Reeves v. C.H. Robinson Worldwide, Inc.

• Decision Date: 20 January 2010
• Docket Number: No. 07-10270.,07-10270.
• Citation: 594 F.3d 798
• Parties: Ingrid REEVES, Plaintiff-Appellant, v. C.H. ROBINSON WORLDWIDE, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

594 F.3d 798

Ingrid REEVES, Plaintiff-Appellant, v. C.H. ROBINSON WORLDWIDE, INC., Defendant-Appellee.

No. 07-10270.

United States Court of Appeals, Eleventh Circuit.

January 20, 2010.

Douglas L. Micko, Schaefer Law Firm, LLC, Minneapolis, MN, Byron Renard Perkins, The Cochran Firm, Birmingham, AL, Kell A. Simon, Ross Melton, Austin, TX, Michael D. Lieder, Sprenger & Lang, PLLC, Washington, DC, for Reeves.

Margaret Campbell, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Atlanta, GA, David Lynn Warren, Jr., Sandra B. Reiss, Christopher A. Mixon, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Birmingham, AL, for Defendant-Appellee.

Jennifer S. Goldstein, Dori K. Bernstein, EEOC, Office of Gen. Counsel, Rae Thiesfield Vann, McGuiness, Norris & Williams, LLP, Washington, DC, Alicia K. Haynes, Haynes & Haynes, P.C., Birmingham, AL, for Amici Curiae.

Appeal from the United States District Court for the Northern District of Alabama.

Before DUBINA, Chief Judge, and TJOFLAT, EDMONDSON, BIRCH, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and PRYOR, Circuit Judges.

MARCUS, Circuit Judge:

We sit en banc to consider this claim of a hostile work environment under Title VII, 42 U.S.C. § 2000e-2(a)(1), and whether it was error for the district court to grant summary judgment to appellee C.H. Robinson Worldwide, Inc. ("C.H. Robinson"). After thorough review of the record, and reading the evidence in a light most favorable to appellant Ingrid Reeves, we conclude that there is sufficient evidence to present a jury question of disparate treatment. While the record is replete with evidence of general, indiscriminate vulgarity, there is also ample evidence of gender-specific, derogatory comments made about women on account of their sex. Accordingly, we reverse and remand.

I.

We take the evidence found in this summary judgment record in a light most favorable to Reeves. We recite the profane language that allegedly permeated this workplace exactly as it was spoken in order to present and properly examine the social context in which it arose. We do not explicate this vulgar language lightly, but only because its full consideration is essential to measure whether these words and this conduct could be read as having created "an environment that a reasonable person would find hostile or abusive." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).

The essential facts in this unedifying record are these. From July 2001 to March 2004, Ingrid Reeves worked as a transportation sales representative in the Birmingham, Alabama, branch of the shipping company C.H. Robinson. She was responsible for sales and operations management for freight shipping. Among other duties, Reeves telephoned companies, set up sales appointments, and managed shipping freight from beginning to end. Her job was phone-intensive, requiring her to speak daily with carriers, truck drivers, customers, and dispatchers. Reeves was the only woman working on the sales floor, an open area structured into a "pod" of cubicles, with six male co-workers. The only other female employee in the Birmingham branch worked in the same building, but in an area separate from Reeves's "pod." Because there were no large barriers between the cubicles, Reeves could often hear the language of her male co-workers as they spoke over the phone or with each other. Reeves could also hear the central office radio that sat on a bookshelf near the "pod."

Reeves had previously worked on a container ship and in the Merchant Marines, and was no stranger to the coarse language endemic to the transportation industry. In fact, Reeves herself used generic swear words, such as "shit" or "damn," to express her frustration or anger. Nonetheless, she testified, there was language that her co-workers used at C.H. Robinson that was unusually offensive, even compared to the curse words she heard in the Merchant Marines.

Much of this language, while incessant, vulgar, and generally offensive, was not gender-specific. Throughout her tenure at C.H. Robinson, Reeves frequently heard generally indiscriminate vulgar language and discussions of sexual topics. Her co-workers, she claimed, regularly used curse words such as "fuck," "fucker," and "asshole." They used the intensely offensive epithet "Jesus fucking Christ," and the terms "fucking asshole," "fucking jerk," and "fucking idiot." They also discussed sexual topics such as masturbation and bestiality.

