           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0174P (6th Cir.)
                    File Name: 00a0174p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                                   ;
              Plaintiff-Appellee/ 
 SHARON B. POLLARD,

                Cross-Appellant, 
                                    
                                    
                                       Nos. 98-6317/

                                    
                                       6319; 99-5125
             v.                      >
                                    
                                    
                                    
 E. I. DUPONT DE NEMOURS

           Defendant-Appellant/ 
 COMPANY,

                 Cross-Appellee. 
                                    
                                   1
        Appeal from the United States District Court
     for the Western District of Tennessee at Memphis.
    No. 95-03010—Jon Phipps McCalla, District Judge.
                      Argued: May 4, 2000
               Decided and Filed: May 26, 2000
    Before: MERRITT, CLAY, and CUDAHY*, Circuit
                      Judges.




    *
     The Honorable Richard D. Cudahy, Circuit Judge of the United
States Court of Appeals for the Seventh Circuit, sitting by designation.

                                   1
2    Pollard v. E. I. DuPont Nos. 98-6317/6319; 99-5125
     de Nemours Co.

                    _________________
                        COUNSEL
ARGUED: N. Victoria Holladay, WYATT, TARRANT &
COMBS, Memphis, Tennessee, for Appellant. Kathleen L.
Caldwell, TAYLOR, HALLIBURTON, LEDBETTER &
CALDWELL, Memphis, Tennessee, for Appellee.
ON BRIEF: John S. Wilson, III, N. Victoria Holladay,
WYATT, TARRANT & COMBS, Memphis, Tennessee,
J. Michael Brown, WYATT, TARRANT & COMBS,
Louisville, Kentucky, for Appellant. Kathleen L. Caldwell,
TAYLOR, HALLIBURTON, LEDBETTER & CALDWELL,
Memphis, Tennessee, Alayne B. Adams, Memphis,
Tennessee, for Appellee.        Brian Owsley, EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, OFFICE
OF THE GENERAL COUNSEL, Washington, D.C., for
Amicus Curiae.
                    _________________
                        OPINION
                    _________________
  MERRITT, Circuit Judge. Sharon Pollard and her husband
brought this action against her employer, DuPont, for
“continuing harassment based on her sex since 1987” under
Title VII, as well as the common law injuries of intentional
infliction of emotional distress, negligent supervision, and
loss of consortium. The district court found that she was
subjected to co-worker hostile work environment sexual
harassment, that her DuPont supervisors were well aware of
the discrimination, and that it resulted in a medical leave of
absence from her job for psychological assistance and her
eventual dismissal for refusing to return to the same hostile
environment. We agree with the district court that the record
demonstrates that DuPont employees engaged in flagrant
discrimination based on gender and that DuPont managers
and supervisors did not take adequate steps to stop it.
22    Pollard v. E. I. DuPont Nos. 98-6317/6319; 99-5125             Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont            3
      de Nemours Co.                                                                                   de Nemours Co.

which Pollard endured over a period of months and years has             The claim of sexual harassment was tried before the court
been characterized as a type of slow torture. Her work was           instead of a jury. Judge McCalla was so persuaded by
sabotaged, her personal safety was compromised, she was              Pollard’s claim that in his order he concluded that “[t]his is a
subjected to juvenile pranks intended to force her to resign         case of wretched indifference to an employee who was slowly
from the shift, and she was repeatedly informed of her co-           drowning in an environment that was completely
workers' belief in the inferiority of women. We found                unacceptable, while her employer sat by and watched.” The
ourselves, after reviewing the record, proclaiming a sense of        court awarded Pollard $107,364 in back pay and benefits,
moral outrage that DuPont managers allowed the conduct of            $300,000 in compensatory damages, the maximum permitted
the men in the peroxide area to persist for years in silence,        by the statutory cap, and attorney’s fees in the amount of
and therefore silent approval. Inaction by an employer, or           $252,997.38. DuPont now appeals the court’s decisions,
another actor in a position to exercise control, in the face of      arguing 1) that there was no harassment or discrimination
continuous, deliberate, degrading treatment of another may           based on gender and that the trial court’s factual finding that
rise to the level of intentional infliction of emotional distress.   DuPont had actual knowledge of and responded indifferently
The tort would be unnecessary in our law as a deterrent if           to Pollard’s harassment was clearly erroneous, 2) that the
assault or physical harm were always made a necessary                denial of judgment as a matter of law was improper because
element.                                                             Pollard’s claim was one of retaliation, not harassment, 3) that
                                                                     Pollard’s harassment claim failed because she failed to show
   We conclude that material issues of fact are presented by         disparate treatment, 4) that judicial bias, hostility, and
the outrageous nature of the conduct of DuPont employees             predetermination of facts precluded DuPont’s receipt of a fair
together with the refusal of its managers to correct the             trial, and 5) that the award of attorney's fees to plaintiff was
situation and its blanket, continuing official denial in the face    unreasonable.
of contrary facts that discrimination based on gender occurred
or that its managers were aware of the discrimination. A fact           Pollard cross-appeals on the bases that 1) front pay should
finder at the trial level will hear the case on remand and           not be subject to limitations on damages under § 1981a, 2) the
decide whether the plaintiff has met the standard enunciated         statutory cap on compensatory damages is unconstitutional
by the Tennessee courts for the tort of intentional infliction of    because it violates the doctrine of separation of powers and
emotional distress. We therefore REVERSE the district                the Equal Protection Clause, and 3) the district court erred in
court's decision to grant summary judgment to DuPont on this         granting summary judgment on Pollard’s claim of intentional
issue and REMAND for trial. Otherwise we AFFIRM the                  infliction of emotional distress.
judgment of the district court. Plaintiff's motion to strike
Pollard's reply brief is denied.                                                                I. Facts
                                                                         The district court’s findings of fact are summarized as
                                                                     follows: Pollard began working for DuPont in 1977. In 1978
                                                                     she was promoted to “assistant operator,” and she was
                                                                     transferred to the hydrogen peroxide area of the plant in 1979.
                                                                     Of the approximately 28 employees in peroxide, four were
                                                                     women. Pollard was promoted to operator in 1987, and
                                                                     worked on “C” shift as one of the three operators on that shift
4    Pollard v. E. I. DuPont Nos. 98-6317/6319; 99-5125            Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont            21
     de Nemours Co.                                                                                  de Nemours Co.

