     Case: 11-30770   Document: 00511936132    Page: 1   Date Filed: 07/27/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                    FILED
                                                                   July 27, 2012

                                  No. 11-30770                     Lyle W. Cayce
                                                                        Clerk

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                                            Plaintiff - Appellee
v.

BOH BROTHERS CONSTRUCTION COMPANY, L.L.C.,

                                            Defendant - Appellant



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


Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
        The Equal Employment Opportunity Commission (“EEOC”) brought this
Title VII case against Boh Brothers Construction Company (“Boh Brothers”) on
behalf of the alleged discriminatee, Kerry Woods, a male construction worker in
an all-male crew, who claimed that Boh Brothers’ crew superintendent, Charles
“Chuck” Wolfe, engaged in “same-sex” harassment against him by referring to
him in raw homophobic epithets and lewd gestures.
        There is no claim or evidence that either Woods or Wolfe is homosexual or
effeminate. There is plenty of evidence that Wolfe is a world-class trash talker
and the master of vulgarity in an environment where these characteristics
abound. And there is Wolfe’s accusation that Woods was girlish because Woods
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used “Wet Ones” when he went to the toilet. But that seems to be about all of
the non-manly characteristics of which Woods was accused.             There is no
question, however, that Woods was the primary and constant victim of Wolfe’s
offensive abuse and harassment, much of it in the nature of sexual vulgarity.
The jury was very sympathetic with Woods: It returned a substantial verdict of
actual and punitive damages against Boh Brothers, and the district court
granted injunctive relief. Boh Brothers now appeals.
      We join the jury’s reaction to Wolfe’s language and abuse, but the evidence
does not establish a claim of unlawful same-sex discrimination in violation of
Title VII. It bears repeating that Title VII is not “a general civility code for the
American workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
80 (1998). Nor is it the business of the federal courts generally to clean up the
language and conduct of construction sites. The judgment of the district court
is therefore VACATED and the case is REMANDED for entry of judgment
dismissing the complaint.
                                         I.
      Kerry Woods began working as an ironworker for Boh Brothers in
November 2005. In January 2006, he was assigned to a maintenance crew for
the Twin Spans bridge between New Orleans and Slidell, which had been
repaired and returned to service after Hurricane Katrina.
      By that April, Woods was being harassed regularly by crew superintendent
Chuck Wolfe. Wolfe would call Woods names such as “faggot” and “princess” and
would approach him from behind to simulate having sexual intercourse while
Woods was bent over to perform job duties. Wolfe allegedly exposed himself to
Woods numerous times. Woods complained more than once to the crew foreman
that he “didn’t like how [Wolfe] talked to me.” There is, however, no evidence
that either man was either homosexual or attracted to homosexuals.



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      The other aspect of this case is apart from the harassment, at least as far
as the record evidence shows. An inspection contractor, Volkert Construction
Services (“Volkert”), oversaw Boh Brothers’ work on the bridge and approved its
employees’ time records. In November 2006, a Volkert inspector notified Wolfe
that Woods had requested to view the time sheet on which the maintenance crew
members’ hours were recorded. (There was conflicting testimony about whether
Woods sought to view his own time entry or others’. In any event, the inspector
believed the latter and notified Wolfe because requesting to view other
employees’ time entries was a terminable offense.) Wolfe, in turn, notified his
supervisor, Wayne Duckworth, adding that he “didn’t care for” Woods because
he was “different” and “didn’t fit in.”     (This observation was not further
explained by Wolfe, but the jury heard that Woods was not a member of the
union, as were the other workmen, including Wolfe.) Duckworth instructed
Wolfe to have Woods meet him at the Boh Brothers Almonaster yard, which was
arranged.
      During this meeting with Duckworth, Woods complained in detail about
Wolfe’s harassment. Duckworth sent Woods home for three days without pay
(whether as punishment for his time sheet request or to allow Duckworth time
to find him a new job assignment, the record is unclear), and when Woods
reported to work thereafter he did so at the Almonaster yard. Duckworth
subsequently investigated Woods’s allegations and determined that Wolfe’s
behavior, though unprofessional, did not constitute sexual harassment.
      Woods initially filed an EEOC charge questionnaire in November 2006,
shortly after his removal from the Twin Spans maintenance crew, alleging he
had been “fired” from that job and, three days later, hired to work at a different
Boh Brothers location. In February 2007, Woods was laid off for lack of work.
That March, he filed an EEOC charge of discrimination, alleging sexual



