335 F.3d 325 (4th Cir. 2003), 01-1648, Ocheltree v. Scollon Productions, Inc.

Docket Nº:01-1648
Citation:335 F.3d 325
Party Name:Ocheltree v. Scollon Productions, Inc.
Case Date:July 18, 2003
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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335 F.3d 325 (4th Cir. 2003)

Lisa L. OCHELTREE, Plaintiff-Appellee,


Lawyers' Committee for Civil Rights Under Law; Asian American Legal Defense and Education Fund; Public Justice Center; Women's Law Center of Maryland, Incorporated; D.C. Employment Justice Center; Women's Law Project; American Civil Liberties Union Women's Rights Project; Equal Employment Opportunity Commission, Amici Supporting Appellee.

No. 01-1648.

United States Court of Appeals, Fourth Circuit

July 18, 2003

Argued: Feb. 25, 2003.

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[Copyright Material Omitted]

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Charles Franklin Thompson, Jr., Tally, Malone, Thompson & Gregory, Columbia, South Carolina, for Appellant.

William Elvin Hopkins, Jr., McCutchen, Blanton, Rhodes & Johnson, L.L.P., Columbia, South Carolina, for Appellee.

Louis Lopez, Office of General, Equal Employment Opportunity Commission, Washington, D.C., for Amicus Curiae Commission.


Michael D. Malone, Tally, Malone, Thompson & Gregory, Columbia, South Carolina, for Appellant.

Nicholas M. Inzeo, Acting Deputy General, Philip B. Sklover, Associate General, Lorraine C. Davis, Assistant General, Office of General Counsel, Equal Employment Opportunity Commission, Washington, D.C., for Amicus Curiae Commission. Michael L. Foreman, Audrey A. Jordan, Lawyers' Committee for Civil Rights Under Law, Washington, D.C., for Amici Curiae Committee, et al. Wendy N. Hess, Murnaghan Appellate Advocacy Fellow, Public Justice Center, Baltimore, Maryland, for Amici Curiae Center, et al.


Affirmed in part and reversed in part by published opinion. Judge MICHAEL wrote the opinion, in which Chief Judge WILKINS, Judge WILKINSON, Judge LUTTIG, Judge DIANA GRIBBON MOTZ, Judge TRAXLER, Judge KING, Judge GREGORY, and Judge SHEDD joined. Judge NIEMEYER wrote a separate opinion, concurring in the judgment. Judge WILLIAMS wrote a separate opinion, dissenting in part and concurring in the judgment in part, in which Judge WIDENER joined.


MICHAEL, Circuit Judge:

A jury found that Lisa Ocheltree, a plaintiff suing under Title VII of the Civil Rights Act of 1964, was the victim of severe or pervasive sex-based harassment in her workplace at Scollon Productions, Inc. We granted en banc review to consider whether the district court properly denied the company's motion for judgment as a matter of law. Because there is a "legally sufficient evidentiary basis," Fed.R.Civ.P. 50(a)(1), for the jury's finding that Ocheltree proved the elements of her claim, we affirm the judgment insofar as it awards compensatory damages. However, because there is no evidence that Scollon Productions had the knowledge required for liability in punitive damages, we reverse the award of punitive damages.

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Scollon Productions makes costumes, including ones depicting university mascots and cartoon characters. The company has about fifty employees and is located in White Rock, South Carolina. J.A. 283. The only persons with formal management authority at the company are Bill Scollon, the president, and Ellery Locklear, the senior vice president. J.A. 157, 282, 288. The company's production facilities include a sewing room and what is called the production shop. The production shop itself is fairly small, with enough work tables to accommodate about a dozen employees, including the shop supervisor. J.A. 109-11, 211-12, 216, 287. Bill Scollon and Locklear have their offices near the production facilities. J.A. 216.

Ocheltree was employed at Scollon Productions for eighteen months, from February 1994 until August 1995. She worked in the production shop making shoes. Ocheltree was the only female employee in the shop, working alongside ten or eleven men. J.A. 103, 110. In the early stages of her employment, the atmosphere in the shop was "fun" and "friendly," but this changed. During her first year there, coarse sexual talk and sexual antics by several of the men began to occur with increasing frequency. This misconduct worsened as time went on, especially after Ocheltree complained to the men and the shop supervisor, Harold Hirsch. J.A. 111-14, 199-200, 202-03. The details of the sexual talk and conduct that Ocheltree heard and saw during her tenure in the production shop are as follows.

