No. 13-6250
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IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
 |
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellee,
v.
NEW BREED LOGISTICS,
Defendant-Appellant.
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On Appeal from the United States District Court
for the Western District of Tennessee
No. 10-cv-2696-STA-tmp
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ANSWER BRIEF OF EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION AS APPELLEE
|
P. DAVID LOPEZ
General Counsel
CAROLYN L. WHEELER
Acting Associate General Counsel
LORRAINE C. DAVIS
Assistant General Counsel
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
131 M St., N.E., 5th Floor
Washington, D.C. 20507
(202) 663-4791
susan.oxford@eeoc.gov
SUSAN R. OXFORD
Attorney
TABLE OF AUTHORITIES.......................................................................... iii
INTRODUCTION........................................................................................... 1
STATEMENT IN SUPPORT OF ORAL ARGUMENT............................... 2
jurisdictional statement................................................................. 3
statement of issues.............................................................................. 3
statement of the case....................................................................... 4
A. Proceedings Below............................................................................. 4
B. Statement of Facts................................................................................ 5
1. Background and hiring................................................................... 5
2. New Breed’s Sexual Harassment Policy........................................ 6
3. Calhoun’s harassment and his response to opposition................. 7
4. New Breed’s investigation of Pete’s complaint........................... 11
5. Pete and Pearson’s transfer and termination.............................. 13
6. New Breed fires Partee.................................................................. 17
7. Trial................................................................................................. 19
C. Jury Verdict and District Court Decisions...................................... 21
standard of review........................................................................... 22
summary of argument..................................................................... 24
ARGUMENT................................................................................................ 26
I. The District Court Properly Denied a New Trial on EEOC’s Sexual Harassment Claim................................................................................................... 26
II. The Evidence Amply Supports the Jury’s Finding of Retaliation... 38
A. The evidence sufficed for the jury to find Pearson, Hines, and Partee engaged in protected activity before their terminations..................................... 42
B. The evidence was sufficient for the jury to find the decision makers had the requisite knowledge........................................................................... 51
C. The evidence sufficed for the jury to find New Breed discharged EEOC’s claimants because of their protected activity.................................... 55
III. Sufficient Evidence Supports the Jury’s Punitive Damages Award. 61
IV. The District Court Properly Instructed the Jury on Punitive Damages and Retaliation and New Breed, in Any Event, Waived Several of its Objections. 70
A. New Breed acquiesced in the punitive damages instruction.......... 71
B. The punitive damages instruction provided an accurate statement of the law. 74
C. The retaliation instructions properly stated the law........................ 76
V. The district court’s award of injunctive relief should be sustained. 81
CONCLUSION............................................................................................. 82
CERTIFICATE OF COMPLIANCE............................................................ 83
CERTIFICATE OF SERVICE......................................................................... 1
DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS...... 1
Am. & Foreign Ins. Co. v. Bolt, 106 F.3d 155 (6th Cir. 1997)....................... 40
Arrieta-Colon v. Wal-Mart Puerto Rico, 434 F.3d 75 (1st Cir. 2006)............. 76
Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005)......... 23, 26, 28, 32
Bath & Body Works v. Luzier Personalized Cosmetics,
76 F.3d 743 (6th Cir. 1996)........................................................................... 70
Berthiaume v. Appalachian Christian Vill. Found.,
2008 WL 4138112 (E.D. Tenn. Sept. 4, 2008).............................................. 45
Bishop v. Ohio Dep’t of Rehab. & Corrs.,
529 Fed.Appx. 685 (6th Cir. 2013) (unpub.)............................................... 54
Black v. City & County of Honolulu,
112 F. Supp. 2d 1041 (D. Haw. 2000).......................................................... 46
Boyd v. James S. Hayes Living Health Care Agency, Inc.,
671 F. Supp. 1155 (W.D. Tenn. 1987).......................................................... 46
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)............................ 33
Burrell v. City Univ. of New York, 894 F. Supp. 750 (S.D.N.Y. 1995).......... 46
Chattman v. Toho Tenax Am., Inc., 686 F.3d 339 (6th Cir. 2012)................ 54
Clark v. UPS, Inc., 400 F.3d 341 (6th Cir. 2005).............................. 33, 34, 36
Cooke v. Stefani Mgmt Servs., 250 F.3d 564 (7th Cir. 2001)......................... 66
Crawford v. Metro. Gov’t of Nashville, 555 U.S. 271 (2009)..................... 43, 51
Dearth v. Collins, 2005 U.S. Dist. LEXIS 47604 (S.D. Ga. 2005), aff’d on other grounds, 441 F.3d 931 (11th Cir. 2006)....................................................................... 49
Del Castillo v. Pathmark Stores, Inc., 941 F. Supp. 437 (S.D.N.Y. 1996)....... 50
Dozier-Nix v. District of Columbia, 851 F. Supp. 2d 163 (D.D.C. 2012)....... 46
EEOC v. Avery Dennison Corp., 104 F.3d 858 (6th Cir. 1997).................... 52
EEOC v. Domino’s Pizza, 909 F. Supp. 437 (S.D.N.Y. 1996)....................... 46
EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498 (6th Cir. 2001)...................... 68
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) ......................... 33, 34, 37
Farrell v. Planters Lifesavers Co., 22 F. Supp. 2d 372 (D. N.J. 1998), rev’d on other grounds, 206 F.3d 271 (3rd Cir. 2000)......................................................... 45
Fleming v. S. Car. Dep’t of Corrs., 952 F. Supp. 283 (D.S.C. 1996)............... 46
Foster v. Barilow, 6 F.3d 405 (6th Cir. 1993)................................................. 41
Frank v. Harris Cty., 118 Fed.Appx. 799 (5th Cir. 2004)............................. 50
Frentz v. City of Elizabethtown, 2010 WL 4638768 (W.D. Ky Nov. 4, 2010) 45
Heil Co. v., Evanston Ins. Co., 690 F.3d 722 (6th Cir. 2012) ........................ 40
Johnson v. Univ. of Cincinnati, 215 F.3d 561 (6th Cir. 2000)........... 39, 44, 48
Kolstad v. American Dental Association, 527 U.S. 526 (1999).................. passim
Laster v. City of Kalamazoo, 746 F.3d 714 (6th Cir. 2014)....................... 44, 45
Laurin v. Pokoik, 2005 WL 911429 (S.D.N.Y. April 18, 2005)..................... 46
LeMaire v. Louisiana Dep’t of Transp., 480 F.3d 383 (5th Cir. 2007)............ 50
Lindsay v. Yates, 578 F.3d 407 (6th Cir. 2009)....................................... 59, 80
Little v. BP Exploration & Oil Co., 265 F.3d 357 (6th Cir. 2001).................. 57
Little v. Nat’l Broad. Co., Inc., 210 F. Supp. 2d 330 (S.D.N.Y. 2002)........... 46
Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004)..................................... 75, 76
Madden v. Chattanooga City Wide Serv. Dep’t,
549 F.3d 666 (6th Cir. 2008)......................................................................... 54
Manday v. Public Libraries of Saginaw, 480 F.3d 815 (6th Cir. 2007)........... 70
Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078 (6th Cir. 1994)..... 29
McCombs v. Meijer, Inc., 395 F.3d 346 (6th Cir. 2005)................................ 23
Mickey v. Zeidler Tool & Die Co., 516 F.3d 516 (6th Cir. 2008).............. 59, 81
Ogden v. Wax Works, 214 F.3d 999 (8th Cir. 2000)......................... 45, 65, 66
Quarles v. McDuffie County, 949 F. Supp. 846 (S.D. Ga. 1996)................... 45
Puckett v. United States, 556 U.S. 129 (2009)................................................ 70
Reed v. Cracker Barrel Old Country Store,
133 F. Supp. 2d 1055 (M.D. Tenn. 2000)..................................................... 45
Ross v. Baldwin Cnty. Bd. of Educ., 2008 WL 820573
(S.D. Ala. Mar. 24, 2008).................................................................. 46, 47, 48
Staub v. Proctor Hosp., 131 S.Ct. 1186 (2011)............................................... 54
Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010).......................................... 40
Tisdale v. Federal Express Corp., 415 F.3d 516 (6th Cir. 2005)... 22, 23, 29, 52
Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307 (6th Cir. 2007)............ 41, 53
Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006)...... 26, 40
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013)........... 56, 78, 81
U.S. Postal Serv. Bd. v. Aikens, 460 U.S. 711 (1983)..................................... 52
Waldo v. Consumers Energy Co., 726 F.3d 802 (6th Cir. 2013).............. 22, 23
Williams v. Verizon Wash. D.C., 266 F. Supp. 2d 107 (D.D.C. 2003)........... 46
Statutes
42 U.S.C. § 1981a(b)(1)................................................................................. 61
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq............. 1
42 U.S.C. § 2000e-3(a)............................................................................. 38, 45
Rules
Fed. R. Civ. P. 51(c)(1).................................................................................. 70
Fed. R. Civ. P. 51(d)(2)................................................................................. 70
Fed. R. Civ. P. 51(d)..................................................................................... 24
MISCELLANEOUS Authorities
2 EEOC Compl. Man. (CCH) ¶ 8006 (May 20, 1998)................................ 44
Webster’s New International Dictionary (2d ed. 1958)............................. 43
A jury ruled in favor of Plaintiff-Appellee Equal Employment Opportunity Commission on EEOC’s claim that Appellant New Breed Logistics was liable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., for supervisor James Calhoun’s sexual harassment of three subordinates—Jacquelyn Hines, Capricius Pearson, and Tiffany Pete. The jury also found for EEOC on EEOC’s claim that New Breed retaliated against the three women for complaining about the harassment and against a fourth employee—Christopher Partee—for supporting the women’s complaints. The jury awarded all four compensatory and punitive damages.
The district court denied New Breed’s motion for a new trial based on the weight of the evidence and its challenge to several jury instructions, holding that the evidence supported the verdict and that New Breed’s challenges to the charges were either waived or without merit. The court also denied New Breed’s motion for judgment as a matter of law (JMOL), ruling the evidence sufficient for the jury to find in EEOC’s favor on the retaliation claim and punitive damages award.
On appeal, New Breed discusses only testimony that supports its position and ignores the ample testimony supporting the jury’s verdict. New Breed also mischaracterizes or ignores the relevant legal principles and relies on out-of-circuit cases not controlling on this Court. Considering all of the trial testimony, however, and applying the relevant legal principles, the district court correctly held the jury was properly instructed and there was sufficient evidence for a reasonable jury to rule in EEOC’s favor.
STATEMENT IN SUPPORT OF ORAL ARGUMENT
EEOC believes oral argument will assist this Court in understanding why the district court correctly rejected New Breed’s arguments concerning the court’s jury instructions and correctly ruled that the trial evidence more than sufficed for a reasonable jury to rule in EEOC’s favor on the harassment and retaliation claims and to award punitive damages.
The EEOC accepts New Breed’s jurisdictional statement as accurate. See New Breed’s Brief as Appellant (“NB-Br.”) at 2-3.
1. Did the district court correctly reject New Breed’s motion for a new trial on the jury’s sexual harassment verdict?
2. Did the court correctly reject New Breed’s motion for JMOL or a new trial on the jury’s retaliation verdict?
3. Did the court correctly reject New Breed’s motion for JMOL or a new trial on the jury’s punitive damages award?
4. Did the court correctly reject New Breed’s waived and unwaived challenges to the jury instructions on punitive damages?
5. Should the permanent injunction remain even if one claim were vacated?
A jury found New Breed liable under Title VII for a supervisor’s sexual harassment of three employees and retaliation against four employees after they objected to the harassment, and awarded monetary relief totaling $1,513,095. R.224/Jury-Verdict/PageID##4181-91.[1] The district court entered judgment accordingly. R.228/Judgment/PageID#4253. New Breed appealed. R.274/Notice-of-Appeal/PageID#7237. This Court initially held the appeal in abeyance pending the district court’s disposition of post-trial motions. R.275/Letter/PageID#7240; R.292/Letter/PageID#7292.
