*

The Honorable Richard D. Cudah

States Court of Appeals for the Seventh 

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

SHARON B. POLLARD,

Plaintiff-Appellee/

Cross-Appellant,

v.

E. I. DUPONT DE NEMOURSCOMPANY,

Defendant-Appellant/

Cross-Appellee.

Appeal from the United St

for the Western District of Te

No. 95-03010—Jon Phipps M

Argued: May 4

Decided and Filed: M

Before: MERRITT, CLAY, an

Judges.
2 Pollard v. E. I. DuPont

de Nemours Co.

Nos. 98-6317/6319; 99-5125

_________________

COUNSEL

ARGUED: N. Victoria Holladay, WYATT, TARRANT &COMBS, Memphis, Tennessee, for Appellant. Kathleen L.Caldwell, TAYLOR, HALLIBURTON, LEDBETTER &CALDWELL, Memphis, Tennessee, for Appellee.ON BRIEF: John S. Wilson, III, N. Victoria Holladay,

WYATT, TARRANT & COMBS, Memphis, Tennessee,J. Michael Brown, WYATT, TARRANT & COMBS,Louisville, Kentucky, for Appellant. Kathleen L. Caldwell,TAYLOR, HALLIBURTON, LEDBETTER & CALDWELL,Memphis, Tennessee, Alayne B. Adams, Memphis,Tennessee, for Appellee. Brian Owsley, EQUALEMPLOYMENT OPPORTUNITY COMMISSION, OFFICEOF THE GENERAL COUNSEL, Washington, D.C., forAmicus Curiae.

_________________

OPINION

_________________

MERRITT, Circuit Judge. Sharon Pollard and her husband

brought this action against her employer, DuPont, for“continuing harassment based on her sex since 1987” underTitle VII, as well as the common law injuries of intentionalinfliction of emotional distress, negligent supervision, andloss of consortium. The district court found that she wassubjected to co-worker hostile work environment sexualharassment, that her DuPont supervisors were well aware ofthe discrimination, and that it resulted in a medical leave ofabsence from her job for psychological assistance and hereventual dismissal for refusing to return to the same hostileenvironment. We agree with the district court that the recorddemonstrates that DuPont employees engaged in flagrantdiscrimination based on gender and that DuPont managersand supervisors did not take adequate steps to stop it. 
22 Pollard v. E. I. DuPont

de Nemours Co.

Nos. 98-6317/6319; 99-5125

which Pollard endured over a period of months and years hasbeen characterized as a type of slow torture. Her work wassabotaged, her personal safety was compromised, she wassubjected to juvenile pranks intended to force her to resignfrom the shift, and she was repeatedly informed of her coworkers' belief in the inferiority of women. We foundourselves, after reviewing the record, proclaiming a sense ofmoral outrage that DuPont managers allowed the conduct ofthe men in the peroxide area to persist for years in silence,and therefore silent approval. Inaction by an employer, oranother actor in a position to exercise control, in the face ofcontinuous, deliberate, degrading treatment of another mayrise to the level of intentional infliction of emotional distress.The tort would be unnecessary in our law as a deterrent ifassault or physical harm were always made a necessaryelement.

We conclude that material issues of fact are presented by

the outrageous nature of the conduct of DuPont employeestogether with the refusal of its managers to correct thesituation and its blanket, continuing official denial in the faceof contrary facts that discrimination based on gender occurredor that its managers were aware of the discrimination. A factfinder at the trial level will hear the case on remand anddecide whether the plaintiff has met the standard enunciatedby the Tennessee courts for the tort of intentional infliction ofemotional distress. We therefore REVERSE the districtcourt's decision to grant summary judgment to DuPont on thisissue and REMAND for trial. Otherwise we AFFIRM thejudgment of the district court. Plaintiff's motion to strikePollard's reply brief is denied.