Scollon Productions has mannequins that are used in the production of its costumes. Some of the men in the production shop often used a female-form mannequin as a prop to engage in sexual antics in front of Ocheltree. Many times when Ocheltree was in sight of the mannequin, the men would fondle it or use it to demonstrate sexual techniques, including oral sex. J.A. 200-02. One shop employee, Brian Hodge, noticed that "anytime [Ocheltree] was walking by just about they would do something sexual to the mannequin in front of her." J.A. 202. On one occasion, for example, two male shop employees were positioned at the mannequin when Ocheltree arrived at work. One was pinching the mannequin's nipples, and the other was on his knees simulating oral sex on the mannequin. Ocheltree said to the men, "You guys are disgusting, this needs to stop." The incident prompted Ocheltree to leave the room. As she walked out, she heard laughter in the background. J.A. 115-17.

On another occasion a male coworker came up to Ocheltree in the production shop and sang the following song to her "like he was in the opera": "Come to me, oh, baby come to me, your breath smells like c[o]m[e] to me." J.A. 114-15. Ocheltree immediately told the man that he was disgusting. Nevertheless, the other men in the production shop, including supervisor Hirsch, expressed their enjoyment of the incident with much laughter. Id. On still another occasion when Ocheltree was seated at her work station, some of her male coworkers were looking at a book that contained pictures of men with pierced genitalia. One coworker took the book, approached Ocheltree, and opened it to the centerfold photograph showing a man's crotch area. The scrotum was pierced with hoops, and there were chains running up to the top of the penis. The coworker, with his male colleagues looking on, said, "Lisa, what do you think about this?" Again, this generated laughter from the men in the shop. J.A. 117-18.

As time went on, Ocheltree's male coworkers subjected her to a daily stream of discussion and conduct that was sex based

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or sexist. J.A. 114, 120, 204, 214. First, the men in the production shop used explicit sexual insults to needle each other in front of Ocheltree. For example, "[g]uys would make hand gestures down at their private parts and tell other guys to suck it." J.A. 113. Some of the men at times suggested that two of their number were involved in a homosexual relationship. The men engaging in this sort of talk "pick[ed] on" their subjects by discussing the details of anal sex, saying specifically that they "wonder[ed] who was on top and who took it up the ass." J.A. 200. There were also comments that one employee was having sex with a dog. J.A. 229. Second, Ocheltree's male coworkers constantly discussed their sexual exploits with their wives and girlfriends in extremely graphic terms. The men talked every day about their sexual experiences of the night before, making comments about their female partners such as "she swallowed, she gave good head, [or] I fucked her all night long." J.A. 118. One employee announced that his girlfriend "gave good head[,] that she likes to swallow, that she liked it from behind, [and] that she would do it anywhere with him." J.A. 120. He added that she "could suck a golf [ball] through a garden hose." Id. Another employee in the shop often "would speak of [his wife] sucking his dick and swallowing and letting it run down the side of her face and stuff." J.A. 200. Finally, on one occasion, shop supervisor Hirsch said that he was interested in having sex with young boys and that he "enjoyed . . . licking young boys['] dicks." J.A. 119. Ocheltree was convinced that Hirsch and other men in the shop engaged in sexual talk and antics "in front of [her] because they enjoyed looking at [her] and seeing [her] reaction." J.A. 119. Indeed, Hirsch frequently joined in the shoproom laughter that erupted at Ocheltree's expense. J.A. 115, 118. There were times when the sexual talk in the production shop got so far out of hand that Ocheltree would "turn red [and] would have to get up and leave [her] work area . . . just to get away from the atmosphere." J.A. 120.

According to Bill Scollon, his company has a sexual harassment policy that is covered by the section entitled "Talking" in the employee handbook. J.A. 299-300, 352. Sexual harassment is not mentioned in the section. It only states that "[l]oud talking, yelling, uncontrolled laughter, swearing, and verbal abuse of co-workers, and supervisors is not acceptable. Verbal abuse, swearing, etc. are grounds for termination." J.A. 352. The handbook's "Open Door Policy" directs that "[a]nyone having a complaint or problem should first try to resolve it with their immediate supervisor." J.A. 355. The policy goes on to say that "Ellery [Locklear] or Bill [Scollon] are usually available throughout the day to help resolve complaints or problems not resolved by supervisors." Id.

Ocheltree believed that she was being subjected to sexual harassment in her workplace, and she made attempts to register complaints as the employee handbook prescribed. She complained repeatedly to Hirsch, the shop supervisor, who ignored the problem. J.A. 122. Ocheltree then attempted to register her concerns with Scollon and Locklear, but in Ocheltree's words, "[t]hey wouldn't give [her] the time of day." J.A. 137. She went to Scollon's office several times and asked if he had a minute to...

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