The district court reduced the monetary damages awarded one claimant to the Title VII statutory cap of $300,000 and otherwise denied New Breed’s motions for JMOL, to amend the judgment, or for a new trial. R.269/Order/PageID##7117-53; R.286/Order/PageID##7255-64. The court partially granted EEOC’s motion for a permanent injunction. R.293/Order/PageID##7293-98. This appeal followed. R.294/Amended-Notice-of-Appeal/PageID#7299.
“New Breed is a supply-chain logistics company with warehouses located, among other places, in Memphis, Tennessee (‘the Avaya Facility’) and Olive Branch, Mississippi (‘the Nail Road Facility’).” R.269/Order/ PageID#7118. When New Breed opened the Avaya Facility in October, 2007, approximately 80% of its workforce was supplied by staffing agencies such as Select Staffing. R.261/Tr(Hearn)/PageID##5787-88.
In October 2007, New Breed hired James Calhoun as Supervisor of the Receiving Department and Christopher Partee as a forklift driver in Receiving. R.260/Tr(Partee)/PageID##5670-74. In April 2008, New Breed hired temporary workers Tiffany Pete and Jacquelyn Hines through Select Staffing and assigned them to the Shipping Department. R.259/Tr(Pete)/PageID#5450; R.259/Tr(Pearson)/PageID#5548; R.266/Tr(Hines)/PageID#6476. Within days, Calhoun went to Shipping, pointed at Pete and Hines, and moved them to Receiving. R.266/Tr(Hines)/PageID#6478; R.259/Tr(Pete)/PageID##5450-51.
Capricius Pearson heard about openings at New Breed’s Avaya facility through her sister, who introduced her to Calhoun. R.259/Tr(Pearson)/PageID#5541. Select Staffing told her New Breed was not hiring, but Calhoun signed her resume and New Breed called her for an interview. R.259/Tr(Pearson)/PageID##5542-44. After the interview, according to Pearson, Calhoun “was just standing there looking me up and down … as if I was a meal.” R.259/Tr(Pearson)/PageID#5546. On Pearson’s first day of work, Calhoun told her she “owed him” for getting her the job. R.259/Tr(Pearson)/PageID#5549.
2. New Breed’s Sexual Harassment Policy
New Breed’s employee handbook contained its sexual harassment policy, which it distributed only to permanent employees. New Breed required permanent employees to sign indicating they had received the handbook; they were not required to certify they actually read it. R.267/Tr(Wood)/PageID#6764. Calhoun recalled being trained on sexual harassment and testified he found the training funny and laughed at it. R.266/Tr(Calhoun)/PageID##6569-72.
New Breed did not distribute its sexual harassment policy to temporary employees, who comprised 80% of the Avaya workforce; New Breed claimed its employee orientation was sufficient. R.262/Tr(Hearn)/PageID#5889. The orientation, however, covered “just the basics”: i.e., safety, rules of conduct, and workers’ compensation. R.261/Tr(Hearn)/PageID##5787-89; R.267/Tr(Woods)/PageID##6757-58. New Breed did not give Pete, Pearson, or Hines a copy of the handbook, and neither Pete nor Pearson could recall any training on New Breed’s sexual harassment policy. R.259/Tr(Pete)/PageID#5533; R.266/Tr(Pearson)/PageID#6415.
3. Calhoun’s harassment and his response to opposition
Almost immediately, Calhoun began constantly subjecting Pete, Pearson, and Hines to sexually suggestive comments and, for Pearson, sexual touching while the women were working at their desks, as Calhoun was at his desk or walking between departments. Every day Calhoun told Pete she “had a fat ass” and he “wanted to eat her pussy” and told her he “wanted to [f---] her” while sticking his tongue out. R.259/Tr(Pete)/PageID#5456. He told Pearson he wanted to “[f---] her”; “[f---] her in the [a--]“; for her to “suck his [d---]“ and call him at night to hook up; and that she was “his pussy.” R.259/Tr(Pearson)/PageID#5554. He also walked up behind Pearson and pressed his stomach and private parts to her backside. Id. at PageID#5562.
Calhoun told Hines that he wanted to “[f---] her” and “stick his [d---] down her titties.” R.266/Tr(Hines)/PageID#6483. Initially, Hines wore jeans to work; after enduring Calhoun’s repeated sexual comments and references to her body, she began wearing sweatpants, hoping Calhoun would stop. He did not. R.266/Tr(Hines)/PageID##5605, 6483-85.
Partee witnessed Calhoun’s harassment and observed the women respond with disgusted facial expressions. Partee told Calhoun to “calm down on making them comments because I don’t believe them women [like] that.” Calhoun responded, “I just be playing with them.“ R.260/Tr(Partee)/PageID##5681, 5685.
New Breed’s sexual harassment policy directed employees who feel they are being harassed to tell the harasser the conduct is unwelcome and ask that it end. R.268/Tr(Valitutto)/PageID#6920. Even though Pete, Pearson, and Hines did not have copies of the policy, they did just what the policy directed; they asked Calhoun to stop.
“Every day” Pete told Calhoun: “Leave me alone.” R.259/Tr(Pete)/PageID#5457. Pearson tried to ignore Calhoun at first, but eventually she told Calhoun to "stop touching me." On another occasion, she told Calhoun to "stop talking dirty to me" and to the other women, because otherwise someone would record him and he would "get in trouble." R.259/Tr(Pearson)/PageID##5554-55. Calhoun “laughed” in response and said that “anybody who went to Luanne [Hearn] on him would be fired.” Id. at PageID#5559. Hearn was New Breed’s on-site Human Resources (HR) manager for the Avaya facility. R.261/Tr(Hearn)/PageID#5784.
One morning, Calhoun made another sexual comment to Hines, and she exploded, saying, "Get the f--- out of my face. I don't want to hear that shit today." R.260/Tr(Hines)/PageID#5605; R.259/Tr(Pete)/PageID#5460. When Hines began working in Calhoun’s department, he told her to let him know if she was going to be late to work and he would manually clock her in so she would not appear tardy, which he did twice. R.260/Tr(Hines)/PageID#5603. However, the same day Hines told Calhoun to stop harassing her, Select Staffing called and warned her about her attendance—her first and only warning about attendance. R.260/Tr(Hines)/PageID#5664. The next morning, Calhoun announced to his staff, “[T]his is [my] department, [I] run this shit.” R.260/Tr(Hines)/PageID#5606. After that, Calhoun began sending Pete, Pearson, and Hines home early every day, thereby cutting their hours and pay. R.259/Tr(Pete)/PageID#5460; R.260/Tr(Hines)/PageID#5606.
New Breed terminated Hines’s employment less than a week later. R.260/Tr(Hines)/PageID#5610; R.259/Tr(Pete)/PageID#5460. Although Select Staffing communicated the decision, telling Hines she was fired because of attendance, R.260/Tr(Hines)/PageID#5610, Calhoun had authority to terminate temporary employees, and it is undisputed that he discharged Hines. R.261/Tr(Hearn)/PageID#5798; R.262/Tr(Hearn)/PageID#5933; R.267/Tr(Woods)/PageID#6770.
Calhoun learned that Pete planned to call New Breed’s complaint line, and he told Hearn that Pete was “out to get him.” R.266/Tr(Calhoun)/PageID#6595. Calhoun discussed the anticipated complaint with Hearn and Sheldon Culp, Calhoun’s direct supervisor and General Manager of the Avaya facility, and together they decided to fire Pete and Pearson. R.266/Tr(Calhoun)/PageID#6619; EEOC-Exhibit#16. Calhoun also tried to stop Pete from calling the complaint line, threatening: “A mother [f---er] can run up to the front if they want to, they are going to lose their damn job.” R.259/Tr(Pete)/PageID##5461-62; R.260/Tr(Partee)/PageID#5688.
4. New Breed’s investigation of Pete’s complaint
On May 13, Pete called New Breed’s complaint line anonymously, stating: “James Calhoun makes sexually explicit remarks to female employees.” R.259/Tr(Pete)/PageID##5462, 5533; EEOC-Exhibit#23. The next day, the hotline forwarded the complaint to Richard Valitutto, New Breed’s Vice President and General Counsel. The same day, he emailed it to Carissa Woods, Senior HR Manager for the five Memphis area New Breed warehouses, and asked her to investigate. The time-stamp on Valitutto’s email to Woods was 3:05 p.m. Memphis time. R.267/Tr(Woods)/PageID##6754-55, 6776, 6780; EEOC-Exhibit#23.
Woods testified that after she received Valitutto’s email, she traveled to the Avaya facility and interviewed Calhoun for half an hour. Woods asked Calhoun five questions and concluded his denials of wrongdoing were credible. R.267/Tr(Woods)/PageID##6786-87; EEOC-Exhibit#24. She testified that after she finished, Calhoun sent Woods a follow-up email time-stamped 3:13 p.m. R.267/Tr(Woods)/PageID#6783; EEOC-Exhibit#15.[2]
For the next six days, Woods interviewed no one else about the hotline accusation that Calhoun was harassing women in Receiving, not even the eight women who worked in Receiving. R.263/Tr(Woods)/PageID#6024; R.267/Tr(Woods)/PageID##6776, 6794, 6797-98. Although Avaya General Manager Culp was present the day Woods interviewed Calhoun, Woods did not ask him about the allegations or if he had witnessed or overheard Calhoun making inappropriate comments to female employees. R.268/Tr(Woods)/PageID##7030-31; R.261/Tr(Culp)/PageID#5772. Culp later testified that he thought he should have been involved in the investigation. Id. Woods did inform Avaya HR Manager Hearn that Calhoun was under investigation, but did not tell her the nature of the investigation nor ask if she knew anything about the allegations. R.261/Tr(Hearn)/PageID#5835.
5. Pete and Pearson’s transfer and termination
Around the time that Calhoun informed Culp and Hearn he expected Pete to file a complaint against him and Pete made her anonymous call to New Breed’s complaint line, Calhoun decided to transfer Pete and Pearson to the Returns Department. R.259/Tr(Pete)/PageID#5464; R.267/Tr(Woods)/PageID#6772.
Elizabeth Malone supervised Returns. Pearson’s first day in Returns, Calhoun walked up to her desk and said, “I want to [f---].” R.266/Tr(Pearson)/PageID#6374. Pearson stated to Malone, who was standing nearby, “Here he is, doing it again.” Id. at Page ID#6465.
Calhoun told Malone that Pete and Pearson were “disruptive employees”; Malone said she “would keep an eye on them.” R.266/Tr(Calhoun)/PageID##6593, 6631. Calhoun also warned Malone that Pete and Pearson talked more than they worked. R.266/Tr(Malone)/PageID#6667.
On May 17, Pete and Pearson saw Calhoun and Malone talking for between 45 minutes and an hour. That evening, Select Staffing telephoned Pete and Pearson and told them New Breed no longer needed their services. R.266/Tr(Pearson)/PageID#6379; R.259/Tr(Pete)/PageID##5470-72. At trial, Calhoun told the jury he was responsible for getting Pete and Pearson fired, saying he had recommended it to Hearn and Culp even before Pete and Pearson transferred to Returns. R.266/Tr(Calhoun)/PageID#6619. Calhoun agreed that he “didn’t need the authority to fire [Pete and Pearson] when all [he] had to do [was] go speak to Ms. Malone and let her know what [he] thought about them as employees.” Id. at PageID#6637.
