11-3309
EEOC v. Karenkim, Inc.
                             UNITED STATES COURT OF APPEALS

                                   FOR THE SECOND CIRCUIT

                                        _______________

                                        August Term, 2012

                    (Argued: August 23, 2012          Decided: October 19, 2012)

                ________________________________________________________

                     EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                                                      Plaintiff-Appellant,

                                               —v.—

                                        KARENKIM, INC.,
                          d/b/a Paul’s Big M, d/b/a Paul’s Big M Grocery,

                                                      Defendant-Appellee.

                                   Docket No. 11-3309-cv
                ________________________________________________________


                     B e f o r e : KATZMANN, WESLEY and LYNCH, Circuit Judges.

                                        _______________

Plaintiff-Appellant Equal Employment Opportunity Commission (“EEOC”) appeals from a post-
judgment order entered on June 17, 2011 by the United States District Court for the Northern
District of New York (Mordue, C.J.), which denied the EEOC’s request for injunctive relief against
Defendant-Appellee KarenKim, Inc. following a jury verdict finding KarenKim liable for sexual
harassment and fostering a sexually hostile work environment, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. and New York State law. We hold that, in the
circumstances of this case, the district court abused its discretion in denying any injunctive relief
to the EEOC. At minimum, the district court was obliged to craft injunctive relief sufficient to
prevent further violations of Title VII by the individual who directly perpetrated the egregious
sexual harassment at issue in this case. Accordingly, the post-judgment order of the district court
is VACATED and the case is REMANDED for further proceedings consistent with this Opinion.
_______________

Counsel for Plaintiff-Appellant:              BARBARA L. SLOAN, Attorney (Daniel T. Vail,
                                              Acting Assistant General Counsel, Carolyn L.
                                              Wheeler, Acting Associate General Counsel, on the
                                              brief), for P. David Lopez, General Counsel, Equal
                                              Employment Opportunity Commission,
                                              Washington, D.C.

Counsel for Defendant-Appellee:               DAVID P. ANTONUCCI, Law Office of David P.
                                              Antonucci, Watertown, N.Y.
_______________

PER CURIAM:

       This case requires us to determine whether a district court abuses its discretion where, in the

face of egregious acts of sexual harassment perpetuated by a single employee, it declines to order

injunctive relief directed toward ensuring that that individual is no longer in a position to continue

his harassing conduct. We conclude that it does.

                                          BACKGROUND

       After a two-week trial, pursuant to a Complaint brought by Plaintiff-Appellant the Equal

Employment Opportunity Commission (“EEOC”), a jury returned a verdict finding that Defendant-

Appellee KarenKim, Inc. (“KarenKim”), a grocery store operating in Oswego, New York under the

name Paul’s Big M Grocery, had: (1) subjected a class of female employees to a sexually hostile

work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et

seq. (“Title VII”), and (2) sexually harassed the Plaintiffs-Intervenors Andrea Bradford, Judith

Goodrich, and Deborah Haskins, in violation of Title VII and New York State law. The jury

awarded both compensatory and punitive damages to a class of ten individuals who it found had

been victimized by KarenKim and its former employee, Allen Manwaring.




                                                   2
       The following facts were adduced at trial, and are undisputed for purposes of the instant

appeal. KarenKim is owned and managed by Karen Connors. In January 2001, KarenKim hired

Allen Manwaring, who was then in his mid-30s, as Store Manager. Within months, he and Connors

became “romantically involved.” App. 1851. They have been engaged since 2006 and have a

young son together. Manwaring is now in his mid-forties.

       At trial, a number of current and former KarenKim employees testified that Manwaring

repeatedly subjected them to both verbal and physical sexual harassment. The verbal harassment

consisted mainly of sexual comments, questions, and innuendos. Emily Anderson, for example,

testified that soon after she began working at KarenKim, when she was 16 years old, Manwaring

began commenting on her appearance in sexually explicit terms. She also stated that Manwaring

had insinuated that he would like to engage in a sexual relationship with Anderson and her mother.

