (4th Cir.2000) ("[e]mployers cannot
  satisfy the first element of the Faragher-Ellerth affirmative defense
  if [their] management-level employees are discouraging the use of
  the complaint process").  Accordingly, reasonable jurors could have
  determined that Harbert-Yeargin's sexual harassment policy was unenforced
  and therefore ineffective.
  Second, a jury could have concluded from Davis's continued harassment
  of Carlton that Harbert-Yeargin failed to exercise reasonable
  care to correct Davis's harassing behavior.  This Court  judges
  the appropriateness of an employer's response by the frequency and
  severity of the alleged harassment.  Jackson v. Quanex Corp., 191
  F.3d 647, 663 (6th Cir. 1999).  An adequate response is one that is
  reasonably calculated to stop the harassment.  Id.  Such reasonable
  responses include "prompt investigation of the allegations, proactive
  solicitation of complaints, scheduling changes and transfers, oral or
  written warnings to refrain from harassing conduct, reprimands, and
  warnings that future conduct could result in progressive discipline,
  including suspension and termination."  Adler v. Wal-Mart Stores, Inc.,
  144 F.3d 664, 676-77 (10th Cir. 1998).   If the harassment continues,
  the employer is obliged to respond to any repeat conduct; and whether
  the next employer response is reasonable will  depend upon whether the
  employer progressively stiffens its discipline, or vainly hopes that
  no response, or the same response as before, will be effective.  Id.
  In this case, Carlton complained to management about the harassment
  but the harassment continued.  Although Harbert-Yeargin claimed that
  it investigated the complaint and concluded that no harassment had
  occurred, the jury could have decided from the evidence presented that
  management did not conduct a complete investigation into Carlton's
  complaint.  Notably, Harbert-Yeargin blames those deficiencies on
  Carlton's refusal to talk without his attorney present, but the jury
  could have believed it was unreasonable for Cooper to refuse to call
  Carlton's attorney.  Hathaway, 132 F.3d at 1223 (jury could have
  found investigation inadequate where plaintiff was required to report
  harassment to biased supervisor, no one interviewed "her only witness
  to the physical touchings," investigator did not produce written report
  of investigation or inform plaintiff of results, and harassment did
  not stop); also see Buckner v. Franco Inc., 178 F.3d 1293, 1999 WL
  232704 (6th Cir. Apr. 12, 1999) (jury found employer liable for sexual
  harassment even though victim's mother did not allow her to participate
  in company's investigation), cert. denied, 120 S.Ct. 384 (1999).
  The fact that Carlton was subjected to further harassment by Davis and
  other employees and that Harbert-Yeargin was completely unresponsive
  to Carlton's second complaint about the continued harassment  is
  sufficient to support a finding that Harbert-Yeargin's earlier
  response was inadequate, Adler, 144 F.3d at 677 (repeat conduct shows
  the unreasonableness of prior responses); Winsor v. Hinckley Dodge,
  Inc., 79 F.3d 996, 1002 (10th Cir.1996)  (where offensive conduct
  continued throughout plaintiff's employment, defendants' actions were
  plainly ineffective), and  that Harbert-Yeargin abdicated its duty
  to prevent future harassment.  Williams, 187 F.3d at 561 ("it is no
  longer enough for an employer to take corrective action; employers now
  have an affirmative duty to prevent sexual harassment by supervisors");
  Fuller v. City of Oakland, 47 F.3d 1522, 1528-29 (9th Cir. 1995) (even
  if alleged harasser ceases offensive conduct, employer's response to
  sexual harassment must also be sufficient to deter "future harassment -
  by the same offender or others").
  The jury also could have decided that Harbert-Yeargin's decision
  not to discipline Davis following the first or second sexual
  harassment complaints and his continued harassment of Carlton and
  other employees demonstrated the ineffectiveness of that decision.
  See Baty v. Williamette Indus., Inc., 172 F.3d 1232, 1242 (10th
  Cir. 1999) (employer's response to plaintiff's claims of harassment
  "could reasonably be regarded as a sham" where no employee was ever
  disciplined for harassment and harassment continued).  Cf.  Blankenship
  v. Parke Care Ctrs., Inc., 123 F.3d 868, 874 (6th Cir. 1997) (employer
  responded appropriately to plaintiff's first complaint by asking members
  of plaintiff's department if they witnessed alleged harassment and
  monitoring the coworker; employer responded appropriately to plaintiff's
  second complaint by threatening to terminate the harasser; and employer
  responded appropriately to plaintiff's third complaint by informing
  plaintiff that it concluded the co-worker had not engaged in further
  harassment), cert. denied, 552 U.S.1110 (1998).
  Hence the jury properly found Harbert-Yeargin was liable for the
  harassment, even though Davis stopped touching Carlton, where
  instead Davis resorted to threatening stares and stalking him and
  other employees and supervisors subjected Carlton to daily ridicule.
  Erebia v. Chrysler Plastic Prods. Corp., 772 F.2d 1250, 1258 (6th
  Cir. 1985) ("jury's finding of intentional discrimination is supported
  by substantial evidence" where "[m]anagement was aware of plaintiff's
  many complaints of harassment and condoned the situation by taking no
  steps to improve conditions and by seeking to intimidate plaintiff"),
  cert. denied, 475 U.S. 1015 (1986).
  Finally, with respect to the second prong of the affirmative defense, a
  reasonable jury could have concluded that Carlton did not unreasonably
  fail to take advantage of any preventive opportunities provided by
  Harbert-Yeargin.  Carlton complained immediately after Davis grabbed
  his genitals the second time.  According to the managers, he complied
  with  the company's sexual harassment policy when he reported the matter
  to Bomar.   He did not allow Bomar's laughter to deter him from pursuing
  his grievance.  This evidence  could have led the jury to conclude that
  Carlton was serious about  preventing further harassment.  Moreover,
  despite Harbert-Yeargin's argument that Carlton acted unreasonably
  when he failed to file a complaint after the first grabbing incident,
  HY Br. at 37n.11, the jury could have found that it was not unreasonable
  for Carlton to wait until after the second incident to complain since
  he had no witnesses to the first incident, the complaint was against
  a veteran supervisor, and he had been working at  Harbert-Yeargin less
  than a month.  Further, contrary to Harbert-Yeargin's argument, Id. at
  37, the jury could have concluded that Carlton did not unreasonably
  fail to take advantage of any corrective opportunities when he did not
  participate in Harbert-Yeargin's investigation.  The jury could have
  decided that it was not unreasonable for Carlton to desire to have his
  attorney present during the interview and it could have found Carlton's
  testimony that he would have spoken to Cooper if his attorney was present
  to be credible.  Lastly, a reasonable jury could have found that Carlton
  exercised reasonable care to otherwise avoid harm when he accepted the
  transfer to another crew and when he made attempts to avoid contact
  with Davis despite Davis's stalking.  Thus, because Carlton exercised
  reasonable care in his use of the company's policies and procedures
  to prevent and correct the harassment, the jury could have reasonably
  concluded that Harbert-Yeargin failed to meet its burden under the
  affirmative defense and therefore was liable to Carlton.

