     Case: 11-30403   Document: 00511730393     Page: 1   Date Filed: 01/19/2012




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

                                                                     FILED
                                                                 January 19, 2012

                                  No. 11-30403                      Lyle W. Cayce
                                                                         Clerk

JOHN CHERRY

                                            Plaintiff - Appellant
v.

SHAW COASTAL, Inc.

                                            Defendant - Appellee



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


Before HIGGINBOTHAM, DAVIS and STEWART, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
        Plaintiff John Cherry appeals the district court’s entry of judgment as a
matter of law as to his claims of sexual harassment, retaliation, loss of overtime,
and for punitive damages. We conclude that the district court correctly found
that Cherry did not present sufficient evidence to support his claims for
retaliation, loss of overtime and punitive damages, but that the evidence
presented did support the jury’s conclusion that Cherry was sexually harassed
and that his employer failed to promptly respond to the harassment. We
therefore VACATE the district court’s grant of judgment as a matter of law and
remand to the district court with directions to enter judgment on those claims
consistent with the verdict.
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                                  No. 11-30403

                                        I.
      Plaintiff John Cherry (Cherry) was an employee of Shaw Coastal, an
engineering firm. During his employment with Shaw Coastal, Cherry worked as
an instrument man on a survey crew with Michael Reasoner (Reasoner) and
Scott Thornton (Thornton).     Thornton was Cherry’s direct supervisor, and
Reasoner was Thornton’s supervisor.
      In March 2007, shortly after Cherry began working on the survey crew,
Reasoner began brushing against him in a way that made him uncomfortable.
Reasoner would ask Cherry to take his shirt off and to wear cut-off jean shorts,
and suggest that Cherry should take his pants off to try to get a tan. During this
period Reasoner would also regularly comment on Cherry’s looks, despite Cherry
telling Reasoner that he should keep his comments to himself.
      In April 2007, Reasoner began sending Cherry text messages. On April
19, Reasoner sent Cherry a text message saying “I want cock.” On April 20,
Reasoner sent Cherry a text message that said “ur 2 sexy. U drive me insane .
. . . Ur sexy voice puts me to slumber.” On May 7, he sent Cherry a text
message that said “your missing the dipper,” which was a term he had
previously told Cherry he used to refer to his penis. Cherry repeatedly told
Reasoner that he did not want to speak to him.
      During this period, Reasoner regularly touched Cherry. When Cherry was
driving the boat to survey sites, Reasoner would touch Cherry’s leg and shoulder
and rub his hair. On one occasion, when Cherry bent over to put a chain on the
boat, Reasoner “put his hand on his butt,” and Thornton had to intervene to keep
Cherry from striking Reasoner.




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     When Cherry fell asleep in the passenger seat of the truck on the way to
survey sites, Reasoner would run his hands through Cherry’s hair and rub his
shoulders. Reasoner’s conduct made Thornton so uncomfortable that Thornton
preferred Reasoner to drive so that he would not be able to touch Cherry.
Thornton described Reasoner as touching Cherry “like I do my wife.”
     In late May, Reasoner asked Cherry to stay over at his house rather than
going home after a long drive. When Cherry declined, saying that he did not
have a change of clothes, Reasoner said, “You don’t need to wear any clothes.
You can wear my underwear.”
     Thornton initially complained to Shaw Coastal in March, reporting the
physical conduct that he had witnessed to Michael D’Angelo (D’Angelo), the
project manager supervising their survey crew. On May 1, Thornton reported
the harassment to Jeff Pena (Pena), D’Angelo’s supervisor. Shaw Coastal took
no action, and neither Pena nor D’Angelo reported the complaints to human
resources, despite Shaw Coastal’s policy requiring that such complaints be
reported.
     On May 2 or 3, Cherry complained to D’Angelo about Reasoner. D’Angelo
questioned whether this was a serious issue or if Reasoner was just “horsing
around.” About five days later, Cherry complained to D’Angelo again, and
offered to show him the text messages Reasoner had sent him. D’Angelo refused
to look at the text messages. Finally, around May 22, Cherry told D’Angelo he
did not want to continue working with Reasoner, and D’Angelo arranged for
them to work in different crews.
     On May 29, Cherry reported to D’Angelo via email that he was still
“getting looks” from Reasoner that made him uncomfortable. He then went


