Equal Employment Opportunity Commission v. Harbert-Yeargin, Inc.
 00-5150/005232


                          IN THE UNITED STATES COURT OF APPEALS
 FOR THE SIXTH CIRCUIT

 Nos. 00-5150/00-5232


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

 JOE CARLTON,
  Intervening Plaintiff-Appellee
 v.

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

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

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

 C. GREGORY STEWART
       General Counsel

       PHILIP B. SKLOVER
       Associate General Counsel

       CAROLYN L. WHEELER
       Assistant General Counsel

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

 TABLE OF CONTENTS

 TABLE OF AUTHORITIES  iii

 INTRODUCTION 1

 ARGUMENT 3

 CONCLUSION 13

 CERTIFICATE OF SERVICE

 APPELLEE'S DESIGNATION OF JOINT APPENDIX CONTENTS
 TABLE OF AUTHORITIES

 EEOC v. Indiana Bell Tel.,
  2000 WL 681007 (7th Cir. May 26, 2000) 5

 Farley v. American Cast Iron Pipe Co.,
  115 F.3d 1548 (11th Cir. 1997) 4

 Furnco Construction Co. v. Waters,
  438 U.S. 567 (1978) 6

 Graham v. Bendix Corp.,
  585 F. Supp. 1036 (N.D. Ind. 1994) 6

 Hall v. Gus Constr. Co.,
  842 F.2d 1010 (8th Cir.1988)  11

 Harris v. Forklift Sys., Inc.,
  510 U.S. 17 (1993) 2

 Hathaway v. Runyon,
  132 F.3d 1214 (8th Cir. 1997) 7

 Jackson v. Quanex Corp.,
  191 F.3d 647 (6th Cir. 1999) 7

   Meadows v. Guptill,
  856 F. Supp. 1362 (D. Ariz. 1993) 8

 Torres v. Pisano,
  116 F.3d 625 (2d Cir.), cert. denied, 522 U.S. 997 (1997) 9, 10

 Williams v. General Motors Corp.,
  187 F.3d 553 (6th Cir. 1999) 4, 7

 Yates v. Avco Corp.,
  819 F.2d 630, 636 (6th Cir. 1987) 4

 INTRODUCTION

  In its opening brief on the cross-appeal, the Equal Employment
  Opportunity Commission ("EEOC" or "Commission") argued that the district
  court erred in setting aside the jury's verdict for the EEOC on its
  claim that Harbert-Yeargin is liable for the sexual harassment of
  Cedric Woods.  Specifically, the Commission asserted that, viewing the
  facts in the light most favorable to the Commission and considering the
  totality of the circumstances, there was sufficient evidence from which
  reasonable jurors could, and did, conclude that Harbert-Yeargin should
  have known Davis was sexually harassing Cedric Woods and hence subjected
  him to a hostile work environment so severe or pervasive as to alter
  his working conditions.  EEOC Br. at 51-58.  Harbert-Yeargin should
  have known about the harassment because there was evidence that Davis
  had a history of harassing male employees, his harassment of Woods and
  others was witnessed by other employees and was widespread, harassment
  of the same nature was pervasive, and management personnel were either
  present or participated in conduct similar to the harassment at issue.
  Id. at 52-56.
  In response, Harbert-Yeargin contends that the district court properly
  found that there was insufficient evidence that it "knew or should have
  known" of the sexual harassment of Cedric Woods.  Harbert-Yeargin ("HY")
  Br. at 23.  Ignoring the rule that finding an actionable hostile work
  environment requires an assessment of the totality of the circumstances,
  Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993), Harbert-Yeargin
  views Woods's claim of harassment as solely based on being "touched
  'once or twice' in an inappropriate manner by Davis. "  HY Br. at 23.
  Consequently, Harbert-Yeargin contends that, since no management
  personnel were present during the taxi incident, Woods could not name
  the people who were present and saw Davis touch him, and Woods did not
  complain to Davis when the incident occurred, it did not know about
  the harassment.  Harbert-Yeargin also notes that Woods goosed employees,
  general superintendent Don Bomar never saw Davis goose or touch anyone
  below the waist, Woods never saw Davis touch any other employee below
  the belt, and the entire time Davis was employed by Harbert-Yeargin
  he only had one harassment complaint registered against him, and
  asserts that these facts support the district court's determination that
  Harbert-Yeargin was not liable for the sexual harassment of Cedric Woods.
  Id. at 24-25.  None of these facts are sufficient to justify overriding
  the jury's conclusion that Harbert-Yearing should have known about
  Davis's harassing behavior directed at Woods.
  For the reasons discussed below (and in its main brief), the Commission
  urges this Court to reverse the district court's vacatur of the punitive
  damages award on  Woods's sexual harassment claim.