Reeves, however, also identified a substantial corpus of gender-derogatory language addressed specifically to women as a group in the workplace. Her co-workers used such language to refer to or to insult individual females with whom they spoke on the phone or who worked in a separate area of the branch. Although not speaking to Reeves specifically, Reeves said that her male co-workers referred to individuals in the workplace as "bitch," "fucking bitch," "fucking whore," "crack whore," and "cunt."

Reeves's co-worker Scott Gagliardi frequently shouted the epithets "fucking bitch" or "fucking whore" after hanging up his phone. He also called one woman a "cunt." Indeed, Reeves's supervisor, branch manager David Mitchell, often referred to his female colleagues by the term "bitch." Among other examples offered, he ordered Reeves to speak with "that stupid bitch on line 4," and described a former female colleague, Jackie Burt, as a "lazy, good-for-nothing bitch." Gagliardi, in turn, concluded a joke with the punch-line "fuck your sister, and your mother is a whore."

Nearly every day, Reeves's co-workers tuned the office radio to a crude morning show. Reeves claimed that this program featured, among other things, regular discussions of women's anatomy, a graphic discussion of how women's nipples harden in the cold, and conversations about the size of women's breasts. It also once advertised a "perverse" bikini contest. On one occasion, Reeves's co-worker Darryl Harris displayed a pornographic image of a fully naked woman with her legs spread, exposing her vagina, on his computer screen. Her co-workers also regularly sang songs about gender-derogatory topics.

Reeves's co-workers singled out Casey Snider, the only other female employee in the Birmingham branch, for gender-specific ridicule. In Reeves's earshot, albeit out of Snider's presence, branch manager Mitchell insulted Snider, saying "[s]he may be a bitch, but she can read." Gagliardi also referred to Snider as a "bitch" after she had left the room to use the bathroom. Reeves's co-workers openly discussed Snider's buttocks. Mitchell commented that "[s]he's got a big one," and Gagliardi likewise said that "[s]he's got a big ass."

According to Reeves, this offensive conduct occurred "on a daily basis." She testified that "if you were to pull out a calendar right now and I were to look at, you know, summer of 2001 to spring of '04, I could point at every day of the year that some of this behavior went on. It went on every day." She indicated that "this type of phrase, `You fucking whore,' was commonplace."

Reeves testified that she objected frequently to the crude language, conduct, and radio station to her co-workers. Much of the time, she identified only a generally vulgar and offensive working environment. On occasion, however, she complained about gender-specific offensive behavior, too.

Thus, for example, when she heard offensive topics on the radio, Reeves would change the radio station, usually to the "classic rock station," sometimes "twice in one day." Reeves said that when her co-workers used generally offensive terms, she told them that their language was offensive, first orally and then by email. Reeves's co-workers' offensive behavior allegedly persisted unabated. She testified: "It was pretty obvious to me by this time that complaining to co-workers was not bringing about any results .... [N]othing would change." Indeed, on one occasion, apparently aware that their conduct offended her, Reeves's co-worker Gagliardi shouted to her, "Ingrid, better wear your earplugs tomorrow," so that a co-worker could behave "any way he liked" on his last day of work.

At least once, Reeves complained directly to a co-worker about his gender-specific offensive behavior. Reeves described confronting Darryl Harris when he displayed an explicit image of a naked woman exposing her vagina on his computer screen. Reeves testified that she saw the picture as she walked by Harris's desk from the copy machine. Reeves recalled her reaction: "I was really offended by that. I was really upset. And it was very humiliating to me. And I just remember like my hands were like shaking. And ... I knew I needed to say something to him because I felt that if I didn't say something to him, then he would assume that it's okay." Reeves said that she turned to Darryl and told him that she "saw that image [he] had on [his] computer. It really is offensive. It ma[de] [her] really uncomfortable." Harris apologized.

Because her complaints to her co-workers proved futile, Reeves complained to her branch manager and supervisor, David Mitchell. Reeves explained, "[i]t was pretty obvious to me by this time that complaining to co-workers was not bringing about any results. So by about this time, my focus was on upper management." She thought that complaining to her branch manager was "reasonable because according to that sexual harassment sheet [of C.H. Robinson's policy], it said this is who you're supposed to talk to."

Reeves recalled complaining to David Mitchell on at least five separate occasions. Again, Reeves complained about both non-gender-specific, but generally vulgar behavior, and gender-specific conduct, too. On July 5, 2001, Reeves's third day in the office, she first complained about Mitchell's use of a vulgar reference to a woman. Mitchell had been speaking with a Japanese...