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directly to D’Angelo’s desk and said “I’m done. I can’t take it anymore. I want
something done right now.” D’Angelo went with Cherry to discuss the situation
with Pena, who asked whether Reasoner was just “horsing around.” Pena then
contacted Nikki Jordan in the human resources department, who opened an
investigation into the complaint. Shaw Coastal concluded that it could not
determine whether the conduct had occurred because there was not enough
evidence and it was “one word against the other.” The company took no further
action.
       After the meeting with human resources, Cherry reported to D’Angelo that
Reasoner was intentionally bumping into him in the office, laughing at him, and
“flipping [him] off.” Neither D’Angelo nor Pena was responsive to Cherry’s
complaints.       Cherry reported Reasoner’s behavior to Shaw Coastal’s
management, and on September 27 submitted a resignation letter citing the
harassment and the company’s failure to address it as the reason for his leaving
the company. After Cherry submitted his resignation, Jordan informed him
that Reasoner had been fired.
       Cherry filed suit in district court, alleging battery, sexual harassment,
and retaliation, and requesting punitive damages.1 After the plaintiff rested his
case, Shaw Coastal filed a motion for judgment as a matter of law pursuant to
Rule 50(1)(a) of the Federal Rules of Civil Procedure. The district court granted
the motion as to punitive damages, as well as Cherry’s loss of overtime and
retaliation claims. The sexual harassment claim was submitted to the jury.
During deliberation, the jury wrote a note to the judge asking whether Mike


       1
       A claim for intentional infliction of emotional distress as well as a cross-claim brought
by Thornton were dismissed prior to trial.

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Reasoner had “to be considered a homosexual for sexual harassment to be
proven.”   The judge read the question in open court and responded over
plaintiff’s objection that “there must be credible evidence that Mr. Reasoner is
or was homosexual,” which “may be proven if you find . . . that Mr. Reasoner
intended to have some kind of sexual contact with Mr. Cherry.” The jury then
issued a verdict finding that Cherry was sexually harassed, that there was some
indication that Reasoner has “sexual interest in males,” that the conduct was
sufficiently severe or pervasive to create a hostile work environment, and that
Shaw Coastal knew or should have known of the harassment and failed to take




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                                       No. 11-30403

prompt remedial action.2 The jury also found in Cherry’s favor as to his claim
of battery.3
       The district court then granted Shaw Coastal’s motion for judgment as a
matter of law and entered judgment for Shaw Coastal on all claims except the
battery claim. The court asserted that Reasoner’s conduct toward Cherry “by
itself does not amount to evidence establishing that Reasoner has a sexual
interest in men,” and stated that in order to show sexual discrimination, a
plaintiff alleging same-sex harassment must “show that the harasser made
explicit or implicit proposals of sexual activity and provide credible evidence that



       2
        The verdict form read as follows:
             “1. Sexual Harassment by a Co-Worker
                     a. Do you find that Mr. Cherry was subjected to conduct that he
                     considered unwelcome during his employment at Shaw Coastal?
                     b. Do you find that the unwelcome conduct included an explicit or impliit
                     sexual proposal?
                     c. Do you find that there is some indication that Mr. Reasoner has sexual
                     interest in males?
                     d. Do you find that the conduct was sufficiently severe or pervasive such
                     that a reasonable person in Mr. Cherry’s position would find that Shaw
                     Coastal created a hostile work environment?
                     e. Do you find that Shaw Coastal knew or should have known of the
                     harassment and failed to take prompt remedial action?
             1A. Damages for Sexual Harassment by a Co-Worker
                     a. Do you find that Mr. Cherry suffered damages as a proximate or legal
                     result of sexual harassment?
                     b. Please state what sum of money, if any, would reasonably and fairly
                     compensate Mr. Cherry for the following: Emotional Pain and Suffering,
                     Inconvenience, Mental Anguish, and Loss of Enjoyment of Life
             [Battery portion omitted].”
The jury answered “yes” to each question, and found that $500,000 would be reasonable
compensation for Mr. Cherry’s damages.
       3
         The district court issued a remittitur as to the battery award, which the plaintiff did
not accept. That issue is pending in district court. The district court entered a final judgment
on the other claims pursuant to rule 54(b), giving us jurisdiction to consider those issues.