Nos. 98-6317/6319; 99-5125 Po

The claim of sexual harassment 

instead of a jury. Judge McCaPollard’s claim that in his order he case of wretched indifference to an drowning in an environment unacceptable, while her employer court awarded Pollard $107,364 $300,000 in compensatory damageby the statutory cap, and attorney$252,997.38. DuPont now appearguing 1) that there was no harabased on gender and that the trial cDuPont had actual knowledge of ato Pollard’s harassment was cleadenial of judgment as a matter of lPollard’s claim was one of retaliatiPollard’s harassment claim failed bdisparate treatment, 4) that judpredetermination of facts precludetrial, and 5) that the award of attounreasonable. 

Pollard cross-appeals on the bas

not be subject to limitations on damstatutory cap on compensatory dabecause it violates the doctrine of the Equal Protection Clause, and 3granting summary judgment on Poinfliction of emotional distress.

I. Facts

 The district court’s findings o

follows: Pollard began working foshe was promoted to “assistant transferred to the hydrogen peroxidOf the approximately 28 employewomen. Pollard was promoted worked on “C” shift as one of the t
4 Pollard v. E. I. DuPont

de Nemours Co.

Nos. 98-6317/6319; 99-5125

until 1992. On each shift, operator #1 is the control roomoperator, and operators #2 and #3 work in other areas ofperoxide manufacture, keeping the pipes, valves and othermachinery operating. Each operator’s duties are different andnone is superior in rank to the others. While Pollard wasworking on “C” shift, one of the assistant operators namedRory Brico refused to take direction from plaintiff becauseshe was a woman. He placed a Bible on her desk open to thepassage “I do not permit a woman to teach or have authorityover man. She must be silent.” 

After that incident, plaintiff was transferred and became the

#3 operator on “A” shift in 1992. The other operators on hershift were Steve Carney, the control room operator, and JerryLee, and the assistant operators were named Moody, Walker,and Cobb. The shift supervisor was David Swartz. During1992 and 1993, the members of “A” shift got along withoutincident. In February 1994 the atmosphere abruptly changed.DuPont announced that it was going to participate in nationalTake Your Daughters to Work Day in April 1994, and Pollardwas asked to give a talk to a group of girls coming to visit theplant. Some of the men on “A” shift, particularly SteveCarney and Jerry Lee, loudly complained about DuPont’sparticipation in the program. A number of other men inperoxide were also against it, and they circulated an emailentitled “Bull Malarky” to everyone in the plant discussingtheir displeasure with the program. 

After plaintiff had discussions with both Steve Carney and

Jerry Lee about Take Your Daughters to Work Day in early1994, all of the men on the shift (with the exception of MarkCobb, an assistant operator), stopped talking to plaintiff.Cobb’s testimony, which was basically undisputed, indicatedthat Steve Carney, the control room operator, instructed all ofthe men on “A” shift to not eat with her, share food with her,be in the break room with her, or talk to her, and that Carneyinstructed the men not to follow any of Pollard’s instructionswithout consulting with him first. Carney admitted in his

Nos. 98-6317/6319; 99-5125 Pocornerstone of our entire body opolitical compromise, the Civil limited in the remedies which it wothat unlimited damages for all formforce employers to institute hirieconomic safety. See 137 Cong. R

the fear of quotas that drove the reached in the Civil Rights Act of 1provision saving the remedies avawas rationally related to the legitreasonable damages available intentional discrimination without damages already available to vicdiscrimination. 

For the foregoing reasons, we A

district court limiting plaintiff’s aw§ 1981a.

VII. Summary Judgment for the 

Law Claim

Finally, plaintiff cross-appeals t

to grant summary judgment for claim of intentional infliction of conduct alleged by a plaintiff musburden in order to survive a motiwith respect to a claim of intentiodistress in Tennessee. The district quoted the appropriate language fInc., 828 S.W.2d 747, 751 (Tenn. Cthe conduct must be that which intolerable in a civilized society. Tcriminal, tortious, intentional, or mautomatically satisfy the standard. the intentional and malicious concourt in this case is unusually egreissue with respect to the outraginvolved. The sort of daily, con
20 Pollard v. E. I. DuPont

de Nemours Co.