until 1992. On each shift, operator #1 is the control room         cornerstone of our entire body of civil rights law. In a
operator, and operators #2 and #3 work in other areas of           political compromise, the Civil Rights Act of 1991 was
peroxide manufacture, keeping the pipes, valves and other          limited in the remedies which it would provide due to a belief
machinery operating. Each operator’s duties are different and      that unlimited damages for all forms of discrimination would
none is superior in rank to the others. While Pollard was          force employers to institute hiring quotas for their own
working on “C” shift, one of the assistant operators named         economic safety. See 137 Cong. Rec. S15472-01 (discussing
Rory Brico refused to take direction from plaintiff because        the fear of quotas that drove the compromise which was
she was a woman. He placed a Bible on her desk open to the         reached in the Civil Rights Act of 1991). The adoption of the
passage “I do not permit a woman to teach or have authority        provision saving the remedies available under section 1981
over man. She must be silent.”                                     was rationally related to the legitimate purpose of creating
                                                                   reasonable damages available to all other victims of
  After that incident, plaintiff was transferred and became the    intentional discrimination without being forced to limit the
#3 operator on “A” shift in 1992. The other operators on her       damages already available to victims of racial and ethnic
shift were Steve Carney, the control room operator, and Jerry      discrimination.
Lee, and the assistant operators were named Moody, Walker,
and Cobb. The shift supervisor was David Swartz. During              For the foregoing reasons, we AFFIRM the opinion of the
1992 and 1993, the members of “A” shift got along without          district court limiting plaintiff’s award pursuant to 42 U.S.C.
incident. In February 1994 the atmosphere abruptly changed.        § 1981a.
DuPont announced that it was going to participate in national
Take Your Daughters to Work Day in April 1994, and Pollard          VII. Summary Judgment for the Defense on the Common
was asked to give a talk to a group of girls coming to visit the                       Law Claims
plant. Some of the men on “A” shift, particularly Steve
Carney and Jerry Lee, loudly complained about DuPont’s                Finally, plaintiff cross-appeals the district court’s decision
participation in the program. A number of other men in             to grant summary judgment for the defense on plaintiff’s
peroxide were also against it, and they circulated an email        claim of intentional infliction of emotional distress. The
entitled “Bull Malarky” to everyone in the plant discussing        conduct alleged by a plaintiff must satisfy an extremely high
their displeasure with the program.                                burden in order to survive a motion for summary judgment
                                                                   with respect to a claim of intentional infliction of emotional
  After plaintiff had discussions with both Steve Carney and       distress in Tennessee. The district court in this case correctly
Jerry Lee about Take Your Daughters to Work Day in early           quoted the appropriate language from Dunn v. Moto Photo,
1994, all of the men on the shift (with the exception of Mark      Inc., 828 S.W.2d 747, 751 (Tenn. Ct. App. 1991), saying that
Cobb, an assistant operator), stopped talking to plaintiff.        the conduct must be that which would be deemed utterly
Cobb’s testimony, which was basically undisputed, indicated        intolerable in a civilized society. That case makes it clear that
that Steve Carney, the control room operator, instructed all of    criminal, tortious, intentional, or malicious conduct does not
the men on “A” shift to not eat with her, share food with her,     automatically satisfy the standard. We believe, however, that
be in the break room with her, or talk to her, and that Carney     the intentional and malicious conduct found by the district
instructed the men not to follow any of Pollard’s instructions     court in this case is unusually egregious and raises a factual
without consulting with him first. Carney admitted in his          issue with respect to the outrageousness of the behavior
                                                                   involved. The sort of daily, consistent harassing behavior
20    Pollard v. E. I. DuPont Nos. 98-6317/6319; 99-5125            Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont            5
      de Nemours Co.                                                                                  de Nemours Co.

