### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-30770

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellee
v. BOH BROTHERS CONSTRUCTION COMPANY, L.L.C., Defendant - Appellant

Appeal from the United States District Court for the Eastern District of Louisiana

Before JOLLY, DeMOSS, and STEWART, Circuit Judges. E. GRADY JOLLY, Circuit Judge: The Equal Employment Opportunity Commission (“EEOC”) brought this Title VII case against Boh Brothers Construction Company (“Boh Brothers”) on behalf of the alleged discriminatee, Kerry Woods, a male construction worker in

an all-male crew, who claimed that Boh Brothers’ crew superintendent, Charles “Chuck” Wolfe, engaged in “same-sex” harassment against him by referring to him in raw homophobic epithets and lewd gestures. There is no claim or evidence that either Woods or Wolfe is homosexual or effeminate. There is plenty of evidence that Wolfe is a world-class trash talker and th e master of vulgarity in an environment where these characteristics abound. And there is Wolfe’s accusation that Woods was girlish because Woods U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D July 27, 2 012 Lyle W . Cayce Clerk Case: 11-30770 Document: 00511936132 Page: 1 Date Filed: 07/27/2012No. 11-30770

u s e d “Wet Ones” when he went to the toilet. But that seems to be about all of the non-manly characteristics of which Woods was a c c u s e d

. There is no question, however, that Woods was the primary and constant victim of Wolfe’s offensive abuse and harassment, much of it in the nature o f s e xu a l vulgarity. The jury was very sympathetic with Woods: It returned a substantial verdict of actual and punitive damages against Boh Brothers, and the district court granted injunctive relief. Boh Brothers now appeals. We join the jury’s reaction to Wolfe’s language and abuse, but the evidence does not establish a claim of unlawful same-sex discrimination in vi olation of Title VII. It bears repeating that Title VII is not “a general civility code for the American workplace.” Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 80 (1998). Nor is it the business of the federal courts generally to clean up the language and conduct of construction sites. The judgment of the district court is therefore VACATED and th e c a s e is REMANDED for entry of judgment dismissing the complaint. I. Kerry Woods began working as an ironworker for Boh Brothers in November 2005. In January 2006, he was assigned to a maintenance crew for the Twin Spans bridge between New Orleans and Sli d e ll , which had been repaired and returned to service after Hurricane Katrina. By that April , Wo o d s w a s b ein g h ar a s s e d re gul arly by crew superintendent Chuck Wolfe. Wolfe would call Woods names such as “faggot” and “princess” and would approach him from behind to s i m u l ate having sexual intercourse while Woods was bent over to perform job duties. Wolfe allegedly exposed himself to Woods numerous times. Woods complained more than once to the crew foreman tha t h e “didn’t like how [Wolfe] talked to me.” There is, however, no evidence that either man was either homosexual or attracted to homosexuals.

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The other aspect of this case is apart from the harassment, at least as far

as the record evidence shows. An inspection contractor, Vo lkert Construction Services (“Volkert”), oversaw Boh Brothers’ work on the bridge and approved its employees’ time records. In November 2006, a Volkert inspector notified Wolfe that Woods had requested to view the time sheet on which the maintenance crew members’ hours were recorded. (There was conflicting testimony about whether Woods sought to view his own time entry or others’. In any event, the inspector believed the latter and notified Wolfe because requesting to view other employees’ time entries was a terminable offense.) Wolfe, in turn, notified his supervisor, Wayne Duckworth, adding that he “didn’t care for” Woods because he wa s “ di fferent” and “didn’t fit in.” (This observation was not further explained by Wolfe, but the jury heard that Woods was not a member of the

u ni o n, as were the other workmen, including Wolfe.) Duckworth instruct e d Wolfe to have Woods meet him at the Boh Brothers Almonaster yard, which was arranged. During this meeting with Duckworth, Woods complained in detail about Wolfe’s harassment. Duckworth sent Woods h o m e for three days without pay (whether as punishment for his time sheet request or to allow Duckworth time to find him a new job assignment, the record is unclear), a n d wh e n Woods reported to work thereafter he did s o a t the Almonaster yard. Duckworth subsequently i nv e s tigated Woods’s allegations and determined that Wolfe’s behavior, though unprofessional, did not constitute sexual harassment. Woods i n i t ially filed an EEOC charge questionnaire in November 2006,

s h o rtly after his removal from the Twin Spans maintenance crew, alleging he had been “fired” from that job and, three days later, hired to work at a different B o h B r o th e rs location. In February 2007, Woods was laid off for lack of work. That March, he filed an EEOC charge of discrimination, alleging sexual

