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January 23, 2012

A former employee provided enough evidence of a male supervisor’s sexual conduct toward him and of inadequate action in response to his complaints to justify a same-sex harassment verdict against his employer, a federal appeals court on January 19. (Cherry v. Shaw Coastal, Inc., No. 11-30403 (5th Cir. Jan. 19, 2012).

The employee John Cherry worked on a survey crew with two other men, both of whom were supervisors (Scott Thorton and Michael 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.

Cherry 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 clams as a matter of law.

Reversing the district court, the Fifth Circuit said Cherry “presented more than sufficient evidence” to prove Reasoner’s harassment was sexual in nature. The text messages alone could be taken as explicit sexual propositions, the court said. Reasoner’s physical touching of Cherry was “apparently offensive enough” that Cherry’s immediate
supervisor, “having witnessed the behavior, felt compelled to complain” to upper management, Judge Eugene W. Davis wrote.

The evidence also was sufficient for a reasonable jury to find the conduct was “severe or pervasive” and that Shaw’s lack of prompt response, despite the “concrete proof” of the text messages, makes the employer liable under Title VII, the court said. “The human resource staff’s decision not to act because of ‘insufficient evidence’ could reasonably
be interpreted as a failure to take remedial action,” the Fifth Circuit said.

Shaw Coastal, however, cannot be held liable for punitive damages, as it had a written policy providing “a clear procedure” for addressing sexual harassment claims, the appeals court said. “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,” the court said. It found that the company’s behavior “did not rise to the level of malice or reckless indifference” necessary for punitive damages under Title VII.   01.23.2012.

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