Equal Employment Opportunity Commission v. Boh Brothers Construction Co., L.L.C., 092713 FED5, 11-30770

Docket Nº:11-30770
Judge Panel:Before STEWART, Chief Judge, and KING, JOLLY, DAVIS, JONES, SMITH, DeMOSS, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, and HIGGINSON, Circuit Judges. E. GRADY JOLLY, Circuit Judge, dissenting, joined by JONES, SMITH, DeMOSS, CLEMENT, and OWEN, Circuit Judges. EDITH H. JONES, C...
Case Date:September 27, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit




No. 11-30770

United States Court of Appeals, Fifth Circuit

September 27, 2013


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


This Title VII case arises out of alleged sexual harassment by Chuck Wolfe, the superintendent of an all-male crew on a construction site operated by Boh Bros. Construction Company ("Boh Brothers"). During a three-day jury trial, the Equal Employment Opportunity Commission ("EEOC") presented evidence that Wolfe subjected Kerry Woods, an iron worker on Wolfe's crew, to almost-daily verbal and physical harassment because Woods did not conform to Wolfe's view of how a man should act. The jury found in favor of the EEOC on its hostile-environment claim, awarding compensatory and punitive damages. Boh Brothers appeals the district court's denial of its motion for judgment as a matter of law and motion for new trial. Drawing all reasonable inferences in the light most favorable to the verdict, as we must, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion.


Woods is an iron worker and structural welder. Boh Brothers hired Woods on November 3, 2005, to work on crews repairing the Twin Spans bridges between New Orleans and Slidell after Hurricane Katrina. In January 2006, the company transferred Woods to a bridge-maintenance crew. Wolfe was the crew superintendent, with about five employees under his supervision.

The worksite was an undeniably vulgar place. Wolfe and the crew regularly used "very foul language" and "locker room talk." According to other crew members, Wolfe was a primary offender: he was "rough" and "mouthy" with his co-workers and often teased and "ribbed on" them.

By April 2006, Woods had become a specific and frequent target of Wolfe's abuse. Wolfe referred to Woods as "pu--y, " "princess, " and "fa--ot, " often "two to three times a day." About two to three times per week—while Woods was bent over to perform a task—Wolfe approached him from behind and simulated anal intercourse with him. Woods felt "embarrassed and humiliated" by the name-calling and began to look over his shoulder before bending down. In addition, Wolfe exposed his penis to Woods about ten times while urinating, sometimes waving at Woods and smiling.

One time, Wolfe approached Woods while Woods was napping in his locked car during a break. According to Woods, Wolfe "looked like he was zipping his pants" and said, "[i]f your door wouldn't have been locked, my d-ck probably would have been in your mouth."1

According to Wolfe, some of his teasing originated from Woods's use of Wet Ones instead of toilet paper, which Wolfe viewed as "kind of gay" and "feminine." In an interview with the EEOC, Wolfe explained:

Mr. Woods sat at a table with a bunch of iron workers and told us that he brought, you know, feminine wipes—not feminine wipes—but Wet Ones or whatever to work with him because he didn't like it, didn't like to use toilet paper. It's [not] the kind of thing you'd want to say in front of a bunch [of] rough iron workers that they had there. They all picked on him about it. They said that's kind of feminine to bring these, that's for girls. To bring Wet Ones to work to wipe your ass, you damn sure don't sit in front of a bunch of iron workers and tell them about it. You keep that to yourself if in fact that's what you do.

Woods complained about Wolfe's treatment to his foreman, Tim Carpenter, "two or three times." Specifically, Woods said that he "didn't like how [Wolfe] spoke to" him and asked Carpenter to reprimand Wolfe for urinating on the bridge. According to Woods, he elected not to complain about all of Wolfe's behavior because he was afraid "to cause more of a conflict."

Boh Brothers transferred Woods off of the bridge-maintenance crew to the Almonaster yard, the central location for Boh Brothers work, after an incident in November 2006. According to Boh Brothers, Woods approached an inspector with Volkert Construction Services—an entity that oversaw the Twin Spans bridges site and approved Boh Brothers's employees' time records—and asked to see the maintenance crew's time-sheets. Boh Brothers's policy prohibited an employee from viewing his co-workers' time-sheets, and Woods's purported attempt to do so was a terminable offense. The inspector reported Woods's conduct to Wolfe. Wolfe, in turn, notified Wayne Duckworth, the general superintendent for Boh Brothers's Heavy Highway Department, adding that he "didn't care for" Woods because he was "different" and "didn't fit in." Wolfe testified that, at that point, he was "done with" Woods.