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harass m e nt and, on the basis of his November 2006 removal from the maintenance crew, retaliation. In September 2009, the EEOC brought an enforcement action in district court on behalf of Woods, claiming sexual harassment and retaliation under Title VII. Following a three-day trial, the jury returned a verdict in favor of Woods on the harassment claim and in favor of Boh Brothers on the retaliation claim. T h e j ury awarded Woods $200,000 in compensatory damages and $250,000 in punitive damages, the former of which the court reduced to $50,000 in compliance with the statutory damages cap. 42 U.S.C. § 1981a(b)(3)(D). Boh Brothers filed a renewed motion for judgment as a matter of law following entry of judgment, which the court denied. Boh Brothers timely appealed. Only the sexual harassment, or hostile work environment, claim is before us. II. We revie w de n o v o a denial of a motion for judgment as a matter of law. Pineda v . U

n i t e d Parcel Serv., Inc. , 360 F.3d 483, 486 (5th Cir. 2004). Such a motion should be granted if “a reasonable jury would not have a legally sufficient evidentiary basis to find for the [non-moving] party.” Fed. R. Civ. P. 50(a)(1). Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer

. . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2( a)(1). Sexual harassment is a form of discriminatory treatment under Title VII. Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 63-67 (1979). We first must determ i ne whether Wolfe’s conduct constituted sex discrimination prohibited under Title VII. If we conclude that it did, w e th e n m ust decide whether that conduct created a hostile work environment. La Day v. Catalyst Tech., Inc. , 302 F.3d 474, 478 (5th Cir. 2002).

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The EEOC’s case d e p e n d s on the proposition that sex stereotyping by a member of the same sex can constitute sexual harassment under Title VII. Its theory is that Wolfe harassed Woods because Woods did not, in Wo l f e ’ s view,

co n f o rm to the male stereotype. Boh Brothers counters that same-sex stereotyping, even assuming it was present here, cannot c o n s titute sexual harassment under Title VII because it is not one of the three evidentiary paths established to show same-sex harassment by Oncale v. Sundowner Offshore Services, Inc. , 523 U.S. 75 (1998). O n c a le is the first Supreme Court case to address whether workpl a c e harassment violates Title VII when the harasser and the harassed employee are of the same sex. The Court explained th a t the same inference drawn in most male-female harassment situations–that proposals of sexual activity would not have been made had the employee been of the same sex as the harasser–“would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual.” Id. at 80. The Court further explained that “harassing conduct n e e d not be motivated by sexual desire to support an inference of discrimination o n the basis of sex.” Id. A same-sex harassment plaintiff might also show that “the harasser is motivated by general hostility to the presence of [members of the same sex] in the workplace,” or “offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” Id. at 80-81. Our court has not b e f o re been presented the question whether Oncale ’s enumerating the above three forms of same-sex harassmen t e x c l udes other possible forms, such a s the alleged sex stereotyping, which is at issue in this appeal. Rather, our prior cases have involved only Oncale’s first form of samesex harassment, proposals of sexual activity. See Cherry v. Shaw Coastal, Inc. , 668 F.3d 182 (5th Cir. 2012); Love v. Motiva Enters. LLC, 349 F. App’x 900 (5th Cir. 2009) (unpublished); Russell v. Univ. of Tex. of the Permian Basin , 234 F.

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App’x 195 (5th Cir. 2007) (unpublished); Noto v. Regions Bank , 84 F. App’x 399 (5th Cir. 2003) (unpublished); La Day , 302 F.3d 474 (5th Cir. 2 0 0 2). And although other circuits uniformly have allowed evidence of sex stereotyping in considering discrimination claims under Title VII, there i s a t l e ast some 1 resistance to allowing, in same-sex harassment suits, evidence that does not fall within any Oncale category. Compare Wasek v. Arrow Energy Servs., Inc. , --- F.3d ---, 2012 WL 2330824, at *3-4 (6th Cir. June 20, 2012) (treating three Oncale forms of same-sex harassment as exclusive), with Nichols v. Azteca Rest. Enters., Inc. , 256 F.3d 864, 874 (9th Cir. 2001) (allowing same-sex harassment claim by man who was “discriminated against for acting too feminine”). The sex stereotyping theory of liability has its roots in the landmark Title VII cas e , Pr ice Waterhouse v. Hopkins , 490 U.S. 228 (1989). Ann Hopkins alleged that she had been denied partnership in her accou n t i n g firm because

