                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0734n.06

                                                No. 11-5507

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                                                                                   FILED
                                                                                                Jul 09, 2012
                                                                                         LEONARD GREEN, Clerk
WILLIE RAYFORD,                                                )
                                                               )
        Plaintiff-Appellant,                                   )
                                                               )         ON APPEAL FROM THE
                 v.                                            )         UNITED STATES DISTRICT
                                                               )         COURT FOR THE WESTERN
ILLINOIS CENTRAL RAILROAD,                                     )         DISTRICT OF TENNESSEE
                                                               )
        Defendant-Appellee.                                    )
                                                               )


BEFORE:          BATCHELDER, Chief Judge; GRIFFIN, Circuit Judge; and COHN, Senior
                 District Judge.*

        COHN, Senior District Judge.

        This is an employment case. Plaintiff-Appellant Willie Rayford (“Rayford”) appeals from

the district court’s order granting Defendant-Appellee Illinois Central Railroad’s (“IC”) motion for

judgment as a matter of law and denying Rayford’s motion for new trial. Rayford sued IC, claiming

gender discrimination, sexual harassment, and retaliation under Title VII, 42 U.S.C. § 2000e et seq.

and the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. § 4-21-301 et seq. Rayford also

brought a state law claim for intentional infliction of emotional distress, commonly known as an

“outrage” claim. As will be explained, the case went to trial. The jury was unable to reach a verdict

and the district court declared a mistrial. The district court then granted IC’s motion for judgment



*
 The Honorable Avern Cohn, Senior United States District Judge for the Eastern District of Michigan, sitting by
designation.
No. 11-5507
Rayford v. Illinois Central Railroad

as a matter of law, noting that the evidence at trial did not comport with the evidence presented at

the summary judgment stage. On appeal, Rayford argues that (1) the district court erred in granting

IC’s motion for judgment as a matter of law and (2) the district court abused its discretion in denying

his motion for a new trial. For the reasons that follow, the district court will be affirmed.

                                           I. Background

       Rayford has worked as an electrician for IC since January 2007. He is still employed by IC

at its Memphis locomotive repair center, the Horn Lake Road Facility.

       On July 14, 2007, Rayford was talking with co-workers Brian Allison (“Allison”) and

Brandon Smith (“Smith”).         During their conversation, a supervisor, Raymond Pornovets

(“Pornovets”), approached Rayford and whispered inappropriate comments about his (Pornovets’)

sexual exploits with a woman.

       About a week later, on July 24, 2007, Rayford reported the incident to Phillip Yourich

(“Yourich”), the manager at the facility. Yourich told Rayford to prepare a written statement

describing the incident, which he did. Yourich then began an investigation which included

interviewing Allison, Smith, and Pornovets. Pornovets admitted his misconduct.

       On July 28, 2007, Rayford met with Yourich and a union official and was informed that

Pornovets was prepared to give him an apology. Rayford declined the apology. At that point,

Yourich brought the matter to the attention of his supervisor, Randy Hilliard, and Duane Spears

(“Spears”), a manager in IC’s human resources department.

       Eventually, on August 4, 2007, IC terminated Pornovets’s employment based on his conduct

toward Rayford, which was in violation of IC’s harassment policy. After his termination, Pornovets

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Rayford v. Illinois Central Railroad

attempted to use union superiority to return to a non-supervisory position. Yourich rejected his

request.

       Nine months later, on April 18, 2008, Rayford received a “letter of caution” for failing to

secure a heater to the wall of a locomotive. Although Rayford disagreed with the discipline, he did

not file a grievance regarding the issue.

       At trial, Rayford testified that after the incident with Pornovets, other co-workers teased him

about it, including making what he believed were inappropriate comments. However, Rayford did

not report any conduct related to his co-workers to a supervisor.

       On September 4, 2007, Rayford filed a charge of discrimination with the EEOC, asserting

sex discrimination and sexual harassment regarding the incident with Pornovets and claiming co-

worker harassment. Rayford later filed a complaint against IC, making the claims noted above.

       IC eventually filed a motion for summary judgment, contending that Rayford’s (1) THRA

claim is time-barred, (2) discrimination and harassment claims fail on the merits, (3) outrage claim

is time-barred and fails on the merits, and that (4) Rayford failed to exhaust his administrative

remedies regarding his retaliation claim and the claim fails on the merits. The district denied the

motion on the grounds that Rayford had submitted evidence to create a genuine issue of fact as to

each claim. The evidence attached to Rayford’s response consisted of Rayford’s affidavit and

deposition testimony, Yourich’s deposition testimony, Allison’s affidavit.

