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Cherry v. Shaw Coastal, Inc., No. 11-30403 (5th Cir. Jan. 19, 2012)

An employee whom a jury had found was the victim of male-on-male harassment in the workplace wins back his $500,000 Title VII jury verdict on appeal, where the Fifth Circuit holds that the district court erred in finding post-trial that the harassment was not severe or pervasive as a matter of law.

Cherry v. Shaw Coastal, Inc., No. 11-30403 (5th Cir. Jan. 19, 2012): The employee Cherry worked on a survey crew with two other men, both of whom were supervisors (Thorton and Reasoner).

The lead man, Reasoner, engaged in ongoing sexual banter and behavior directed at Cherry, including (1) repeated requests that Cherry remove his clothes on the job; (2) brushing and touching (including once on Cheery's buttocks, and multiple times in his hair); (3) propositioning and other explicit sexual comments via text messages. In one instance, "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.'"

Cherry's complaints to the project manager and to human resources at first met with no response. While he was eventually allowed to transfer teams, the harassment did not stop and a company investigation led to no action being taken to correct the situation.

The employee resigned, filed a lawsuit and ultimately won a $500,000 jury verdict. The district court, nonetheless, entered judgment for the company, holding that Cherry failed to prove any of his claims as a matter of law.

While the panel agrees that the employee failed as a matter of law to make out a claim for retaliation or punitive damages, it reverses - and remands for entry of the jury's favorable verdict - the district court's decision regarding harassment. The panel finds that the jury could have found the harassment severe or pervasive, and that the employer failed to exercise due care to prevent it.

1. The panel holds that the record is sufficient to demonstrate a sex motivation:

"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."

2.  The panel also holds that the jury could have found the harassment severe or pervasive:

"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."

3.  Finally, the panel holds that the jury could have imputed the harassment back to the employer, by showing that it took ineffective steps to correct it:

"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.

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