 II.  THE DISTRICT COURT PROPERLY DENIED A NEW TRIAL BECAUSE  UNDER RULE
 415 OF THE FEDERAL RULES OF EVIDENCE, THE COMMISSION GAVE TIMELY NOTICE
 THAT IT WOULD INTRODUCE ALL RELEVANT EVIDENCE ABOUT INAPPROPRIATE TOUCHING
 IN THE  WORKPLACE

   The district court's denial of Harbert-Yeargin's motion for a partial
   new trial is reviewed for abuse of discretion.  Boatwright, 184 F.3d at
   499. Harbert-Yeargin argues that the district court erred in admitting
   certain testimony because the  EEOC failed to comply with Rule 415(b)
   when it did not disclose its intent to offer evidence of "goosing"
   or "touching" of  employees other than Carlton  by employees other
   than Louis Davis.  Harbert-Yeargin concedes that it had reason to
   know that there would be evidence that Davis touched people other
   than Carlton, but that it did not know there would be evidence that
   other employees had "engaged in alleged sexual harassment of other
   employees."  HY Br. at 59.  Harbert-Yeargin takes particular issue
   with the admission of testimony concerning  touching by  Harold Scott
   and Don Bomar, claiming it was "unfairly prejudiced" by the lack of
   notice. Id. at 58-60.  This argument is specious.
  Rule 415(b) requires disclosure of evidence of similar conduct
  including witness statements or a summary of the substance of their
  testimony  "at least fifteen days before the scheduled date of trial."
  Fed. R. Evid. R. 415(b).   The trial in this matter commenced on
  April 26, 1999.  On September 30, 1996, the EEOC issued a letter of
  determination following the conclusion of its investigation of Carlton's
  charge.  In that determination, the EEOC informed Harbert-Yeargin that
  its investigation "revealed that the Charging Party was sexually harassed
  by his male supervisor and  that it was pervasive for males to touch
  other males at the worksite." (R.37, Def.Mot. for Sum.Judgment,Ex. 2-EEOC
  Determination at 1,Apx. __).  Consequently, Harbert-Yeargin was given
  notice almost  two years before trial that if the Commission sued,
  it would not be limiting its evidence of inappropriate touching to the
  Davis-Carlton incident.
  Even if defendant did not comprehend that such relevant evidence would
  be introduced, the EEOC's complaint filed on May 1, 1997, averred that
  "Defendant has engaged in unlawful employment practices at its Jackson,
  Tennessee facility in violation . . . of Title VII," which included
  "subjecting Carlton and a class of male employee[s] to sexual harassment,
  including offensive and unwelcome touching because of sex (male)."
  (R.1,Complaint at 2-3,Apx. __).   Hence, in alleging that Defendant
  "creat[ed], condon[ed], and maintain[ed] a sexually intolerable,
  offensive, and hostile work environment," (id. at 3,Apx. __),  the
  Commission's complaint necessarily provided sufficient notice that
  it would introduce all available evidence of inappropriate touching.
  (R.166, JNOV Order at 24,Apx. __).
  Harbert-Yeargin knew the identity of all the witnesses who would
  testify at trial well before the trial date, and had deposed all
  of them.  Even if Harbert-Yeargin did not realize they would testify
  about widespread touching, there is absolutely no evidence of prejudice
  to Harbert-Yeargin.  No damages were awarded to anyone except Carlton
  and Woods, who were touched only by Davis.  No one touched by any
  other employees succeeded in establishing sexual harassment.  Thus,
  none of the other individuals who may have engaged in inappropriate
  touching increased Harbert-Yeargin's liability for sexual harassment.
  Consequently, the district court properly rejected Harbert-Yeargin's
  request for a partial new trial.