s o m e o f the partners felt, in words attributed to them, that she was “macho,” needed “a course at charm school,” and should “walk more femininely, talk more femininely, dress m o r e femininely, wear make-up, have her hair styled, and

wear jewelry.” Id. at 235. I n e x p l a i n i ng how those words might evince discrimination because of sex, a plurality of the Court stated that “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” Id. at 250. The case before us today stands in sharp contrast to Price Waterhouse , in which there was considerable evidence that the plaintiff did not conform to the female stereotype. The only charge asserted b y Wo lf e that Woods was other

To be clea r, even in the st raight for wa rd dis cri mi nati o n ( as opp os ed to se xual 1 haras sment) context, per mi ss ible and im per mi ss ible se x st ere otyp ing are se par ated by degr ee. An em plo yer is not pr ohibit ed fr om requ iring so me degr ee of conf orm ity wi th wh at is genera lly expe cte d in the cont ext of the job. For exam ple , an em plo yer may requ ire a certain conf orm ity of dr es s, and it i s dif

fic ult to conc eive that an em plo yer wo uld act unlaw fully by pr ohibit ing me n f romw eari ng dres se s, he els , lip st ick , etc

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than masculine to which the EE O C h a s p o inted us is his use of “Wet Ones” instead of toilet paper. Wolfe testified that he did not view Woods as feminine, and there is no evi dence except the “Wet Ones” that he did, and that does not strike us as overtly feminine. The record further shows th a t , a l th ough Woods may have been Wolfe’s primary target, he was by no means his only target. Nor

w a s Wo lfe the sole offender. To the contrary, misogynistic and homophobi c epithets were bandied about routinely among crew members, and the recipients, Woods not excepted, reciprocated with like vulgarity. Assuming that the EEOC has asserted a viable theory of Tit l e VII discrimination in behalf of Woods, it is a circular truth that a plaintiff may not

recov e r b a s e d on nonconformance to gender stereotypes unless the plaintiff

c o nf or m s to no nconformance gender stereotypes. Accordingly , w e hol d th at th ere is insufficient evidence that Wolfe “acted on the basis of gender” in his treatment of Woods. Price Waterhouse , 490 U.S. at 2 5 0

. Because there is insufficient evidence in this case to support the asserted sex stereotyping theory of same-sex harassment asserted by the EEOC, we need not decide whether such a theory is cognizable in this circuit. See Oncale , 523 U.S. at 81 (“Whatever evidentiary route the plaintiff chooses to follow, he or s h e m u st always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘ discrimin a[tion]

. . . because of sex.’ ” (first emphasis added)). And becau s e w e c o n clude that Wolfe’s conduct did not constitute discrimination in violation of Title VII, we do not reach the question whether it

was sufficiently severe or pervasive to create a hostile work envir onment. See La Day , 302 F.3d at 478. III. Title VII protects employees a gain s t workp l ac e di s cri min atio n , not against all forms of mistreatment. The EEOC alleges that Woods was unlawf ully harasse d b e c a u se he was not stereotypically masculine. Because the only

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evidence of non-stereotypically masculine behavior in the record is Woods’s use of “Wet Ones,” we conclude that the evidence is insufficient to support the jury’s verdict that Woods was discriminated against “because of . . . sex,” 42 U.S.C. § 2000e-2(a)(1), and its verdict in favor of Woods is reversed. There is the question raised in this appeal whether sex stereotyping is a cognizable form of same-sex harassment under Title VII. As the facts allow for resolution on narrower grounds, we leave that question for another day. The evidence was insufficient to support the jury’s verdict of sexual harassment, and the district court erred by denying Boh Brothers’ renewed motion for judgment as a matter of law. Accordingly, we VACATE the judgment, including the award of injunctive relief, and REMAND for entry of judgment dismissing the complaint.

VACATED and REMANDED for entry of judgment of dismissal.

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