Equal Emp't Opportunity Comm'n v. Boh Bros. Constr. Co., No. 11–30770.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: E. GRADY JOLLY
• Citation: 689 F.3d 458,115 Fair Empl.Prac.Cas. (BNA) 946
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff–Appellee, v. BOH BROTHERS CONSTRUCTION COMPANY, L.L.C., Defendant–Appellant.
• Docket Number: No. 11–30770.
• Decision Date: 27 July 2012

689 F.3d 458
115 Fair Empl.Prac.Cas. (BNA) 946

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

No. 11–30770.

United States Court of Appeals,
Fifth Circuit.

July 27, 2012.

[689 F.3d 459]

Paul D. Ramshaw (argued), U.S. EEOC, Office of Gen. Counsel/App. Services, Washington, DC, Gregory Thomas Juge, EEOC, New Orleans, LA, James P. Sacher, EEOC, Houston, TX, for Plaintiff–Appellee.

Walter W. Christy (argued), Jacob C. Credeur, Erin Rebekka Wedge Latuso, Coats, Rose, Yale, Ryman & Lee, P.C., New Orleans, LA, for Defendant–Appellant.

Leo Charles Hamilton, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Louisiana Associated Gen. Contractors Inc., Amicus Curiae.

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 the master of vulgarity in an environment where these characteristics abound. And there is Wolfe's accusation that Woods was girlish because Woods used “Wet Ones” when he went to the toilet. But that seems to be about all of the non-manly characteristics of which Woods was accused. 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 of sexual 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 violation 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, 118 S.Ct. 998, 140 L.Ed.2d 201 (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 the case is REMANDED for entry of judgment dismissing the complaint.

I.

Kerry Woods began working as an ironworker for Boh Brothers in November

[689 F.3d 460]

2005. In January 2006, he was assigned to a maintenance crew for the Twin Spans bridge between New Orleans and Slidell, which had been repaired and returned to service after Hurricane Katrina.

By that April, Woods was being harassed regularly by crew superintendent Chuck Wolfe. Wolfe would call Woods names such as “faggot” and “princess” and would approach him from behind to simulate 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 that he “didn't like how [Wolfe] talked to me.” There is, however, no evidence that either man was either homosexual or attracted to homosexuals.

The other aspect of this case is apart from the harassment, at least as far as the record evidence shows. An inspection contractor, Volkert 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 was “different” 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 union, as were the other workmen, including Wolfe.) Duckworth instructed 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 home 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), and when Woods reported to work thereafter he did so at the Almonaster yard. Duckworth subsequently investigated Woods's allegations and determined that Wolfe's behavior, though unprofessional, did not constitute sexual harassment.

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, Woods was laid off for lack of work. That March, he filed an EEOC charge of discrimination, alleging sexual harassment 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,...