   Pollard also argues that the statutory damages provision         testimony that “it was a possibility” that he had told the other
violates the Equal Protection Clause of the Fourteenth              men to disregard Pollard’s directions.
Amendment in that it unfairly discriminates among those
persons who wish to vindicate their rights with respect to             It was common knowledge in the peroxide area that many
racial discrimination and those who wish to vindicate their         of the men including Carney, Jerry Lee, and Rory Brico (of
rights with respect to gender discrimination. Since the statute     the Bible verse incident) did not approve of women working
at issue is a federal one, we assume that plaintiff meant to        in the peroxide department. Testimony proved that Carney
invoke the implied equal protection clause inherent in the Due      made remarks to this effect approximately five times per
Process Clause of the Fifth Amendment, which is applicable          week, consistently, and that Carney routinely referred to
to the federal government. The parties agree that the statute       women as “bitches,” “cunts,” “heifers,” and “split tails.” This
must stand if it bears a rational relationship to any legitimate    language was commonly used by several men in peroxide,
articulated government purpose.                                     and Carney admitted that he used the terms to refer to women
                                                                    in general and to plaintiff in particular. In addition, DuPont
   42 U.S.C. § 1981a places a $300,000 statutory cap on all         had a company-sponsor support group called the Women’s
intentional discrimination on the basis of race, national origin,   Network which the men vocally disapproved of Pollard
sex, religion, or disability (as defined in the Americans with      attending. Plaintiff worked in this hostile environment for the
Disabilities Act). The statute is inherently equitable on its       next year and half.
face. The difference in the application of this statute in
situations of gender or race discrimination occurs due to a            In May 1994, after about two months of this treatment,
provision in the Act which states that nothing in section           David Swartz, the shift supervisor, held a training meeting.
1981a is to be construed as in any way limiting the remedies        During a break in the meeting, Carney and Walker were
provided in section 1981 itself, which does not limit recovery      having a discussion about a girl’s softball team during which
for intentional discrimination based upon race or national          Carney said “that heifer can’t coach” and “women have no
origin. However, section 1981 provides relief for a different       business coaching” in reference to the woman who coached
type of claim than encompassed by the remedies available to         the team. Plaintiff was seated across the table, became upset,
plaintiff in section 1981a. Section 1981 provides for relief        and asked to leave the meeting. She went to the nurse’s
from discrimination in the making and enforcing of contracts,       station and asked the nurse to call David Swartz. When
while section 1981a provides for relief purely from intentional     Swartz arrived, Pollard told Swartz that she could not take it
discrimination in the employment context. While section             anymore and that she was tired of the men always saying
1981 includes contracts for employment, it also includes            women couldn’t do anything and degrading women. Swartz
contracts for admission to organizations, insurance and other       spoke with his supervisor about the incident, and they decided
business contracts with private persons or corporations, and        that Swartz should speak with the men individually about it.
admission to schools. Plaintiff cannot therefore be said to be      With the exception of Walker, none of the men on the shift
“similarly situated” with section 1981 claimants.                   remembered Swartz speaking with them about it. Carney
                                                                    testified that Swartz did approach him about not
  Even if plaintiff is similarly situated with a section 1981       communicating with plaintiff immediately after the tension
claimant due to the fact that employment discrimination is          started in February, but that Swartz gave up on trying to talk
covered under both acts, her claim still fails. Discrimination      to him about it because, according to Carney, “he knows I’m
on the basis of race and national origin is indisputably the        hardheaded . . . [and there] wasn’t no sense in saying anything
6     Pollard v. E. I. DuPont Nos. 98-6317/6319; 99-5125             Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont            19
      de Nemours Co.                                                                                   de Nemours Co.