Malone initially told Woods that she was not involved in Pete and Pearson’s discharge and denied that Calhoun had played a role, either, stating she thought HR “had already made the determination to [terminate] them.” R.263/Tr(Woods)/PageID#6034. At trial, Malone took credit for recommending they be fired, claiming it was because they made errors—particularly on a “Gaylord box.” R.266/Tr(Malone)/PageID##6655-89.
New Breed introduced no documentary evidence that Malone counseled or disciplined Pete or Pearson while they worked in Returns. Pete and Pearson testified that Malone gave them no negative feedback other than instructing them on how to unload the Gaylord box, which they followed. R.259/Tr(Pete)/PageID#5468; R.266/Tr(Pearson)/PageID#6375. Malone admitted that when she coached Pete and Pearson about the Gaylord box, they promptly incorporated her instruction. R.266/Tr(Malone)/PageID#6722.
Malone contradicted herself on how long Pete and Pearson worked in Returns and how much time she usually gave new employees to adjust to Returns and learn the procedures. She testified, first, that Pete and Pearson worked for her for at least two weeks and that she usually gives new employees a week or two to adjust to Returns. Later in her testimony, she said Pete and Pearson worked in Returns for only one week (May 7 to May 14), and she admitted to the jury that in her deposition, she said she usually trains new employees for two weeks and then gives them a month or two to adjust to the department. R.266/Tr(Malone)/PageID##6715, 6725.[3]
Pearson had difficulty ascertaining why she was terminated. Malone would not tell her.[4] R.266/Tr(Pearson)/PageID#6377. Hearn did not respond to Pearson’s repeated calls or messages. Id. Woods told Pearson she was fired for “messing up a Gaylord box,” but Pearson found that explanation implausible; she believed she was fired because she did not give Calhoun the sexual favors he requested. R.266/Tr(Pearson)/PageID#6377.
On Monday, May 19, Pete and Pearson both gave Select Staffing written statements complaining about Calhoun’s harassment. Pete also called back the New Breed hotline and identified Pearson and Partee as witnesses. R.266/Tr(Pearson)/PageID#6380.
Calhoun had always been friendly with Partee, but after Pete identified Partee as a potential witness in her harassment complaint, Calhoun’s demeanor changed. R.260/Tr(Partee)/PageID##5697-98.
Calhoun accused Partee of stealing time by clocking in early or staying late without authorization and recommended Partee’s termination. R.260/Tr(Partee)/PageID##5699-7000; R.267/Tr(Woods)/PageID#6773. Partee denied the charges and asserted he only clocked in early or stayed late on Calhoun’s orders and took a long lunch only when Calhoun instructed him to pick up his lunch. R.260/Tr(Partee)/PageID##5700, 5703.
On May 21, Pete contacted the hotline again, verified Partee was a witness, and submitted his phone number; Woods contacted Partee that day. R.260/Tr(Partee)/PageID#5704; EEOC-Exhibit#26. Woods later testified that until Partee’s corroboration, she had assumed the claimants were simply passing along rumors about Calhoun. R.263/Tr(Woods)/PageID#6046. The same day that Woods interviewed Partee about the harassment allegations against Calhoun, Calhoun reported that Partee was stealing time, and New Breed suspended Partee on that ground. R.268/Tr(Valitutto)/PageID#6968.
Woods completed her investigation of Calhoun and, on May 27, submitted her report to Valitutto recommending Calhoun’s termination for harassing female subordinates. R.263/Tr(Woods)/PageID#6048. Woods’s report noted she had relied on Partee’s corroborating statements. R.263/Tr(Woods)/PageID#6046. That day, Valitutto approved Calhoun’s recommendation to terminate Partee. R.268/Tr(Valitutto)/PageID#6968.
During the seven day trial, New Breed’s managers and former managers offered conflicting versions of relevant events. Calhoun, for example, initially could not remember any of EEOC’s claimants. R.266/Tr(Calhoun)/PageID##6574, 6580. He remembered them only after the judge dismissed the jury and warned Calhoun about the consequences of perjury. Id. at PageID##6583-84.
Culp remembered far more at trial—five years after the relevant events—than he had remembered in his deposition two years earlier. R.266/Tr(Culp)/PageID##6735, 6737, 6739. Hearn testified inconsistently on whether supervisors like Calhoun and Malone could unilaterally discharge a temporary employee or only recommend that action to HR. R.261/Tr(Hearn)/PageID##5795-98. Woods testified that supervisors cannot end a temporary employee’s assignment, but admitted that in her deposition she said Calhoun had had authority to unilaterally terminate Hines’s assignment. R.267/Tr(Woods)/PageID##6759, 6767.
Finally, the jury heard New Breed’s general counsel, Valitutto, testify that he had been aware, as early as May 21, that Partee was a witness in New Breed’s investigation of Calhoun. R.268/Tr(Valitutto)/PageID#6968, 6974-75. Nevertheless, Valitutto did not find it strange that on the same day that he received and approved Woods’ investigative report recommending Calhoun’s termination for harassment and relying on Partee’s corroboration of the harassment, he received and approved Calhoun’s recommendation to discharge Partee. Id. at PageID##6931, 6966-68, 6979-80.
Before submitting the matter to the jury, the district court reviewed the proposed jury instructions with counsel. New Breed expressly agreed to the wording of most of the instructions proposed by the court or EEOC, reserving only a few objections.
New Breed moved for a directed verdict, arguing: (1) Hines and Pearson never engaged in protected activity before their discharge; (2) decisionmakers were unaware of any protected activity by Pearson and Partee before discharging them; (3) EEOC lacked evidence of “but-for” causation for Hines, Pearson, and Partee; and (4) the evidence did not prove malice or reckless indifference for purposes of punitive damages. R.268-2/Tr(Rule50(a)motion)/PageID#7046-56. The district court reserved ruling on New Breed’s motion and submitted the matter to the jury.
C. Jury Verdict and District Court Decisions
The jury returned a verdict in EEOC’s favor on both claims (harassment and retaliation) and awarded the four claimants a total of more than $1.5 million in compensatory and punitive damages and other monetary relief.
The court denied New Breed’s renewed motion for judgment as a matter of law and its motion for a new trial. The court held that EEOC presented sufficient evidence for the jury to find that Calhoun’s sexual harassment of Pete, Pearson, and Hines culminated in adverse employment actions. The court also found sufficient evidence for the jury to find that Pete, Pearson, Hines, and Partee all opposed Calhoun’s harassment, after which Calhoun retaliated by discharging Hines and engineering the discharge of the other three claimants. The court found sufficient evidence for the jury to find that Calhoun acted within the scope of his employment and with reckless disregard and, thus, sufficient evidence to sustain the jury’s award of punitive damages. And the court found New Breed had acquiesced in several of the jury charges it sought to challenge and that the other challenged charges presented no error. See R.269/Order/PageID##7117-53. The court granted in part and denied in part EEOC’s request for injunctive relief. R.293/Order/PageID##7293-98.
This Court reviews de novo a district court’s denial of a renewed motion for judgment as a matter of law (JMOL) and will “affirm the jury verdict unless there was ‘no legally sufficient evidentiary basis for a reasonable jury to find for [the prevailing] party.’” Waldo v. Consumers Energy Co., 726 F.3d 802, 818 (6th Cir. 2013); Tisdale v. Fed. Ex. Corp., 415 F.3d 516, 527 (6th Cir. 2005). This Court neither weighs the evidence nor questions the credibility of the non-moving party’s witnesses, but views the evidence in the light most favorable to the non-moving party, gives that party “the benefit of all reasonable inferences,” and affirms denial of JMOL if a reasonable jury could have ruled in the non-moving party’s favor. Waldo, 726 F.3d at 818; Tisdale, 415 F.3d at 531.
A district court is required to deny a motion for a new trial based on the weight of the evidence unless “it is of the opinion that the verdict is against the clear weight of the evidence,” a conclusion this Court reviews for abuse of discretion. Barnes v. City of Cincinnati, 401 F.3d 729, 743 (6th Cir. 2005) (citation and internal quotes omitted); Tisdale, 415 F.3d at 528-29.
This Court reviews de novo challenges to a jury instruction to determine “whether, taken as a whole, the instructions adequately inform the jury of the relevant considerations and provide the jury with a sound basis in law with which to reach a conclusion.” McCombs v. Meijer, Inc., 395 F.3d 346, 356-57 (6th Cir. 2005) (citation and internal quotation omitted). Where a party failed to object at trial, this Court reviews the instructions for plain error only. Fed.R.Civ.P.51(d).
The district court correctly denied New Breed’s motion for JMOL, and it acted within its discretion in denying New Breed’s motion for a new trial. The jury was properly instructed and had sufficient evidence to find in EEOC’s favor on each issue New Breed raises on appeal.
The district court acted well within its discretion in denying a new trial on EEOC’s sexual harassment claim. The evidence amply supported the jury’s finding that Calhoun’s sexual harassment of Pete, Pearson, and Hines culminated in their discharge. The Faragher/Ellerth affirmative defense was thus unavailable to New Breed.
The district court correctly ruled that the jury had sufficient evidence to find that all four employees “opposed” Calhoun’s unlawful conduct when they told Calhoun to stop his harassment and filed or supported complaints, and that Calhoun—after threatening them—subsequently terminated them or engineered their terminations. And the court correctly ruled that the extreme temporal proximity between the opposition and the discharges sufficed for the jury to find the requisite but-for causation.
As to punitive damages, the district court correctly ruled that the jury heard sufficient evidence to find that Calhoun, a managerial agent, acted with reckless indifference and within the scope of his employment when he harassed subordinates and subjected them to retaliation and that New Breed failed to prove Kolstad’s standard of good faith efforts to prevent and correct the discrimination.
The district court also correctly ruled that New Breed is not entitled to a new trial based on the jury instructions. New Breed acquiesced to two of the instructions it now seeks to challenge, thereby forfeiting any review under the “plain error” standard. And the court did not abuse its discretion in determining that the other two challenged instructions properly stated the law and did not mislead the jury. The permanent injunction granted by the court should stay intact, even if this Court were to vacate the jury’s judgment with respect to one of EEOC’s claims.
I. The District Court Properly Denied a New Trial on EEOC’s Sexual Harassment Claim.
A trial court ruling on a motion for a new trial based on the weight of the evidence “must compare the opposing proofs, weigh the evidence, and set aside the verdict if [the court] is of the opinion that the verdict is against the clear weight of the evidence.” Barnes, 401 F.3d at 743 (citation and internal quotation marks omitted). The deferential “abuse of discretion” standard under which this Court reviews such a ruling, id., reflects the recognition that the trial judge who heard the testimony first-hand is uniquely positioned to determine whether the evidence, overall, was so overwhelmingly against the jury’s verdict that justice compels the granting of a new trial. See Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 401 (2006) (observing that “judge who saw and heard the witnesses … has the feel of the case which no appellate printed transcript can impart”) (citation and internal quotation marks omitted).
The court here weighed both parties’ evidence—including the evidence New Breed offered to explain each claimant’s discharge—and determined the evidence would allow a reasonable juror to find that “Calhoun’s harassment of Pete, Pearson, and Hines culminated in a tangible employment action.” R.269/Order/PageID#7135-37. On this basis, the court denied New Breed’s motion for a new trial, expressly finding that “the jury’s verdict on this point was not against the great weight of the evidence.” Id. at PageID#7137. The district court is correct.
Regarding Hines’s discharge, the jury heard testimony that Calhoun had the unilateral authority to end the assignments of temporary employees working in his department and that, only days after Hines told him to stop harassing her, Calhoun exercised that managerial authority to end her assignment with New Breed. See p.10, supra.
