                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 04a0177n.06
                           Filed: December 17, 2004

                                            No. 03-4189

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                  )
                                                  )
CHERYL A. SOUTHERLAND,                            )
                                                  )
       Plaintiff-Appellee,                        )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
v.                                                )   SOUTHERN DISTRICT OF OHIO
                                                  )
SYCAMORE COMMUNITY SCHOOL                         )
DISTRICT BOARD OF EDUCATION,                      )
                                                  )
       Defendant-Appellant.                       )
                                                  )
                                                  )
                                                  )
                                                  )




       Before: DAUGHTREY and SUTTON, Circuit Judges; FORESTER, District Judge.*


       SUTTON, Circuit Judge. Sycamore Community School District challenges a $50,000 jury

verdict in favor of Cheryl Southerland, a bus driver for the school district, who accused the district

of sexual harassment and negligent retention. As the school district’s challenges to the jury

instructions and several evidentiary rulings are unconvincing, we affirm.




       *
        The Honorable Karl S. Forester, Chief Judge of the Eastern District of Kentucky, sitting by
designation.
No. 03-4189
Southerland v. Sycamore Community School District Board of Education

                                                  I.


         In 1997, the Sycamore school district hired Southerland to drive one of its school buses.

From April of 1999 through January of 2000, Southerland was the victim of several instances of

harassing conduct by another bus driver, Ralph Smith, which occurred in roughly the following

order.


         On April 19, 1999, during a lunch together, Smith asked Southerland “how is sex on a

waterbed?” JA 253. When Smith later paid for this lunch, he noted, “Oh, you’ll pay.” JA 253. On

April 20, 1999, he left a note on her bus asking her to lunch. Unhappy with this development,

Southerland reported what had happened to her supervisor, Janet Schultz—also the sexual

harassment officer for the transportation employees—but did not request that a harassment charge

be filed. The next day, Smith left a cryptic note on Southerland’s bus, leading Southerland to

believe that Smith might be trying to “start something with [her].” JA 258. Southerland again

showed the note to Schultz but said she would take care of the matter herself. Through the

remainder of the school year, Southerland claimed, Smith would stare or leer at her, “not just at [her]

eyes but up and down [her] body with [ ] a little grin on his face,” JA 260.


         When the next school year started, Southerland again noticed Smith staring at her. In

September 1999, after Southerland heard that a rumor was spreading about a relationship between

the two, she asked the school district to file a sexual harassment charge against Smith. Schultz, the

sexual harassment officer for the bus terminal, did not personally pursue the charge, partially



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because she was “uncomfortable with investigating” Smith. JA 212. Instead, Schultz told

Sycamore’s director of human resource management, Robert Szakovits, who directed Schultz to the

Title IX officer, Peggy Phillips, and to counselor John Buchholz.


       On September 27, 1999, Phillips and Buchholz started an investigation into Southerland’s

allegations. Schultz told Buchholz of two other drivers’ complaints about offensive sexual behavior

by Smith. Other evidence, relayed by Buchholz to Southerland, suggested that Smith was the source

of the rumors about his purported relationship with Southerland. Buchholz advised Southerland to

“buy a whistle or something loud to carry with you at all times.” JA 267.


       Buchholz and Phillips decided to “verbally admonish” Smith, JA 99, instructing him to stop

spreading rumors and to stay away from Southerland. But Smith did not comply. He repeatedly

tailgated Southerland in their respective buses, at one point causing Southerland to fear that they

would collide. On an October 12, 1999, field trip involving several busloads of students, Smith

boarded Southerland’s bus along with three other drivers whom Smith had offered to take to lunch.

He sat three rows behind her and stared at her through the mirror. Buchholz and Phillips gave Smith

another verbal warning on October 18, 1999, but Smith violated the warning the very next day by

approaching Southerland in the parking lot. Buchholz and Phillips drafted a letter memorializing

their October 18, 1999, warning. They made note of Smith’s October 19, 1999, violation in the

same letter, apparently delivered to him some time later.




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       After the October 18, 1999, meeting, Smith increasingly tried to be in Southerland’s

presence, again in violation of the school district’s directives. Southerland regularly reported the

violations to Schultz, and Schultz reported them to Buchholz.


       In November 1999, while driving her bus back to the school, Southerland began crying

because she expected Smith to be waiting for her when she returned, prompting her to rear-end a car.

The next day, her doctor prescribed anti-depressant medication, and Southerland took three weeks

of leave from work. During that time, Southerland testified that she saw a jeep identical to Smith’s

pass her house at slow speed, and that the man in the jeep had hair similar to Smith’s.