Nos. 98-6317/6319; 99-5125

Pollard also argues that the statutory damages provision

violates the Equal Protection Clause of the FourteenthAmendment in that it unfairly discriminates among thosepersons who wish to vindicate their rights with respect toracial discrimination and those who wish to vindicate theirrights with respect to gender discrimination. Since the statuteat issue is a federal one, we assume that plaintiff meant toinvoke the implied equal protection clause inherent in the DueProcess Clause of the Fifth Amendment, which is applicableto the federal government. The parties agree that the statutemust stand if it bears a rational relationship to any legitimatearticulated government purpose. 

42 U.S.C. § 1981a places a $300,000 statutory cap on all

intentional discrimination on the basis of race, national origin,sex, religion, or disability (as defined in the Americans withDisabilities Act). The statute is inherently equitable on itsface. The difference in the application of this statute insituations of gender or race discrimination occurs due to aprovision in the Act which states that nothing in section1981a is to be construed as in any way limiting the remediesprovided in section 1981 itself, which does not limit recoveryfor intentional discrimination based upon race or nationalorigin. However, section 1981 provides relief for a differenttype of claim than encompassed by the remedies available toplaintiff in section 1981a. Section 1981 provides for relieffrom discrimination in the making and enforcing of contracts,while section 1981a provides for relief purely from intentionaldiscrimination in the employment context. While section1981 includes contracts for employment, it also includescontracts for admission to organizations, insurance and otherbusiness contracts with private persons or corporations, andadmission to schools. Plaintiff cannot therefore be said to be“similarly situated” with section 1981 claimants.

Even if plaintiff is similarly situated with a section 1981

claimant due to the fact that employment discrimination iscovered under both acts, her claim still fails. Discriminationon the basis of race and national origin is indisputably the

Nos. 98-6317/6319; 99-5125 Potestimony that “it was a possibilitymen to disregard Pollard’s directio

It was common knowledge in th

of the men including Carney, Jerrthe Bible verse incident) did not apin the peroxide department. Testimade remarks to this effect apprweek, consistently, and that Carwomen as “bitches,” “cunts,” “heiflanguage was commonly used by and Carney admitted that he used tin general and to plaintiff in partichad a company-sponsor support gNetwork which the men vocally attending. Plaintiff worked in this hnext year and half.

In May 1994, after about two 

David Swartz, the shift supervisoDuring a break in the meeting, having a discussion about a girl’s sCarney said “that heifer can’t coabusiness coaching” in reference to the team. Plaintiff was seated acroand asked to leave the meeting. station and asked the nurse to caSwartz arrived, Pollard told Swartanymore and that she was tired owomen couldn’t do anything and dspoke with his supervisor about the that Swartz should speak with the With the exception of Walker, noremembered Swartz speaking wittestified that Swartz did appcommunicating with plaintiff immstarted in February, but that Swartto him about it because, according hardheaded . . . [and there] wasn’t n
6 Pollard v. E. I. DuPont

de Nemours Co.

Nos. 98-6317/6319; 99-5125

else.” In other words, Carney made it plain he was not goingto change his behavior.

Swartz testified that he knew there was tension on the shift

beginning in the spring of 1994 and that it did not improve forthe rest of the year. He specifically testified that plaintiffcomplained to him about the lack of communication andisolation and other gender-based conduct on severaloccasions. The situation worsened in the summer of 1994.Plaintiff and Mark Cobb testified that Carney would go so faras to set off false alarms in plaintiff’s area, causing her to runaround the peroxide area in search of a non-existent problem.Cobb testified that Carney bragged to the other men that thiswas his way of showing that he, a man, was in control. If afalse alarm was set while Pollard was on break cooking herdinner, the men would turn up the stove to burn her foodwhile she was searching for the problem. In addition, Cobbtestified that there were numerous incidents during whichCarney would not tell plaintiff about actual alarms in her area.Plaintiff would therefore not respond to the problem, and itwould appear to the operator on the next shift that she was notdoing her job.