The jury also heard testimony that after Pete and Pearson asked Calhoun to stop harassing them, he transferred them to the Returns Department supervised by Malone. The jury also heard Calhoun and Malone’s testimony that Calhoun spoke to Malone negatively about Pete and Pearson’s job performances. See p.13, supra. A few days to a week later—contrary to Malone’s ordinary practice of giving new employees a month or two to adjust to her department—New Breed discharged them. The jury heard Pete and Pearson’s testimony that they observed Calhoun and Malone talking for forty-five minutes to an hour the very day they were told they were discharged, and Calhoun’s testimony claiming he was responsible for their discharge. The district court correctly concluded that, based on this evidence, “[a] reasonable juror could have resolved the fact issue of whether Calhoun influenced Malone’s decision to recommend Pete and Pearson’s termination in the EEOC’s favor.” R.269/Order/PageID#7136.
New Breed nevertheless argues it is entitled to a new trial on this claim because it offered explanations for Pete, Pearson, and Hines’s discharges. NB-Brf at 45-48. But the mere fact that a defendant may “offer[] a plausible explanation of what the evidence showed at trial … does not entitle it to a new trial.” Barnes, 401 F.3d at 743. Rather, where the parties present the jury with alternative explanations for critical events, it is for the jury to decide what evidence it believes and what inferences it draws from that evidence. Id. (just because defendant offered a reasonable interpretation of the evidence is not enough to warrant a new trial; “jury was free to draw inferences and interpret the evidence in favor of or against” the defendant).
The EEOC presented the jury here with sufficient evidence to reject New Breed’s explanations for Pete, Pearson, and Hines’s terminations. “[A] plaintiff can establish that an employer’s reason is not credible by demonstrating” the proffered reason “had no basis in fact,” “did not actually motivate [the] discharge,” or was “insufficient to motivate the discharge.” Tisdale, 415 F.3d at 529 (quoting Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (emphasis in original)). As was the case in Tisdale, the trial evidence here was sufficient for the jury to reject the defendant’s explanations under one or more of the Manzer factors. See Tisdale, 415 F.3d at 529-30.
First, the jury could disbelieve New Breed’s contention (NB-Brf at 46-47) that Calhoun was uninvolved in Pete and Pearson’s discharge based on Malone’s internally inconsistent and contradictory testimony concerning these events. The jury heard Malone testify that she recommended termination of Pete and Pearson, because they made mistakes with the Gaylord box. The jury also heard testimony that she understood it was HR’s idea to end Pete and Pearson’s assignments. See p.14, supra. Such inconsistencies entitled the jury to find Malone’s testimony incredible, overall.
Even apart from these inconsistencies, the jury could find Malone’s asserted reasons—they “failed to follow instructions” and made too many mistakes (NB-Brf at 46-47)—insufficient to motivate discharge of two new employees so soon after they transferred to her department. Pete and Pearson testified they worked in Returns for only a few days to a week and that, while there, Malone advised them of only one error, which they promptly corrected based on Malone’s instruction. See p.15, supra.
The jury could also disbelieve Malone because her conduct with Pete and Pearson deviated materially from her normal supervisory practice. Malone testified it was her ordinary practice to give employees one to two weeks to adjust to her department. She then admitted to the jury that in her deposition, she had said she routinely trained new employees for two weeks and then allowed them a month or two to adjust to Returns. See pp. 15-16, supra. Yet Pete and Pearson testified they worked in Returns for only a few days before being suddenly discharged.
The jury also heard evidence from which it could have concluded that the motivation to end Pete and Pearson’s assignment actually came from Calhoun after they resisted his sexual harassment. As the district court noted, Malone testified that, when Pete and Pearson first transferred into her department, “Calhoun warned her that Pete and Pearson liked to talk more than work.” R.269/Order/PageID#7136. The same day Pete and Pearson were terminated, they observed Malone and Calhoun engaged in another lengthy conversation. See p.14, supra. And Calhoun told the jury he was responsible for getting Pete and Pearson discharged. See pp. 14-15, supra.
Thus, although New Breed contends Calhoun “was not consulted” and “had no involvement” with Pete and Pearson’s discharges, NB-Brf at 47, the jury was entitled to make reasonable inferences to the contrary based on the evidence before it. Given the inconsistencies in Malone’s testimony; the extent to which Malone’s treatment of Pete and Pearson departed from her general supervisory practices; Calhoun and Malone’s admissions that Calhoun shared negative views about Pete and Pearson with Malone; and Calhoun’s claim of responsibility for their terminations, the district court properly concluded that “[a] reasonable juror could have resolved the fact issue of whether Calhoun influenced Malone’s decision to recommend Pete and Pearson’s termination in the EEOC’s favor based on this evidence.” R.269/Order/PageID#7136.
New Breed argues that the “required causal connection is also missing” for the jury’s harassment verdict concerning Hines. NB-Brf at 48. New Breed asserts “[t]he evidence clearly supports the conclusion” that Calhoun ended Hines’s assignment “because of her undisputed attendance problems, not because of [his] harassment.” Id. But the mere fact that the jury heard evidence arguably supporting New Breed’s position does not entitle New Breed to a new trial where the jury heard other evidence sufficient to allow it to reject New Breed’s position. Barnes, 401 F.3d at 743. EEOC presented such other evidence here.
The jury heard Hines testify that when she began working for Calhoun, he directed her to let him know if she was going to be late so he could falsify her time records to prevent her from being disciplined. See p.9, supra. The jury also heard testimony that after having done this for her twice, Calhoun suddenly discharged Hines, days after she told him she could no longer tolerate his harassment. As the district court properly found, “a reasonable juror could have drawn an inference that Calhoun … decided to no longer shield Hines from New Breed’s attendance policy.” See R.269/Order/PageID#7136. The district court did not abuse its discretion in denying New Breed’s motion for a new trial on this ground.
New Breed also argues it is entitled to a new trial on the ground it took reasonable care to prevent and correct harassment and EEOC’s claimants unreasonably failed to utilize available remedial measures. NB-Brf at 48-50 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 807-808 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998)). But an employer is not entitled to invoke this affirmative defense when supervisor harassment culminates in a tangible employment action. Clark v. UPS, Inc., 400 F.3d 341, 348 n.1 (6th Cir. 2005). The jury heard sufficient evidence to find that Calhoun’s harassment of Pete, Pearson, and Hines culminated in their discharge. Therefore, the jury had no occasion to consider whether New Breed took sufficient preventive and remedial measures to establish both prongs of the Faragher/Ellerth affirmative defense, and the district court did not reach this question in addressing New Breed’s post-trial motions. R.269/Order/PageID#7137.
For the same reason, this Court also need not reach the issue. Were it to address it, however, there are no grounds for granting New Breed a new trial on this basis. The jury was properly instructed on the Faragher/Ellerth affirmative defense, and the evidence on this point is far from overwhelmingly in New Breed’s favor.
First, satisfaction of the Faragher/Ellerth affirmative defense requires an employer to do more than simply adopt an anti-discrimination policy; it must implement it effectively, as well. See Clark, 400 F.3d at 349. This requires the employer, at a minimum, to disseminate the policy among its employees. Faragher, 524 U.S. at 808-09 (City could not establish affirmative defense where, among other things, it “failed to disseminate its policy against sexual harassment among the beach employees”). The jury here heard evidence that New Breed failed to give a copy of its written anti-harassment policy to the temporary employees who comprised 80% of its workforce at the time of these events, including three of EEOC’s four claimants. See p.6, supra.
Training employees on an anti-harassment policy is another element of an employer’s effective implementation. Clark, 400 F.3d at 349-50. The evidence here would permit the jury to find that New Breed’s training efforts were not effective. Witnesses testified that New Breed’s employee orientation video focused primarily on such basics as safety and workers’ compensation and included only a brief reference to New Breed’s sexual harassment policy. EEOC’s claimants could not recall any instruction in the video on workplace harassment. See pp.6-7, supra. The jury could reasonably conclude, from this evidence, that New Breed did not take effective steps to disseminate and ensure its employees understood its anti-harassment policy. Certainly, this evidence, taken as a whole, would not compel a jury to find that New Breed had instituted adequate preventive measures.
Finally, effective implementation of an anti-harassment policy requires the employer to respond promptly and appropriately to harassment complaints. Clark, 400 F.3d 350-51. Here, the evidence would have permitted the jury to conclude that New Breed failed to take prompt remedial steps in response to Pete’s complaint because when Woods, the HR investigator, received the complaint accusing Calhoun of harassment, she spoke only to Calhoun—the alleged harasser—and then waited almost a week before speaking to anyone else. See p.12, supra.
The jury could also conclude that New Breed responded inadequately to the harassment complaint Pearson submitted to Select Staffing because Woods testified that, until Partee’s corroboration, she assumed the claimants were simply passing along rumors about Calhoun. See p.17, supra. Finally, three of the claimants were terminated during the investigation into Pete’s allegations, and a fourth had been terminated shortly before. A jury could find that New Breed’s failure to review recent personnel actions for Calhoun’s staff once Pete’s harassment allegations arose was further evidence of the ineffectiveness of New Breed’s implementation of its anti-discrimination policy.
Likewise, the evidence would not have compelled the jury to find that New Breed established the second prong of the Faragher/Ellerth affirmative defense because the evidence shows EEOC’s claimants took advantage of the corrective opportunities provided by New Breed. See Faragher, 524 U.S. at 807-08. Even without benefit of the written policy, EEOC’s claimants followed New Breed’s directive to start by informing the harasser that his conduct is unwelcome. Hines told Calhoun she could not take any more of his harassment. Pearson warned Calhoun that if it did not stop, the women would complain to HR. And every day, Pete told Calhoun: “Leave me alone.” See pp.8-9, supra.
A jury could further find that Pete and Pearson took advantage of available complaint procedures when Pete contacted the hotline and Pearson complained to Select Staffing. And the jury could find that Calhoun prevented Hines from doing the same when he fired her days after she demanded he stop his harassment.
In sum, the evidence on this claim was not at all one-sided in New Breed’s favor, but instead overwhelmingly demonstrated that Calhoun’s harassment of all three women culminated in their discharge, making the affirmative defense unavailable to New Breed. Had the jury needed to reach the affirmative defense, it heard sufficient evidence to reject it on either or both prongs. This Court should affirm the district court’s well-grounded order denying New Breed a new trial on the sexual harassment.
II. The Evidence Amply Supports the Jury’s Finding of Retaliation.
Title VII prohibits employers from discriminating against an employee because the employee “opposed any practice made … unlawful” under Title VII or “assisted[] or participated in any manner in an investigation” under Title VII. 42 U.S.C. § 2000e-3(a). The district court correctly denied New Breed’s motion for JMOL or a new trial on EEOC’s retaliation claim because there was sufficient evidence for the jury to find that each EEOC claimant engaged in activity protected under Title VII and each subsequently suffered a materially adverse action because of it. See Johnson v. Univ. of Cincinnati, 215 F.3d 561, 578-79 (6th Cir. 2000).
There is no dispute that each claimant experienced a materially adverse action: all four were discharged. New Breed argues, however, that there is no evidence Pearson, Hines, and Partee engaged in any protected activity before they were terminated (or, in the case of Partee, before he was suspended and then terminated). NB-Brf at 36-38. New Breed also argues that there is no evidence New Breed’s decision makers knew about any protected activity by Pete, Pearson, and Hines when New Breed discharged them. Id. at 38-41. Finally, New Breed argues that the evidence presented at trial does not establish that the protected activity in which each claimant engaged was the “but for” cause of his/her discharge (and of Partee’s suspension followed by discharge). Id. at 41-44.