Similarly, Anna Miller, also age 16 when she started at KarenKim, testified that Manwaring would

make comments of a sexual nature to her on a daily basis and compliment parts of her body. He

also told her that if he were her boyfriend, he would never “let [her] out of his sheets” and

commented that, “if he was 10 years younger, he would be on top of [her].” Id. at 1013-14, 1026.

In another example, Andrea Bradford testified that Manwaring had discussed his sexual frustrations

with her, and then commented that one day he would “pick [her] up” and engage in sexual relations

with her. Id. at 885.

       As to physical harassment, several witnesses testified that Manwaring would regularly

touch, massage, and engage in other inappropriate conduct with teenaged female KarenKim

employees. For example, Anna Miller said that when she was working alone in the front office,

Manwaring would come in and deliberately brush her breast with his arms, come up behind her and


                                                   3
put his crotch against her buttocks and whisper in her ear or breathe on her neck, put his hands on

her hips and squeeze, rub her shoulders, put his arm around her and hug, or walk by so closely that

his hand would brush her buttocks. Similarly, Emily Anderson testified that Manwaring touched

her almost every time he found her alone by massaging her shoulders, touching the back of her hair,

and rubbing her thigh. As another example, Abigail Murray said that when Manwaring spoke to

her, he would often stand “really close,” put his hand on her shoulder, and “lean in,” invading her

“personal space bubble” and causing her to “cringe away.” Id. at 393. Rachel Johnson echoed this

testimony, stating that, when speaking to her, Manwaring would stand very close with his arm bent

and a hand on her shoulder, and pull her closer until they were face to face. Similarly, Amanda

Cole testified that Manwaring would “squeeze” in behind her in the tiny alcove by the cash register

and “press” against her, “body to body almost.” Id. at 621-22.

       Manwaring’s conduct did not go unnoticed. Former KarenKim Manager Carol Akers

asserted that “[p]retty often, . . . maybe at least twice a week,” she saw Manwaring “[g]iving

[female employees] hugs, . . . standing behind them, giving them a back rub, putting his hands on

their shoulders.” Id. at 224. Amanda Cole testified that she often discussed Manwaring’s conduct

with other employees, stating that it was “chattered about on a daily regular basis.” Id. at 632. She

stopped participating in such conversations, however, after Manwaring called her into the stock

room and confronted her about “rumors that he heard that [she] was spreading . . . about him

sexually harassing employees,” adding that she was “lucky that he didn’t fire [her] right then and

there.” Id. at 637-38. Afraid she would be terminated from her first job, she started crying.

Manwaring then hugged her, kissed her on the cheek, and whispered in her ear that “if he was

gonna sexually harass anybody, it would be [her].” Id. at 638.


                                                  4
        KarenKim had no anti-harassment policy until mid-2007, and did not have a formal

complaint procedure until after the trial in this action. Nevertheless, several KarenKim employees

complained to their supervisors about Manwaring’s conduct. The first to do so, Angela Hamlin,

complained to her manager, Carol Akers, that Manwaring had touched her inappropriately and had

asked her questions of a sexual nature, such as how much she charged for sexual acts. Shortly

thereafter, Hamlin was terminated for absenteeism. Several other witnesses testified that they had

complained about Manwaring’s conduct. For example, Emily Anderson testified that she

complained to KarenKim Manager Marlene Davis because Manwaring had told another employee

that he wanted to engage in sexual relations with Anderson. However, according to Anderson,

Davis had hurried away and did not follow-up on the conversation as she had promised. In

addition, Akers testified that Anna Miller complained to her and Davis that Manwaring had told

Miller that she was “so pretty and young” that anyone would want to “sleep with” her. Id. at 244.

In response, Akers and Davis confronted Manwaring, telling him that he probably “just didn’t

realize . . . that certain things are inappropriate.” Id. at 245.

        Akers testified that she had reported complaints of sexual harassment to Connors. In

addition, Lorraine Warren said that she complained to Connors at her parents’ urging after

Manwaring pulled up her underwear and made sexual comments as she bent over to stock the deli.