 III.  THE DISTRICT COURT PROPERLY UPHELD THE JURY'S PUNITIVE DAMAGES
 AWARD

  Harbert-Yeargin asks this Court to vacate the jury's punitive damages
  award on the ground that it is either against the weight of the evidence
  or excessive.   HY Br. at 38-53.  Review of the district court's denial
  of a motion for judgment as a matter of law on the punitive damages
  claim is de novo.   Pouillion, 206 F.3d at 719.  The issue before
  this Court is whether, viewing all the evidence in the nonmovants'
  favor, no reasonable jury could find that Harbert-Yeargin acted with
  malice or reckless indifference to Carlton's right to be free from
  intentional discrimination. In making this determination, this Court
  is not to substitute its judgment for that of the jury. Even if this
  Court would have drawn a different conclusion from the evidence,
  the only inquiry is whether a reasonable jury could have found in
  the Commission's and Carlton's favor.  If so, the jury verdict must
  stand.  See Moreno v. Consolidated Rail Corp., 63 F.3d 1404, 1419 (6th
  Cir. 1995).  Applying these standards, this Court should conclude that
  the evidence was sufficient to permit a reasonable jury to impose an
  award of punitive damages.
  Title VII allows a jury to award punitive damages "if the complaining
  party demonstrates that the respondent engaged in a discriminatory
  practice . . . with malice or reckless indifference to [his] federally
  protected rights." 42 U.S.C. 1981a(b)(1).   Therefore, in order for
  Harbert-Yeargin to succeed on its claim that the district court erred
  in upholding Carlton's award of $300,000 in punitive damages, it must
  demonstrate that there was insufficient evidence  to create a triable
  issue that Harbert-Yeargin engaged in the creation and maintenance of
  a sexually hostile workplace "with malice or reckless indifference" to
  Carlton's federally protected rights.  Harbert-Yeargin has not met this
  burden.
 A.  An award of punitive damages was appropriate in this case
  Punitive damages are available in Title VII actions to punish unlawful
  conduct and to deter its repetition.  Smith v. Wade, 461 U.S. 30, 49
  (1983) ("deterrence of future egregious conduct is a primary purpose
  of ... punitive damages").   The Supreme Court clarified in Kolstad
  v. American Dental Ass'n, 119 S.Ct. 2118, 2124 (1999), that punitive
  damages can be imposed in a Title VII action upon establishing "malice
  or reckless indifference" and that there is no requirement that a
  plaintiff show "egregious or outrageous discrimination independent of
  the employer's state of mind."   To be liable for punitive damages,
  the employer must discriminate in the face of a perceived risk that
  its actions will violate federal law,  not its awareness that it is
  engaging in discrimination.  Id.  The Court  noted that there may
  be some instances where intentional discrimination does not support
  punitive damages.  Id.  Harbert-Yeargin argues that it is entitled to
  the benefit of one of those exceptions because  it was unaware of the
  federal prohibition against same-sex harassment because the theory was
  either novel or poorly recognized.  HY Br. at 41-42.  This argument
  is utterly unconvincing.<14>  Sexual harassment has been a recognized
  form of gender discrimination since the mid-seventies and when the
  Supreme Court unanimously observed that the respective genders of the
  harasser and victim were irrelevant to a claim of sexual harassment,
  it relied on settled principles of Title VII jurisprudence.  See Oncale,
  523 U.S. at 78 (citing decisions from 1977 and 1987 that hold Title VII
  can be violated by members of the same race or gender as the victim
  of discrimination).  See also EEOC Compl. Man. (CCH)  615.2(b)(3)
  (stating EEOC's long-standing view that Title VII covers same-gender
  harassment so long as the "harasser does not treat employees of the
  opposite sex the same way").  Moreover, Harbert-Yeargin could not have
  been completely unaware that the harassment violated Title VII since
  its supervisory personnel directed an employee to lie to the EEOC about
  the unlawful activity occurring in the workplace.
  Since Harbert-Yeargin cannot avail itself of the exceptions to an
  award of punitive damages, the only question is whether the evidence
  supported the award.  Here, the Commission presented sufficient evidence
  to establish Harbert-Yeargin's liability for punitive damages.  First,
  when Davis grabbed Carlton's genitals and poked his finger into Carlton's
  rectum, Carlton experienced serious sexual assault, and such outrageous
  conduct is sufficient to establish the evil motive required for punitive
  damages.  Kolstad, 119 S. Ct. at 2126 (egregious or outrageous acts may
  support inference of evil motive required to impose punitive damages).
  Second, a reasonable jury could conclude that the company's management
  personnel  acted "in the face of a perceived risk that [their] actions
  [would] violate federal law." Id. at 2125. See also EEOC v. Wal-Mart
  Stores, Inc., 187 F.3d 1241, 1246 (10th Cir.1999) (holding that because
  store manager testified he was familiar with the requirements of the ADA
  a reasonable jury could have concluded that the employer intentionally
  discriminated against plaintiff in the face of a perceived risk that
  its action would violate federal law and upholding award of punitive
  damages).   Despite Carlton's complaints, management failed to take
  effective remedial action.   In fact, even though site manager Scott,
  who was responsible for enforcing the  company's policy against sexual
  harassment, see supra note 3,  testified that he believed Davis had
  harassed Carlton, he did not discipline Davis.  (Scott-R.149, TR3 at
  109,159, Apx. __); Deters v. Equifax Credit Information Serv., Inc.,
  202 F.3d 1262, 1269 (10th Cir. 2000) ("recklessness and malice are
  to be inferred when a manager responsible for setting or enforcing
  policy in the area of discrimination does not respond to complaints,
  despite knowledge of serious harassment").   Carlton was exposed
  to further harassment by Davis and to abuse and ridicule by his
  coworkers.  Supervisory personnel participated in or condoned the
  continuing harassment of Carlton, and notwithstanding Harbert-Yeargin's
  policies against sexual harassment and horseplay, no perpetrator was
  disciplined.    Furthermore, because the jury knew that human resources
  official Cooper disregarded company procedures by failing to question
  Carlton and refusing to seek out potential eyewitnesses to corroborate
  Carlton's allegations, even though he believed that if proven Davis's
  conduct would have violated Carlton's Title VII rights, it could have
  believed Cooper's conduct exhibited the requisite reckless state of
  mind to warrant a punitive damages award.  Kim v. Nash Finch Co.,
  123 F.3d 1046, 1066 (8th Cir. 1997) (affirming punitive damages award
  where "[t]here was evidence that [the defendant] knew what constituted
  unlawful employment practices" and where the discrimination was engaged
  in by supervisors or management).
  Third, the jury could have found Harbert-Yeargin's conduct reprehensible
  based on evidence of Davis's continued harassment of Cedric Woods and
  other employees after Carlton's complaint because the fact that the
  company was on notice of the harassment and that Davis nonetheless
  engaged in repeated instances of misconduct with respect to other
  employees demonstrates the company's total disregard for whether Davis's
  actions violated the law.  See BMW v. Gore, 517 U.S. 559, 577 (1995)
  ("repeated misconduct is more reprehensible than an individual instance
  of malfeasance" and supports argument that "strong medicine is required
  to cure defendant's disrespect for the law").
  Fourth, evidence that Bomar encouraged Davis to place a written negative
  evaluation in Carlton's file after he complained of sexual harassment
  even though the incident leading to the negative evaluation had taken
  place a week earlier and Davis originally had no intention to reprimand
  Carlton is sufficient to support a punitive damages award. See Vasbinder
  v. Ambach, 926 F.2d 1333, 1343 (2d Cir.1991) (finding affirmative steps
  taken by defendant, including filling plaintiff's record with damaging
  personnel actions, as sufficient to support jury's finding of punitive
  damages in section 1983 case).
  Fifth, a supervisor's directive to a subordinate to lie to the EEOC,
  management personnel's derisive reaction to learning that Carlton was
  pursuing his sexual harassment claim in court and their total disrespect
  for the gravity of the matter evidenced by their referring to it as a
  "cocksucking court" case equally demonstrates a reckless indifference to
  the fact that the harassment violated Title VII.   Lee v. Edwards, 101
  F.3d 805, 809 (2d Cir. 1996) (conduct sufficient to warrant a finding of
  a high degree of reprehensibility includes "whether a defendant acted
  with deceit or malice as opposed to acting with mere negligence").
  On the evidence presented, a reasonable jury could have found that
  Harbert-Yeargin manifested a complete disregard for Carlton's civil
  rights.
  Finally, there was sufficient evidence from which the jury could
  have decided that Harbert-Yeargin is not shielded by the "good faith"
  exception to  damages liability merely because it had a policy against
  sexual harassment.  It is not enough to simply have a nondiscrimination
  policy in place.  See Lowery v. Circuit City Stores, Inc., 206 F.3d
  431, 446 (4th Cir. 2000) ("While an employer's institution of a
  written policy against race discrimination may go a long way toward
  dispelling any claim about the employer's reckless or malicious state
  of mind ... such a policy is not automatically a bar to the imposition
  of sanctions.").  For the good faith exception to apply, there must be a
  policy of nondiscrimination both in words and in practice. Here, the jury
  heard testimony that the policy was not widely or routinely available
  to employees and training opportunities were sporadic.  See, e.g.,
  (R.130,Cooper Dep. at 142,Apx. _; Scott-R.149,TR3 at 112-16,Apx. __).
  Evidence showed that the company's managers never made any attempt during
  the investigation into Carlton's initial sexual harassment complaint
  to obtain corroborative or eyewitness testimony, and that even after a
  second complaint, did nothing to investigate his claim that Davis was
  stalking him and that his coworkers were taunting and ridiculing him.
  See supra at 10-13.   Further, the company never disciplined Davis even
  though its managers knew that his conduct violated company policies,
  since beyond Bomar's "talk" with Davis, he was never warned, suspended,
  or threatened with termination. Id. at 12-13. The jury could have
  viewed this negligent indifference to a serial harasser's misconduct
  to constitute, by extension, an indifference to Carlton's and others'
  federally protected rights.
  Viewing the evidence in the light most favorable to the EEOC and Carlton,
  the district court properly determined that there was a sufficient
  basis for the jury to conclude that Harbert-Yeargin acted in reckless
  disregard for Carlton's  Title VII right to a workplace free of unlawful
  harassment.  Therefore, this Court should affirm that ruling.