New Breed waived several of these issues by failing to raise them below in either its Rule 50(a) motion for directed verdict or its Rule 50(b) motion for JMOL (or both). To appeal a jury verdict based on sufficiency of the evidence, a party must file both a Rule 50(a) motion for a directed verdict at the close of the evidence and a Rule 50(b) postverdict motion for JMOL asserting “the same grounds.” Am. & Foreign Ins. Co. v. Bolt, 106 F.3d 155, 160 (6th Cir. 1997); see also Heil Co. v., Evanston Ins. Co., 690 F.3d 722, 727 (6th Cir. 2012). A party that fails to raise an issue in both circumstances has waived that issue on appeal. Sykes v. Anderson, 625 F.3d 294, 304 (6th Cir. 2010) (party waived claim on appeal because it did not raise the issue in a Rule 50(a) motion before case was submitted to the jury); cf. Unitherm, 546 U.S. at 400-06 (appellate review unavailable where party failed to move under Rule 50(b) to renew initial Rule 50(a) motion).
New Breed’s Rule 50(a) motion failed to challenge the sufficiency of the evidence on several issues it now asserts on appeal: whether Partee engaged in protected activity before he was suspended; whether New Breed’s decision makers knew of Pete’s and Hines’s protected activities before terminating them; and whether Pete’s termination was causally connected to her protected activity. See R.268-2/Tr(5-7-2013)/PageID#7047. Additionally, New Breed’s Rule 50(b) motion did not challenge the sufficiency of the evidence that New Breed’s decision makers knew about Hines’s protected activity before taking adverse action against her. See R.237/Rule-50(b)-motion/PageID##4321-22.
None of the exceptions to the waiver rule applies here. Appellate consideration is unnecessary to avoid “a plain miscarriage of justice” or for any “over-arching purpose beyond … arriving at the correct result in an individual case,” as might exist with a purely legal question on an important, unresolved issue. See, e.g., Foster v. Barilow, 6 F.3d 405, 407-08 (6th Cir. 1993). This Court should, therefore, decline to consider New Breed’s sufficiency challenge on these four questions. See Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307, 319 n.11 (6th Cir. 2007) (declining to consider issues on appeal that appellant omitted from motion for JMOL).
New Breed’s arguments lack merit, in any event. The EEOC presented more than sufficient evidence for the jury to determine that its claimants would not have been discharged had they not opposed Calhoun’s harassment. In arguing otherwise, New Breed not only ignores substantial portions of the evidence presented to the jury, but also assesses the evidence under the wrong legal standards.
New Breed contends that Pearson, Hines, and Partee did not engage in protected activity before New Breed undertook adverse employment actions against them. NB-Brf at 36. This is incorrect. EEOC presented evidence that shortly before Calhoun discharged Hines, she told Calhoun to stop harassing her. See pp.9-10, supra. Shortly before Calhoun transferred Pearson to Malone’s department (where she was subsequently discharged), Pearson likewise told Calhoun to stop harassing her and indicated that if he did not, the women in his department would record his comments and notify HR. See pp.8-9, 13. And prior to his discharge, Partee admonished Calhoun to stop harassing the women and agreed he would probably be a witness for Pete in her complaint to New Breed about Calhoun’s harassment. Id.; see R.269/Order/PageID##7137-38 & nn.74-76.
New Breed acknowledges this direct opposition, but argues that opposing a supervisor’s unlawful conduct directly does not constitute “opposition” under Title VII’s retaliation provision. NB-Brf at 36-38. The district court, however, correctly ruled that opposition under Title VII need not involve a formal report to some specified company official; it “can be as simple as telling a supervisor to stop.” R.296/Order/PageID#7137-38 & n.73.
The district court’s conclusion is supported by the language of the statute as well as the decisions of the Supreme Court, this Court, and other jurisdictions. As the Supreme Court recently noted, Title VII does not define the term “oppose” and, therefore, the term “carries its ordinary meaning: ‘to resist …; to contend against, to confront; resist; withstand.’” Crawford v. Metro. Gov’t of Nashville, 555 U.S. 271, 276 (2009) (citing Webster’s New International Dictionary 1710 (2d ed. 1958)). Among the policy reasons for giving the term this broad meaning, the Supreme Court noted the critical importance of encouraging employers to root out discrimination and further noted that “fear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.” Id. at 279 (citations and internal quotation marks omitted).
Consistent with this broad definition, this Court recently noted that “[t]he opposition clause protects not only the filing of formal discrimination charges with the EEOC, but also complaints to management and less formal protests of discriminatory employment practices.” Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (emphasis added). And EEOC’s interpretation, to which this Court gives “great deference,” likewise broadly describes “opposing” to include employee protestations “to anyone (management, unions, other employees, or newspapers) about allegedly unlawful practices.” See Johnson, 215 F.3d at 579-80 & n.8 (endorsing broad definition of “oppose” in 2 EEOC Compl. Man. (CCH) ¶ 8006 (May 20, 1998)).
Interpreting Title VII’s anti-retaliation provision broadly to protect employees who tell their harassing supervisor the harassment is unwelcome and ask that it stop aligns with “the spirit and purpose [of] Title VII as a broad remedial measure.” Johnson, 215 F.3d at 580. The Eighth Circuit and numerous district courts—including several in this circuit—have held that plaintiffs “engage in the ‘most basic form of protected activity’ when [they tell their] supervisor[s], to stop [their] offensive conduct.” See Ogden v. Wax Works, 214 F.3d 999, 1007 (8th Cir. 2000) (quoting Quarles v. McDuffie County, 949 F. Supp. 846, 853 (S.D. Ga. 1996)). As one such district court reasoned, “[s]exual harassment is a form of sex discrimination proscribed by Title VII” and, therefore, “rejecting sexual advances itself must comprise protected activity for which employees should be protected for opposing within the meaning of 42 U.S.C. § 2000e-3(a).” Farrell v. Planters Lifesavers Co., 22 F. Supp. 2d 372, 392 (D. N.J. 1998) (ruling plaintiff engaged in protected activity under Title VII when she pushed supervisor’s hand off her leg and firmly told him she did not give her husband any reason to be jealous), rev’d on other grounds, 206 F.3d 271 (3rd Cir. 2000).
District courts within and outside this Circuit have long adopted this view. See, e.g., Frentz v. City of Elizabethtown, 2010 WL 4638768, at *5 (W.D. Ky. Nov. 4, 2010); Berthiaume v. Appalachian Christian Vill. Found., 2008 WL 4138112, at *4 (E.D. Tenn. Sept. 4, 2008) (objecting to or rejecting offensive conduct of supervisor is a form of protected activity); Reed v. Cracker Barrel Old Country Store, 133 F. Supp. 2d 1055, 1070 (M.D. Tenn. 2000) (telling harassing supervisor “to cease all forms of physical and verbal harassment” is “most basic form of protected conduct”); Boyd v. James S. Hayes Living Health Care Agency, Inc., 671 F. Supp. 1155, 1167 (W.D. Tenn. 1987) (plaintiff engaged in protected activity by refusing her supervisor’s sexual advances).[5]
One district court reasoned that “[i]t would be anomalous, and would undermine the fundamental purpose of the statute, if Title VII’s protections from retaliation were triggered only if the employee complained to some particular official designated by the employer.” Ross v. Baldwin Cnty. Bd. of Educ., 2008 WL 820573, at *6 (S.D. Ala. Mar. 24, 2008). That court concluded that it “would render Title VII’s prohibition on retaliation illusory” if Title VII were to provide no protection to an employee who, seeking to “bring a halt to a sexually hostile work environment … confronts a supervisor harasser and demands that the harassment stop.” Id. Indeed, it would “transform the protection against retaliation into a mirage” if a harassing supervisor were free, in such a situation, “to engage in acts of retribution” against the complaining employee “with no recourse … under Title VII’s anti-retaliation provisions.” Id. (declining “to read Title VII so narrowly as to frustrate its remedial purpose” and holding that plaintiff’s demand that her supervisor cease groping her in workplace “unquestionably constituted protected conduct” under Title VII).
The conclusion that telling a supervisor to cease his harassment is protected activity is particularly appropriate here, given that New Breed’s policy advises employees that the first step they should follow if harassed on the job is to tell the harasser the conduct is unwelcome. See p.8, supra. If, as New Breed argues on appeal, such direct “opposition” to unlawful conduct is not protected under Title VII’s anti-retaliation provision, then employees like Hines—who follow the “first step” in New Breed’s sexual harassment policy, tell their harasser to stop, and are fired within days—would expose themselves to potential retaliation for which they would have no legal recourse. See Ross, 2008 WL 820573, at *5-6. In other words, New Breed’s own policy would, in effect, perversely act as an invitation for harassing supervisors to retaliate against their victims before the victims can file a formal complaint. Such a result would seriously undermine Title VII’s anti-retaliation provision and this Court’s strong enforcement of it. See Johnson, 215 F.3d at 579-80.
Like the plaintiffs in the cases noted above, EEOC’s claimants used explicit and emphatic verbal communications to let Calhoun know that they found his daily sexual comments and physical advances unwelcome and they believed he had crossed the line of acceptable workplace behavior. Pearson, for example, testified that in addition to telling Calhoun to "stop touching her," she also told him to "stop talking dirty” to her and the other women because someone was going to tape record him and he would "get in trouble." (She testified that Calhoun responded by threatening her job.) See pp.8-9, supra. Hines testified that after attempting to put up with Calhoun’s daily sexual comments for several weeks, she could endure it no longer and responded to yet another one of his repeated sexual comments by yelling at him to "[g]et the [f---] out of my face. I don't want to hear that shit today." See p.9, supra. And Pete testified that, before she made her anonymous telephone complaint, she had responded to Calhoun’s daily sexual comments by telling him, daily: “[L]eave me alone.” See p.8, supra.
Notably, the claimants’ opposition here did not consist merely of polite refusals of a supervisor’s romantic overtures or implicit, non-verbal indications of disinterest, such as walking away or avoiding being in the supervisor’s vicinity. See, e.g., Dearth v. Collins, 2005 U.S. Dist. LEXIS 47604, at *21 (S.D. Ga. 2005) (holding that plaintiff's "non-verbal actions of giving Collins the cold shoulder, walking away and rolling her eyes did not constitute internal complaints" because simply declining a sexual advance does not rise to the level of protected activity), aff’d on other grounds, 441 F.3d 931, 932 n.1 (11th Cir. 2006). Thus, the facts here contrast starkly to those of the unpublished Fifth Circuit case New Breed cites, where the plaintiff’s opposition to her harasser’s advances “consisted largely of unexpressed disapproval” and “a single ‘express rejection.’” Frank v. Harris Cty., 118 F.App’x 799, 804 (5th Cir. 2004) (cited in NB-Brf at 37). The Fifth Circuit also offered no legal analysis, stating only that Frank had “provide[d] no authority” for her position that her conduct constituted protected activity. Id.; see also LeMaire v. Louisiana Dep’t of Transp., 480 F.3d 383, 389 (5th Cir. 2007) (same).
The other case New Breed cites, Del Castillo v. Pathmark Stores, Inc., 941 F. Supp. 437 (S.D.N.Y. 1996), is likewise poorly reasoned. The court stated that if plaintiff’s rejection of her supervisor’s unwanted advances constituted “protected activity,” “every harassment claim would automatically state a retaliation claim as well.” Id. at 438-39. But that is simply untrue—only if a rejected harasser responds by initiating or causing an adverse action could there be a claim of retaliation. And where that occurs, courts should not leave employees without recourse under Title VII.
The two poorly reasoned, outlier cases cited by New Breed provide little guidance here. The EEOC urges this Court, instead, to adopt the district court’s reasoning and hold that Pearson and Hines engaged in protected activity because, when they told Calhoun to stop harassing them, they were “resist[ing]” “confront[ing],” and “withstand[ing]” unlawful conduct within the meaning of Title VII. See Crawford, 555 U.S. at 276.
Although New Breed waived the “no protected activity” issue with respect to Partee, the record also sufficed for the jury to find that he, too, engaged in protected activity when he told Calhoun to stop harassing the women and was thereafter interviewed by Woods after Pete identified him as a witness in her complaint. See pp.8, 17, supra. Thus, the jury heard evidence that Partee also engaged in multiple forms of protected activity before New Breed discharged him based on Calhoun’s recommendation.