Thereafter, Warren met with Connors and Manwaring, at which point Manwaring accused Warren

of making up the story. Warren was then fired. Bradford also testified that she and several other

employees approached Connors in her office and described specific incidents in which Manwaring

had engaged in sexual harassment. Connor responded by crying and initially appeared to believe

Bradford and her companions, but later decided that the complaints were unfounded. Similarly,


                                                     5
Anna Miller testified that, when she quit working for KarenKim, she left a letter for Connors

detailing Manwaring’s sexual harassment of her over several years. Connors testified that, while

she recalled the letter, she believed Miller had been lying about the harassment.

       At trial, Connors testified that she could only recall two complaints of possible harassment

involving Manwaring, and that she felt both complaints were handled appropriately. The first came

from Kelsey Rose, then still in high school, who complained that Manwaring suddenly stuck his

tongue in her mouth as she was talking on the phone one day, and then walked away “with a smirk

on his face.” Id. at 1133-34. Crying “[h]ysterically,” id. at 1134-35, she called her friend’s mother

to complain and the police arrived soon thereafter. Rose gave the police a statement implicating

Manwaring and never returned to work at KarenKim. Manwaring pled guilty to second degree

harassment, but testified that “in [his] heart [he] always felt it was an accidental joking incident.”

Id. at 1663. Another employee testified that Manwaring told others that Rose was lying about the

incident. Id. at 1178.

       In deposition testimony heard by the jury, Connors stated that she did not believe

Manwaring had done anything wrong in regard to this incident, and accepted his explanation that he

had “f[allen] into” Rose. Id. at 1957. Nevertheless, she suspended Manwaring for 30 days with

pay and warned him that he would be fired if she received another harassment complaint.

However, Manwaring went into the store a few times during the suspension, without consequence.

Following the Rose incident, KarenKim drafted an employee handbook which contains a sexual-

harassment policy and directs employees to report instances of sexual harassment to Connors.

Employees are required to take a copy of the handbook home, sign a form acknowledging that they

have read it, and return it with the signed form to KarenKim.


                                                   6
       The second incident involved Kim Davis, who complained several times to her night

manager that Manwaring made comments of a sexual nature to her, expressed his desire to have

sexual relations with her, and touched her inappropriately on the buttocks. She testified that she did

not initially complain to Connors directly, however, because Connors had shown her Anna Miller’s

resignation letter and stated that Miller’s comments about Manwaring were all lies. In May 2010,

while this lawsuit was pending, Davis had a fight with her boyfriend. Seeing her upset, Manwaring

said, “[w]hy don’t you tell [your boyfriend] that I’ve been wanting to [have sex with] you for a year

and a half now[?]” Id. at 1179. Thereafter, Davis told Connors about the incident and her past

experiences with Manwaring, and told Connors that she was quitting. In response, Davis testified,

Connors cried. Thereafter, Connors called Davis and told her she had fired Manwaring and asked

her to return to work at the store. Davis agreed.

       Davis further testified that Connors asked her, in light of the pending lawsuit, “to lie and tell

everybody [Manwaring] was farming,” instead of saying that he had been fired for sexually

harassing her. Id. at 1188. In addition, Connors asked Davis not to seek a protective order against

Manwaring, explaining that “if [Davis] were to come forward, [Connors] would lose everything and

she would lose the store.” Id. Davis agreed. The first time the EEOC learned that Manwaring had

been fired for sexual harassment was at Connors’ deposition, three weeks before trial.

       In early November 2010, at Connors’ request, Davis wrote a statement for the instant

lawsuit in which she asserted that “[t]he only harassment I have received is from the EEOC”

because “[the EEOC’s trial attorney] will not stop trying to contact me.” Id. at 1195. Soon after

Davis prepared her statement, Manwaring started reappearing around the store. Davis saw him

only once, but her supervisor told her he had been there several other times and conveyed the


                                                    7
message that “Allen says hi.” Id. at 1193. In late November, Davis was fired for smoking

marijuana on her break. She agreed to testify on behalf of the EEOC in this lawsuit, she stated,

because she no longer had anything to lose and, moreover, “wanted to help put a stop [to

Manwaring] doing this in the future to people.” Id. at 1196. Connors denied telling Davis to lie or

dictating the language in Davis’ statement. However, she admitted giving Davis’ statement to her

lawyer even though she knew that Davis had in fact been harassed at work and that the lawyer

would forward the statement to the EEOC.