Plaintiff’s job duties included monitoring the vaporizers in

the peroxide tanks and determining when they should bemoved. She was to sample the peroxide in a tank one hourafter it was moved, and any delay would result in a weakproduct. Carney admitted instructing the assistant operatorson several occasions to remove the vaporizers from the tanksearlier than plaintiff instructed without telling her. Again, thismade it appear to the operator on the next shift that plaintiffwas not doing her job, and additionally it affected whethercustomers would receive their shipments on time. Thishappened approximately seven times in 1994 and 1995,according to Pollard, with the last incident occurring in July1995. After the first incident she spoke to the assistantoperators about it, and they informed her that they werefollowing Carney’s instructions. After the second incident,Pollard spoke with Swartz about the problem. Pollard

Nos. 98-6317/6319; 99-5125 Poother Circuits have reached a concSee Martini v. Federal Nat'l Mortg1348-49 (D.C. Cir. 1999); Medlo164 F.3d 545, 556 (10th Cir. 1999)Sch. Dist. No. R-1, 157 F.3d 620, 6also Rivera v. Baccarat, Inc., (S.D.N.Y. 1999); Bizelli v. Parke949, 954 n.2 (E.D. Mo. 1998).

We agree with these argument

One panel of this court may not another panel of this court--that mthrough an en banc consideration does not purport to distinguish Hudecline to overturn the district couis included in the compensatory daat 42 U.S.C. § 1981a. 

VI. Constitutionality of the Sta

Plaintiff cross-appeals on the bas

compensatory damages found at unconstitutional violation of thdoctrine. Pollard argues that by Congress impermissibly encroache“traditional responsibility” for averdicts on a case-by-case basiargument persuasive. Congress Congress may designate the reme

Northern Pipeline Construction v. 458 U.S. 50, 83-84 (1982) (plurawhere Congress creates a statutordiscretion, in defining that right, tassign burdens of proof, or prescrthat the judicial branch is limited which it may award does not meacases is being impaired by Congre
18 Pollard v. E. I. DuPont

de Nemours Co.

Nos. 98-6317/6319; 99-5125

argues that the attorney’s fees are excessively high. Plaintiffargues only that the fees were “reasonable.” Neither partygives any explanation, either with or without mathematicalcalculations, as to why the fees were “reasonable” or“unreasonable.” Without a more specific claim that theattorney’s fees were unreasonable, it is difficult to concludethat the award constituted an abuse of discretion. This was ahard-fought case which has gone on for four years. We areoffered no basis for setting aside the fees, and thereforeAFFIRM the district court's award of attorney's fees. 

V. Statutory Limitation of Front Pay

Pollard cross-appeals on the basis that front pay should not

be subject to the limitations on “compensatory damages”under 42 U.S.C. § 1981a. The district court noted that it wasbound by this Circuit’s decision in Hudson v. Reno, 130 F.3d1193 (6th Cir. 1997), which held that front pay was subject tothe $300,000 statutory cap because front pay was an elementof future pecuniary losses. Pollard now argues that front payis not an element of future pecuniary losses, but is instead areplacement for the remedy of reinstatement in situationswhere reinstatement would be inappropriate. The EqualEmployment Opportunity Commission, in an amicus brief,agrees with Pollard that the Hudson case was wronglydecided. 