       On November 29, 1999, Southerland returned to work. She received a letter from the school

district copied to Smith again instructing him to avoid all contact with her. Smith again violated the

directive multiple times the very next week, including by sending Southerland a Christmas card.

Buchholz called Smith in again and read him another letter ordering him to stop all communication

with Southerland.


       At a December 16, 1999, holiday breakfast attended by Southerland, Smith arrived and

explained to Shultz’s assistant that Buchholz had made an exception to allow him to attend the

breakfast. That afternoon, Buchholz confirmed via fax that Smith had lied about the exception, and

Buchholz added that Smith was not to take part in another holiday luncheon scheduled the next day.

But Smith again showed up at the December 17, 1999, luncheon, and the school district took no

action against him.



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Southerland v. Sycamore Community School District Board of Education

       On January 30, 2000, Smith passed Southerland on their respective bus routes. He made an

exaggerated wave at her, and before long she felt chest pains. She returned to the base, clocked out

and was taken to the hospital in an ambulance. Southerland went on medical leave until the

following school year.


       In February 2000, after Southerland took her leave, Sycamore suspended Smith. On

February 29, 2000, at a due process hearing, Smith tendered his resignation, accepted by the School

Board on March 1, 2000.


       On March 8, 2002, Southerland filed eight claims against Sycamore. Before submitting the

case to a jury, the district court dismissed all but the federal and state hostile-work-environment

sexual harassment claims and the state negligent-retention claim. On August 15, 2003, the jury

returned a verdict for Southerland on both issues and awarded her $50,000 in compensatory

damages. Sycamore appeals, arguing that the jury verdict was tainted by faulty jury instructions and

inadmissible evidence.


                                                II.


       Sycamore first raises two jury-instruction challenges. “Because the correctness of jury

instructions is a question of law, we review de novo a district court’s jury instructions.” Jones v.

Federated Fin. Reserve Corp., 144 F.3d 961, 966 (6th Cir. 1998). We review the instructions “as

a whole to determine whether they adequately inform the jury of relevant considerations and provide

a basis in law for the jury to reach its decision,” and “reverse the district court only if the

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Southerland v. Sycamore Community School District Board of Education

instructions, viewed as a whole, were confusing, misleading, or prejudicial.” United States v.

Stewart, 306 F.3d 295, 306 (6th Cir. 2002). We review a district court’s “refusal to give a requested

jury instruction under an abuse of discretion standard. A district court’s refusal to give a jury

instruction constitutes reversible error if (1) the omitted instruction is a correct statement of the law,

(2) the instruction is not substantially covered by other delivered charges, and (3) the failure to give

the instruction impairs the requesting party’s theory of the case.” Tompkin v. Philip Morris USA,

Inc., 362 F.3d 882, 901 (6th Cir. 2004) (emphasis added).


                                                   A.


         Sycamore argues that in instructing the jury on the negligent-retention claim the district court

omitted one of the five elements of the claim. The Ohio-law claim, it is true, requires a plaintiff to

prove five elements: “(1) the existence of an employment relationship; (2) the employee’s

incompetence; (3) the employer’s actual or constructive knowledge of such incompetence; (4) the

employee’s act or omission causing the plaintiff’s injuries; and (5) the employer’s negligence in

hiring or retaining the employee as the proximate cause of plaintiff’s injuries.” Evans v. Ohio State

University, 680 N.E.2d 161, 171 (Ohio Ct. App. 1996). And the instruction given to the jury, it is

also true, does not explicitly mention “employee’s incompetence” as the second element but asks

whether “Mr. Smith was creating a potentially unsafe working environment for Ms. Southerland.”

JA 77.




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Southerland v. Sycamore Community School District Board of Education

       But the instruction that was given neither prejudiced Sycamore nor eliminated the employee-

incompetence element of the claim. Whatever else may be said about this claim, it is difficult to

maintain that Smith was not acting incompetently. Harassing a fellow employee, if not indeed

stalking her, hardly amounts to competent employee behavior. We do not read Sycamore’s papers

to argue otherwise. Nor, at any rate, does Sycamore tenably explain why the more specific

instruction that was given—focusing on the question whether Smith was creating “a potentially

unsafe working environment for Ms. Southerland” rather than asking more generally whether his

conduct amounts to “employee[] incompetence”—was not consistent with this second element of

the negligent-retention test. Creating a “potentially unsafe working environment” is the specific

form of “employee[] incompetence” that was at issue in this case. No error occurred.