else.” In other words, Carney made it plain he was not going         other Circuits have reached a conclusion contrary to Hudson.
to change his behavior.                                              See Martini v. Federal Nat'l Mortgage Ass'n, 178 F.3d 1336,
                                                                     1348-49 (D.C. Cir. 1999); Medlock v. Ortho Biotech, Inc.,
  Swartz testified that he knew there was tension on the shift       164 F.3d 545, 556 (10th Cir. 1999); Kramer v. Logan County
beginning in the spring of 1994 and that it did not improve for      Sch. Dist. No. R-1, 157 F.3d 620, 625-26 (8th Cir. 1998). See
the rest of the year. He specifically testified that plaintiff       also Rivera v. Baccarat, Inc., 34 F. Supp.2d 870, 878
complained to him about the lack of communication and                (S.D.N.Y. 1999); Bizelli v. Parker Amchem, 17 F. Supp.2d
isolation and other gender-based conduct on several                  949, 954 n.2 (E.D. Mo. 1998).
occasions. The situation worsened in the summer of 1994.
Plaintiff and Mark Cobb testified that Carney would go so far           We agree with these arguments, but our hands are tied.
as to set off false alarms in plaintiff’s area, causing her to run   One panel of this court may not overturn the decision of
around the peroxide area in search of a non-existent problem.        another panel of this court--that may only be accomplished
Cobb testified that Carney bragged to the other men that this        through an en banc consideration of the argument. Plaintiff
was his way of showing that he, a man, was in control. If a          does not purport to distinguish Hudson. Therefore, we must
false alarm was set while Pollard was on break cooking her           decline to overturn the district court’s decision that front pay
dinner, the men would turn up the stove to burn her food             is included in the compensatory damages statutory cap found
while she was searching for the problem. In addition, Cobb           at 42 U.S.C. § 1981a.
testified that there were numerous incidents during which
Carney would not tell plaintiff about actual alarms in her area.       VI. Constitutionality of the Statutory Cap on Damages
Plaintiff would therefore not respond to the problem, and it
would appear to the operator on the next shift that she was not         Plaintiff cross-appeals on the basis that the statutory cap on
doing her job.                                                       compensatory damages found at 42 U.S.C. § 1981a is an
                                                                     unconstitutional violation of the Separation of Powers
  Plaintiff’s job duties included monitoring the vaporizers in       doctrine. Pollard argues that by creating the statutory cap,
the peroxide tanks and determining when they should be               Congress impermissibly encroached upon the judiciary and its
moved. She was to sample the peroxide in a tank one hour             “traditional responsibility” for assuring against excessive
after it was moved, and any delay would result in a weak             verdicts on a case-by-case basis. We do not find this
product. Carney admitted instructing the assistant operators         argument persuasive. Congress created Title VII, and
on several occasions to remove the vaporizers from the tanks         Congress may designate the remedies under Title VII. See
earlier than plaintiff instructed without telling her. Again, this   Northern Pipeline Construction v. Marathon Pipe Line Co.,
made it appear to the operator on the next shift that plaintiff      458 U.S. 50, 83-84 (1982) (plurality opinion) (holding that
was not doing her job, and additionally it affected whether          where Congress creates a statutory right, “it clearly has the
customers would receive their shipments on time. This                discretion, in defining that right, to create presumptions, or
happened approximately seven times in 1994 and 1995,                 assign burdens of proof, or prescribe remedies.”) The fact
according to Pollard, with the last incident occurring in July       that the judicial branch is limited in the amount of damages
1995. After the first incident she spoke to the assistant            which it may award does not mean that its ability to decide
operators about it, and they informed her that they were             cases is being impaired by Congress.
following Carney’s instructions. After the second incident,
Pollard spoke with Swartz about the problem. Pollard
18   Pollard v. E. I. DuPont Nos. 98-6317/6319; 99-5125            Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont            7
     de Nemours Co.                                                                                  de Nemours Co.

argues that the attorney’s fees are excessively high. Plaintiff    discussed these ongoing communication problems with
argues only that the fees were “reasonable.” Neither party         Swartz on numerous occasions. Swartz would tell Carney
gives any explanation, either with or without mathematical         that he must call out the alarms and communicate with
calculations, as to why the fees were “reasonable” or              plaintiff, but Carney would tell Swartz that he was doing his
“unreasonable.” Without a more specific claim that the             job, and that Pollard was simply not doing her job. Swartz
attorney’s fees were unreasonable, it is difficult to conclude     did not investigate further or discipline Carney. Carney was
that the award constituted an abuse of discretion. This was a      never suspended or fired for this behavior.
hard-fought case which has gone on for four years. We are
offered no basis for setting aside the fees, and therefore           During the summer of 1994 plaintiff found the tires on the
AFFIRM the district court's award of attorney's fees.              bicycle she rode from the gate to her section of the plant had
                                                                   been slashed. That day, Pollard complained to Swartz that
            V. Statutory Limitation of Front Pay                   she suspected Carney had done it. Swartz spoke with Carney,
                                                                   and he denied having done it. Swartz did not investigate
   Pollard cross-appeals on the basis that front pay should not    further.
be subject to the limitations on “compensatory damages”
under 42 U.S.C. § 1981a. The district court noted that it was         In December 1994, two of the assistant operators, Mark
bound by this Circuit’s decision in Hudson v. Reno, 130 F.3d       Cobb and David Walker, approached Swartz and asked him
1193 (6th Cir. 1997), which held that front pay was subject to     to call a meeting to discuss the treatment of Pollard by Carney
the $300,000 statutory cap because front pay was an element        and the other men. Swartz scheduled a meeting which they
of future pecuniary losses. Pollard now argues that front pay      called the “first healing meeting.” Carney was on vacation
is not an element of future pecuniary losses, but is instead a     the day of the meeting. At the meeting, Walker and Moody
replacement for the remedy of reinstatement in situations          told Pollard that Carney told them not to talk to her or
where reinstatement would be inappropriate. The Equal              communicate with her, and that Carney told them that Pollard
Employment Opportunity Commission, in an amicus brief,             was “keeping a book on them.” Pollard told them that she
agrees with Pollard that the Hudson case was wrongly               was not doing so, and stressed the importance of
decided.                                                           communicating with her in order for her to do her job and to
                                                                   avoid possible dangerous consequences. David Swartz was
   First, the argument is made that § 1981a, by its very terms,    present and heard all of plaintiff’s complaints at this meeting.
explicitly excludes remedies which were traditionally
available under Title VII from the statutory cap, and notes that      Carney returned from vacation and was angry that a
front pay was a traditionally available remedy. Second, the        meeting had been held without him. He demanded a second
argument is made that the legislative history of the statutory     meeting. During that meeting, plaintiff reiterated her
cap on compensatory damages clearly indicates that front pay       concerns about the lack of communication and other
was not intended to be included in it. Third, plaintiff claims     problems. Plaintiff also mentioned her bicycle tire slashing,
that the Hudson decision misinterpreted existing Sixth Circuit     and told the group of another incident in which she believed
cases examining the nature of front pay as a remedy. And           Carney tried to run her off the road as she left the plant.
finally, Pollard and the EEOC argue that public policy             Carney “got in plaintiff’s face” and said “Nobody in this area
concerns weigh in favor of excluding front pay from the            likes you, you’re here all alone, it’s all your own fault.”
$300,000 statutory cap on compensatory damages and that            When plaintiff asked Swartz if he was going to allow Carney
8      Pollard v. E. I. DuPont Nos. 98-6317/6319; 99-5125            Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont              17
       de Nemours Co.                                                                                  de Nemours Co.