First, the argument is made that § 1981a, by its very terms,

explicitly excludes remedies which were traditionallyavailable under Title VII from the statutory cap, and notes thatfront pay was a traditionally available remedy. Second, theargument is made that the legislative history of the statutorycap on compensatory damages clearly indicates that front paywas not intended to be included in it. Third, plaintiff claimsthat the Hudson decision misinterpreted existing Sixth Circuitcases examining the nature of front pay as a remedy. Andfinally, Pollard and the EEOC argue that public policyconcerns weigh in favor of excluding front pay from the$300,000 statutory cap on compensatory damages and that

Nos. 98-6317/6319; 99-5125 Podiscussed these ongoing commSwartz on numerous occasions. that he must call out the alarmplaintiff, but Carney would tell Swjob, and that Pollard was simply ndid not investigate further or discinever suspended or fired for this b

During the summer of 1994 plai

bicycle she rode from the gate to hbeen slashed. That day, Pollard cshe suspected Carney had done it. and he denied having done it. Sfurther.

In December 1994, two of the 

Cobb and David Walker, approachto call a meeting to discuss the treatand the other men. Swartz scheducalled the “first healing meeting.” the day of the meeting. At the metold Pollard that Carney told thcommunicate with her, and that Cawas “keeping a book on them.” was not doing so, and strescommunicating with her in order favoid possible dangerous consequpresent and heard all of plaintiff’s c

Carney returned from vacatio

meeting had been held without himmeeting. During that meetingconcerns about the lack of coproblems. Plaintiff also mentioneand told the group of another incidCarney tried to run her off the rCarney “got in plaintiff’s face” and likes you, you’re here all alone, When plaintiff asked Swartz if he 
8 Pollard v. E. I. DuPont

de Nemours Co.

Nos. 98-6317/6319; 99-5125

to talk to her that way, Swartz said “I think that’s enough”and ended the meeting. Nothing happened to change thesituation.

The tension continued, and plaintiff continued to complain,

both to Swartz and in her Women’s Network meetings.Pollard told the group she was afraid for her safety and wasconcerned that a dangerous situation might arise in theperoxide area of which the men would not inform her. BethBasham, David Swartz’s supervisor, attended these meetings.She testified that she heard Pollard’s complaints, andrecognized that the problem in the peroxide area was due tothe male workers not accepting a woman working in that area.In answer to a question on cross-examination, Bashamtestified that she was “of the firm belief that plaintiff had beenharassed on account of her sex in the peroxide area.”Basham, however, never investigated Pollard’s complaintsfurther.

In the face of this record, and despite the express testimony

of management officials Basham and Swartz that they knewof the sexual harassment, counsel for DuPont--both at trialand in their briefs on appeal--maintain that there was nosexual harassment and that no DuPont managers had anyknowledge of harassment. At oral argument on appeal, thefollowing testimony from Basham, the general overallsupervisor of the peroxide department, was read to Ms.N. Victoria Holladay, counsel for DuPont:

Q: And you were of the firm belief that she had beenharassed on account of her sex in the peroxide area,correct?A: Yes.Q: Now, you talked about this situation with AlanHubbell on several occasions, did you not?A: Yes.

Nos. 98-6317/6319; 99-5125 PoLiteky v. United States, 510 U.S. 5re J.P. Linahan, Inc., 138 F.2d 65

There is no indication in the ca

court was in any way personally biathe trial began, nor is there evidencunfairly during the course of the made just prior to the conclusion odistrict court had heard the vast before it. In the absence of any evidwas unfair in his dealings with the of the trial, it is difficult for us to cunfairly biased. In addition, since could have been improperly influthere is no compelling reason to suWe believe the court’s commconclusions which the judge had rifactfinding duty, although the command moral outrage in response tDuPont and some of its employeeis difficult to read the record in this the plaintiff who endured, without Carney and other male co-workers DENY defendant's motion for a ne

IV. Attorney’s 

DuPont challenges the district 

plaintiff attorney’s fees. Attorneyfor an abuse of discretion. See HU.S. 424 (1983). Attorney’s fees areasonable number of hours exreasonable fee, and are generallreflective of the amount of time spwere ultimately unsuccessful. DuPof attorney’s fees ($252,997.38) sdue to the district court’s summary on the issues of intentional inflictnegligent supervision, and loss of 
16 Pollard v. E. I. DuPont

de Nemours Co.