       The case proceeded to trial over the course of three days. Rayford, Yourich, Allison, Spears,

and Rayford’s wife testified at trial. At the close of Rayford’s proofs, IC moved for judgment as a

matter of law. The district court granted the motion with respect to Rayford’s retaliation claim and

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Rayford v. Illinois Central Railroad

reserved ruling on the remaining claims. At the close of all the proofs, IC again moved for judgment

as a matter of law; the district court reserved ruling on the motion.

          After several hours of deliberations over the course of an afternoon and the following

morning, the jury sent a note which read: “We the jury are confident that we are unable to reach a

unanimous.” Rayford’s counsel then requested the jury be polled in open court regarding whether

each juror believed that further deliberations would enable them to reach a verdict. Each juror

responded in the negative. The district court then declared a mistrial.

          Following the mistrial, Rayford moved for a new trial on the grounds that the district court

failed to clarify the meaning of the jury’s note and failed to give an Allen1 charge. The district court

denied Rayford’s motion for a new trial and granted IC’s motion for judgment as a matter of law.

                                            II. Discussion

                            A. Motion for Judgment as a Matter of Law

                                       1. Standard of Review

          This Court reviews de novo a district court’s decision to grant or deny a motion or renewed

motion for judgment as a matter of law. See Lulaj v. Wackenhut Corp., 512 F.3d 760, 764 (6th Cir.

2008). “If a party has been fully heard on an issue during a jury trial and the court finds that a

reasonable jury would not have a legally sufficient evidentiary basis to find for that party on that

issue,” a judgment as a matter of law for the opposing party is appropriate. Fed. R. Civ. P. 50(a)(1).

A court may not grant the motion if reasonable minds could reach different conclusions from the



1
    See Allen v. United States, 164 U.S. 492, 501 (1896).

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Rayford v. Illinois Central Railroad

evidence. See McJunkin Corp. v. Mechs., Inc., 888 F.2d 481, 486 (6th Cir. 1989). When engaging

in this review, we use the same standard applied by the district court. Phelps v. Yale Sec., 986 F.2d

1020, 1023 (6th Cir. 1993). “The evidence should not be weighed. The credibility of the witnesses

should not be questioned. The judgment of this court should not be substituted for that of the jury.”

Schwartz v. Sun Co., Inc., 276 F.3d 900, 903 (6th Cir. 2002) (quoting K & T Enters. v. Zurich Ins.

Co., 97 F.3d 171, 175-76 (6th Cir. 1996)). Moreover, the fact that a jury could not reach a verdict

does not prevent a court from granting judgment as a matter of law. See 9B Wright, Miller & Kane,

Federal Practice and Procedure§ 2537, at 627-28, (3d ed. 2008).

                                           2. Application

        Rayford contends that the district court erred in ruling that he failed to make out a case for

gender discrimination and sexual harassment and in finding that IC was entitled to a defense to the

harassment claim. IC argues that the district court property concluded that Rayford’s Title VII claim

based on either gender discrimination or sexual harassment fails as a matter of law and that Rayford

failes to establish IC’s liability for any of the harassment.

        Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against

an 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). In this case, Rayford is alleging same-sex harassment by his supervisor as well as co-

worker harassment. As to the former, the Supreme Court has held that same-sex harassment is

actionable under Title VII under certain circumstances. See Oncale v. Sundowner Offshore Servs.,

Inc., 523 U.S. 75, 82 (1998). The Supreme Court further explained that a claim of sexual harassment

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Rayford v. Illinois Central Railroad

does not lie “merely because the words used have sexual content or connotations.” Oncale, 523 U.S.

at 80. Rather, “[t]he critical issue, Title VII’s text indicates, is whether members of one sex are

exposed to disadvantageous terms or conditions of employment to which members of the other sex

are not exposed.” Id. (citing Harris v. Forklift, Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J.,

concurring)).

       In order to bring a sexual harassment claim based on a hostile working environment, a

plaintiff must show the following: (1) the employee was a member of a protected class; (2) the

employee was subject to unwelcome sexual harassment; (3) the harassment complained of was based

on sex; (4) the charged sexual harassment created a hostile work environment; and (5) the existence

of employer liability. Clark v. United Parcel Serv., Inc., 400 F.3d 341, 347 (6th Cir. 2005).

       Rayford does not meet this standard for several reasons. First, he did not present any

evidence at trial that Pornovets or his co-workers targeted him for harassment because of his sex.

Thus, his claim fails under the third element. While Rayford testified he was “unaware” of whether

Pornovets made similar comments to a female employee and noted that IC never received a

complaint from a female employee, neither point shows that Rayford was subjected to the remarks

because of his sex. Rayford also failed to offer evidence that Pornovets was making a sexual

advance or otherwise engaged in gender-focused sexual behavior. As to his co-workers, Rayford

testified that the alleged inappropriate comments were not directed at him because of his sex, but

rather were designed to make fun of him and “no other reason.” (R. 99 - Trial Transcript, at 287).

Simply stated, Rayford’s gender had nothing to do with the improper remarks by either Pornovets

or his co-workers.