B. The evidence was sufficient for the jury to find the decision makers had the requisite knowledge.
New Breed also argues for JMOL or a new trial on the ground that there could be no causal connection between the protected activities of Pete, Pearson, and Hines and their subsequent discharges because before New Breed ended their employment, the “relevant” decision makers did not know they had undertaken any protected activity. NB-Brf at 38-44. New Breed argues it is not enough that someone in the company (i.e., Calhoun) knew about Pete, Pearson, and Hines’s protected activity, if the actual decision makers (Malone, Culp, and Hearn, according to New Breed), were unaware before discharging them. See NB-Brf at 38-40.
New Breed incorrectly relies on three cases addressing whether the plaintiff offered sufficient proof of the prima facie case of a Title VII retaliation claim to withstand summary judgment. See NB-Brf at 39. After a full trial on the merits, however, the issue is not whether there is evidence to support each element of plaintiff’s prima facie case; rather, it is “the ultimate question of discrimination.” Tisdale, 415 F.3d at 529 (citations omitted); EEOC v. Avery Dennison Corp., 104 F.3d 858, 860-62 (6th Cir. 1997) (citing, inter alia, U.S. Postal Serv. Bd. v. Aikens, 460 U.S. 711, 714-15 (1983)).
Furthermore, New Breed waived this “no knowledge” argument with respect to Pete and Hines by not making it for Pete in its Rule 50(a) motion and by not making it for Hines in its Rule 50(a) or (b) motions. Accordingly, this Court should not consider New Breed’s appeal on this issue with respect to Pete and Hines. See Tuttle, 474 F.3d at 319 n.11. Nevertheless, EEOC presented the jury with sufficient evidence to find the requisite knowledge and causation for all three claimants, because the jury could find that Calhoun—who indisputably knew these women had opposed his harassment—was the force behind New Breed’s decision to end their employment.
New Breed’s argument concerning Hines particularly lacks merit. New Breed asserts that “Hines never engaged in protected activity before her assignment ended” and “the relevant decision makers could not have known of something that did not occur.” NB-Brf at 41. This argument ignores that Calhoun made the decision to end Hines’s employment; Hines engaged in protected activity under Title VII when she opposed Calhoun’s harassment by telling him to stop; and Calhoun knew about it because Hines spoke to him directly. See pp.9-10, supra.
New Breed’s argument concerning Pete and Pearson wholly ignores EEOC’s theory that Calhoun was responsible for the adverse actions they experienced under the “‘rubber-stamp’ or ‘cat’s paw’ legal theory of liability.” See Bishop v. Ohio Dep’t of Rehab. & Corrs., 529 F.App’x 685, 696 (6th Cir. 2013). An employer can be found liable under Title VII “[w]hen an adverse … decision is made by a supervisor who lacks impermissible bias, but that supervisor was influenced by another individual who was motivated by such [impermissible] bias.” Id. (citing cases); see Staub v. Proctor Hosp., 131 S.Ct. 1186, 1194 (2011) (applying cat’s-paw theory in discrimination claim brought under Uniformed Services Employment and Reemployment Rights Act); Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 350-51 (6th Cir. 2012) (applying Staub to Title VII claim of race discrimination). An employee challenging a termination “as motivated by a supervisor’s discriminatory animus … must offer evidence of a ‘causal nexus’ between the ultimate decisionmaker’s decision to terminate the [employee] and the supervisor’s discriminatory animus.” Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 677 (6th Cir. 2008). The district court here correctly concluded that “the jury had competent evidence … that Calhoun influenced Malone’s decision to recommend Pete and Pearson’s termination[s].” R.269/Order/PageID#7139.
Specifically, EEOC presented evidence that Calhoun’s behavior toward Pete and Pearson changed after Pearson told him someone would file a complaint if his harassment did not end. Calhoun thereafter transferred Pete and Pearson to Returns and disparaged them to Malone. Shortly thereafter, Malone recommended their termination (an action that Calhoun testified he, in fact, had engineered). This evidence more than sufficed for the jury to find that Calhoun harbored retaliatory animus toward Pete and Pearson for opposing his sexual advances and that this animus “culminated” in Pete and Pearson’s discharge.
“Title VII retaliation claims ‘must be proved according to traditional principles of but-for causation’” requiring “proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Laster, 746 F.3d at 730-31 (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013)). New Breed waived this argument with respect to Pete, having not raised this issue in its Rule 50(a) motion. Nevertheless, the evidence here was sufficient for the jury to find that all four claimants’ opposition to Calhoun’s harassment was the but-for cause of their terminations.
Calhoun personally terminated Hines’s employment, after she told him to stop his harassing behavior. See pp.9-10, supra. Woods testified that Calhoun recommended Partee’s termination, and New Breed relied on that recommendation. See p.17, supra. And the jury heard sufficient evidence that Calhoun engineered the transfer and termination of Pete and Pearson—including Calhoun’s own admission—to disbelieve New Breed’s proffered reasons for their termination and find that Pete and Pearson would not have been discharged but for Calhoun’s retaliatory actions. See p.14, supra. The district court correctly determined that this evidence sufficed for the jury to reject the non-discriminatory reasons New Breed advanced and to find that Calhoun’s influence, based on his retaliatory motive, caused all four claimants’ discharge. R.269/Order/PageID#7139-43. The court properly rejected New Breed’s motion for JMOL or a new trial on EEOC’s retaliation claim.
New Breed argues that Malone, Hearn, and Culp “testified without contradiction” that the decision to discharge Pete and Pearson “was based on Malone’s concerns about [their] performance” and that “Calhoun had no involvement” in the decision. NB-Brf at 42. But, as the district court explained and as noted above, the jury had ample basis to disbelieve this testimony.
Evidence that an employer treated an employee who engaged in protected activity less favorably than other similarly situated employees is relevant to establishing causation in a retaliation claim. Little v. BP Exploration & Oil Co., 265 F.3d 357, 63-65 (6th Cir. 2001). Here, the jury heard Malone admit on the witness stand that in her deposition, she attested that when new employees joined Returns, she routinely trained them for two weeks and then gave them a month or two to acclimate, yet she terminated Pete and Pearson after only a few days, according to their testimony. And although Malone claimed this was because they performed so poorly, New Breed offered no documentation that Malone had counseled or disciplined them concerning their performance—documentation the jury could have reasonably expected New Breed to produce, if Pete and Pearson’s performance deficiencies were actually serious enough to result in discharge after such a short period of time.
The jury also heard Pearson’s testimony that she overheard Calhoun express negative opinions about her and Pete to Malone around the time of their transfer and then observed Calhoun in a second, extended conversation with Malone the day Pete and Pearson were fired. Given this evidence, the jury could disbelieve New Breed’s witnesses that Calhoun had no involvement in the discharge decision.
Likewise, the jury could, on this evidence, disbelieve New Breed’s assertion that Calhoun discharged Hines because of attendance concerns and not because she insisted he stop harassing her. New Breed argues that “it was undisputed” Hines had been warned about her attendance and tardiness problems, NB-Brf at 42, pointing to the portion of Hines’s testimony where she acknowledges that Select Staffing called her about her attendance. See p.9, supra. New Breed omits other evidence on which the jury could have relied in rejecting New Breed’s explanation, including Hines’s testimony that Calhoun told her expressly to let him know if she was going to be late so he could falsify her time, to ensure she was not disciplined, and the fact that Select Staffing contacted Hines about her attendance only once—the same day she had complained to Calhoun about his harassment. Id.
Hines’ admission that attendance or tardiness could be a legitimate reason for an employer to fire an employee is immaterial. See NB-Brf at 42-43; R.260/Tr(Hines)/PageID#5645. Calhoun’s abrupt change in attitude starting the day Hines opposed his harassment provided sufficient evidence for the jury to conclude that even if tardiness could have been a reason to fire Hines, in this instance, it was not. See Lindsay v. Yates, 578 F.3d 407, 418-19 (6th Cir. 2009) (temporal proximity is “sufficient to establish the causal connection element of a retaliation claim … [w]here an adverse employment action occurs very close in time after an employer learns of a protected activity”; quoting Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008)). Similarly, as the district court correctly ruled, the evidence was sufficient for the jury to reject New Breed’s argument that it fired Hines from the Nail Road facility for lying on her job application and find, instead, that it was a further extension of the retaliation Hines had already experienced. See R.269/Order/PageID#7142.
New Breed also argues the jury lacked sufficient evidence to find that Calhoun’s retaliatory animus caused Partee’s discharge, asserting that Hearn and Culp recommended his termination because their “independent inquiries … confirmed” that Partee was “‘stealing time.’” NB-Brf at 44. But New Breed’s one-sided discussion of the evidence ignores testimony that Calhoun recommended Partee’s discharge and New Breed’s higher managers accepted this recommendation without independently investigating whether it was true. See p.17, supra.
The evidence here sufficed for the jury to find that all four claimants would not have been discharged by New Breed had they not complained about Calhoun’s harassment. The district court correctly denied JMOL or a new trial on EEOC’s retaliation claim.
III. Sufficient Evidence Supports the Jury’s Punitive Damages Award.
The district court properly denied New Breed’s motion for JMOL or a new trial on punitive damages, ruling that EEOC presented sufficient evidence for the jury to find New Breed acted with malice or reckless indifference to the rights of all four claimants. New Breed’s arguments on this issue have no merit.
Title VII permits a jury to award punitive damages where the defendant “engaged in a discriminatory practice … with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1) (emphasis added). The Supreme Court explained in Kolstad v. American Dental Association, 527 U.S. 526 (1999), that this standard focuses on the employer’s mental state rather than on the discriminatory acts per se. Thus, an award of punitive damages does not require proof of “egregious” employer misconduct, although “evidence of egregious misconduct may be used to meet the plaintiff’s burden of proof.” Id. at 534-35, 538-39, 547. Once “malice” or “reckless indifference” is shown, employers may be liable for punitive damages based on the discriminatory decisions of managerial agents acting within the scope of their employment unless those decisions “are contrary to the employer’s ‘good-faith efforts to comply with Title VII.’” Id. at 545.
1. New Breed argues that the evidence does not support the jury’s award of punitive damages on EEOC’s retaliation claim because New Breed’s decision makers did not know that EEOC’s claimants had engaged in protected conduct when New Breed took adverse employment actions against them. New Breed contends that without evidence of such knowledge, the jury could not find that New Breed acted “in the face of a perceived risk that its actions will violate federal law” as Section 1981a requires. NB-Brf at 24-25.
New Breed did not argue below, and does not argue on appeal, that Calhoun lacked the requisite “malice or reckless indifference.” See R.269/Order/PageID#7143; NB-Brf at 24-25.[6] Rather, New Breed appears to contend that Calhoun was not the decision maker. As explained above, however, the jury heard sufficient evidence to find that Calhoun either made or caused the adverse actions EEOC’s claimants experienced. See Point I at pp.26-33, supra. This evidence more than sufficed for the jury to find New Breed liable for punitive damages based on Calhoun’s conduct. See Parker v. General Extrusions, Inc., 491 F.3d 596, 602 (6th Cir. 2007) (plaintiff must show reckless disregard on the part of the individual perpetrating the discrimination).
The requisite mental state under Kolstad can also be satisfied by evidence that “the defendant’s employees lied, either to the plaintiff or to the jury, in order to cover up their discriminatory actions.” Hall v. Consol. Freightways Corp., 337 F.3d 669, 675 (6th Cir. 2003). The jury could have inferred here that the many inconsistencies in the testimony of New Breed’s witnesses reflect their efforts to mask the fact that New Breed managers acted with reckless disregard of the claimants’ federal rights. See pp.15-20, supra.