 B.  The jury's award of $300,000 is not excessive
  A jury's punitive damages award is entitled to "a strong presumption
  of validity" when that award is the product of a process which
  includes "review ... by the trial judge who also heard the testimony."
  TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 456-57
  (1993).  This Court has emphasized that, in reviewing an award of
  punitive damages, it must take care "not to substitute [its] judgment
  for that of the jury."  Moreno, 63 F.3d at 1419.  Consequently, a
  punitive damage award is excessive only if it "shocks the conscience"
  of this Court.   Rodgers v. Fisher Body Div., 739 F.2d 1102, 1106
  (6th Cir. 1984), cert. denied, 470 U.S. 1054 (1985).   Harbert-Yeargin
  argues that under the factors outlined in Gore for assessing whether a
  damages award offends the due process clause, the award in this case is
  excessive.  HY Br. at 46-53.  We note that the Gore analysis is arguably
  inapplicable to this case in which damages were awarded pursuant to
  a specific statutory scheme with monetary caps designed by Congress.
  Any award within the statutory caps is presumptively reasonable because
  Congress already established those parameters calibrated to the size of
  the employer.  See 42 U.S.C.  1981a(b)(3).  In any event, if the award
  in this case is scrutinized in light of the Gore factors, it clearly
  withstands the test.  The Supreme Court indicated that this Court should
  consider factors such as: (1) the degree of reprehensibility; (2) the
  relationship of the punitive damage award to the compensatory damage
  award; and (3) its relationship to the criminal sanctions generally
  imposed by society for comparable misconduct.  Gore, 517 U.S. at 574.
  The degree of reprehensibility is, however, the most important indicator
  of the reasonableness of an award.  Id. at 575.
  Here, the degree of reprehensibility that supports the imposition of
  a         punitive damages award of the statutory maximum is met by
  evidence that management told an employee to make false statements to the
  EEOC, failed to take corrective action once aware of the harassment, and
  refused to discipline perpetrators, and that supervisors participated in,
  encouraged and condoned ongoing harassment, and dissuaded employees from
  using the complaint process.  See  TXO, 509 U.S. at 462 (stating large
  punitive damage award was supported by tortfeasor's "fraud, trickery
  and deceit"); Clark v. Metro Health Found., Inc., 90 F. Supp.2d 976,
  986 (N.D. Ind. 2000)  (holding that punitive damages of $150,000 to
  two plaintiffs are not disproportionate to the reprehensibility of
  conduct where there was evidence "of bad faith, of false statements,
  of affirmative misconduct, and concealment of improper motive in the
  sense of manufacturing false paperwork and making false statements to
  the Michigan City Human Rights Commission to conceal the discriminatory
  motive").
  The conclusion that the evidence of reprehensible conduct supports the
  punitive damages award is not undermined by the jury's award of $1 in
  compensatory damages.  Compensatory damages are based on the victim's
  injury; punitive damages are based on the company's conduct.  Hence,
  "punitive damages . . . stand independently of compensatory damages,"
  Rodgers, 739 F.2d at 1109, and the amount of the punitive damages award
  need not be proportionate to the amount of the compensatory damages
  award. Gore, 517 U.S. at 582 (low awards support a higher ratio than
  high awards "if, for example, a particularly egregious act has resulted
  in only a small amount of economic damages").  Consequently, although
  the jury determined that Carlton had no actual, compensable injury,
  the degree of reprehensible conduct in this case was so great that it
  is reasonable that the 300,000 to 1 ratio did not shock the conscience
  of the district court.  See TXO, 509 U.S. at 462 (when court considers
  "potential loss" to victim had the company "succeeded in its illicit
  scheme[,]. . . the disparity between the punitive award and the potential
  harm does not . . . 'jar one's constitutional sensibilities'") (internal
  cite omitted);  Deters, 202 F.3d at 1272-73 (noting that Gore ratios
  are "most applicable to purely economic injury cases where injury is
  not hard to detect" and that "where the injury is primarily personal, a
  greater ratio may be appropriate"); United States v. Big D Enterp., Inc.,
  184 F.3d 924, 933 (8th Cir. 1999) ("[i]n cases where the other factors
  are weak, a 4 to 1 ratio may test the outer limits of acceptability[;]
  . . . [i]n cases where the other factors are strong, a 526 to 1 ratio
  may be appropriate"); Timm v. Progressive Steel Treating, Inc., 137 F.3d
  1008, 1010 (7th Cir. 1998) (punitive damages are available in a Title
  VII sexual harassment case even in the absence of actual damages).
  Carlton was subjected to physical assault for which no punishment was
  meted out.  In addition, he was subjected to continuous harassment that
  supervisors encouraged or condoned.  Roberts v. Bohac, 574 F.2d 1232,
  1233 (5th Cir. 1978) (evidence of the campaign of continuing harassment
  would support an inference of malice and the award of punitive damages).
  Further, the jury was aware that Raytheon is an $11.8 billion company and
  that it had  the financial ability to pay the judgment. Big D Enters.,
  184 F.3d at 932 (evidence of a defendant's financial worth and ability to
  pay is traditionally admissible for the purpose of evaluating the amount
  of punitive damages that should be awarded).   More importantly, knowing
  the company's worth, the jury might have determined that $300,000 was
  the amount of damages reasonably necessary to fulfill the twin purposes
  of punishment and deterrence without risking "financial ruin of the
  defendant." Vashbinder v. Scott, 976 F.2d 118, 121 (2d Cir.1992);
  Deters, 202 F.3d at 1273 (finding unremitted punitive damages award
  of $1 million reasonable in sexual harassment case and agreeing with
  district court that defendant's "gross operating revenue of $1.8 billion
  in 1996 could be considered in levying a substantial punitive damages
  award" when fulfilling purposes of punishment and deterrence).  Hence,
  the district court properly considered these factors and did not err
  when it upheld the award.
  Notably, Harbert-Yeargin cites cases in which substantially lower
  punitive damages awards were deemed adequate, but those citations are
  unpersuasive and  scarcely pertinent.  See HY Br. at 49-51.  For example,
  Harbert-Yeargin's reliance on Timm is misplaced because the Seventh
  Circuit held punitive damages of $15,000 to be appropriate in a sexual
  harassment case, but addressed only the fact of punitive damages,
  not their adequacy. 137 F.3d at 1010.  The court held punitive damages
  could be awarded without a compensatory damage award, id., a principle
  that supports the award here.   Also see Buckner, 1999 WL 232704 at **7
  (Moore, J., dissenting) ("a jury may award punitive damages in a Title
  VII claim when no compensatory damages were awarded")
  In Fall v. Indiana Univ. Bd. of Trustees, 33 F.Supp.2d 729
  (N.D. Ind.1998),  cited by defendant, the court ordered a remittitur of
  punitive damages from $800,000 to $50,000.  That decision is inapposite.
  First, punitive damages were awarded for a single 30-second event
  caused by a single individual, id. at 745-46, while Carlton's award
  was for conduct that spanned several months and included management's
  negligent response to Carlton's complaints.   Second, the Fall court
  imposed punitive damages against individual defendants, while the liable
  defendant here is a corporation with substantial income.
  The case of  Lawyer v. 84 Lumber Co., 991 F.Supp. 973 (N.D. Ill. 1997)
  is similarly inapt.  There, the district court automatically reduced
  the punitive damages award of $250,000 to $150,000 merely because it
  had remitted the compensatory damages award resulting in a ratio of 5
  to 1.  That court's  approach is in tension with the Supreme Court's
  admonition that there are no strict mathematical formulas or ratios
  to follow and the particulars of each case must be considered.   Gore,
  517 U.S.  at 582.
  Finally, Harbert-Yeargin's interpretation of the Seventh Circuit's
  ruling in Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344,
  1355 (7th Cir.1995), "that the statutory cap should be taken into
  consideration as the amount to be awarded in the most reprehensible
  cases," is infirm.  HY Br. at 53.  The Seventh Circuit recently clarified
  in EEOC v. Indiana Bell Tel. Co., 2000 WL 681007 (7th Cir. May 26,
  2000), that, "[a]lthough Hennessy provides support for the idea that
  punitive damages awards can be excessive, and that awards at or near
  the statutory maximum should be reserved for egregious cases, the Court
  in that case limited the decision to its facts and did not purport to
  establish a per se rule about the availability of punitive damages at or
  near the statutory maximum."  Id. at *23 n.4.  The Court then noted that,
  "[i]t is well-recognized that the amount of damages is largely within the
  province of the jury, and that its determination should not generally
  be disturbed."   Id.   Applying that principle, it is clear that this
  jury award should not be disturbed because this case has the degree of
  reprehensible conduct that clearly justifies an award at the statutory
  maximum amount.  Indeed, this Court recently upheld a $300,000 award
  in a Title VII gender discrimination case that presented less severe
  circumstances than those at issue here.   See EEOC v. EMC Corp., 205
  F.3d 1339, 2000 WL 19189 (6th Cir. Feb. 8, 2000) (unpublished) (finding
  sufficient evidence to sustain punitive damages award of $300,000 in
  Title VII gender discrimination case where female manager was terminated
  allegedly for poor performance, despite being only employee to meet the
  company's yearly quotas locally and nationally, and worked in hostile
  environment where she was required to attend district meetings held at
  a topless bar,  crude jokes regarding women were commonplace, and male
  sales representatives were taken, and took clients, to topless bars).
  Considering all the aggravating circumstances, including the nature
  of the harassment and the involvement of managers in it, the lack of
  responsiveness to complaints, the failure to train supervisors about
  the sexual harassment policy or of on-site managers to enforce it,
  misleading the EEOC, and the financial wealth of the company, an award
  of punitive damages in the amount of $300,000 is reasonable.  Hence,
  the district court properly upheld the jury's award to Carlton.
    Cross-Appeal No. 00-5232