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Rayford v. Illinois Central Railroad

       Second, Rayford did not establish that the harassment created a hostile working environment

required under the fourth element. In other words, even if the harassment was based on Rayford’s

sex, it still must be severe and pervasive to be actionable. In evaluating the severity and

pervasiveness of workplace harassment, this court considers the totality of the circumstances. See

Williams v. Gen. Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999); see also Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 23 (1993). Relevant circumstances include the “frequency of the discriminatory

conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris,

510 U.S. at 23. Viewed as a whole, the environment must be both objectively and subjectively

offensive, hostile, and abusive. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998).

“[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not

amount to” a hostile work environment. Id. at 788 (internal quotation omitted, parenthetical in

original). Rather, “conduct must be extreme to amount to a change in the terms and conditions of

employment.” Id. This court has consistently rejected any invitation to convert Title VII into a

“code of workplace civility.” Grace v. USCAR & Bartech Tech. Servs., LLC, 521 F.3d 655, 679 (6th

Cir. 2008)

       While Rayford argues on appeal that he was subjected to several instances of continued

sexual harassment, the trial testimony was decidedly different. Rayford testified that the incident

with Pornovets was the only time a supervisor made a sexually inappropriate comment to him. (R.

99 - Trial Transcript, at 260-61). He also identified only three comments from co-workers that he



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Rayford v. Illinois Central Railroad

says were harassing:2 (1) he was called “sweet booty;” (2) he was told Pornovets “wanted to mix

coffee with his cream;” and (3) he was told “Ray got a big dick for me.” (Id. at p. 230). Although

Rayford testified on direct examination that the comments occurred three or four times a week, he

was unable to explain on cross examination the length of time over which the comments occurred

or any other specifics. Rayford also called his co-worker, Allison, to support his allegations of co-

worker comments. However, at trial, Allison could not recall any specific comment made to

Rayford.

       Moreover, Rayford did not present any evidence indicating that any of the alleged incidents

of harassment interfered with his work performance. While Rayford testified that he had difficulty

concentrating at times, he also testified he was able to work regularly and continuously and perform

his job duties. This is not sufficient to show interference with work performance.

       Overall, the incident with Pornovets and the three identified comments by co-workers were

not so severe and pervasive that a reasonable person would find his work environment hostile and

abusive. The comments, while inappropriate, do not rise to the level of sexual harassment. Because

a reasonable jury could not have concluded otherwise, the district court was correct in finding that

Rayford failed to establish he was discriminated against because of his gender or the victim of sexual

harassment.




2
 Although the district court found that Rayford was only subjected to harassment by Pornovets, we
have also considered the incidents of co-worker harassment Rayford testified to at trial. In the end,
it makes no difference because neither the incident with Pornovets nor all of the instances taken
together rise to the level of actionable sexual harassment.

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Rayford v. Illinois Central Railroad

       The district court further concluded that even if the conduct was actionable as discrimination

or harassment, IC was entitled to a defense based on its response to the conduct of which Rayford

complained. We agree. As noted above, Rayford must establish liability on the part of IC in order

to prevail. The Supreme Court has ruled that employers are not automatically liable for sexual

harassment perpetrated by their employees. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742

(1998); Faragher, 524 U.S. 775 (1998). Where an employee is the victim of sexual harassment in

the form of a hostile work environment by a co-worker, an employer’s liability depends on the

plaintiff showing that the employer knew (or reasonably should have known) about the harassment

but failed to take appropriate remedial action. See Faragher, 524 U.S. at 789. Where the

harassment is attributed to a supervisor, a court looks first to whether the supervisor’s behavior

“culminate[d] in a tangible employment action” against the employee. Ellerth, 524 U.S. at 765. If

so, the employer will be liable. See Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 275

(6th Cir. 2009). If there has been no tangible action, an employer will be liable for a hostile work

environment created by a supervisors unless it establishes as an affirmative defense that (a) it

“exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and

(b) “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective

opportunities provided by the employer or to avoid harm otherwise.” Ellerth, 524 U.S. at 765;

accord Faragher, 524 U.S. at 807.

       As to co-worker harassment, Rayford conceded that he did not report any of the comments

to a supervisor at IC. Yourich also testified at trial that he followed up with Rayford after the

incident with Pornovets, and Rayford told him everything was fine. Rayford does not dispute

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Rayford v. Illinois Central Railroad

Yourich’s testimony. While Rayford argues that based on his EEOC charge, IC was on notice of co-

worker harassment, he offers no support for the proposition that statements in an EEOC charge

equate to the required notice. Moreover, Yourich and Spears both testified at trial that IC hired an

outside firm to investigate Rayford’s EEOC charge, who contacted relevant witnesses and was asked

to report any problems it uncovered. No problems were reported to IC. On the trial record, no

reasonable juror could find that IC acted indifferently to Rayford’s co-worker complaints,

particularly because Rayford did not report any incidents of co-worker harassment to IC.