 ARGUMENT

  In arguing that there is not sufficient evidence to have provided
  Harbert-Yeargin with constructive notice of the sexual harassment of
  Woods, Harbert-Yeargin mischaracterizes the scope of Woods's claim of
  sexual harassment by Davis.  Harbert-Yeargin asserts that "Woods claims
  he was touched 'once or twice' in an inappropriate manner," HY Br. at
  23, and those few incidents could not have provided it with notice of
  the harassment.  Id.  Woods's sexual harassment claim, however, goes
  beyond being inappropriately touched once or twice.  Rather, evidence
  undergirding Woods's claim includes not only Davis's harassment of
  Woods in the taxi truck in March 1995 but also Davis's stalking him and
  touching him "a lot" on parts of his body, including his genitals and
  buttocks, up to "two or three times a day" until he left in July 1996.
  (R.148, TR2 at 21, 23-28, 47).  Moreover, Woods's testimony that he
  considered it to be inappropriate every time Davis touched him after the
  taxi incident and that Davis made attempts to touch him three or four
  times a day establishes that Davis's harassment of him was pervasive
  as well as severe.  (Id. at 26-27, 43-44, 48).
  Given the ongoing nature of the harassment, which the jury and the
  district court found established a hostile work environment sufficient
  to alter the work conditions of Woods's employment, Harbert-Yeargin's
  argument that it could not have derived notice of Davis's propensity to
  harass male employees, such as Woods, from Carlton's complaint because
  the complaint was registered after the taxi incident involving Woods,
  must fail.  Carlton filed his sexual harassment complaint on February
  22, 1996.  Davis's harassment of Woods continued after the taxi incident
  in March 1995 until he left in July 1996.  Hence, Harbert-Yeargin had
  actual notice that Davis was a sexual harasser of male employees during
  the same period he was harassing Woods.  Had Harbert-Yeargin conducted
  an adequate investigation of Carlton's  complaint, it would have learned
  of Davis's harassment of Woods (as the EEOC's investigation disclosed).
  Yates v. Avco Corp., 819 F.2d 630, 636 (6th Cir. 1987) (an  employer
  is liable for sexual harassment when it "knew, or upon  reasonably
  diligent inquiry should have known," of the harassment) (emphasis
  added); accord Farley v. American Cast Iron Pipe Co., 115 F.3d 1548,
  1554 (11th Cir. 1997) (an employer has an obligation to make reasonable
  efforts to know what is going on with its own employees).     Moreover,
  had Harbert-Yeargin taken effective remedial action against Davis,
  Davis would have been deterred from harassing anyone, including Woods.
  Because Harbert-Yeargin abdicated its duty to conduct a thorough
  investigation and to take effective remedial action as mandated by
  Title VII and its own company manual, it must be held liable for the
  perpetuation of a hostile work environment.   See  Williams v. General
  Motors Corp., 187 F.3d 553, 561 (6th Cir. 1999) ("it is no longer
  enough for an employer to take corrective action; employers now have
  an affirmative duty to prevent sexual harassment by supervisors"); also
  see EEOC v. Indiana Bell Tel., 2000 WL 681007 *23 n.5 (7th Cir. May 26,
  2000) ("[a]n employer has a clear responsibility under Title VII to act
  reasonably to end sexual harassment and to protect its employees from
  harassing behavior").   Consequently, a reasonable jury could conclude
  that Harbert-Yeargin is liable to any employee who was affected by such
  hostile work environment and decide that Woods is entitled to relief.
  Further, contrary to Harbert-Yeargin's assertion, HY Br. at 25, the
  absence of any prior formal complaints against Davis other than the
  one registered by Joseph Carlton does not relieve Harbert-Yeargin
  of liability for the harassment of Woods.  Because Harbert-Yeargin
  received Carlton's complaint alleging harassment of a similar and
  severe nature during the same period Woods was being continuously
  harassed by Davis, that complaint alone is sufficient to convey
  actual or constructive knowledge of Davis's harassing behavior, and
  once aware of the harassment, to trigger its duty to take remedial
  action to protect Woods.  EEOC Br. at 55-57.   In other words, when
  an employer knows of incidents of harassment of one employee, it is
  under a duty to protect other employees from being subjected to the