 THE DISTRICT COURT IMPROPERLY SET ASIDE THE JURY'S VERDICT FOR THE
 COMMISSION ON CEDRIC WOODS'S CLAIM BECAUSE THERE WAS SUFFICIENT EVIDENCE
 OF CONSTRUCTIVE NOTICE TO ESTABLISH EMPLOYER LIABILITY

  A district court may set aside a verdict only if the evidence is
  "so one-sided that one party must prevail as a matter of law."
  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). In
  other words, "[j]udgment as a matter of law is appropriate only when
  there is a complete absence of fact to support the verdict, so that
  no reasonable juror could have found for the nonmoving party." Moore
  v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1078 (6th Cir.1999);
  Ivey v. Wilson, 832 F.2d 950, 953 (6th Cir. 1987) ( "a jury verdict
  can be set aside if. . . [the] facts and inferences reasonably drawn
  from the facts . . . lead to but one conclusion -- that there is a
  total failure of evidence to prove the plaintiff's case.'"  (internal
  citations omitted). Consequently, "[j]ury fact-finding, unlike judicial
  fact-finding, is not subject to direct attack as 'clearly erroneous.'"
  Ivey, 832 F.2d at 953.  Review of the district court's vacatur of the
  verdict is de novo.  Pouillion, 206 F.3d at 719.
  An employer is liable for co-worker harassment of another employee if
  the employer knew or should have known of the sexual harassment and
  failed to implement prompt and appropriate corrective action.  Ellerth,
  524 U.S. at 759; Hafford v. Seidner, 183 F.3d 506, 513 (6th Cir. 1999).
  In this case, the  evidence is sufficient to sustain a finding of
  constructive notice because Davis had a history of harassing behavior,
  the challenged conduct was witnessed by other employees, the  harassment
  was pervasive, there was widespread harassment of other employees by
  the same harasser, and management personnel were present or participated
  in conduct  similar to the harassment.
  A jury could have concluded that Harbert-Yeargin should have been
  aware of Davis's harassment of Woods because there was sufficient
  evidence that Davis had a history of harassing male employees. See
  supra at 4-15. For example, "on the first day or the second day" of
  his employment, an employee warned Woods to "watch out" for Davis.
  (Woods-R.148,TR2 at 45,Apx. __).  General superintendent Don Bomar
  said he was not surprised to learn that Davis "goosed" employees.
  (Bomar-R.149,TR3 at 80,Apx. __).  Employees Carlton, Lindley  and Warren
  testified to being grabbed in the crotch by Davis or to observing
  him grab other employees' genitals and buttocks.  (Carlton-R.147,TR1
  at 181-89,227-28,Apx. __; Lindley-R.148,TR2  at 9-11,18, Apx. __;
  Warren-R.149,TR3 at 169-77; R.150,TR4 at 23-25,67,Apx. __).   And,
  Davis himself admitted that he "goosed" employees on a regular basis.
  (Davis-R.148,TR2 at 128,Apx. __).
  Further, a reasonable jury could have concluded that Harbert-Yeargin
  had constructive notice of the harassment of Woods because the truck
  was full of passengers who presumably saw Davis grab Woods's genitals
  since they reacted with laughter when Woods removed Davis's hand
  from his genitals and jumped out of the truck, (Woods-R.148,TR2 at
  24-25,Apx. __); cf. Bonenberger v. Plymouth Township, 132 F.3d 20, 26
  (3d Cir. 1997) (where ongoing harassment of plaintiff was witnessed by
  other employees and immediate supervisor, triable issue on constructive
  notice exists), and because inappropriate touching of genitals and
  buttocks was widespread at the site.  See supra at 3-6.  Indeed, foreman
  Davis, the harasser, stated that such conduct occurred "every day."
  (Davis-R.148,TR2 at 128,Apx. __).  Where the harassment is pervasive,
  the employer is presumed to have knowledge of it.  See Jackson, 191 F.3d
  at 663 ("where harassment is pervasive, courts may impute constructive
  notice to an employer"); Hurley v. Atlantic City Police Dep't, 174
  F.3d 95, 111 (3d Cir. 1999)(evidence of other acts of harassment is
  extremely probative as to whether the defendant knew or should have
  known that sexual harassment was occurring despite the existence
  of an anti-harassment policy), cert. denied, 120 S. Ct. 786 (2000).
  Cf. Hall v. Gus Constr. Co., 842 F.2d 1010, 1016, 1018 (8th Cir.1988)
  (finding that even if supervisor was not aware of all sexual abuse,
  "unrelenting pattern of verbal, physical and psychic abuse" involved
  incidents "so numerous" that employer was "liable for failing to discover
  what was going on and to take remedial steps to put an end to it").
  Moreover, the jury's finding that Harbert-Yeargin should have known
  of the harassment  is bolstered by the fact that the offensive conduct
  involved or occurred in the presence of management.   See, e.g., Evans
  v. Ford Motor Co., 768 F.Supp. 1318, 1326 (D. Minn. 1991) (employer knew
  of unlawful harassment where much of its was carried out by supervisory
  and management personnel).  Indeed, the record is replete not only
  with employee testimony that at Harbert-Yeargin "there was a lot of
  grabbing and poking" that occurred in front of the foremen, see, e.g.,
  (Dotson-R.149,TR3 at 35,38, Apx. __); supra at 4-6, but it also contains
  admissions by  manager  Scott and foreman Davis that they engaged in
  such conduct  and did not discipline other perpetrators.  See, e.g.,
  (Scott-id. at 128-33,Apx. ___ (grabbed and hit at men's genitals);
  Davis-R.148,TR2 at 108-09,Apx.  __ (admitting  he saw an employee
  "goose" another employee below the waist and did not discipline him
  even though the conduct violated company policy)).    In that Scott was
  the "top dog" at the Jackson facility responsible for enforcing the
  company's anti-harassment and horseplay policies,  he qualified as a
  proxy for Harbert-Yeargin. See supra at note 3.   Hence, his knowledge
  is attributable to the company and his duty to stop the harassment