       Regarding Pornovets, it is clear that IC is entitled to a defense. Once Rayford reported the

incident, IC began an investigation and found Pornovets had engaged in inappropriate conduct. IC

attempted to resolve the incident by having Pornovets apologize to Rayford. When that was

unsuccessful, IC terminated Pornovets 10 days after the incident was reported. IC took all

appropriate action. No reasonable juror could conclude otherwise.

       Overall, the evidence presented at trial failed to establish that Rayford was the victim of

gender discrimination or sexual harassment. To the extent he was, IC is entitled to a defense based

on the steps it took upon learning of the complained of conduct. There is no other reasonable

conclusion to be drawn from the record. Accordingly, the district court correctly entered judgment

as a matter of law in favor of IC.

                                     B. Motion for a New Trial

                                       1. Standard of Review

       This court reviews the denial of a party’s motion for a new trial under Fed. R. Civ. P. 59 for

an abuse of discretion. See Davis v. Jellico Community Hospital, Inc., 912 F.2d 129, 132-33 (6th

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Rayford v. Illinois Central Railroad

Cir. 1990). “An abuse of discretion occurs when the district court relies on clearly erroneous

findings of fact, improperly applies the law, or uses an erroneous legal standard.” Mike’s Train

House, Inc. v. Lionel LLC, 472 F.3d 398, 405 (6th Cir. 2006). A court “may grant a new trial under

Rule 59 if the verdict is against the weight of the evidence, if the damages award is excessive, or if

the trial was influenced by prejudice or bias, or otherwise unfair to the moving party.” Rush v.

Illinois Cent. R.R. Co., 399 F.3d 705, 727 (6th Cir. 2005). A new trial is required when the original

“trial [was] unfair to the moving party in some fashion.” Mike’s Train House, Inc., 472 F.3d at 405.

                                           2. Application

       Rayford first argues that he is entitled to a new trial based on the way in which the district

court handled a note from the jury. As noted above, the jury submitted a note stating: “We the jury

are confident that we are unable to reach a unanimous.” (R. 86). Rayford contends that the note is

unclear because it contains a sentence fragment and the district court should have clarified its

meaning before proceeding further. This argument is not supported by the record. While

grammatically the note is deficient because it does not contain the word “verdict,” “decision” or the

like after “unanimous,” the note is not confusing; the word “verdict” or “decision” is clearly implied.

Moreover, the district court alleviated any possible confusion when the jury was polled in open court,

as Rayford’s counsel requested. The district court brought the jury in and told them to respond to

the following question: “do you believe that further discussions might enable you to reach a

unanimous agreement?” (R. 102 - Trial Transcript, at 749). Each juror responded in the negative.

Thus, Rayford is not entitled to a new trial based on any confusion regarding the jury’s note.



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Rayford v. Illinois Central Railroad

       Rayford, however, also says that the record fails to indicate that the jury was hopelessly

deadlocked and suggests that the district court should have given an Allen charge. This argument

does not carry the day. After each juror responded that further deliberations would not result in

unanimous agreement, the district court directed the jury to return to the jury room. The district

court then asked counsel for their input as to the next steps. Rayford’s counsel requested that the

jury be asked what its disagreement was about, i.e. to see if they agreed on any question and if so,

to take a partial verdict. IC’s counsel would not agree to a partial verdict and essentially asked that

the jury cease deliberations as they were deadlocked. The district court then brought the jury in and

declared a mistrial, concluding that the jurors were unable to reach a verdict. The district court’s

conclusion was reasonable based on the jury’s note and the polling. It certainly was not an abuse of

discretion.

       As to an Allen charge, while Rayford’s counsel raised the issue of an Allen charge before the

district court, counsel did not specifically request that an Allen charge be given. Given the jury’s

unanimous responses regarding their inability to reach a verdict, it was not an abuse of discretion for

the district court to declare a mistrial instead of giving an Allen charge or otherwise directing the

jurors to continue deliberations.

       Finally, although not specifically challenged on appeal, the district court did not abuse its

discretion in granting a mistrial. A district court’s decision “to declare a mistrial when he (or she)

considers the jury to be deadlocked is accorded great deference by a reviewing court since the trial

court is in the best position to assess whether the jury can reach a just verdict if it continues to



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Rayford v. Illinois Central Railroad

deliberate.” In re Ford, 987 F.2d 334, 339 (6th Cir. 1992). Based upon the jury’s note and polling

in open court, it cannot be said that the district court abused its discretion in declaring a mistrial.



                                           III. Conclusion

        For the reasons stated above, the district court’s decisions granting IC’s motion for

judgment as a matter of law and denying Rayford’s motion for a new trial are AFFIRMED.




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