When a jury’s decision to award punitive damages depends on its determination of the credibility of witnesses, this Court will not disturb the jury’s decision to credit the plaintiff’s witnesses over the defendant’s. Hall, 337 F.3d at 674. Here, it was for the jury to determine, first, whether to believe the claimants’ testimony that Calhoun threatened termination for anyone who reported his harassment; second, what inferences to draw from the conflicting testimony of New Breed’s other managers; and, finally, whether the evidence, as a whole, satisfied the Kolstad standard for punitive damages on EEOC’s retaliation claim. See Kolstad, 527 U.S. at 536. Because the jury heard sufficient evidence to award punitive damages against New Breed, the district court correctly denied JMOL or a new trial on this ground.
2. The district court also properly rejected New Breed’s argument (NB-Brf at 24-26) that punitive damages cannot be sustained with respect to EEOC’s harassment claim because Calhoun’s sexual harassment of Pete, Pearson, and Hines fell outside the scope of his employment. R.269/Order/PageID#7144. As the Supreme Court explained in Kolstad, “even intentional torts are within the scope of an agent’s employment if the conduct is ‘the kind [the employee] is employed to perform,’ ‘occurs substantially within the authorized time and space limits,’ and ‘is actuated, at least in part, by a purpose to serve the’ employer. … [S]o long as these rules are satisfied, an employee may be said to act within the scope of employment even if the employee engages in acts ‘specifically forbidden’ by the employer and uses ‘forbidden means of accomplishing results.’” Kolstad, 527 U.S. at 543-44 (citations omitted).
Courts applying this standard have held that a sexually harassing manager acted within the scope of his employment for purposes of awarding punitive damages under Title VII where the manager was employed, among other things, to supervise employees and take actions that affected their pay and the harasser’s “abusive conduct occurred for the most part during working hours on [defendant’s] premises.” See, e.g., Ogden, 214 F.3d at 1010. In Parker, 491 F.3d at 603, for instance, this Court agreed with the district court that the harassing manager satisfied the “Kolstad ‘mangerial agent’” standard. And in the only case New Breed cited for this point, see NB-Brf at 26, the defendant conceded that its manager was acting within the scope of his employment when he sexually harassed the plaintiff. Cooke v. Stefani Mgmt Servs., 250 F.3d 564, 568 (7th Cir. 2001).
As in Ogden, Parker, and Cooke, Calhoun, likewise, was acting within the scope of his employment here. New Breed employed Calhoun to manage and supervise the Receiving Department, and that involved interacting with his staff on the premises, throughout the work day. And Calhoun’s sexual harassment occurred on New Breed’s premises, during working hours, throughout the work day. See p.7, supra. The jury further could have found that Calhoun was exercising his supervisory authority—albeit, improperly—when, after Pete, Pearson, and Hines protested his harassment, he cut their hours and pay; discharged Hines; transferred Pete and Pearson to Returns; and then engineered their discharge. See pp.9-18, supra. The district court correctly denied New Breed JMOL or a new trial on the jury’s award of punitive damages on EEOC’s harassment claim.
3. New Breed also seeks reversal of punitive damages on the ground that it established Kolstad’s good faith standard as a matter of law. NB-Brf at 26-35 (citing, inter alia, Kolstad, 527 U.S. at 543). New Breed contends that it undertook good faith efforts both to prevent and to correct sexual harassment and that no reasonable jury could have concluded otherwise. NB-Brf at 27. The evidence, however, is not such that a reasonable jury could only find in New Breed’s favor on this point.
This Court has noted repeatedly that the kinds of steps New Breed points to as establishing its Kolstad “good faith efforts”—adopting and distributing a written anti-discrimination policy; offering training; instituting a complaint line (see NB-Brf at 27-28)—do not shield an employer from punitive damages as a matter of law. Rather, the critical determination is how the employer implements its anti-discrimination policies. See, e.g., Hall, 337 F.3d at 675; EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498, 514 (6th Cir. 2001). Whether New Breed’s evidence established reasonable care to prevent and remedy sexual harassment and retaliation was a question for the jury. See Parker, 491 F.3d at 604-05; Hall, 337 F.3d at 674-76. And the jury here heard sufficient evidence to find in EEOC’s favor on this point.
For instance, the district court noted EEOC’s evidence that Pete, Pearson, and Hines, like 80% of the Avaya facility’s workforce, were temporary employees and that New Breed failed to distribute its anti-harassment policy temporary employees. The evidence also showed that the employee orientation video did not adequately address sexual harassment and focused primarily on other employment issues. See p.6, supra.
New Breed also contends that the steps it undertook to correct sexual harassment—investigating Pete’s complaint and ultimately discharging Calhoun (see NB-Brf at 30-35)—constituted “good faith efforts” to remedy discrimination. The jury, however, heard sufficient evidence to reject this contention.
The jury heard Woods testify that she initially investigated Pete’s complaint by asking Calhoun whether it was true that he was harassing his female subordinates, found his denial credible, and did nothing more for a week while awaiting additional information. Woods further testified that when she interviewed EEOC’s claimants a week later, she assumed they were merely spreading rumors about Calhoun and did not conclude their complaints were credible until Partee corroborated them. See pp.11-13, 17-18, supra. A jury could further conclude that New Breed did not demonstrate “good faith efforts” to comply with Title VII given that during the week in which Woods was conducting her investigation, three of the four claimants were fired, and a fourth had been discharged by Calhoun a few weeks earlier. New Breed offered explanations for all of this, NB-Brf at 31-33, but given EEOC’s contrary evidence, the jury was not obligated to agree with New Breed. Parker, 491 F.3d at 604-05. The district court correctly ruled that the jury heard sufficient evidence to find New Breed did not establish that it met Kolstad’s “good faith” standard as a matter of law. R.269/Order/PageID#7144-45.
Before a party is permitted to appeal an alleged error or omission in jury instructions, it must state “distinctly” on the record “the matter objected to and the grounds for the objection.” Fed.R.Civ.P. 51(c)(1). If a party fails to object, a court may nevertheless consider “a plain error” that “affects substantial rights.” Fed.R.Civ.P. 51(d)(2); see Bath & Body Works v. Luzier Personalized Cosmetics, 76 F.3d 743, 749-50 (6th Cir. 1996). “Plain error” is an obvious and prejudicial error that requires action by the reviewing court in the interests of justice, and it is a “very high standard” to meet. Manday v. Public Libraries of Saginaw, 480 F.3d 815, 820 (6th Cir. 2007). Where a party expressly acquiesces in a specific instruction, even “plain error” review is unavailable. Puckett v. United States, 556 U.S. 129, 135 (2009) (plain error review requires “an error or defect … that has not been intentionally relinquished or … affirmatively waived[] by the appellant”).
New Breed acquiesced in two of the instructions it challenges on appeal, and it establishes no error with respect to the other two. The district court correctly denied New Breed’s motion for a new trial on these grounds.
A. New Breed acquiesced in the punitive damages instruction.
New Breed challenges the punitive damages instruction delivered by the court, which was based on EEOC proposed language, for not spelling out Kolstad’s “good faith efforts” standard. NB-Brf at 54-55. New Breed asserts it informed the court that it objected to EEOC’s instruction. Id. at 55. But the only objection New Breed voiced addressed an entirely different aspect of the punitive damages charge having nothing to do with Kolstad’s “good faith” standard. See R.265/Tr(charge-conf)/PageID##6218-20 (requesting substitution of the word “employer” for “person” and the word “defendant” for “individual perpetrating the discrimination”). The court accepted New Breed’s language for the first request and New Breed accepted the court’s compromise language for its second request. Id. at PageID##6219-23.
With respect to the issue New Breed tries to raise on appeal, however, the district court correctly explained in its Order that at the charge conference “New Breed indicated in plain terms that it agreed with” the punitive damages instruction and, therefore, it “intentionally relinquished any objection to putative error in the instruction as given.” R.269/Order/PageID#7124. The instructions do not reflect prejudicial error under a plain error standard of review, in any event. The district court therefore acted well within its discretion when it denied New Breed’s motion for a new trial on this basis.
New Breed incorrectly argues that it preserved its request for this instruction, as well as its objections to the other three it challenges here, by submitting proposed instructions to the district court prior to the charge conference and providing the court with a chart indicating on which charges the parties agreed and which were disputed (but not the nature of the dispute). NB-Brf at 51. Submitting a proposed instruction, without more, does not preserve an objection if the party fails to assert the objection or insist on the charge during the charge conference. Howe v. City of Akron, 723 F.3d 651, 660-61 (6th Cir. 2013).
New Breed’s proposed instructions, its chart, and EEOC’s proposed instructions merely provided a starting point for the court’s discussion with the parties about the instructions. During three separate charge conferences, New Breed and EEOC each agreed to compromise language on a number of instructions including—on New Breed’s part—agreeing to the specific punitive damages charge that New Breed now seeks to challenge. See R.269/Order/PageID#7123 (“Your Honor, I think the defendant can accept the EEOC’s 32, 33, and 34” where EEOC’s charge #33 “mirrors the instruction … as read to the jury”).
New Breed mistakenly argues that the district court informed its counsel further objections were unnecessary. NB-Brf at 52. New Breed mischaracterizes the court’s meaning by taking its statement out of context.
The statement New Breed quotes is found at R.267/Tr(charge-conf)/PageID#6826. The prior pages clarify that the court was addressing New Breed’s objection to EEOC’s proposed language amending the court’s “Burden of Proof” charge. Id. at PageID#6822. The court declined to include New Breed’s requested language, and New Breed declined to acquiesce in the court’s proposed language. Id. at PageID##6825-26. In that narrow context, the court acknowledged New Breed’s objection and indicated New Breed did not need to restate it in order to preserve it. Id.
Contrary to New Breed’s contention (NB-Brf at 52-53), nothing in this exchange suggests the court was creating a blanket objection that would encompass even charges with which New Breed explicitly concurred. Thus, when the court later asked New Breed if there was “[a]nything else … other than your standing objections?”, see NB-Brf at 53 (quoting R.265/Tr(charge-conf)/PageID#6257), the court was merely acknowledging that in this and one or two other instances, New Breed had noted on the record its continued objection to the inclusion or exclusion of specific language from the jury instructions.
B. The punitive damages instruction provided an accurate statement of the law.
New Breed argues that the punitive damages instruction the court delivered gave the jury “the erroneous impression that the employer’s good faith efforts to comply with Title VII were of no consequence.” NB-Brf at 54. The district court rejected this argument, finding that New Breed was not entitled to even “plain error” review because it had expressly acquiesced in the instruction as delivered. R.269/Order/PageID#7122-24 (citing Packett, 556 U.S. at 135). And given Kolstad frames the “good faith efforts” standard as something a defendant must demonstrate, it is similar to an affirmative defense that a defendant can waive. Thus, this Court should find, as the district court held, that New Breed’s acquiescence in the charge deprives it of the right to challenge the charge on appeal. Cf. Lust v. Sealy, Inc., 383 F.3d 580, 589-90 (7th Cir. 2004) (appeal waived where defendant failed to request charge on good-faith defense).
Even assuming plain error review applies, however, New Breed would not be entitled to a new trial on this basis because the jury instructions, as a whole, provided appropriate guidance for the jury on the issues and the applicable law. The instructions contain no obvious error; indeed, they correctly state the elements EEOC had to establish for a punitive damages award, including the requisite mental state. See Arrieta-Colon v. Wal-Mart Puerto Rico, 434 F.3d 75, 89-90 (1st Cir. 2006). New Breed did not specifically argue in its closing that it took good faith efforts to comply with Title VII. See R.265/Tr(New-Breed-closing)/PageID##6280-6300. Therefore, there was no miscarriage of justice in failing to include the language that New Breed, in any event, had waived. Lust, 383 F.3d at 590.