  is sufficient, in isolation or combination with the knowledge and
  obligations of the other foremen, to hold Harbert-Yeargin accountable for
  the unabated harassment to which Woods was subjected. Torres v. Pisano,
  116 F.3d 625, 636-37 (2d Cir.) ("[a]n official's actual or constructive
  knowledge of harassment will be imputed to the employer" if the "official
  is at a sufficiently high level in the company's management hierarchy
  to qualify as a proxy for the company" or he "is charged with a duty
  to act on the knowledge and stop the harassment"), cert. denied, 522
  U.S. 997 (1997).
       Finally, the fact that Harbert-Yeargin had already  received
       Carlton's sexual harassment complaint against Davis describing
       the same conduct to which Davis had subjected Woods during the
       same time period that Davis repeatedly harassed Woods should have
       provided the company with adequate notice. Hirase-Doi, 61 F.3d at
       783-84 (evidence of a supervisor's harassment of other women may
       be relevant to establish employer liability, even if the plaintiff
       was unaware of it, so long as the harassment was similar in nature
       and close in time to plaintiff's experiences);  Van Jelgerhuis
       Mercury Finance Co., 940 F.Supp. 1344, 1364 (S.D. Ind. 1996)
       (an "employer may have constructive knowledge of an employee's
       harassment by virtue of prior complaints lodged by other victims
       regarding the alleged harasser").  Here, Carlton filed a sexual
       harassment complaint on February 23, 1996, alleging, among
       other things, that Davis had grabbed his genitals.  Carlton's
       complaint thus referred  to the same conduct and identified the
       same perpetrator that sexually harassed Woods, and Carlton made
       his complaint during the same time period that Woods was being
       harassed by Davis.   The fact that Carlton was the only employee to
       complain of sexual harassment and inappropriate touching by Davis,
       (Bomar-R.149,TR3 at 93,Apx. __; Scott-id. at 147,Apx. __), and
       that the company investigated the complaint and concluded that no
       harassment had occurred, see (R.130,Cooper Dep. at 138,Apx. __),
       is not significant where the investigation was grossly inadequate
       and failed to comply with the company's investigative procedures.
       Among other things,<15> the company procedures required that Cooper
       identify and interview potential witnesses, which should include
       "co-workers of both the accuser and the accused  who worked in the
       area in which the alleged misconduct occurred." (R.149,Ex.25 at
       20,Apx. __).  Yet, Larry Lindley, Carlton's coworker and a witness
       to the second grabbing incident, was not interviewed.  No one on
       Davis' crew was questioned.  No other employees were asked if
       they had witnessed Davis touching Carlton or suffered similar
       conduct at the hands of Davis.  Robert Cooper, who was charged
       with conducting the investigation, unreasonably refused to contact
       Carlton's attorney so that Carlton could talk to Cooper in the
       presence of his counsel.  See supra at 11.   Had Harbert-Yeargin
       conducted a reasonable and adequate investigation of Carlton's
       complaint, it not only would have concluded that Davis had
       engaged in sexual harassment, but also may have learned about
       Davis' harassment of Woods.  At a minimum, the jury could have
       inferred that had Harbert-Yeargin properly disciplined Davis for
       the sexual harassment of Carlton, Woods might not have remained a
       victim of sexual harassment at the hands of the same perpetrator.
       See, e.g., Yates v. Avco Corp., 819 F.2d 630, 635-36 (6th Cir.1987)
       (fact that company was aware that supervisor had harassed women in
       past and took no remedial action could establish constructive notice
       of later harassment because it was evidence of harassing tendencies
       and of the failure of company's antiharassment policy).   Therefore,
       given Harbert-Yeargin's ineffective response to Carlton's complaint
       that failed even to prevent Davis from further harassing Carlton,
       a  reasonable  jury could decide that Harbert-Yeargin also is liable
       for the ongoing harassment of Woods.   See, e.g., Fall v. Indiana
       Univ. Bd. of Trustees, 12 F.Supp.2d 870, 884 (N.D. Ind. 1998)
       (refusing to grant summary judgment for the employer; although
       the employer acted promptly with reasonable care to correct the
       sexual harassment, factual issue existed as to whether defendant
       was negligent in failing to prevent the harassment where employer
       had actual or constructive knowledge of harasser's history of
       inappropriate behavior).
  On the whole,  pervasive harassment can establish  constructive
  knowledge on the part of the employer, and by extension it is reasonable
  to conclude that when an employer knows of incidents of harassment of
  some employees, it is under a duty to protect other employees from being
  subjected to the same treatment. Therefore, cumulatively or in isolation,
  evidence of such pervasive harassment militates against the district
  court's determination that no reasonable juror could have concluded that
  Harbert-Yeargin should have known that Davis sexually harassed Woods.
  Hence, the district court erred in setting the jury's verdict aside
  and this Court should reinstate it.
 CONCLUSION
  This Court should affirm the district court's judgment on the verdict
  as to Carlton's sexual harassment claim and award of punitive damages,
  but it should reverse the trial court's judgment as to the constructive
  notice issue raised in the cross-appeal because there was substantial
  evidence in the record on all of these issues to support the jury's
  verdict.