                                                 B.


       Sycamore next challenges the district court’s refusal to give Sycamore’s proposed jury

instructions on hostile work environment. In Sycamore’s view, the instruction failed to emphasize

that when an employer knows of and responds to a charge of sexual harassment, “mere negligence

as to the content of the response cannot be enough to make the employer liable.” Blankenship v.

Parke Care Centers, Inc., 123 F.3d 868, 873 (6th Cir. 1997). In other words, Sycamore argues, once

an employer is aware of harassment, it is liable “only if that remedy exhibits such indifference as

to indicate an attitude of permissiveness that amounts to discrimination.” Id. True enough. The

problem is that the court’s instructions adequately (though perhaps inartfully) covered this point.

According to the district court’s instruction:

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Southerland v. Sycamore Community School District Board of Education

       An employer may only be liable if it fails to implement prompt and appropriate
       remedial action. A plaintiff may demonstrate a school board’s deliberate
       indifference to discrimination only where the school board’s response to the
       harassment or lack thereof is clearly unreasonable in light of the known
       circumstances. Thus, where a school district has knowledge that its remedial action
       is inadequate and ineffective, it is required to take reasonable action in light of those
       circumstances to eliminate the behavior. Where a school district has actual
       knowledge that its efforts to remediate are ineffective, and it continues to use those
       same methods to no avail, such a district has failed to act reasonably in light of the
       known circumstances.

JA 76 (emphasis added).


       In focusing on the instruction’s use of the words “unreasonable” and “reasonable,” Sycamore

fails to account for the context in which those words appear. The instruction does not say that the

school district’s conduct should be assessed under a reasonableness test. The question is whether

the district’s response is “clearly unreasonable in light of the known circumstances.” (Emphasis

added). And when the district’s response is ineffective, the question is whether the district took

“reasonable action in light of those circumstances to eliminate the behavior.” (Emphasis added).

The instruction, in short, does not permit liability for mere negligence in an employer’s response.

Confirming the point, the instruction describes the general standard at the outset as one of

“deliberate indifference.” It then merely provides an example of deliberate indifference: continuing

to use knowingly ineffective measures. Blankenship itself, it bears adding, used the word

“unreasonableness” in describing the deliberate-indifference standard. See id. at 873 (“[W]hen an

employer responds to charges of co-worker sexual harassment, the employer can be liable only if

its response manifests indifference or unreasonableness in light of the facts the employer knew or

should have known.”) (emphasis added). Under these circumstances, the district court did not

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Southerland v. Sycamore Community School District Board of Education

commit reversible error in failing to add an instruction to the effect that “deliberate indifference”

does not equal “mere negligence.”


       Sycamore further argues that the district court should have given its proposed instruction

explaining what conduct “is extreme enough to constitute hostile work environment.” Sycamore

Br. at 26. The district court instructed the jury that they must consider the totality of the

circumstances in evaluating this claim:


               In determining whether the alleged harassment is sufficiently severe or
       pervasive to constitute a hostile work environment, you should consider the totality
       of all the circumstances. This means that, while individual incidents of alleged
       harassment may not alone create a hostile environment, the accumulated effect of
       such incidents may be sufficiently severe or pervasive to create a hostile
       environment.
       ...
               The real social impact of workplace behavior often depends on a constellation
       of surrounding circumstances, expectations, and relationships which are not fully
       captured by a single recitation of the words used or the physical acts performed. You
       should use your common sense and appropriate sensitivity to social context.


JA 74–75. Sycamore wisely does not contest the validity of the totality-of-the-circumstances

approach. It instead claims that the court should have identified the following specific types of

conduct that, “without more,” do not establish hostile work environment:


               In determining whether the conduct is severe or pervasive enough to
       constitute a hostile work environment, you may consider 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.



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Southerland v. Sycamore Community School District Board of Education

                A mere unfriendly work environment is not sufficient to establish liability;
       rather, the workplace must be permeated with discriminatory intimidation, ridicule,
       and insult that is sufficiently severe or pervasive to alter the conditions of the
       employee’s employment and create an abusive working environment.
               Staring at someone, without more, is not generally sufficient to create a
       hostile working environment.
              Simple teasing, offhand comments and isolated incidents (unless extremely
       serious) will not amount to discriminatory changes in the terms and conditions of
       employment.
              Conduct must be extreme to amount to a change in the terms and conditions
       of employment.
             Title VII is not a general civility code; it was not designed to purge the
       workplace of vulgarity.