       Based on the foregoing, the jury returned a verdict for the EEOC and the Plaintiff-

Intervenors, finding that KarenKim and Manwaring were liable for maintaining a “sexually hostile

work environment” with “malice or reckless indifference” to the rights of young female KarenKim

employees. Id. at 8, 16. In so finding, the jury implicitly rejected KarenKim’s arguments that it

took reasonable steps to stop and prevent sexual harassment, and that the employees failed to

complain about any harassment that occurred. See id. at 2201-2205 (jury instructions on the two

defenses). The jury awarded the ten members of the class a total of $10,080 in compensatory

damages and $1,250,000 in punitive damages.1

       Following trial, the EEOC moved to alter and amend the judgment under Rule 59(e) of the

Federal Rules of Civil Procedure so as to impose broad injunctive relief against KarenKim. In

particular, the EEOC contended that injunctive relief was necessary because KarenKim has not

adopted adequate measures to ensure that harassment of the kind at issue in this action does not

recur. In support, the EEOC noted that Connors and Manwaring remained in a romantic

       1
        The district court subsequently ordered that the damages awarded on the Title VII claims
to each member of the class be reduced to the applicable statutory cap of $50,000. See 42 U.S.C.
§ 1981a(b). The damages actually awarded to Plaintiff-Intervenors were not reduced; the
amount awarded over $50,000 was reallocated to the state law claims.

                                                 8
relationship; that, following the jury verdict, Manwaring continued to publicly deny he had engaged

in any sexual harassment; and that Manwaring continued to be a presence at the store in his new

capacity as a produce contractor for KarenKim. The EEOC also recounted an incident that

occurred approximately six weeks after the trial in which Lorraine Warren, a claimant in this action,

and her husband attempted to enter Paul’s Big M, but were ordered to “leave immediately” and told

they were “no longer allowed in the store.” Id. at 81-82. In addition, the EEOC noted that, absent

an injunction, there is no legal bar to KarenKim re-hiring Manwaring.

       Further, while KarenKim adopted policies requiring its employees to undergo anti-

harassment training and instituted a complaint procedure by which its employees can report

instances of sexual harassment, the EEOC contended that both of these measures are facially

inadequate to prevent future violations of Title VII. Specifically, the EEOC noted that the

complaint procedure requires employees to complain “within 30 days from the date which the

Complainant first knew or reasonably should have known” of the unlawful “discriminatory act,”

and states that, except in “rare” circumstances, the company will act on only “formal”complaints,

which must be in writing on a special form. Id. at 67-69. The EEOC also noted that the training

course consists of a short online module, which can be completed in a few minutes by simply

clicking rapidly through the pages and allows an individual to print out multiple completion

certificates at once. See id. at 75-76.

       Based on the foregoing, the EEOC requested that the district issue a wide-ranging

injunction, lasting for ten years, which would order, among other things: (a) that KarenKim may

not create or maintain a hostile work environment or retaliate against individuals for engaging in

Title VII protected activity; (b) that KarenKim may not employ or otherwise compensate


                                                  9
Manwaring in any way, except for purchasing produce from him; (c) that Karen Kim must bar

Manwaring from entering the grocery store building; (d) that KarenKim must produce and

distribute copies of a notice indicating that Manwaring was barred from entering the building, along

with copies of Manwaring’s photograph; (e) that KarenKim must pay for an independent monitor to

continually review KarenKim’s employment practices and investigate possible instances of sexual

harassment; (f) that KarenKim must amend its nondiscrimination policy and complaint procedure in

a variety ways, and prominently post the policy; (g) that KarenKim must conduct an annual training

session on sexual harassment for its employees; and (h) that the EEOC is authorized to monitor

KarenKim’s compliance with the injunction, and that KarenKim must cooperate in bi-annual EEOC

compliance reviews. KarenKim did not object to the proposed injunction’s provision prohibiting it

from employing or compensating Manwaring, but contended that the injunction’s other provisions

were unnecessary and overly burdensome.