       Respectfully submitted,

 C. GREGORY STEWART
       General Counsel

       PHILIP B. SKLOVER
       Associate General Counsel

       CAROLYN L. WHEELER
       Assistant General Counsel

       PAULA R. BRUNER
       Attorney

       EQUAL EMPLOYMENT OPPORTUNITY
       COMMISSION
       1801 L Street, N.W.  Rm. 7044
       Washington, D.C.  20507
       (202) 663-4731

 CERTIFICATE OF COMPLIANCE

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  complies with the type-volume limitations of 6th Cir. R.32(a)(7)(B).

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 the brief contains 13, 912 words.

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 this certificate, or circumvention of the type-volume limits in 6th
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 sanctions against the person signing the brief.

 Paula R. Bruner

 CERTIFICATE OF SERVICE

  This is to certify that on June 14, 2000, one copy  of the foregoing
  proof brief along with the certificate of service was mailed first class,
  postage prepaid, to the following counsel of record:

     Thomas L. Henderson, Esq.
     LEWIS, FISHER, HENDERSON & CLAXTON, LLP
     5050 Poplar Avenue,  Suite 1717
     Memphis, Tennessee 38157

     Michael L. Weinman, Esq.
     Tatum & Weinman
     124 E. Main Street, P.O. Box 293
     Henderson, Tennessee 38157

 PAULA R. BRUNER
       Attorney

       EQUAL EMPLOYMENT OPPORTUNITY
       COMMISSION
       1801 L Street, N.W.  Rm. 7044
       Washington, D.C.  20507
       (202) 663-4731

 June 14, 2000

 ADDENDUM OF CASESAPPELLEE'S DESIGNATION OF JOINT APPENDIX CONTENTS

 Description of Item
 File Date
 Record No.
 Def. Mot. for Sum. Judgment, Ex. 2 - EEOC Determination
      4//28/98
             37
 Deposition of Bob Cooper, pp.6, 30-31, 37-39, 41-45, 48-56, 67-68, 70-74,
 86-90, 92, 96, 100, 126-27, 131-32, 134, 137-38, 140, 142

     4/29/99
            130
 Deposition of Cedric Woods, p.59
      4/30/99
           139
 Trial Exhibits to Cooper Dep. 13-16, 21, 25
 [admitted at Vol. III, p.27]
     4/28/99
           149
 Testimony of Carlton
 Vol. I, pp. 177, 180-82, 184-87, 188-95, 198-200, 220-21, 225, 228
     5/26/99
           147
 Testimony of Woods
 Vol. II, pp. 21, 23-25, 27-29, 34, 43-45, 47, 52, 59
     5/26/99
           148
 Testimony of Doyle
 Vol. II, pp. 71-77
     5/26/99
          148

 Testimony of Dotson
 Vol. III, pp. 35-39, 41-42, 45, 56, 67-68
     5/26/99
          149

 Testimony of Scott
 Vol. III, pp. 97-98, 109, 112-16, 128-33, 159
     5/26/99
          149
 Testimony of Davis
 Vol. II, pp. 108-110, 113, 116, 123, 128, 134-35
     5/26/99
         148
 Testimony of Lindley
 Vol. II, pp. 8-13, 18
     5/26/99
         148
 Testimony of Warren
 Vol. III, pp. 169-74, 177, 184-85
     5/26/99
         149

 Testimony of Warren Vol. IV, pp. 16-21, 23-27, 29-34, 36, 59-60, 65-67,
 92-93, 105

     5/26/99
 150
 Trial Exhibit 32 (listing of 1996 employees)
     5/26/99
           149
 Testimony of Kinman
 Vol. II, pp. 139-40, 143-44
      5/26/99
            148
 Testimony of Freeman
 Vol. II, pp. 149, 152-54
     5/26/99
           148
 Testimony of Neisler
 Vol. II, pp. 155-57
     5/26/99
          148

 Testimony of Bomar
 Vol. III, pp. 74-76, 78, 80, 82-84, 87-88
     5/26/99
          149

 1  Brass Alley is an area where the employees pick up a little piece
 of brass that has their employee number on it in the morning and drop
 it off in the evening.  This piece of brass determines who gets paid,
 tracks attendance, and identifies who has tools.  (Neisler-R.148,TR2 at
 157,Apx. __).

 2  Specifically, Davis testified that, even though there were some women
 he worked around on a daily basis, he had not touched any of the female
 employees at Harbert-Yeargin "in the breasts, buttocks, [or] pubic area."
 (Davis-R.148,TR 2 at 111,135,Apx. __).

 3  At the Jackson site, Scott was the "top dog" responsible for
 enforcing the company's policies and procedures and seeing that the
 supervisors/foremen follow them.  (Scott-R.149,TR3 at 97-98,Apx. __).

 4 Bomar did not question Lindley about the incident.  (Bomar-R.149,TR3 at
 78,Apx. __).

 5  Cooper's failure to identify and interview Lindley and other potential
 witnesses was contrary to the company's published directive on how to
 conduct investigations.  Specifically, the company's manual states:
 "In addition to the accuser and the accused, consider for your list
 [of potential witnesses] co-workers of both employees who work in the
 area in which the alleged misconduct occurred, customers, suppliers, or
 others."  (R.149, Ex.25,How to Conduct An Investigation at 20,Apx. __).