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harassment and, on the basis of his November 2006 removal from the
maintenance crew, retaliation.
      In September 2009, the EEOC brought an enforcement action in district
court on behalf of Woods, claiming sexual harassment and retaliation under
Title VII. Following a three-day trial, the jury returned a verdict in favor of
Woods on the harassment claim and in favor of Boh Brothers on the retaliation
claim.   The jury awarded Woods $200,000 in compensatory damages and
$250,000 in punitive damages, the former of which the court reduced to $50,000
in compliance with the statutory damages cap. 42 U.S.C. § 1981a(b)(3)(D). Boh
Brothers filed a renewed motion for judgment as a matter of law following entry
of judgment, which the court denied. Boh Brothers timely appealed. Only the
sexual harassment, or hostile work environment, claim is before us.
                                         II.
      We review de novo a denial of a motion for judgment as a matter of law.
Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 486 (5th Cir. 2004). Such a
motion should be granted if “a reasonable jury would not have a legally sufficient
evidentiary basis to find for the [non-moving] party.” Fed. R. Civ. P. 50(a)(1).
      Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment
practice for an employer . . . to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
2(a)(1). Sexual harassment is a form of discriminatory treatment under Title
VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63-67 (1979). We first must
determine whether Wolfe’s conduct constituted sex discrimination prohibited
under Title VII. If we conclude that it did, we then must decide whether that
conduct created a hostile work environment. La Day v. Catalyst Tech., Inc., 302
F.3d 474, 478 (5th Cir. 2002).



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      The EEOC’s case depends on the proposition that sex stereotyping by a
member of the same sex can constitute sexual harassment under Title VII. Its
theory is that Wolfe harassed Woods because Woods did not, in Wolfe’s view,
conform to the male stereotype.         Boh Brothers counters that same-sex
stereotyping, even assuming it was present here, cannot constitute sexual
harassment under Title VII because it is not one of the three evidentiary paths
established to show same-sex harassment by Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75 (1998).
      Oncale is the first Supreme Court case to address whether workplace
harassment violates Title VII when the harasser and the harassed employee are
of the same sex. The Court explained that the same inference drawn in most
male-female harassment situations–that proposals of sexual activity would not
have been made had the employee been of the same sex as the harasser–“would
be available to a plaintiff alleging same-sex harassment, if there were credible
evidence that the harasser was homosexual.” Id. at 80. The Court further
explained that “harassing conduct need not be motivated by sexual desire to
support an inference of discrimination on the basis of sex.” Id. A same-sex
harassment plaintiff might also show that “the harasser is motivated by general
hostility to the presence of [members of the same sex] in the workplace,” or “offer
direct comparative evidence about how the alleged harasser treated members of
both sexes in a mixed-sex workplace.” Id. at 80-81.
      Our court has not before been presented the question whether Oncale’s
enumerating the above three forms of same-sex harassment excludes other
possible forms, such as the alleged sex stereotyping, which is at issue in this
appeal. Rather, our prior cases have involved only Oncale’s first form of same-
sex harassment, proposals of sexual activity. See Cherry v. Shaw Coastal, Inc.,
668 F.3d 182 (5th Cir. 2012); Love v. Motiva Enters. LLC, 349 F. App’x 900 (5th
Cir. 2009) (unpublished); Russell v. Univ. of Tex. of the Permian Basin, 234 F.