  same treatment.  See Graham v. Bendix Corp., 585 F. Supp. 1036, 1047
  (N.D. Ind. 1994)("[t]he duty not to discriminate is owed each minority
  employee, and discrimination against one of them is not excused by a
  showing the employer did not discriminate against all of them, or there
  was one he did not abuse")(citing Furnco Construction Co. v. Waters,
  438 U.S. 567, 579 (1978)).
  In like manner, Harbert-Yeargin's assertion that the evidence is
  insufficient to support a finding of constructive notice because Woods
  "did not voice any complaint to Davis when the alleged incident occurred
  but rather . . . laughed about the incident and thought it was a joke,"
  HY Br. at 24, is also without merit.  Neither Woods's failure to complain
  nor his laughter following the taxi incident immunizes Harbert-Yeargin
  from liability.  Obviously, an employer can be held liable for sexual
  harassment even when no formal complaint has been filed so long as it
  had constructive notice of the harassment and failed to take prompt
  and remedial action.  Further, Woods's admission that he laughed after
  everyone else on the truck laughed and joked about the incident does
  not undermine his testimony that he did not laugh because he thought the
  incident was a joke.  (R.148, TR2 at 58, Apx. __).  Nor does his laughter
  detract from the jury's finding that he subjectively found the harassment
  abusive and unwelcome, or that a reasonable person would feel the same.
  Indeed, his initial reaction of immediately removing Davis's hand from
  his genital area and jumping from the truck is sufficient to establish
  both the subjective and objective severity of the harassment and its
  unwelcomeness.  (R.148, TR2 at 24-25, Apx. __). Hence, as we stated in
  the main brief in response to Harbert-Yeargin's contention that Davis
  intended his harassment of Carlton to be a joke, EEOC Br. at 21 n.10,
  "humor is not a defense under the subjective test if the conduct
  was unwelcome,"  (R.166,JNOV Order at 9, Apx. __ (quoting Williams
  v. General Motors Corp., 187 F.3d 553, 566 (6th Cir. 1999)), and Woods
  clearly conveyed that he considered Davis's touching to be unwelcome.
  Next, the fact that management personnel did not witness the taxi
  incident does not negate the EEOC's argument that a jury could reasonably
  believe that the openness and notoriety of that particular instance of
  Davis's harassment of Woods was sufficient to provide Harbert-Yeargin
  with knowledge of Davis's harassing behavior.   Jackson v. Quanex
  Corp., 191 F.3d 647, 663 (6th Cir. 1999) ("where harassment is
  pervasive, courts may impute constructive notice to an employer").
  Woods's undisputed testimony established that the cab of the taxi
  truck was full of passengers who witnessed Davis  grab his genitals as
  evidenced by their reaction to and jokes about the incident.  (R.148,
  Woods, TR2 at 24-25).  The fact that Woods could not name any of the
  witnesses does not diminish the relevance of their observation for the
  purpose of establishing constructive notice.  Cf.  Hathaway v. Runyon,
  132 F.3d 1214, 1222-23 (8th Cir.1997) (holding in sexual harassment case
  that it was reversible error for trial court to vacate jury verdict
  in favor of the plaintiff where two "sexually suggestive" touchings
  combined with later laughter and "suggestive noises" were sufficient
  to establish a hostile environment because "harassing conduct need not
  be . . . continuous in order to [be] pervasive" ).
  Similarly, Harbert-Yeargin's assertion that it should not be found
  liable because "Woods, himself, acknowledges goosing other employees
  while working for Defendant," HY Br. at 24, is equally unavailing.
  In testifying that he may have "goosed people on the job,"  (R.148, TR2
  at 50, Apx. __), Woods stressed that he did not mean he had "touched
  anyone below the waist" or "anyone's private parts."  (Id. at 57-58,
  Apx. __).   Rather, he meant he may have touched someone on the arm.
  (Id. at 58, Apx. __).  Hence, Woods's conduct cannot be compared to
  Davis's sexual harassment, Meadows v. Guptill, 856 F. Supp. 1362,
  1367 (D. Ariz. 1993) ("touchy" behavior, such as grabbing one's arm in
  conversation, does not invite a return pat on the buttocks or one's more
  private areas[; t]his is true under any acceptable standards of workplace
  behavior, even in an informal work environment"), and in no way vitiates