C. The retaliation instructions properly stated the law.
New Breed asserts the retaliation instructions were erroneous on four grounds: they were inconsistent with but-for causation (NB-Brf at 55-57); they erroneously advised the jury that complaining to a harassing supervisor is protected activity (id. at 57-58); they blurred the distinction between notice of harassment, which can be given to any supervisor, and the requirement of a retaliation claim that the decision maker have knowledge of the protected activity (id. at 58-60); and they permitted the jury to find but-for causation based on temporal proximity alone (id. at 60-62). None of these arguments has merit. To the extent they were raised below, the district court correctly rejected them.
1. The retaliation instruction tracks the language of Title VII and this Court’s case law. Employing Title VII’s language, the instructions explain it is unlawful for an employer to discriminate against an employee “because” the employee opposed unlawful conduct or participated in a proceeding under Title VII. R.265/Tr(charge)/PageID#6330. The charge described the elements of a retaliation claim, including that the jury must find “the defendant had knowledge of the claimant’s protected activity” and “there was a causal connection between the claimant’s protected activity and the adverse employment action.” Id. The charge instructed the jury that EEOC had to establish that its claimants “were subjected to adverse employment actions by the defendant because of their internal complaints about alleged sex discrimination.” Id. at PageID#6331 (emphasis added).
Contrary to New Breed’s argument (at 55-57), nothing in this instruction suggests a causation standard other than “but-for.” New Breed cites Eckerman v. Tennessee Dep’t of Safety, 636 F.3d 202, 207 (6th Cir. 2010), for the proposition that a “causal connection” can be established by evidence showing “that protected conduct was a substantial or motivating factor.” But the court did not include this statement in the instructions given to the jury, and the instructions in no way suggested the jury could hold New Breed liable if it found retaliation was only “a motivating factor” or merely one of the reasons for the adverse action.
The instructions clearly state that the jury must find the adverse consequence was “because” the employee engaged in one of the specified forms of protected activity. Thus, even though the Supreme Court had not yet decided Nassar, 133 S.Ct. 2517 (2013), and the instructions did not employ the phrase “but-for,” the instructions were consistent with Nassar’s but-for causation standard.
2a. The court did not err when it instructed the jury that “a complaint to a supervisor is deemed protected activity even where the supervisor is also the alleged sexual harasser,” as New Breed contends (NB-Brf at 57-58). As explained above (at pp.42-51), this instruction reflects a correct legal analysis, and the unpublished Fifth Circuit decision and out-of-circuit district court decision on which New Breed relies are outliers, factually distinguishable, and lack any useful analysis. New Breed is simply wrong when it claims that this instruction was erroneous.
2b. New Breed challenges the instruction that “[a]n employer is deemed to have notice of harassment reported to any supervisor or department head” authorized to receive such complaints and respond or forward it to management, contending the instruction is erroneous because it did not inform the jury that for a retaliation claim, the jury must find the decision makers—not just any supervisor—knew about the harassment complaint. NB-Brf at 58-59. New Breed’s argument ignores EEOC’s theory of liability. Here, the harasser himself was both the person with knowledge of the protected activity and the person who caused the adverse consequences for each claimant. Thus, the instruction was entirely appropriate for the case before the jury.
Furthermore, the instructions, overall, emphasize that the jury must find the retaliatory animus caused the adverse action. See, e.g., R.265/Tr(jury-instructions)/PageID#6332 (“[A]t all times the ultimate question in a retaliation claim is whether … the defendant took an adverse employment action against [EEOC’s claimants] because they engaged in protected activity.”). EEOC presented evidence and argued to the jury that it was Calhoun who knew about the claimants’ protected activity and who then acted out of retaliatory animus, either by undertaking the adverse actions directly (by, for instance, cutting back the hours and pay of Pete, Pearson, and Hines and then firing Hines) or engineering the adverse actions through other official decision makers. Thus, the instruction given here correctly stated the legal standard and did not mislead the jury.
3. Finally, New Breed challenges the instruction that explains close timing between a claimant’s protected activity and adverse action “may provide the causal connection needed.” NB-Brf at 60-62 (citing R.265/Tr(charge)/PageID#6331. New Breed waived this challenge by acquiescing in this instruction below. See R.269/Tr(charge-conf)/PageID# . In any event, the instruction is correct. See Lindsay, 578 F.3d at 418-19 (temporal proximity is “sufficient to establish the causal connection element of a retaliation claim … [w]here an adverse employment action occurs very close in time after an employer learns of a protected activity”; quoting Mickey, 516 F.3d at 525). Furthermore, the instruction itself cautioned the jury that “the fact that an adverse employment action occurred close in time to a protected activity does not always mean that one caused the other.” R.265/Tr(charge)/PageID#6331.
Nassar did not change the legal landscape on this question, as New Breed argues. NB-Brf at 61. Nassar’s but-for standard of causation can be met with circumstantial evidence based on close temporal proximity as well as other types of evidence. The district court correctly denied a new trial on this ground.
V. The district court’s award of injunctive relief should be sustained.
New Breed presents no basis to disturb the district court’s modest award of injunctive relief. Even if this Court were to vacate one of EEOC’s two claims, the injunctive relief should remain, as it applies equally to either claim.
For the foregoing reasons, the district court’s order denying New Breed’s motions for JMOL or a new trial should be affirmed.
Respectfully submitted,
P. DAVID LOPEZ
General Counsel
CAROLYN L. WHEELER
Acting Associate General Counsel
LORRAINE C. DAVIS
Assistant General Counsel
/s/ Susan R. Oxford
SUSAN R. OXFORD
Attorney
U.S. Equal Employment
Opportunity Commission
Office of General Counsel
131 M St. N.E., 5th Floor
Washington, D.C. 20507
(202) 663-4791
susan.oxford@eeoc.gov
This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 13,802 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and this Court’s local rules.
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in Palatino Linotype 14 point.
/s/ Susan R. Oxford
SUSAN R. OXFORD
Attorney
U.S. Equal Employment
Opportunity Commission
Office of General Counsel
131 M St. N.E., 5th Floor
Washington, D.C. 20507
(202) 663-4791
susan.oxford@eeoc.gov
Dated: June 20, 2014
I, Susan R. Oxford, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system this 20th day of June, 2014. I also certify that the following counsel of record for Defendant-Appellant New Breed, who have consented to electronic service, will be served the foregoing brief via the appellate CM/ECF system:
Matthew C. Blickensderfer, Esq.
FROST BROWN TODD LLC
3300 Great American Tower
301 East Fourth Street
Cincinnati, Ohio 45202
(513) 651-6162
Richard EF Valitutto
Vice President/General Counsel
NEW BREED, INC.
4043 Piedmont Parkway
High Point, NC 27265
(336) 232-4128
/s/ Susan R. Oxford
SUSAN R. OXFORD
Attorney
U.S. Equal Employment
Opportunity Commission
Office of General Counsel
131 M St. N.E., 5th Floor
Washington, D.C. 20507
(202) 663-4791
susan.oxford@eeoc.gov
ADDENDUM
DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS
|
Record Entry # |
Document Description |
Page ID # |
|
196 |
EEOC’s Proposed Jury Instructions |
3997-4048 |
|
204 |
New Breed’s Proposed Jury Instructions |
4094-4143 |
|
224 |
Jury Verdict Form |
4181-4191 |
|
225 |
Jury Instructions |
4192-4242 |
|
228 |
Judgment on Verdict |
4253 |
|
238-4 |
New Breed’s Proposed Instruction No. 32 |
4422 |
|
238-2 |
New Breed’s Jury Instruction Conference Chart |
4410-4416 |
|
259 |
Trial Transcript – May 1, 2013 |
5441-5573 |
|
260 |
Trial Transcript – May 2, 2013 |
5593-5718 |
|
261 |
Trial Transcript – May 3, 2013 |
5739-5854 |
|
262 |
Trial Transcript – May 6, 2013 |
5875-5996 |
|
263 |
Trial Transcript – May 7, 2013 |
6019-6122 |
|
264 |
Trial Transcript – April 30 & May 1, 2013 |
6144-6210 |
|
265 |
Trial Transcript – May 8 & 9, 2013 |
6211-6365 |
|
266 |
Trial Transcript – May 1, 2013 & May 3, 2013 |
6366-6743 |
|
267 |
Trial Transcript – May 6, 2013 |
6744-6875 |
|
268 |
Trial Transcript – May 7, 2013 |
6876-7079 |
|
269 |
Order Denying New Breed’s Motion for a New Trial; Order Denying in Part and Granting in Part New Breed’s Motion to Amend Judgment; Order Denying in Part and Granting in part New Breed’s Motion for Judgment as a Matter of Law |
7117-7153 |
|
|
EEOC Trial Exhibits: |
|
|
EEOC-Exh. 15 |
Email dated 5/14/2008 from James Calhoun to Carissa Woods re: Jovan Hobson |
|
|
EEOC-Exh. 16 |
Email dated 5/23/2008 from James Calhoun to Carissa Woods after his suspension |
|
|
EEOC-Exh. 23 |
Email dated 5/14/2008 from Richard Valitutto to Carissa Woods re: initial investigation with complaint line report attached |
|
|
EEOC-Exh. 24 |
Woods handwritten James Calhoun investigation notes |
|
|
EEOC-Exh. 26 |
Complaint line report: second call |
|
|
EEOC-Exh. 27 |
Complaint line report: third call |
|
[1] “R.” refers to the district court docket entry, followed by a description of the document and the PageID# referenced in 6th Circuit local rule 28(a)(1). “Tr( )” refers to the trial transcript, followed by the name of the witness or type of trial proceeding.
[2] EEOC argued to the jury that the eight minutes between Woods’ receipt of Pete’s hotline complaint from Valitutto and her receipt of Calhoun’s follow-up email cast doubt on (1) whether Woods actually travelled to the Avaya facility and interviewed Calhoun in person, as she claimed, and (2) whether the interview lasted thirty minutes, as she asserted. R.265/Tr(EEOC-closing)/PageID##6270-71.
[3] New Breed produced no personnel records showing when Pete and Pearson transferred to Returns. R.267/Tr(Woods)/PageID#6771. Pete and Pearson attested they worked there for only a few days to a week. R.259/Tr(Pete)/PageID#5468; R.266/Tr(Pearson)/PageID#6375. Hearn concurred. R.262/Tr(Hearn)/PageID#5934.
[4] Malone claimed she feared Pearson’s emotions. R.266/Tr(Malone)/PageID#6702.
[5] Numerous courts outside this Circuit have held similarly. See, e.g., Dozier-Nix v. District of Columbia, 851 F. Supp. 2d 163 (D.D.C. 2012); Laurin v. Pokoik, 2005 WL 911429, at *4 (S.D.N.Y. April 18, 2005); Williams v. Verizon Wash. D.C., 266 F. Supp. 2d 107, 122-23 (D.D.C. 2003); Little v. Nat’l Broad. Co., Inc., 210 F. Supp. 2d 330, 387 (S.D.N.Y. 2002); Black v. City & County of Honolulu, 112 F. Supp. 2d 1041, 1049-50 (D. Haw. 2000); Fleming v. S. Car. Dep’t of Corrs., 952 F. Supp. 283 (D.S.C. 1996); EEOC v. Domino’s Pizza, 909 F. Supp. 437, 438-39 (S.D.N.Y. 1996); Burrell v. City Univ. of New York, 894 F. Supp. 750, 761 (S.D.N.Y. 1995).
[6] Calhoun testified that New Breed trained on its sexual harassment policy, and that he laughed at the training. And Pete, Pearson, and Hines testified that after they told Calhoun they objected to his harassment, he threatened them and his other staff that he would make sure anyone who reported him to HR was fired. See pp.6, 8-10.