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                                  No. 11-30403

the harasser was homosexual.” The court also found that the conduct was not
severe and pervasive, stating that the touching only happened over 14 days and
that Cherry was “overly sensitive to homoerotic teasing.” The district court also
found that Shaw Coastal took prompt remedial action in response to Cherry’s
complaints and therefore was not liable for any harassment.
                                        II.
      Rule 50 rulings are reviewed de novo, taking the evidence in the light most
favorable to the non-moving party. James v. Harris County, 577 F.3d 612, 617
(5th Cir. 2009).
                                       III.
      As an initial matter, we review the district court’s grant of the defendant’s
Rule 50 motion as to Cherry’s claims of supervisor sexual harassment,
retaliation, and for punitive damages. Punitive damages are appropriate where
the plaintiff has shown malice or reckless indifference on the part of the
defendant. Kolstad v. American Dental Association, 527 U.S. 526 (1999). While
we conclude below that Shaw Coastal did not promptly and effectively respond
to the harassment, the defendants’ behavior did not rise to the level of malice
or reckless indifference. Shaw Coastal had a policy in place that provided a
clear procedure for addressing sexual harassment issues, and although its
response here was far from prompt, it did ultimately respond to Cherry’s
complaints by ensuring that he and Reasoner would no longer be on the same
survey team.
      As to the retaliation claim, Cherry did not show that he suffered any
adverse employment action as a result of complaining of harassment. To make
out a claim for retaliation, the plaintiff must show that “(1) [he] participated in


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a Title VII protected activity, (2) [he] suffered an adverse employment action by
[his] employer, and (3) there is a causal connection between the protected
activity and the adverse action.” Stewart v. Mississippi Transport Comm., 586
F.3d 321, 331 (5th Cir. 2009).      Both Cherry and Thornton conceded that
overtime was eliminated when the primary survey job they were assigned to
was cut back. The lack of surveying work available, confirmed by Thornton,
Cherry and Shaw Coastal, also explains Cherry’s assignment to maintenance
tasks. The changes did not affect Cherry alone but applied to everyone in his
position, and therefore cannot be characterized as retaliatory.
      We now turn to Cherry’s claim of sexual harassment, on which the district
court overturned the jury’s verdict. Title VII prohibits discrimination “against
any individual with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).
Sexual harassment is a form of discriminatory treatment, and applies in any
situation where there is discrimination “because of” sex, whether it be between
members of the same or opposite sexes. Oncale v. Sundowner Offshore Servs.,
523 U.S. 75, 81 (1998).
      The Supreme Court held in Oncale that a plaintiff may support a claim of
same-sex harassment by providing some “credible evidence” that the harasser
is homosexual. Id. In La Day v. Catalyst Technology, 302 F.3d 474, 480 (5th
Cir. 2002), we identified two types of evidence that could serve as credible
evidence of homosexuality: (1) evidence that the harasser “intended to have some
kind of sexual contact with the plaintiff rather than to merely humiliate him for
reasons unrelated to sexual interest, or (2) evidence that the harasser “made
same-sex sexual advances to others, especially to other employees.” La Day at