  the jury's finding that Harbert-Yeargin had constructive knowledge
  of Davis's harassment and failed to take prompt and remedial action,
  thereby demonstrating a reckless disregard for Woods's federal rights.
  Finally, Harbert-Yeargin's argument that it could not have known about
  Davis's harassment of Woods because "[g]eneral superintendent Don Bomar
  testified that he never saw Davis goose or touch any employee below
  the waist," and because Woods never saw Davis touch any employee in
  the manner in which Davis touched him, HY Br. at 24-25, is untenable.
  Although Bomar testified that he had not seen Davis "goose" anyone,
  he also testified that it did not surprise him to hear that Davis had
  "goosed" someone.  (R.149,Bomar, TR3 at 80,Apx. __).  A jury could infer
  from his statement that Bomar had reason to know of Davis's harassing
  behavior and Bomar's rank is sufficiently high-level to impute that
  knowledge to the company.  Torres v. Pisano, 116 F.3d 625, 636-37 (2d
  Cir.) ("[a]n official's actual or constructive knowledge of harassment
  will be imputed to the employer" if the "official is at a sufficiently
  high level in the company's management hierarchy to qualify as a proxy
  for the company" or he "is charged with a duty to act on the knowledge
  and stop the harassment"), cert. denied, 522 U.S. 997 (1997).<1>
  Further, even if  Bomar and Woods had not witnessed Davis's harassment
  of other employees,<2> site superintendent Harold Scott was aware that
  genital-grabbing occurred at Harbert-Yeargin and admitted to engaging in
  such conduct even though he was the official responsible for enforcing
  the company's anti-harassment and anti-horseplay policies.  EEOC Br. at
  54. Furthermore, he  believed that Davis had sexually harassed Joseph
  Carlton and he did nothing to stop it.  Id.  Given Scott's  authority
  over Davis and his power to stop the harassment, Scott's knowledge of
  Davis's harassment and failure to take corrective action is imputable to
  the company and sufficient by itself or in combination with the other
  evidence of pervasiveness to hold Harbert-Yeargin accountable for the
  sexual  harassment of Woods.   Torres, 116 F.3d at 636-37.
  On the whole, there is substantial evidence in the record from which
  a reasonable jury could conclude that Harbert-Yeargin knew or should
  have known that Davis sexually harassed  Woods.   Evidence before the
  jury indicated that Davis's conduct was open and pervasive.  Woods's
  taxi incident was witnessed by several employees.  Davis continued to
  stalk and touch Woods for a period of fourteen months with impunity,
  causing Woods to run from him "three to four times" a day. Davis
  admitted he "goosed" male employees and that goosing occurred all
  the time.   Management personnel witnessed Davis grabbing the buttocks
  and genitals of other male employees.  Employees either witnessed or
  experienced similar harassment at the hands of Davis, other supervisors,
  or coworkers.  Carlton formally complained about Davis harassing him
  in a manner similar to the conduct which Woods continued to experience,
  and Harbert-Yeargin's inadequate response to Carlton's complaint failed
  to stop Davis from harassing Carlton or Woods.  This is substantial
  evidence from which a reasonable jury could and did conclude that no
  reasonable employer could or should have remained ignorant of the fact
  that Davis was harassing Woods.  Hall v. Gus Constr. Co., 842 F.2d
  1010, 1016, 1018 (8th Cir.1988) (finding that even if supervisor was
  not aware of all sexual abuse, "unrelenting pattern of verbal, physical
  and psychic abuse" involved incidents "so numerous" that employer was
  "liable for failing to discover what was going on and to take remedial
  steps to put an end to it").  To the extent that this evidence created
  triable issues regarding whether and to what extent Woods's superiors
  were aware or should have been aware of the situation, resolution
  of those factual questions was for the jury.  The  district court's
  vacatur of the verdict  and punitive damages award for the Commission on
  Woods's claim is no more than an improper substitution of its judgment
  for that of the jury based on an improper reweighing of the evidence
  or reassessment of credibility.  Therefore, this Court should reverse
  the district court's decision and reinstate the verdict and punitive
  damages award for the EEOC on Woods's sexual harassment claim.