       By Order dated June 17, 2011, the district court denied the EEOC’s request for injunctive

relief in its entirety, concluding that all the requested relief was unnecessary and overly

burdensome. As to the burdensomeness of the relief, the court noted that the proposed injunction

would last ten years and “requires the defendant to alter drastically its employment practices and

hire an independent monitor whom, together with the EEOC, will review and critique any present

or future employment practices with respect to sexual harassment.” Equal Emp’t Opportunity

Comm’n v. KarenKim, Inc., No. 08-CV-1019(NAM), 2011 WL 2462297, at *6 (N.D.N.Y. June 17,

2011). As to the necessity of the relief, the district court stated that the evidentiary record:

        . . . suggests that the discriminatory and unlawful actions in this case were isolated
       instances involving a manager who is no longer employed by the company and
       employees who are no longer employed by the company, occurring during a period
       when the company did not have clearly established anti-harassment policies . . . .

                                                   10
       Given the existence of an anti-harassment policy . . . and the company’s now keen
       awareness of the issue, the Court is hard-pressed to imagine that should complaints
       by employees concerning sexual harassment or employment discrimination of any
       other kind arise in the future, . . . KarenKim will not take them seriously.

Id. at *7-8. Accordingly, the court concluded that there is no cognizable danger that KarenKim will

engage in recurrent violations of Title VII, and so the imposition of injunctive relief is not

warranted in the circumstances of this case.2 Id. at *10. In so concluding, the court rejected as

“specious” the EEOC’s arguments that the continuation of the personal relationship between

Conners and Manwaring could result in the resurrection of the hostile work environment or allow

Manwaring to engage in further sexual harassment of KarenKim employees. Id. at *8-9.

       The EEOC appealed.

                                             DISCUSSION

       A district court’s decision to grant or deny injunctive relief is reviewed for abuse of

discretion. Malarkey v. Texaco Inc., 983 F.2d 1204, 1214 (2d Cir. 1993). “A district court abuses

its discretion if it (1) bases its decision on an error of law or uses the wrong legal standard; (2)


       2
         The district court concluded that the EEOC, as the moving party, bore the burden of
demonstrating the appropriateness of injunctive relief. See KarenKim, 2011 WL 2462297, at *7.
We recognize that several of our sister Circuits have held that, where violations of Title VII have
been proven, injunctive relief is presumptively appropriate and the defendant-employer therefore
bears the burden of showing that it is not. See, e.g., Equal Emp’t Opportunity Comm’n v.
Rogers Bros., Inc., 470 F.2d 965, 966–67 (5th Cir. 1972) (per curiam). However, because we
conclude that the district court has abused its discretion in denying all injunctive relief to the
EEOC regardless of which party bore the initial burden of proof, we need not address here
whether the district court was correct in placing that burden on the EEOC. The EEOC did not
ask this Court to shift the burden to the defendant-employer to show that injunctive relief is not
appropriate. See Appellant’s Br. at 43 n.10. Although counsel for the EEOC stated at oral
argument that it “would be great” if the Court did so, she contended that “it doesn’t matter” in
the circumstances of this case because the EEOC had presented ample evidence to prevail
“regardless of which party has the burden of proof.” Transcript of Oral Argument at 9 (argued
Aug. 23, 2012). We agree.

                                                   11
bases its decision on a clearly erroneous factual finding; or (3) reaches a conclusion that, though not

necessarily the product of a legal error or a clearly erroneous factual finding, cannot be located

within the range of permissible decisions.” Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d

Cir. 2011) (internal quotation marks omitted).

       Generally, “[a]n injunction is a matter of equitable discretion; it does not follow from

success on the merits as a matter of course.” Winter v. Natural Res. Defense Council Inc., 555 U.S.

7, 32 (2008). In seeking an injunction, “the moving party must satisfy the court that relief is

needed. The necessary determination is that there exists some cognizable danger of recurrent

violation . . . .” United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953); see also Equal Emp’t

Opportunity Comm’n v. Everdry Mktg. and Mgmt., 348 F. App’x 677, 679 (2d Cir. 2009) (summary

order) (no abuse of discretion in denying injunctive relief where the entity that violated Title VII

“no longer exists”). “The factors . . . [that] are pertinent in assessing the propriety of injunctive

relief” are “the balance of equities and consideration of the public interest.” Winter, 555 U.S. at 32.