Nos. 98-6317/6319; 99-5125

final defense witness and the highest-ranking member ofDuPont management who testified, Judge McCalla expressedhis opinions with regard to this case. He angrily challengedShaw and questioned him for a period of time, using languagethat was hostile and evidenced his desire to inform Shaw ofthe ways in which he believed DuPont had erred in theirbehavior towards Pollard. The court’s comments seem toindicate three things: First, that after hearing all of thetestimony (with only the remainder of Shaw’s testimony to beheard), the court was quite convinced that the witnesses forthe plaintiff were trustworthy and the key witnesses for thedefense (the other members of “A” shift, including SteveCarney) were lying. Second, the court had also concludedthat DuPont’s actions in attempting to remedy the harassmentwere entirely unsatisfactory. And, finally, the court wantedBob Shaw to hear his comments on the way DuPont handledthis case so that DuPont could learn from its mistakes in thiscase and proceed differently in the future. 

The standard of behavior expected of a judge is different

when the case is tried to the bench rather than before a jury.The Supreme Court has recently concluded in languageapplicable to the conduct in this case:

The judge who presides at a trial may, upon completionof the evidence, be exceedingly ill disposed towards thedefendant, who has been shown to be a thoroughlyreprehensible person. But the judge is not therebyrecusable for bias or prejudice, since his knowledge andthe opinion it produced were properly and necessarilyacquired in the course of the proceedings, and are indeedsometimes (as in a bench trial) necessary to completionof the judge's task. As Judge Jerome Frank pithily put it:“Impartiality is not gullibility. Disinterestedness doesnot mean child-like innocence. If the judge did not formjudgments of the actors in those court- house dramascalled trials, he could never render decisions.”

Nos. 98-6317/6319; 99-5125 Po

Q: And Mr. Hubbell’s position A: He was the area manager of 

Joint Appendix at 412. In the face acknowledging sexual harassmenmaintained that there was no sknowledge by DuPont managemen

In May 1995, a specialist in dive

headquarters named Bernie ScaleNetwork meeting. Pollard told Scperoxide area. Scales spoke to thproblem, who subsequently spoke relations manager for the plant. Gary Fish met with plaintiff on Mcomplaints. According to Shaw anfully all of her complaints at this Shaw and Rice spoke to Carney abnever received a formal writtesuspended, transferred, demoted, tway disciplined for his behaviorinvestigation.

Carney’s behavior improved f

1995); he then returned to his old pJuly 1995. Plaintiff asked David another shift. Swartz offered to room operator position on shift “man who had refused to take direcbeen an assistant operator under hwho had initiated the Bible inciddeclined that offer. In late July 1highlighted copy of that same Bstating “A woman should learsubmission. I do not permit a authority over a man, she must be note, plaintiff requested a medicDuPont.
10 Pollard v. E. I. DuPont

de Nemours Co.

Nos. 98-6317/6319; 99-5125

In order to investigate the bible verse incident, DuPont

formed a list of identical questions, answerable by a simpleyes or no. When each employee denied having knowledge ofthe incident, no further questions were asked and theinvestigation was stopped. Carney himself was neverquestioned about his knowledge of who had placed the versein Pollard’s locker because he was on vacation at the time itoccurred.

After Pollard left “A” shift, the entire shift, including

supervisor David Swartz, held a party. They taped balloonsto the ceiling and had a fish fry. The purpose of the party wasto celebrate Pollard’s departure, as Carney admitted in histestimony. Carney said at the party, “Glad the bitch is gone,glad the bitch is not coming back.” David Swartz told Carneyto shut up, that he did not need to hear Carney saying thosethings in case of future investigations concerning Pollard. 