 CONCLUSION

  This Court should reverse the trial court's judgment as to the
  constructive notice issue raised in the cross-appeal because there was
  substantial evidence in the record to support the jury's verdict and
  award of punitive damages.

  Respectfully submitted,

 C. GREGORY STEWART
       General Counsel

       PHILIP B. SKLOVER
       Associate General Counsel

       CAROLYN L. WHEELER
       Assistant General Counsel



       PAULA R. BRUNER
       Attorney

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

 CERTIFICATE OF SERVICE

  This is to certify that on July 28, 2000, one copy  of the foregoing
  proof brief along with the certificate of service was mailed first class,
  postage prepaid, to the following counsel of record:

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

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





       PAULA R. BRUNER
       Attorney

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

 APPELLEE'S SUPPLEMENTAL DESIGNATION
 OF JOINT APPENDIX CONTENTS



 Description of Item
 File Date
 Record No.
 Testimony of Woods
 Vol. II, pp. 21, 23-31,  43-44, 47-48, 50, 57-58
  5/26/99
 148
 Testimony of Bomar
 Vol. III, pp. 69-71, 80
 5/26/99
 149



 1  As the general superintendent, Bomar was the "number two person on
 the site" and he supervised Louis Davis, the harasser.  (R.149, TR3 at
 69-70, Apx. __).  As supervisor, he had the authority to discipline his
 subordinates when they misbehaved.  (Id. at 71, Apx. __).

 2  Even though Woods testified that he had not seen Davis touch anyone
 else "below the belt," he recalled that he saw Davis harassing a new
 employee on his first day of work. (R.148, TR2 at 29-30, Apx. __).
 He testified that Davis kept "walking right up beside him" and "when the
 new guy stopped, Davis stopped." (Id. at 30, Apx. __).   Woods said that
 "Davis asked the new  guy if he could be his boyfriend or would the
 new guy be his boyfriend."  (Id.)  Woods stated that the new guy told
 Woods he was not coming back and never returned to work. (Id. at 30-31,
 Apx. __).  This evidence further supports the pervasiveness of Davis's
 harassing behavior of which a reasonable employer could not have been
 completely ignorant.