“[T]he court’s power to grant injunctive relief survives discontinuance of the illegal conduct.” W.T.

Grant, 345 U.S. at 633; see also Reiter v. MTA N.Y.C. Transit Auth., 457 F.3d 224, 230 (2d Cir.

2006) (“Under Title VII, equitable relief is not incidental to monetary relief.”). In determining

whether to impose an injunction where a defendant has ceased the offending conduct, courts may

consider “the bona fides of the [defendant’s] expressed intent to comply” with the law, “the

effectiveness of the discontinuance,” and “the character of the past violations.” W.T. Grant, 345

U.S. at 633; see also Malarkey, 983 F.2d at 1215 (noting the relevance of whether past violations

were “isolated” or “widespread”).




                                                   12
       Under Title VII, “[i]f the court finds that the respondent has intentionally engaged in or is

intentionally engaging in an unlawful employment practice charged in the complaint, the court may

enjoin the respondent from engaging in such unlawful employment practice, and order such

affirmative action as may be appropriate.” 42 U.S.C. § 2000e-5(g)(1). Accordingly, “[o]nce a

violation of Title VII has been established, the district court has broad, albeit not unlimited, power

to fashion the relief it believes appropriate.” Bridgeport Guardians Inc. v. City of Bridgeport, 933

F.2d 1140, 1149 (2d Cir. 1991). “The bounds of the court’s discretion are set by the purposes of

Title VII, which are to prevent discrimination and achieve equal employment opportunity in the

future . . . .” Berkman v. City of New York, 705 F.2d 584, 594 (2d Cir. 1983).

       Applying the foregoing standards, we conclude that the district court abused its discretion

insofar as it denied the EEOC’s request for injunctive relief specifically directed toward ensuring

that Manwaring is no longer in a position to sexually harass KarenKim employees. Although we

recognize that, in the ordinary case, terminating a lone sexual harasser may very well be sufficient

to eliminate the “cognizable danger” that a defendant-employer will engage in “recurrent

violation[s]” of Title VII, W.T. Grant, 345 U.S. at 633, this is not an ordinary case. Notably, in this

case, the lone harasser, Manwaring, was not just one supervisory employee among many, but was

the Store Manager, with authority over all the defendant-employer’s employees. Moreover, he was

and remains in a longstanding romantic relationship with Connors, the owner and highest officer of

the defendant-employer. Moreover, the record makes evident that this romantic relationship

between Connors and Manwaring was the primary reason why Manwaring’s harassment went

unchecked for years, subjecting an entire class of young female KarenKim employees to a sexually

hostile working environment. Absent an injunction, nothing prevents Connors from once again


                                                  13
hiring Manwaring as an employee. In addition, even if Manwaring is not re-employed at

KarenKim, Manwaring’s status as Connors’s fiancé, as well as his relationships with other current

KarenKim employees, renders it likely that he will remain a presence at the store. See id. (“[T]he

effectiveness of the discontinuance” of the violating conduct is a relevant factor in determining the

appropriateness of injunctive relief.). Finally, Connors’s past refusal to adequately respond to

multiple credible complaints about Manwaring’s conduct suggests that, so long as Manwaring

remains in a romantic relationship with KarenKim’s owner and highest officer, KarenKim will not

take adequate remedial measures in response to any future harassment on the part of Manwaring.

See id. (The “character of the past violations” is a factor in determining the appropriateness of

injunctive relief.).

        While it is not our role to fashion the specific measures necessary to prevent the recurrence

of Manwaring’s misconduct and the resulting hostile work environment at KarenKim, we conclude

that, at minimum, the district court exceeded the scope of its discretion in declining to order (a) that

KarenKim is prohibited from directly employing Manwaring in the future, and (b) that KarenKim is

prohibited from permitting Manwaring to enter its premises. To be sure, the district court was well

within its discretion in concluding that some of the EEOC’s requested relief -- such as requiring

KarenKim to distribute wallet-sized photographs of Manwaring to its employees, or to hire and pay

for an independent monitor to continually review KarenKim’s employment practices and

investigate possible instances of sexual harassment -- are overbroad and disproportionate to the

scale of KarenKim’s unlawful behavior. And, while we share the EEOC’s concerns regarding the

adequacy of KarenKim’s newly-adopted policies requiring sexual harassment training and




                                                  14
instituting a complaint procedure,3 we leave to the district court’s sound discretion whether

reformation of these policies is necessary to prevent recurrence of the misconduct in this case.