JA 42–43. The court acted well within its discretion in excluding this list for the basic reason that

a hostile environment, as Sycamore concedes, may be the product of cumulative incidents that singly

do not amount to harassment.


                                                III.


       Next, Sycamore contends that the district court improperly admitted (1) testimony on an

ultimate legal issue, (2) inadmissible hearsay and (3) statements protected by the attorney-client

privilege. “This court reviews a district court’s evidentiary rulings for abuse of discretion, and a

district court’s determination will be reversed only if the abuse of discretion caused more than

harmless error.” Tompkin, 362 F.3d at 897; see also United States v. Wright, 343 F.3d 849, 865 (6th

Cir. 2003). “However, a district court’s conclusions of law, such as whether proffered evidence

constitutes hearsay within the meaning of the Federal Rules of Evidence, are reviewed de novo.”



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United States v. Levy, 904 F.2d 1026, 1029 (6th Cir. 1990). A “[r]eversal based on improper

admission of evidence is appropriate only when the admission interfere[s] with substantial justice.”

Slayton v. Ohio Dep’t of Youth Servs., 206 F.3d 669, 677 (6th Cir. 2000) (quoting Morganroth &

Morganroth v. DeLorean, 123 F.3d 374, 382 (6th Cir. 1997)); see also Fed. R. Evid. 103(a).

                                                A.

       Sycamore argues that the district court abused its discretion in allowing the testimony of

three witnesses that Smith’s actions constituted sexual harassment under Sycamore’s sexual

harassment policy. Because the testimony in question was limited to the definition of sexual

harassment under the district policy, not under governing law, the district court did not commit

reversible error.

       Janet Schultz, the sexual harassment officer for Sycamore’s transportation department,

testified on cross examination that Smith’s conduct constituted “sexual harassment as [she] had been

trained.” JA 204–05. Earlier in Schultz’s cross examination, Southerland established that Schultz’s

position included the duty of enforcing Sycamore’s sexual harassment policy, and that she had been

trained on sexual harassment pursuant to the policy.

       Southerland asked Robert Szakovits, the district’s human resource manager, whether the

allegations against Smith “would constitute sexual harassment, in your opinion based upon what you

know.” JA 332. After Sycamore objected, the district court gave this limiting instruction:

       The definitions of whatever any witness gives here would not be a definition of
       sexual harassment. You will get a definition from the [c]ourt at the end of the case



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Southerland v. Sycamore Community School District Board of Education

        so you have an idea what it means. It is interesting to hear this witness’s view of
        what sexual harassment constitutes for the Sycamore School District.


Id. Immediately following this instruction, Szakovits answered that “sexual harassment is in the eye

of the beholder, I guess. I mean, whatever she felt sexual harassment was would be sexual

harassment . . . . So yes, if she said she is sexually harassed, then I would be in a position to say [ ]

[w]e need to investigate.” JA 333.

        Peggy Phillips, the district’s Title IX officer, also acknowledged that Smith’s conduct fell

within the Sycamore policy’s definition of sexual harassment. On direct examination, Southerland’s

attorney asked her about several parts of the district’s policy. Only after this line of questioning did

Phillips reluctantly admit on cross-examination that “Mr. Smith committed sexual harassment of

Mrs. Southerland in violation of page [one] of Sycamore School District’s sexual harassment policy,

paragraph [four] specifically.” JA 193.

        The court did not abuse its discretion in allowing this testimony. Contrary to Sycamore’s

suggestion, the testimony did not go to the ultimate legal issue in the case; it went to the coverage

of the district’s policy, a situation quite similar to testimony this court approved in Slayton. There,

we distinguished testimony about a policy from testimony on an ultimate legal issue, noting that “the

internal policy clearly formed the predicate” of the testimony. Slayton, 206 F.3d at 676. Even

though the court in this instance gave its limiting instruction on this testimony only once (after the

second of the three witnesses’ testimony), the instruction served to alleviate the risk that the jurors

would confuse the testimony with the ultimate legal question before them. As in Slayton, moreover,

the limiting instruction referred to “any witness,” JA 332, and all three witnesses’ testimony,

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Southerland v. Sycamore Community School District Board of Education

combined with the questions as asked by Southerland’s attorney, clearly limit the scope of the

answers to a consideration of the district policy, not the governing law. Under these circumstances,

the testimony falls well short of “interfer[ing] with substantial justice,” id. (quoting Morganroth &

Morganroth, 123 F.3d at 382), and accordingly does not require a new trial.

                                                  B.