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480. Thus if a plaintiff presents evidence that he was harassed by a member of
the same sex, and that the harassment was sexual rather than merely
humiliating in nature, that evidence is sufficient to support a verdict in the
plaintiff’s favor.
      Cherry presented more than sufficient evidence to support the conclusion
that Reasoner’s harassment was sexual in nature. The text message “I want
cock” could be taken as an explicit sexual proposition, as could Reasoner’s
invitation to Cherry to stay at his house and wear his underwear. Reasoner
repeatedly physically touched and caressed Cherry’s body, which was apparently
offensive enough that Thornton, having witnessed the behavior, felt compelled
to complain to their supervisor. This goes far beyond the evidence we held
sufficient to support a same-sex harassment claim in La Day, where the plaintiff
presented evidence that the same-sex harasser told him that he was jealous of
his girlfriend, and “poked” him in the anus on one ocassion. Id. at 481. Taking
the facts in the light most favorable to the verdict, the evidence supports the
conclusion that the harassment was explicitly or implicitly sexual in nature.
      The district court also found that the evidence was insufficient to support
the jury’s finding that the harassment was severe and pervasive. Sexual
harassment is actionable under Title VII only if the harassing conduct is
sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment. Harvill v. Westward Commc’ns,
433 F.3d 428, 434 (5th Cir. 2005) (citing Meritor Sav. Bank v. Vinson, 477 U.S.
57, 67 (2986)).      Evaluating whether harassment is sufficiently severe or
pervasive to trigger Title VII requires an analysis of “all of the circumstances,
including the frequency of the discriminatory conduct, its severity, whether it is

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physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonable interferes with an employee’s work performance.” La
Day, 302 F.3d at 482.
      The district court found that even if the harassment in this case was
“because of” sex, it was “a long way from conduct that the Fifth Circuit has found
severe or pervasive.” We disagree. “Deliberate and unwanted touching of . . .
intimate body parts can constitute severe sexual harassment.” Harvill, at 428.
As noted above, this court has held that a single incident in which a harasser
briefly touched the plaintiff’s anus, along with the statement that the harasser
was jealous of the plaintiff’s girlfriend, was sufficient to satisfy the severe or
pervasive requirement. La Day at 483. In this case, Reasoner repeatedly
touched Cherry in a manner that Thornton described as “like I do my wife.”
Reasoner also touched Cherry’s rear end on one occasion. Based on those
interactions, coupled with the text messages that Reasoner sent Cherry, the jury
was reasonable in determining that the harassment was severe and pervasive.
The district court erred in granting the defendant’s Rule 50 motion.
      The district court also found that the evidence was insufficient to support
the jury’s finding that Shaw Coastal was liable for Cherry’s harassment. An
employer that knows or should know about coworker harassment is required to
appropriately respond to it. Harvill, 433 F.3d at 437. An employer can escape
liability if it takes remedial action calculated to end co-worker harassment as
soon as it knows or should know of the harassment. Sharp v. City of Houston,
164 F.3d 923, 929 (5th Cir. 1999).
      We conclude that the evidence supports the jury’s finding that Shaw
Coastal did not take prompt remedial action.        Both Thornton and Cherry

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complained to their supervisors to no avail. Thornton began reporting the
harassment as early as March, and made an estimated ten complaints about it
in two months. Cherry began making complaints in May. D’Angelo, the
supervisor to whom Thornton and Cherry initially complained, was required by
company policy to report those complaints to human resources, but instead
continued to insist to both Thornton and Cherry that Reasoner was just “horsing
around.” During that time, Reasoner continued touching Cherry and sending
him text messages.     When the human resources office finally did become
involved, it initially took no action despite the fact that Cherry continued to
report that Reasoner was harassing him.          Cherry presented a number of
documented complaints and had concrete proof of text messages, and Thornton
was an eyewitness who supported his allegations. The human resource staff’s
decision not to act because of “insufficient evidence” could reasonably be
interpreted as a failure to take prompt remedial action.
                                       IV.
      For the foregoing reasons, we conclude the district court correctly found
that Cherry’s evidence was insufficient to permit a jury to award punitive
damages or to issue a verdict in his favor on his claims of retaliation.
      However, on the remaining claims before us we VACATE the court’s order
granting judgment as a matter of law in favor of the defendant and REMAND
this case to the district court with directions to enter a judgment on the verdict
with respect to the claims presented to us in this appeal.


VACATED and REMANDED.



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