       For the foregoing reasons, the post-judgment order of the district court denying EEOC’s

request for injunctive relief in its entirety is hereby VACATED and the case is REMANDED to

the district court for further proceedings consistent with this Opinion.




       3
         In particular, the adequacy of the complaint procedure is suspect in a number of
respects. First of all, it directs employees to submit complaints to Connors, who has ignored
complaints and retaliated against complainants in the past. Additionally, its use of technical
language such as “discriminatory act” appears ill-suited to KarenKim’s employee population,
many of whom are still teenagers. See Equal Emp’t Opportunity Comm’n v. V & J Foods, 507
F.3d 575, 578 (7th Cir. 2007) (“Knowing that it has many teenage employees, the company was
obligated to suit its procedures to the understanding of the average teenager.”). Moreover, we
see no justification for requiring employees to submit written complaints “within 30 calendar
days following the alleged discriminatory act,” App. 68. Compare 42 U.S.C. § 2000e-5(e)
(providing for a 300 day statutory window within which employees may generally file charges in
federal court so long as they have also instituted proceedings with a state or local agency, and
providing a 180 day window if no local charges have been filed); Kasten v. Saint-Gobain
Performance Plastics Corp., 131 S. Ct. 1325, 1335 (2011) (To trigger the Fair Labor Standards
Act’s anti-retaliation provision, “a complaint must be sufficiently clear and detailed” to put the
company on notice of the challenged conduct. “This standard can be met . . . by oral
complaints.”).

                                                  15
KATZMANN, Circuit Judge, concurring:

       I concur in the Court’s judgment and agree with its reasoning. I write separately to add

my views on a question the Court’s opinion does not reach, namely, whether the Equal

Opportunity Employment Commission (“EEOC”) or the defendant-employer should bear the

burden of proving that injunctive relief is appropriate in cases where the defendant-employer has

already been adjudged liable for violations of Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e, et seq. (“Title VII” or “the Act”).

       As the Court’s opinion notes, the moving party ordinarily bears the burden of

“satisfy[ing] the court that [injunctive] relief is needed.” United States v. W.T. Grant Co., 345

U.S. 629, 633 (1953); see also Winter v. Natural Res. Defense Council Inc., 555 U.S. 7, 32

(2008) (noting that, generally, “[a]n injunction is a matter of equitable discretion”). However,

this Court has also recognized that, in enacting Title VII, Congress explicitly “aimed to give

courts broad discretion, in the exercise of their equitable powers, to fashion the most complete

relief possible for victims of discrimination.” Gibson v. Am. Broad. Cos., 892 F.2d 1128, 1133

(2d Cir. 1989); see also 42 U.S.C. § 2000e-5(g)(1) (“If the court finds that the respondent has

intentionally engaged in or is intentionally engaging in an unlawful employment practice

charged in the complaint, the court may enjoin the respondent from engaging in such unlawful

employment practice, and order such affirmative action as may be appropriate.”).

       The Supreme Court has construed section 2000e-5(g)(1) of Title VII as “not merely

[granting district courts with] the power” to issue injunctive relief to remedy violations of Title

VII, but imposing on them “the duty to render a decree which will so far as possible eliminate

the discriminatory effects of the past as well as bar like discrimination in the future.” Albemarle

Paper Co. v. Moody, 422 U.S 405, 418 (1975) (emphasis added). We have echoed this
interpretation of the Act, holding that, upon a finding of “employment discrimination on the

basis of race, color, religion, sex, or national origin, . . . the responsibility of a court . . . is to

fashion equitable relief to make the claimant whole.” Nat’l Labor Relations Bd. v. Thalbo Corp.,

171 F.3d 102, 110 (2d Cir. 1999) (internal quotation marks and citations omitted); see also Equal

Emp’t Opportunity Comm’n v. Local 628, 565 F.2d 31, 33 (2d Cir. 1977) (affirming a district

court’s ordering of equitable relief under Title VII, and stating that “[h]aving found a violation of

the Act, the district court was not only within its power but under an obligation to fashion a

remedy for the violation.”); Equal Emp’t Opportunity Comm’n v. Joint Apprenticeship Comm. of

Joint Indus., 186 F.3d 110, 116 (2d Cir. 1998) (“[W]hen a plaintiff establishes a defendant’s

liability under Title VII, there is no discretion to deny injunctive relief completely.” (citing

United States v. Gregory, 871 F.2d 1239, 1246 (4th Cir. 1989)).