to talk to her that way, Swartz said “I think that’s enough”         Liteky v. United States, 510 U.S. 540, 550 (1994) (quoting In
and ended the meeting. Nothing happened to change the                re J.P. Linahan, Inc., 138 F.2d 650, 654 (2nd Cir. 1943)).
situation.
                                                                        There is no indication in the case at hand that the district
  The tension continued, and plaintiff continued to complain,        court was in any way personally biased for the plaintiff before
both to Swartz and in her Women’s Network meetings.                  the trial began, nor is there evidence that DuPont was treated
Pollard told the group she was afraid for her safety and was         unfairly during the course of the trial. The remarks were
concerned that a dangerous situation might arise in the              made just prior to the conclusion of the defense case, after the
peroxide area of which the men would not inform her. Beth            district court had heard the vast majority of the evidence
Basham, David Swartz’s supervisor, attended these meetings.          before it. In the absence of any evidence that the district court
She testified that she heard Pollard’s complaints, and               was unfair in his dealings with the defense during the course
recognized that the problem in the peroxide area was due to          of the trial, it is difficult for us to conclude that the judge was
the male workers not accepting a woman working in that area.         unfairly biased. In addition, since there was no jury which
In answer to a question on cross-examination, Basham                 could have been improperly influenced by the comments,
testified that she was “of the firm belief that plaintiff had been   there is no compelling reason to subject this case to a retrial.
harassed on account of her sex in the peroxide area.”                We believe the court’s comments stemmed from the
Basham, however, never investigated Pollard’s complaints             conclusions which the judge had rightly formed as part of his
further.                                                             factfinding duty, although the comments were spoken in anger
                                                                     and moral outrage in response to the injustice and harm
  In the face of this record, and despite the express testimony      DuPont and some of its employees visited upon plaintiff. It
of management officials Basham and Swartz that they knew             is difficult to read the record in this case without sympathy for
of the sexual harassment, counsel for DuPont--both at trial          the plaintiff who endured, without relief, the cruelty of Steve
and in their briefs on appeal--maintain that there was no            Carney and other male co-workers at DuPont. We therefore
sexual harassment and that no DuPont managers had any                DENY defendant's motion for a new trial.
knowledge of harassment. At oral argument on appeal, the
following testimony from Basham, the general overall                                      IV. Attorney’s Fees
supervisor of the peroxide department, was read to Ms.
N. Victoria Holladay, counsel for DuPont:                              DuPont challenges the district court’s decision to award
                                                                     plaintiff attorney’s fees. Attorney’s fee awards are reviewed
    Q: And you were of the firm belief that she had been             for an abuse of discretion. See Hensley v. Eckerhart, 461
    harassed on account of her sex in the peroxide area,             U.S. 424 (1983). Attorney’s fees are generally awarded for a
    correct?                                                         reasonable number of hours expended multiplied by a
                                                                     reasonable fee, and are generally reduced in an amount
    A: Yes.                                                          reflective of the amount of time spent pursuing claims which
                                                                     were ultimately unsuccessful. DuPont argues that the award
    Q: Now, you talked about this situation with Alan                of attorney’s fees ($252,997.38) should have been reduced
    Hubbell on several occasions, did you not?                       due to the district court’s summary judgment for the defense
                                                                     on the issues of intentional infliction of emotional distress,
    A: Yes.                                                          negligent supervision, and loss of consortium. DuPont also
16   Pollard v. E. I. DuPont Nos. 98-6317/6319; 99-5125          Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont            9
     de Nemours Co.                                                                                de Nemours Co.