Plaintiff was on short-term disability leave for six months

based in part on the advice of DuPont's psychologist. DuPontscheduled a “return to work” meeting in February of 1996 inspite of the psychologist's advice to the contrary, at whichtime DuPont told Pollard that they could not guarantee thatshe would not be put back on a shift with Steve Carney andthe other members of “A” shift. When plaintiff declined toreturn to work under those conditions, DuPont fired her. 

II. Hostile Work Environment Sexual Harassment

After reviewing the Supreme Court’s decision in

Burlington Industries v. Ellerth, 524 U.S. 742 (1998), we

recently concluded that a plaintiff seeking to establish acompany’s liability for acts of her co-workers must show thatthe employer “knew or should have known of the chargedsexual harassment and failed unreasonably to take prompt andappropriate corrective action.” Fenton v. HiSan, Inc., 174

F.3d 827, 830 (6th Cir. 1999).

Defendant DuPont challenges the district court’s

determination that plaintiff was harassed on the basis of her

Nos. 98-6317/6319; 99-5125 Powork environment sexual harassmethe two types of cases differentlMcDonnell Douglas framework conduct which might have some ot(such as promoting a man instead based upon discriminatory motivethat a hostile work environment exjustification for such an environmeMcDonnell Douglas test is not warroption is to deny the charges effectively remedied the situatiohostile environment was in Additionally, as the Supreme CoSavings Bank v. Vinson, 477 U.S. 5of a hostile work environment is spectrum of disparate treatment of workplace, which is in no way economically impact a plaintiff, promote, or fire an employee. Id. aDept. of Water and Power v. Ma(1978)). In other words, the Srecognized that proof of hostile harassment is proof of disparate treit is one of the most basic discrimination law that it is not nedisparate treatment in order to makcoworker hostile environment sdefendant's argument to the cofundamental misunderstanding of 

For the foregoing reasons, we A

opinion finding DuPont liable fharassment of its employees.

 III. Judicial 

DuPont also claims that the trial 

approach to this trial that DuPont wright to a fair trial. During the te
14 Pollard v. E. I. DuPont

de Nemours Co.

Nos. 98-6317/6319; 99-5125

investigation, even if ineffective, should shield DuPont fromliability; and 4) that her complaints to her direct supervisor,David Swartz, as well as the complaints made in the contextof Women’s Network meetings, were not actually complaintsto management about harassing conduct, and therefore did notput DuPont on actual notice of her problems. Thesearguments are not persuasive. Not only was it reasonable forthe district court to conclude that members of DuPontmanagement were actually aware of Pollard’s harassmentcomplaints, the district court was justified in finding thatDuPont’s reaction to Pollard’s complaints did not constitutea “good faith” effort to remedy the situation. As noted above,this trial produced substantial evidence that several membersof DuPont management were aware of Pollard’s situation,both through her complaints and through first-handexperience, but they allowed the situation to fester withoutdefinitive action on the part of management. Steve Carney’sbehavior toward Pollard was well known. No disciplinaryaction was taken against him. 

We next address DuPont’s argument that Pollard’s claim

was one of retaliation, not sexual harassment, and thus thatthe decision holding that sexual harassment existed must bereversed. This is a red herring argument. There is nothing inPollard’s testimony, her complaints to DuPont, or hercomplaint initiating this action which indicates that DuPonttook adverse action against her for complaining of thetreatment she was receiving on “A” shift. The complaintsindicate quite clearly that Pollard’s problem was with hertreatment by the other members of her shift and DuPont’sinaction with respect to that problem, not any further actionwhich DuPont took against her.

Finally, we turn to DuPont’s claim that plaintiff cannot

prevail on her claim of hostile work environment sexualharassment because she did not prove disparate treatment.Disparate treatment sexual harassment (assuming that by“disparate treatment” DuPont means harassment subject to theMcDonnell Douglas test) is inherently different from hostile

Nos. 98-6317/6319; 99-5125 Posex because the conduct, accordinneutral and non-sexual in nature. Iof conduct not inviting sexual reharassment, plaintiff “‘must show sex, she would not have been thWilliams v. General Motors CorpCir. 1999) (quoting Henson v. City 904 (11th Cir. 1982)).