 6  In the company's "How to Conduct an Internal Investigation" manual,
 it states: "During the interview [of a potential witness], take detailed
 notes."  (R.149, Ex.25 at 29,Apx. ___).  The manual also instructs the
 investigator to "[o]btain a signed statement of witness setting forth
 the important facts" because it could be "very useful in responding to
 administrative charges and could be used to contradict the witness if
 he later changes his story or becomes hostile."  (Id. at 30,Apx. __).

 7  In Oncale , 523 U.S. 75, the Supreme Court stated that "harassing
 conduct need not be motivated by sexual desire to support an inference
 of discrimination on the basis of sex." Id. at 80.  See also Quick
 v. Donaldson Co., 90 F.3d 1372, 1378 (8th Cir. 1996) (reasoning that
 because  protection under Title VII extends to all employees and
 prohibits disparate treatment of an individual, man or woman, based
 on that person's sex, there is no requirement to show evidence of an
 anti-male or predominantly female work environment).

 8  Harbert-Yeargin's reliance on Davis's testimony that he "'probably'
 would have 'goosed' women if he had worked around any" is unavailing.
 See HY Br. at 26.  All that matters is whether Davis in fact did sexually
 harass members of both genders.  Davis testified that he did not touch,
 poke or grab the female employees at Harbert-Yeargin and there is no
 evidence to demonstrate otherwise.

 9  It is clear that, contrary to Harbert-Yeargin's urgings, HY Br. at
 20-23, the employment of three women by Harbert-Yeargin is sufficient
 to demonstrate a mixed-sex work environment, and their presence, contact
 with the male employees, and different treatment by the alleged harasser
 and perpetrators of similar misconduct is sufficient "direct comparative
 evidence about how the alleged harasser treated members of both sexes in
 a mixed workplace."  Oncale, 523 U.S. at 80-81.  Harbert-Yeargin cites
 no authority for its novel argument that proving a mixed sex workplace
 is an element of the plaintiffs' case or that the district court somehow
 removed this issue from the province of the jury.  The jury was properly
 instructed that it must find that the harassment was because of sex,
 and it so found based on the difference in treatment of men and women
 in this case.  There is no requirement in the law or rules of evidence
 that there be any particular number of comparators to establish disparate
 treatment; thus it is not surprising that Harbert-Yeargin cites no cases
 in support of its view.

 10  The gender-motivated nature of the harassment is not negated by
 Harbert-Yeargin's purported "legitimate, nondiscriminatory reason" that
 Davis grabbed Carlton's genitals and poked him in the cavity of his
 buttocks because he thought it was "funny." See  HY Br. at 26.  A similar
 misguided effort to analyze a harassment case under the burden-shifting
 framework outlined in McDonnell Douglas was recently rejected by this
 Court.  Pollard v. E.I. Dupont, 2000 WL 680220 (6th Cir. May 26, 2000)
 (because there is no legitimate justification for a hostile environment,
 recourse to the McDonnell Douglas test is not warranted).  The relevant
 question in a harassment case is not the harasser's intention, but whether
 the conduct meets the test of being objectively offensive and subjectively
 unwelcome.  The objective component of the sexual harassment inquiry
 turns on whether a reasonable person in the victim's position would have
 considered the conduct sufficiently offensive to alter the conditions of
 his employment, not on the harasser's intent or perception. See  Oncale,
 523 U.S. at 81; Harris, 510 U.S. at 21.  Moreover, as the district court
 pointed out, this Court has already held that "humor is not a defense
 under the subjective test if the conduct was unwelcome,"  (R.166,JNOV
 Order at 9 (quoting Williams v. General Motors Corp., 187 F.3d 553, 566
 (6th Cir. 1999),Apx. __), and the record is clear that Carlton considered
 Davis's touching to be unwelcome. (R.147,TR1 at 181-88,Apx. __).

 11  While one instance of menacing staring may not rise to sexual
 harassment, Davis's intimidating stares on a daily basis following
 unwelcome physical invasions of Carlton's genital and anal areas certainly
 is sufficiently severe to create an abusive and hostile work environment.
 See Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 784 n.3
 (10th Cir. 1995) (threatening stares by alleged harasser, in apparent
 retaliation for complaints about sexual harassment, were sufficiently
 related to prior alleged sexual harassment).

 12  See, e.g., (R.149,TR3 at 169-74,Apx. __ (Warren testimony about
 seeing foremen and managers grabbing employees in their crotches or
 laughing about it when others did it); supra at 3-6 (detailing testimony
 concerning nature and frequency of harassment).

 13  Harbert-Yeargin's argument that the employer liability rule in
 Indest v. Freeman, 168 F.3d 795 (5th Cir. 1999), and not the rule in
 Faragher/Ellerth is controlling in this case is without merit.  HY Br. at
 31-33.   This Court has already rejected that argument, holding that the
 rationale that "employer liability for sexual harassment is negated if
 the employer responds adequately and effectively once it has notice of
 the supervisor's sexual harassment . . . is at odds with the employer's
 affirmative defense described in Ellerth/Faragher which requires an
 employer to prove that it took reasonable care to prevent and correct
 promptly any sexually harassing behavior and that the plaintiff employee
 unreasonably failed to take advantage of preventative or corrective
 opportunities provided by the employer." EEOC v. SBS Transit, Inc., 172
 F.3d 872, 1998 WL 903833 at *1 (6th Cir. Dec. 18, 1999) (unpublished).

 14 Notably, Harbert-Yeargin never raised this argument in the district
 court before the jury received its punitive damages instructions,
 attempted to have "reckless disregard" defined in the jury instruction,
 submitted an instruction with such definition, or objected to the
 jury instructions on this claim.  Instead, Harbert-Yeargin raised this
 argument for the first time in a footnote in its Rule 50 motion. Given
 Harbert-Yeargin's failure to raise its "novel theory" argument in a
 timely manner in the district court, this Court should treat the argument
 as waived.   See Libbey-Owens-Ford Co. v. Insurance Co. of North Am.,
 9 F.3d 422, 425-26 (6th Cir. 1993) (where defendant failed to raise
 argument "in a substantial enough way that alerted either [trial judge]
 to its significance and called for a ruling either . . . before or during
 the trial or during the course of presenting the charge to the jury,"
 the district court properly considered argument waived).

 15  Cooper's failure to take notes of his interviews or request
 witness statements from Bomar, Scott and Davis, (R.130,Cooper Dep. at
 39,54-56,Apx. __), as required by company policy, (R.149,Ex.25 at
 29,Apx. _), may not have directly contributed to the inadequacy of the
 investigation.  However, a jury could have inferred that his failure to
 document the interviews, along with the refusal to interview employees
 who may have corroborated Carlton's allegations, demonstrated a less
 than sincere effort to get to the full truth.