final defense witness and the highest-ranking member of            Q: And Mr. Hubbell’s position in 1994-‘95 was what?
DuPont management who testified, Judge McCalla expressed
his opinions with regard to this case. He angrily challenged       A: He was the area manager of hydrogen peroxide.
Shaw and questioned him for a period of time, using language
that was hostile and evidenced his desire to inform Shaw of      Joint Appendix at 412. In the face of this testimony expressly
the ways in which he believed DuPont had erred in their          acknowledging sexual harassment and knowledge, counsel
behavior towards Pollard. The court’s comments seem to           maintained that there was no such harassment and no
indicate three things: First, that after hearing all of the      knowledge by DuPont management.
testimony (with only the remainder of Shaw’s testimony to be
heard), the court was quite convinced that the witnesses for       In May 1995, a specialist in diversity training from DuPont
the plaintiff were trustworthy and the key witnesses for the     headquarters named Bernie Scales attended the Women’s
defense (the other members of “A” shift, including Steve         Network meeting. Pollard told Scales of the problems in the
Carney) were lying. Second, the court had also concluded         peroxide area. Scales spoke to the plant manager about the
that DuPont’s actions in attempting to remedy the harassment     problem, who subsequently spoke to Bob Shaw, employee
were entirely unsatisfactory. And, finally, the court wanted     relations manager for the plant. Shaw, Lee Ann Rice, and
Bob Shaw to hear his comments on the way DuPont handled          Gary Fish met with plaintiff on May 28, 1995 to discuss her
this case so that DuPont could learn from its mistakes in this   complaints. According to Shaw and Rice, Pollard recounted
case and proceed differently in the future.                      fully all of her complaints at this meeting. Subsequently,
                                                                 Shaw and Rice spoke to Carney about his behavior. Carney
  The standard of behavior expected of a judge is different      never received a formal written reprimand, was never
when the case is tried to the bench rather than before a jury.   suspended, transferred, demoted, terminated, or in any other
The Supreme Court has recently concluded in language             way disciplined for his behavior. There was no further
applicable to the conduct in this case:                          investigation.

  The judge who presides at a trial may, upon completion            Carney’s behavior improved for about a month (June
  of the evidence, be exceedingly ill disposed towards the       1995); he then returned to his old patterns of behavior in early
  defendant, who has been shown to be a thoroughly               July 1995. Plaintiff asked David Swartz to transfer her to
  reprehensible person. But the judge is not thereby             another shift. Swartz offered to transfer her to the control
  recusable for bias or prejudice, since his knowledge and       room operator position on shift “C” with Rory Bricco, the
  the opinion it produced were properly and necessarily          man who had refused to take direction from her when he had
  acquired in the course of the proceedings, and are indeed      been an assistant operator under her some years before, and
  sometimes (as in a bench trial) necessary to completion        who had initiated the Bible incident at that time. Plaintiff
  of the judge's task. As Judge Jerome Frank pithily put it:     declined that offer. In late July 1995, Pollard discovered a
  “Impartiality is not gullibility. Disinterestedness does       highlighted copy of that same Bible verse in her locker,
  not mean child-like innocence. If the judge did not form       stating “A woman should learn in quietness and full
  judgments of the actors in those court- house dramas           submission. I do not permit a woman to teach or have
  called trials, he could never render decisions.”               authority over a man, she must be silent.” Upon finding the
                                                                 note, plaintiff requested a medical leave of absence from
                                                                 DuPont.
10   Pollard v. E. I. DuPont Nos. 98-6317/6319; 99-5125           Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont          15
     de Nemours Co.                                                                                 de Nemours Co.