As the district court found, 

testimony as to the anti-female aperoxide consistently demonstrawomen working in the peroxide afilling traditionally “female” jobsoffice workers in other areas of the have recited these facts in detail ab

Plaintiff must prove that, after 

the circumstances and the context of plaintiff occurred, the harassmensufficiently pervasive and severe aher employment and create an abusEach alleged act of harassment vacuum, but must be considered toCharacteristics such as their frequethey “merely” created psychologicactually interfered with a plaintiff’considered. 

In the recent Williams decision

following behavior was severe constitute harassment: co-workers such as “fuck” and “slut”; sexual plaintiff’s breasts or sexual prowesjokes and puns directed towaconspiring against her in order to foobjects glued to the top of her desktired of these fucking women” and simultaneously; being denied over
12 Pollard v. E. I. DuPont

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Nos. 98-6317/6319; 99-5125

“pranks,” such as being locked in a room, or finding materialsblocking her way into or out of an area of the plant. SeeWilliams, 187 F.3d at 559. This behavior seems clearly toencompass many types of sexual harassment: actual sexualpropositioning, offensive language or behavior about womenin general and women in the workplace, and non-sexualactions directed toward a plaintiff in order to interfere withher work. Plaintiff here proved daily sexually degradingcomments about women which often occurred outside of herhearing; a co-worker who instructed the men working as herassistants not to take direction from plaintiff or talk to her atany time because of her gender; several incidents of plaintiffnot being informed of facts concerning her job which wouldresult in an appearance of incompetence on her part, andwhich could be potentially physically dangerous to her and toother members of the plant; isolated incidents occurringwithin her hearing of women being called “heifers” and beingdegraded for their inability to accomplish tasks as well asmen; being subjected to false alarms and practical jokes, suchas her dinner being burned, with the alleged intent of drivingplaintiff away from her shift; and the Bible verse concerningwomen’s proper submissive role being placed in her locker.This conduct constitutes severe and pervasive harassment,just as severe and pervasive as in Williams and our other coworker sexual harassment precedent.

Next, we address the issue of whether or not DuPont

received actual or constructive notice of Pollard’s complaintsand responded reasonably. DuPont challenges the court’sfactual findings, arguing that the findings concerningDuPont’s lack of responsiveness towards Pollard’s numerouscomplaints were clearly erroneous. Specifically, as pointedout above, DuPont continues to argue that the testimony attrial failed to establish that DuPont was ever made aware thatany sex-based derogatory comments were addressed toPollard. This argument assumes that only sex-basedderogatory language is actionable under Title VII, and fails toconsider the testimony related to a lack of work-relatedcommunication, sabotage of plaintiff’s work, and personal

Nos. 98-6317/6319; 99-5125 Poisolation and harassment, all of whthat women should not work in th

After reviewing the trial testimo

that the trial court’s findings of testimony at trial indicated that supervisor, David Swartz, of the inumerous occasions. David Swindependently aware of the lcommunication problems on “Aobservations of the shift, even absehim. In addition, Beth Basham, Dtestified that although she beliecomplaints during Women’s NetwPollard was being harassed by hecould not accept a woman workinnever initiated any further inveallegations. After the most blatafound the Bible verse in her lockinterviewed the members of “A” shquestions, and when they responconcerning knowledge about the econcluded. The lack of an circumstances is not surprising. Narea was ever formally reprimandedto another shift due to any of their aconfirmed in his testimony that Shif she returned to work, she would shift with Steve Carney and the otalthough a woman would be added 

This testimony is countered by D

the men were instructed not to behcontinue to communicate with Pmatters once DuPont became aisolation; 2) that DuPont posted constituted inappropriate conduct 1995 Bible verse incident and expnature would result in terminati