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Equal Employment Opportunity Commn. v. New Breed Logistics

United States Court of Appeals, Sixth Circuit

April 22, 2015

NEW BREED LOGISTICS, Defendant-Appellant

Argued October 9, 2014

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Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:10-cv-02696--S. Thomas Anderson, District Judge.

ARGUED: Matthew C. Blickensderfer, FROST BROWN TODD LLC, Cincinnati, Ohio, for Appellant.


ON BRIEF: Matthew C. Blickensderfer, FROST BROWN TODD LLC, Cincinnati, Ohio, Richard EF Valitutto, NEW BREED, INC., High Point, North Carolina, for Appellant.


Before: COLE, Chief Judge; KEITH and BATCHELDER, Circuit Judges.


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DAMON J. Keith, Circuit Judge.

The Equal Employment Opportunity Commission (" EEOC" ) brought this Title VII sexual harassment and retaliation action against New Breed Logistics (" New Breed" ). The EEOC alleged that James Calhoun, a New Breed supervisor, sexually harassed Jacquelyn Hines, Capricius Pearson, and Tiffany Pete and retaliated against the women after they objected to his sexual advances. The EEOC also alleged that Calhoun retaliated against Christopher Partee, a male employee, who verbally opposed Calhoun's sexual harassment and supported the women's complaints. A jury found New Breed liable under Title VII for Calhoun's sexual harassment and retaliation and awarded all four employees compensatory and punitive damages totaling over $1.5 million dollars. New Breed filed post-trial motions for a new trial and judgment as a matter of law, challenging the sufficiency of the evidence as to liability and punitive damages. New Breed also alleged that it was entitled to a new trial because the instructions submitted to the jury were erroneous. The district court denied both motions, concluding that evidence supported the jury's verdict on each of the claims and that New Breed's challenges to the jury instructions were either waived or without merit. For the reasons set forth below, we AFFIRM the judgment of the district court.


New Breed is a supply-chain logistics company with a warehouse in Memphis, Tennessee (the " Avaya Facility" ). When New Breed opened the Avaya facility in

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October 2007, temporary employees supplied by staffing agencies accounted for approximately 80% of its workforce. R. 261 at 49, Page ID# 5787. New Breed only gives permanent employees an employee handbook that contains a copy of the sexual harassment policy. Appellant's Br. at 7; Appellee's Br. at 6. Temporary employees are not given a copy of the handbook. R. 262 at 15, Page ID# 5889. New Breed maintains that the relevant issues applicable to temporary employees are covered during orientation. Id. At the relevant time, Carissa Woods served as New Breed's Senior Human Resources (" HR" ) manager. R. 267 at 11, Page ID# 6754. Luanne Hearn was HR supervisor for the Avaya facility. R. 261 at 46, Page ID# 5784. Richard Valitutto served as vice president and general counsel for New Breed. R. 268 at 36, Page ID# 6911.

James Calhoun was a supervisor in the Receiving Department in the Avaya facility. R. 266-1 at 77, Page ID# 6572. In April 2008, New Breed hired Tiffany Pete and Jacquelyn Hines through Select Staffing, a staffing agency. R. 259 at 10, Page ID# 5450; R. 266 at 111, Page ID# 6476. Pete and Hines were assigned to the Shipping Department. R. 259 at 9, Page ID# 5449; R. 266 at 113, Page ID# 6478. A few days after they joined the Shipping Department, Calhoun transferred Pete and Hines to his department. R. 259 at 11, Page ID# 5451; R. 266 at 113, Page ID# 6478.

Capricius Pearson met Calhoun for the first time when he assisted her with securing employment at New Breed. R. 259 at 101-02, Page ID# 5541-42. Upon arriving to New Breed, Pearson was assigned to Receiving. Id. at 108, Page ID# 5548.

Christopher Partee was a forklift driver in Receiving, also under Calhoun's supervision. R. 260 at 79-80, Page ID# 5671-72. While under Calhoun's supervision, Partee worked closely with Calhoun, doing " little special project[s]" for him. Id. at 105-06, Page ID# 5697-98.

A. Calhoun's Sexual Harassment and the Claimants' Responses

Calhoun repeatedly made sexually suggestive comments to Pete, Pearson, and Hines while they were in his department, some of which were overheard by Partee.

Pete : At trial, Pete testified that Calhoun would make sexual comments to her several times a day, " every day." [1] R. 259 at 16-17, Page ID# 5456-57. Pete testified that she told Calhoun to " leave [her] alone" daily. Id. at 17, Page ID# 5457.

