Equal Emp't Opportunity Comm'n v. Boh Bros. Constr. Co.

• Decision Date: 27 July 2012
• Docket Number: No. 11–30770.,11–30770.
• 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.
• Court: U.S. Court of Appeals — Fifth Circuit

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.

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 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, 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 $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 review de novo a denial of a motion for judgment as a matter of law. Pineda v. United 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. § 2000e–2(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, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). We first must determine whether Wolfe's conduct constituted sex discrimination prohibited under Title VII. If we conclude that it did, we then must decide whether that conduct created a hostile work environment. La Day v. Catalyst Tech., Inc., 302 F.3d 474, 478 (5th Cir.2002).

The EEOC's case depends 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 Wolfe's view, conform to the male stereotype. Boh Brothers counters that same-sex stereotyping, even assuming it was present here, cannot constitute 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, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).

Oncale is the first Supreme Court case to address whether workplace harassment violates Title VII when the harasser and the harassed employee are of the same sex. The Court explained that 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, 118 S.Ct. 998. The Court further explained that “harassing conduct need not be motivated by sexual desire to support an inference of discrimination on 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, 118 S.Ct. 998.

Our court has not before been presented the question whether Oncale's enumerating the above three forms of same-sex harassment excludes other possible forms, such as the alleged sex stereotyping, which is at issue in this appeal. Rather, our prior cases have involved only Oncale's first form of same-sex harassment, proposals of sexual activity. See Cherry v. Shaw Coastal, Inc., 668 F.3d 182 (5th Cir.2012); Love v. Motiva Enters. LLC, ...