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App’x 195 (5th Cir. 2007) (unpublished); Noto v. Regions Bank, 84 F. App’x 399
(5th Cir. 2003) (unpublished); La Day, 302 F.3d 474 (5th Cir. 2002). And
although other circuits uniformly have allowed evidence of sex stereotyping in
considering discrimination claims under Title VII,1 there is at least some
resistance to allowing, in same-sex harassment suits, evidence that does not fall
within any Oncale category. Compare Wasek v. Arrow Energy Servs., Inc., ---
F.3d ---, 2012 WL 2330824, at *3-4 (6th Cir. June 20, 2012) (treating three
Oncale forms of same-sex harassment as exclusive), with Nichols v. Azteca Rest.
Enters., Inc., 256 F.3d 864, 874 (9th Cir. 2001) (allowing same-sex harassment
claim by man who was “discriminated against for acting too feminine”).
       The sex stereotyping theory of liability has its roots in the landmark Title
VII case, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Ann Hopkins
alleged that she had been denied partnership in her accounting firm because
some of the partners felt, in words attributed to them, that she was “macho,”
needed “a course at charm school,” and should “walk more femininely, talk more
femininely, dress more femininely, wear make-up, have her hair styled, and
wear jewelry.”      Id. at 235.     In explaining how those words might evince
discrimination because of sex, a plurality of the Court stated that “an employer
who acts on the basis of a belief that a woman cannot be aggressive, or that she
must not be, has acted on the basis of gender.” Id. at 250.
       The case before us today stands in sharp contrast to Price Waterhouse, in
which there was considerable evidence that the plaintiff did not conform to the
female stereotype. The only charge asserted by Wolfe that Woods was other


       1
          To be clear, even in the straightforward discrimination (as opposed to sexual
harassment) context, permissible and impermissible sex stereotyping are separated by degree.
An employer is not prohibited from requiring some degree of conformity with what is generally
expected in the context of the job. For example, an employer may require a certain conformity
of dress, and it is difficult to conceive that an employer would act unlawfully by prohibiting
men from wearing dresses, heels, lipstick, etc.

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than masculine to which the EEOC has pointed us is his use of “Wet Ones”
instead of toilet paper. Wolfe testified that he did not view Woods as feminine,
and there is no evidence except the “Wet Ones” that he did, and that does not
strike us as overtly feminine. The record further shows that, although Woods
may have been Wolfe’s primary target, he was by no means his only target. Nor
was Wolfe the sole offender. To the contrary, misogynistic and homophobic
epithets were bandied about routinely among crew members, and the recipients,
Woods not excepted, reciprocated with like vulgarity.
      Assuming that the EEOC has asserted a viable theory of Title VII
discrimination in behalf of Woods, it is a circular truth that a plaintiff may not
recover based on nonconformance to gender stereotypes unless the plaintiff
conforms to nonconformance gender stereotypes. Accordingly, we hold that there
is insufficient evidence that Wolfe “acted on the basis of gender” in his treatment
of Woods. Price Waterhouse, 490 U.S. at 250. Because there is insufficient
evidence in this case to support the asserted sex stereotyping theory of same-sex
harassment asserted by the EEOC, we need not decide whether such a theory
is cognizable in this circuit. See Oncale, 523 U.S. at 81 (“Whatever evidentiary
route the plaintiff chooses to follow, he or she must always prove that the
conduct at issue was not merely tinged with offensive sexual connotations, but
actually constituted ‘discrimina[tion] . . . because of sex.’ ” (first emphasis
added)). And because we conclude that Wolfe’s conduct did not constitute
discrimination in violation of Title VII, we do not reach the question whether it
was sufficiently severe or pervasive to create a hostile work environment. See
La Day, 302 F.3d at 478.
                                       III.
      Title VII protects employees against workplace discrimination, not against
all forms of mistreatment. The EEOC alleges that Woods was unlawfully
harassed because he was not stereotypically masculine. Because the only

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evidence of non-stereotypically masculine behavior in the record is Woods’s use
of “Wet Ones,” we conclude that the evidence is insufficient to support the jury’s
verdict that Woods was discriminated against “because of . . . sex,” 42 U.S.C. §
2000e-2(a)(1), and its verdict in favor of Woods is reversed.
      There is the question raised in this appeal whether sex stereotyping is a
cognizable form of same-sex harassment under Title VII. As the facts allow for
resolution on narrower grounds, we leave that question for another day. The
evidence was insufficient to support the jury’s verdict of sexual harassment, and
the district court erred by denying Boh Brothers’ renewed motion for judgment
as a matter of law.
      Accordingly, we VACATE the judgment, including the award of injunctive
relief, and REMAND for entry of judgment dismissing the complaint.
              VACATED and REMANDED for entry of judgment of dismissal.




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