Pearson : Pearson testified that Calhoun made similar sexually explicit comments to her during her employment. Pearson also testified that Calhoun's harassment often involved physical contact. For example, on one occasion, Calhoun walked up behind Pearson and pressed his stomach and private parts to her backside. Id. at 121, Page ID# 5561. Pearson testified that she told Calhoun to " stop touching" her. Id. at 114, Page ID# 5554. On another occasion, Pearson overheard a few of the other female employees discussing a plan to record Calhoun's sexually harassing comments. Id. Consequently, Pearson approached Calhoun and " ask[ed] him to stop talking dirty to me like he was and to other people as well because he was going to get in trouble." Id. Calhoun laughed and responded " that he wasn't going to get in trouble, that he ran th[e] area, [and that] anybody who went to Luanne on him

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would be fired." Id. at 114-15, Page ID# 5554-55.

Hines : Calhoun also directed his sexually explicit comments to Hines. One day, Calhoun made a sexual comment to Hines at her desk. R. 260 at 12-13, Page ID# 5604-05. Hines testified that she " went off" and told Calhoun to " get the f-- out of my face. I d[on't] want to hear that [s--] today." Id. at 13, Page ID# 5605. Hines testified that, the next day, Calhoun informed the entire Receiving Department: " This is [my] department, [I] run this [s--]." Id. at 14, Page ID# 5606.

Partee : While he was employed at New Breed, Partee both witnessed and overheard Calhoun's harassment towards female employees in Receiving. Id. at 86, Page ID# 5678. Partee testified that, on one occasion, he admonished Calhoun, telling him to " calm down on making them comments because I don't believe them women was liking that." Id. at 93, Page ID# 5685. Calhoun responded, " I just be playing with them, and I don't be meaning no harm." Id.

B. Adverse Employment Action

In quick succession, Hines, Pete, Pearson, and Partee were all terminated from New Breed. Evidence was adduced at trial to demonstrate that Calhoun was directly or indirectly involved in each employee's termination.

Hines's dismissal : Hines testified that, while she worked under Calhoun's supervision, she was tardy for her shift on several occasions. Id. at 11, Page ID# 5603. Calhoun informed Hines not to clock in if she was late because he would clock her in manually so the system would not reflect that she was tardy. Id. Hines asked Calhoun to clock her in on two occasions pursuant to his instruction. Id. On the day she complained to Calhoun about his harassment, however, Select Staffing called to warn her about attendance. Id. at 72, Page ID# 5664. According to Hines, Select Staffing had never called her before with any attendance concerns. Id. A week later, Select Staffing called to terminate Hines for attendance reasons. Id. at 18, Page ID# 5610. Although Select Staffing communicated the termination decision, at trial, Woods testified that Calhoun terminated Hines's employment. R. 267 at 27, Page ID# 6670; see also R. 261 at 60, Page ID# 5798 (Hearn testifying that Calhoun had unilateral authority to terminate temporary employees).

Pete's call to the complaint line; Pete's and Pearson's subsequent transfer and dismissal : At some unspecified time, Calhoun learned that Pete intended to make a complaint against him via New Breed's complaint line. R. 266-1 at 100, Page ID# 6595. Calhoun testified that he discussed the anticipated complaint with Hearn and Sheldon Culp, the plant manager and Calhoun's direct supervisor. Id. at 124, Page ID# 6619. Calhoun testified that, during the meeting, Hearn and Culp decided to fire Pete and Pearson per his recommendation. Id.

On May 13, as anticipated, Pete placed an anonymous call to New Breed's complaint line. Pete stated: " James Calhoun makes sexually explicit remarks to female employees." R. 259 at 22, Page ID# 5462, Doc. 34 at 7. The " Alertline Confidential Memorandum" generated for the call indicated that the caller stated that s/he would not report the issue to management for fear of retaliation. Id. at 8. The memorandum also requested that a company representative investigate the matter by speaking with employees at the location. Id. Valitutto emailed Woods and requested that she investigate the complaint. Id. at 6. On May 14, Woods traveled to the Avaya facility and interviewed Calhoun for a

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half hour. R. 267 at 43, Page ID# 6786. Woods asked Calhoun five questions related to his alleged sexual remarks and determined that there was no misconduct. Doc. 34 at 9. Woods interviewed no other employees during her visit to the site. On May 15, Woods posted a message for the anonymous caller on the complaint line, requesting more information and the names of witnesses.

At some unspecified time, Calhoun transferred Pete and Pearson to the Returns Department.[2] R. 259 at 25, Page ID# 5465. Elizabeth Malone was the supervisor in Returns. R. 266-1 at 98, Page ID# 6593. Calhoun testified that he told Malone that Pete and Pearson started altercations so she would need " to keep an eye on them." Id. at 99, Page ID# 6594. Calhoun also told Malone that they " were not good workers." Id. Calhoun ...

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