The next morning, Wolfe told Woods to meet with Duckworth. At the meeting, Woods complained in detail about Wolfe's harassment. In addition, Woods told Duckworth that Wolfe was "probably stealing company gas and shrimping on company time." According to Woods, Duckworth never mentioned anything about Woods's alleged attempt to see his co-workers' time-sheets or indicated that Woods had committed any other violation of Boh Brothers's policy. At the end of the conversation, Duckworth indicated that he would "look into" the alleged harassment. He sent Woods home without pay because, according to Duckworth, he feared "further problems" between Woods and Wolfe. Woods, believing that he had been fired, called Carpenter and asked him to intervene and "see if he could put [Woods] to work." Two days later, Carpenter called Woods and told him to report to work at the Almonaster yard.

Duckworth subsequently investigated Woods's complaint, although he did not document any aspect of his investigation. He spoke with both Wolfe and a crew foreman for about ten minutes each and determined that Wolfe's behavior, though unprofessional, did not constitute sexual harassment. Duckworth did not notify the company's general counsel about Woods's harassment allegations. He did, however, arrange a thorough investigation of Woods's claim that Wolfe stole company gas and used company equipment for personal purposes. Boh Brothers hired a private detective agency to evaluate the issue, resulting in 84.75 hours of work and two reports.2

Woods initially filed an EEOC charge questionnaire in November 2006, shortly 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 Boh Brothers location. In February 2007, Boh Brothers laid Woods off for lack of work. That March, Woods filed an EEOC charge of discrimination, alleging sexual harassment and, on the basis of his November 2006 removal from the maintenance crew, retaliation.

The EEOC brought this enforcement action on Woods's behalf in September 2009, 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. The jury awarded Woods $201, 000 in compensatory damages and $250, 000 in punitive damages. The district court reduced the compensatory damages award to $50, 000 to comply with the $300, 000 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 and a motion for new trial, both of which the court denied. Boh Brothers timely appealed.

A panel of this court overturned the jury verdict. According to the panel, the evidence was insufficient as a matter of law to sustain the jury's finding that Wolfe discriminated against Woods "because of . . . sex" in violation of Title VII. EEOC v. Boh Bros. Constr. Co., L.L.C., 689 F.3d 458, 459 (5th Cir. 2012). The EEOC subsequently sought and obtained en banc review.


"[O]ur standard of review with respect to a jury verdict is especially deferential." SMI Owen Steel Co., Inc. v. Marsh U.S.A., Inc., 520 F.3d 432, 437 (5th Cir. 2008) (quoting Flowers v. S. Reg'l Physician Servs., Inc., 247 F.3d 229, 235 (5th Cir. 2001)) (internal quotation marks omitted). Although we review the denial of a motion for judgment as a matter of law de novo, we apply the same legal standard as the district court. Baisden v. I'm Ready Prods., Inc., 693 F.3d 491, 498 (5th Cir. 2012), cert. denied, 133 S.Ct. 1585 (2013) (citation omitted). Under that standard, a litigant cannot obtain judgment as a matter of law "unless the facts and inferences point 'so strongly and overwhelmingly in the movant's favor that reasonable jurors could not reach a contrary conclusion.'" Id. (quoting Flowers, 247 F.3d at 235). As the D.C. Circuit has eloquently explained:

We are not to tamper lightly with the considered judgment of those drawn together at one point in time to render a judgment that is representative of the good common sense of the American people. It goes without saying that few institutions are as venerable as that of trial by jury, enshrined at the Founding in the Bill of Rights and hallowed by an enormous body of English and American law that commands judges, who are of all officials the least accountable to the people, not to invade the province of judgment by the people.

Stacey v. Allied Stores Corp., 768 F.2d 402, 406 (D.C. Cir. 1985).

Thus, we must draw all reasonable inferences in the light most favorable to the verdict and cannot substitute other inferences that we might regard as more reasonable. Westlake Petrochems., L.L.C. v. United Polychem, Inc., 688 F.3d 232, 239...

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