  In order to investigate the bible verse incident, DuPont        work environment sexual harassment. The federal courts treat
formed a list of identical questions, answerable by a simple      the two types of cases differently for good reason. The
yes or no. When each employee denied having knowledge of          McDonnell Douglas framework is meant to prove that
the incident, no further questions were asked and the             conduct which might have some otherwise legitimate motive
investigation was stopped. Carney himself was never               (such as promoting a man instead of a woman) was in fact
questioned about his knowledge of who had placed the verse        based upon discriminatory motive. When a plaintiff proves
in Pollard’s locker because he was on vacation at the time it     that a hostile work environment existed, there is no legitimate
occurred.                                                         justification for such an environment, and thus recourse to the
                                                                  McDonnell Douglas test is not warranted. A defendant’s only
   After Pollard left “A” shift, the entire shift, including      option is to deny the charges or argue that defendant
supervisor David Swartz, held a party. They taped balloons        effectively remedied the situation, not to submit that the
to the ceiling and had a fish fry. The purpose of the party was   hostile environment was in some way warranted.
to celebrate Pollard’s departure, as Carney admitted in his       Additionally, as the Supreme Court recognized in Meritor
testimony. Carney said at the party, “Glad the bitch is gone,     Savings Bank v. Vinson, 477 U.S. 57, 63-68 (1986), the proof
glad the bitch is not coming back.” David Swartz told Carney      of a hostile work environment is in fact part of “‘the entire
to shut up, that he did not need to hear Carney saying those      spectrum of disparate treatment of men and women’” in the
things in case of future investigations concerning Pollard.       workplace, which is in no way limited to actions which
                                                                  economically impact a plaintiff, such as decisions to hire,
  Plaintiff was on short-term disability leave for six months     promote, or fire an employee. Id. at 64 (quoting Los Angeles
based in part on the advice of DuPont's psychologist. DuPont      Dept. of Water and Power v. Manhart, 435 U.S. 702, 707
scheduled a “return to work” meeting in February of 1996 in       (1978)). In other words, the Supreme Court has long
spite of the psychologist's advice to the contrary, at which      recognized that proof of hostile work environment sexual
time DuPont told Pollard that they could not guarantee that       harassment is proof of disparate treatment. For these reasons,
she would not be put back on a shift with Steve Carney and        it is one of the most basic tenets of employment
the other members of “A” shift. When plaintiff declined to        discrimination law that it is not necessary to prove economic
return to work under those conditions, DuPont fired her.          disparate treatment in order to make out a prima facie case of
                                                                  coworker hostile environment sexual harassment. The
     II. Hostile Work Environment Sexual Harassment               defendant's argument to the contrary is based upon a
                                                                  fundamental misunderstanding of the law.
  After reviewing the Supreme Court’s decision in
Burlington Industries v. Ellerth, 524 U.S. 742 (1998), we           For the foregoing reasons, we AFFIRM the district court’s
recently concluded that a plaintiff seeking to establish a        opinion finding DuPont liable for the co-worker sexual
company’s liability for acts of her co-workers must show that     harassment of its employees.
the employer “knew or should have known of the charged
sexual harassment and failed unreasonably to take prompt and                             III. Judicial Bias
appropriate corrective action.” Fenton v. HiSan, Inc., 174
F.3d 827, 830 (6th Cir. 1999).                                       DuPont also claims that the trial judge was so biased in his
                                                                  approach to this trial that DuPont was denied the fundamental
  Defendant DuPont challenges the district court’s                right to a fair trial. During the testimony of Bob Shaw, the
determination that plaintiff was harassed on the basis of her
14   Pollard v. E. I. DuPont Nos. 98-6317/6319; 99-5125           Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont            11
     de Nemours Co.                                                                                 de Nemours Co.

investigation, even if ineffective, should shield DuPont from     sex because the conduct, according to DuPont, was gender-
liability; and 4) that her complaints to her direct supervisor,   neutral and non-sexual in nature. In order to prove that forms
David Swartz, as well as the complaints made in the context       of conduct not inviting sexual relations constituted sexual
of Women’s Network meetings, were not actually complaints         harassment, plaintiff “‘must show that but for the fact of her
to management about harassing conduct, and therefore did not      sex, she would not have been the object of harassment.’”
put DuPont on actual notice of her problems. These                Williams v. General Motors Corp., 187 F.3d 553, 565 (6th
arguments are not persuasive. Not only was it reasonable for      Cir. 1999) (quoting Henson v. City of Dundee, 682 F.2d 897,
the district court to conclude that members of DuPont             904 (11th Cir. 1982)).
management were actually aware of Pollard’s harassment
complaints, the district court was justified in finding that         As the district court found, there was overwhelming
DuPont’s reaction to Pollard’s complaints did not constitute      testimony as to the anti-female animus which the men in
a “good faith” effort to remedy the situation. As noted above,    peroxide consistently demonstrated, specifically toward
this trial produced substantial evidence that several members     women working in the peroxide area (as opposed to women
of DuPont management were aware of Pollard’s situation,           filling traditionally “female” jobs, such as secretaries and
both through her complaints and through first-hand                office workers in other areas of the DuPont compound). We
experience, but they allowed the situation to fester without      have recited these facts in detail above.
definitive action on the part of management. Steve Carney’s
behavior toward Pollard was well known. No disciplinary             Plaintiff must prove that, after considering the totality of
action was taken against him.                                     the circumstances and the context in which certain treatment
                                                                  of plaintiff occurred, the harassment which she sustained was
   We next address DuPont’s argument that Pollard’s claim         sufficiently pervasive and severe as to alter the conditions of
was one of retaliation, not sexual harassment, and thus that      her employment and create an abusive working environment.
the decision holding that sexual harassment existed must be       Each alleged act of harassment must not be viewed in a
reversed. This is a red herring argument. There is nothing in     vacuum, but must be considered together with the other acts.
Pollard’s testimony, her complaints to DuPont, or her             Characteristics such as their frequency, intensity, and whether
complaint initiating this action which indicates that DuPont      they “merely” created psychological trauma or whether they
took adverse action against her for complaining of the            actually interfered with a plaintiff’s work are all factors to be
treatment she was receiving on “A” shift. The complaints          considered.
indicate quite clearly that Pollard’s problem was with her
treatment by the other members of her shift and DuPont’s             In the recent Williams decision, we determined that the
inaction with respect to that problem, not any further action     following behavior was severe and pervasive enough to
which DuPont took against her.                                    constitute harassment: co-workers who used foul language,
                                                                  such as “fuck” and “slut”; sexual innuendos concerning the
  Finally, we turn to DuPont’s claim that plaintiff cannot        plaintiff’s breasts or sexual prowess; tasteless sexually-based
prevail on her claim of hostile work environment sexual           jokes and puns directed toward plaintiff; co-workers
harassment because she did not prove disparate treatment.         conspiring against her in order to force her onto another shift;
Disparate treatment sexual harassment (assuming that by           objects glued to the top of her desk; being told “I’m sick and
“disparate treatment” DuPont means harassment subject to the      tired of these fucking women” and having a box thrown at her
McDonnell Douglas test) is inherently different from hostile      simultaneously; being denied overtime and breaks; and other
12    Pollard v. E. I. DuPont Nos. 98-6317/6319; 99-5125            Nos. 98-6317/6319; 99-5125 Pollard v. E. I. DuPont           13
      de Nemours Co.                                                                                  de Nemours Co.