        Courts of Appeals in several of our sister Circuits have interpreted the Supreme Court’s

guidance that courts have a “duty” to use their equitable powers to remedy violations of Title VII

to mean that, once a violation of Title VII is proven, injunctive relief is presumptively

appropriate and the defendant-employer therefore bears the burden of establishing otherwise.

See, e.g., Equal Emp’t Opportunity Comm’n v. Goodyear Aerospace Corp., 813 F.2d 1539,

1544-45 (9th Cir. 1987) (instructing that, on remand, “[i]f the EEOC proves its case, and [the

defendant-employer] fails to prove the violation will likely not recur, the EEOC will be entitled

to an injunction.”); Equal Emp’t Opportunity Comm’n v. Rogers Bros., Inc., 470 F.2d 965,

966–67 (5th Cir. 1972) (per curiam) (upon finding of discrimination in a lawsuit brought by

either the EEOC or a private litigant, “injunctive relief is mandatory unless the District Court

finds on the basis of clear and convincing proof that there exists no reasonable probability of


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further noncompliance,” and specifying further that “[t]he burden of negating that probability

lies with the defendants” (cited in Equal Emp’t Opportunity Comm’n v. Service Temps, Inc., 679

F.3d 323, 338 (5th Cir. 2012) (holding that because injunctive relief is presumptively appropriate

once a violation of Title VII is proven, “we need not address [the defendant’s argument] that

there was an ‘absence of any evidence’ to support the EEOC’s request for injunctive relief”); see

also, e.g., Equal Emp’t Opportunity Comm’n v. Harris Chernin, Inc., 10 F.3d 1286, 1292 (7th

Cir. 1993) (suggesting that the EEOC is ordinarily entitled to injunctive relief where it proves a

violation of Title VII and the defendant-employer fails to prove that the violation is not likely to

recur); Equal Emp’t Opportunity Comm’n v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d

1244, 1253-54 (11th Cir. 1997) (favorably citing Harris Chernin, 10 F.3d 1286, and

“conclud[ing] that the district court abused its discretion in turning down all equitable relief out

of hand” and “remand[ing] the case to the district court so that it can grant the requested relief”

unless it “finds persuasive reasons to deny particular items of relief”).

       I agree with the Court’s conclusion that, in order to resolve the instant appeal, we need

not determine whether injunctive relief is presumptively available once a violation of Title VII is

established. Under any standard, the district court abused its discretion in denying all the

EEOC’s requested injunctive relief against Defendant-Appellee KarenKim, Inc. However, I

agree with my colleagues in the Fifth, Seventh, Ninth, and Eleventh Circuits that the most

natural way to practically effectuate the Supreme Court’s guidance that Title VII grants courts

with “not merely the power” but “the duty” to remedy violations of the Act through injunctive

relief would be to shift the burden of proving the appropriateness of such relief onto the

defendant-employer once liability under the Act is established. In other words, I would hold


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that, after a finding of liability, the defendant-employer bears the burden of establishing that

there is no “cognizable danger” that it will engage in “recurrent violation[s]” of the Act. W.T.

Grant, 345 U.S. at 633. It is not my view, of course, that the EEOC or a private plaintiff should

be entitled to any injunctive relief it proposes. Rather, I believe that, once liability under Title

VII is established, the defendant-employer should first bear the burden of proving that equitable

relief is not necessary to prevent the unlawful conduct from recurring; if the defendant-employer

cannot meet its burden, then I believe a district court should be charged with determining, in its

discretion, which specific forms of injunctive relief are necessary to prevent reoccurrence of the

misconduct.




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