        Sycamore next argues that testimony regarding (1) rumors floating around the bus compound

that Smith and Southerland were having a relationship and (2) notes of Phillips and Buchholz

regarding their investigations amounted to inadmissible hearsay. Again, we do not agree.

         “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial

or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). The

rumor testimony and notes were not offered to prove the truth of the matters they asserted; they were

used to show that Sycamore officials had knowledge of the problem, which was an essential element

of the negligent-retention claim. See, e.g., Stalbosky v. Belew, 205 F.3d 890, 896 (6th Cir. 2000).

Attempting to eliminate any confusion over the relevance of this testimony, the district court gave

a limiting instruction on at least six separate occasions to this effect. The following admonition is

illustrative:

        Now, the objections that you are hearing this morning relate to certain things that
        were heard by Mr. Buchholz in his job as a counselor at the Sycamore School
        District on sexual harassment matters in its investigation and the determination of
        whether the school district did everything it should in this situation to protect Mrs.
        Southerland, which was its obligation. And Counsel is asking Mr. Buchholz of
        information he obtained, and it is going to determine what was done in regard to that
        information. The information that Mr. Buchholz is relating that he heard is not being
        offered for the truth of what the person told Mr. Buchholz. It is being offered to

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Southerland v. Sycamore Community School District Board of Education

       show what Mr. Buchholz had in his mind when he was deciding or recommending
       to his superior what should be done in this case.


JA 339–40. Because most of the hearsay complaints concern testimony by Buchholz, Phillips and

Schultz—the three district officials that Southerland claimed were responsible for some aspect of

Sycamore’s official response to the situation, Sycamore Br. at 21–23—the jury had every reason to

understand that the district officials’ knowledge, not the truth of the rumors and notes, was at issue.

The remaining alleged hearsay was introduced during Southerland’s testimony, and the district court

gave a limiting instruction that Southerland’s report of rumors should go only to “what

[Southerland’s] reaction was to the fact that rumors were circulating,” JA 345, including whether

she reported the rumor to Schultz. Under these circumstances, no error occurred.

       Attempting to rebut this conclusion, Sycamore points to a portion of Southerland’s closing

argument, in which her attorney cites some of these rumors as “corroboration,” JA 370, of

Southerland’s allegations against Smith. But a review of the record makes it just as plausible that

Southerland’s attorney was arguing that the copious rumors and reports established the school

district’s knowledge of the hostile work environment.

                                                  C.

       Sycamore next argues that the district court abused its discretion in allowing Phillips to

testify about matters she discussed with Sycamore’s legal counsel, John Podgurski. On cross-

examination, Southerland’s attorney asked Phillips: “[D]idn’t Mr. Podgurski recommend to you way

back in September when Mrs. Southerland first made her allegations of sexual harassment, didn’t



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Mr. Podgurski tell you this is very serious; we need in-service sexual harassment training for the bus

drivers?” JA 169. After an overruled objection, Southerland’s attorney nonetheless rephrased the

question: “Isn’t it true . . . one of the recommendations of Mr. Podgurski way back in September

because of Mrs. Southerland’s allegations was to conduct in-service training for the bus drivers?”

JA 170. Phillips responded: “Yes. He told me this at the end of October, not at the beginning of the

school year.” Id.

          We need not determine whether the attorney-client privilege applies to this testimony

because its admission, even if erroneous, would not warrant a new trial. Ample evidence supports

the jury’s verdict in this case. And this short and somewhat confounding exchange—and the

admission of evidence coming at the end of it—does not establish anything approaching substantial

injustice to the appellant. See Slayton, 203 F.3d at 677.

                                                 IV.

          Sycamore makes two remaining arguments on matters of law, which we review de novo.

Gray v. Toshiba Am. Consumer Prods., 263 F.3d 595, 598 (6th Cir. 2001).

                                                 A.

          Without citing any authority, Sycamore briefly argues that negligent retention under Ohio

law is actionable only when an employee harms a non-employee. That, however, is not the case.

See Peterson v. Buckeye Steel Casings, 729 N.E.2d 813, 823 (Ohio Ct. App. 1999) (reversing and

remanding, on other grounds, summary judgment for employer on employee’s negligent retention

claim).


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                                                B.

       Finally, Sycamore argues that the district court erred in denying its motions for judgment as

a matter of law. We disagree. In making this argument, Sycamore claims that if all of the contested

evidence were stricken, the remaining evidence would fail to establish liability under Title VII.

Sycamore Br. at 26–27. As the predicate for this argument has not been established (most of the

evidence was properly admitted), we need not address this argument further.

                                                V.

       For these reasons, we affirm.




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