“pranks,” such as being locked in a room, or finding materials      isolation and harassment, all of which was based on the belief
blocking her way into or out of an area of the plant. See           that women should not work in the peroxide area.
Williams, 187 F.3d at 559. This behavior seems clearly to
encompass many types of sexual harassment: actual sexual               After reviewing the trial testimony in this case, we believe
propositioning, offensive language or behavior about women          that the trial court’s findings of fact were correct. The
in general and women in the workplace, and non-sexual               testimony at trial indicated that plaintiff told her direct
actions directed toward a plaintiff in order to interfere with      supervisor, David Swartz, of the incidents of harassment on
her work. Plaintiff here proved daily sexually degrading            numerous occasions. David Swartz, in particular, was
comments about women which often occurred outside of her            independently aware of the language, isolation, and
hearing; a co-worker who instructed the men working as her          communication problems on “A” shift through his own
assistants not to take direction from plaintiff or talk to her at   observations of the shift, even absent plaintiff’s complaints to
any time because of her gender; several incidents of plaintiff      him. In addition, Beth Basham, David Swartz’s supervisor,
not being informed of facts concerning her job which would          testified that although she believed, based on Pollard’s
result in an appearance of incompetence on her part, and            complaints during Women’s Network meetings, that Sharon
which could be potentially physically dangerous to her and to       Pollard was being harassed by her coworkers because they
other members of the plant; isolated incidents occurring            could not accept a woman working in the peroxide area, she
within her hearing of women being called “heifers” and being        never initiated any further investigation concerning the
degraded for their inability to accomplish tasks as well as         allegations. After the most blatant episode, when Pollard
men; being subjected to false alarms and practical jokes, such      found the Bible verse in her locker, DuPont management
as her dinner being burned, with the alleged intent of driving      interviewed the members of “A” shift with a list of yes-or-no
plaintiff away from her shift; and the Bible verse concerning       questions, and when they responded “no” to the question
women’s proper submissive role being placed in her locker.          concerning knowledge about the event, the interviews were
This conduct constitutes severe and pervasive harassment,           concluded.      The lack of an admission under such
just as severe and pervasive as in Williams and our other co-       circumstances is not surprising. No member of the peroxide
worker sexual harassment precedent.                                 area was ever formally reprimanded, suspended, or transferred
                                                                    to another shift due to any of their actions. Finally, Bob Shaw
   Next, we address the issue of whether or not DuPont              confirmed in his testimony that Sharon Pollard was told that
received actual or constructive notice of Pollard’s complaints      if she returned to work, she would be put back on the same
and responded reasonably. DuPont challenges the court’s             shift with Steve Carney and the other members of “A” shift,
factual findings, arguing that the findings concerning              although a woman would be added to the shift.
DuPont’s lack of responsiveness towards Pollard’s numerous
complaints were clearly erroneous. Specifically, as pointed           This testimony is countered by DuPont’s arguments 1) that
out above, DuPont continues to argue that the testimony at          the men were instructed not to behave inappropriately and to
trial failed to establish that DuPont was ever made aware that      continue to communicate with Pollard as to work-related
any sex-based derogatory comments were addressed to                 matters once DuPont became aware of Pollard’s work
Pollard. This argument assumes that only sex-based                  isolation; 2) that DuPont posted notices explaining what
derogatory language is actionable under Title VII, and fails to     constituted inappropriate conduct after learning of the July
consider the testimony related to a lack of work-related            1995 Bible verse incident and explained that conduct of that
communication, sabotage of plaintiff’s work, and personal           nature would result in termination; 3) that a good-faith
