Harris v. L & L Wings, Inc. ( 1997 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DIANE SUE HARRIS; MARINA L.
PRASKY,
Plaintiffs-Appellees,
No. 96-2315
v.
L & L WINGS, INCORPORATED,
Defendant-Appellant.
DIANE SUE HARRIS; MARINA L.
PRASKY,
Plaintiffs-Appellees,
No. 96-2558
v.
L & L WINGS, INCORPORATED,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CA-95-952-4-22, CA-95-953-4-22)
Argued: October 31, 1997
Decided: December 24, 1997
Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Michael and Senior Judge Butzner joined.
_________________________________________________________________
COUNSEL
ARGUED: Victoria LaMonte Eslinger, NEXSEN, PRUET, JACOBS
& POLLARD, L.L.P., Columbia, South Carolina, for Appellant. Hen-
rietta Urbani Golding, BELLAMY, RUTENBERG, COPELAND,
EPPS, GRAVELY & BOWERS, P.A., Myrtle Beach, South Carolina,
for Appellees. ON BRIEF: J. Michelle Childs, Jennifer J. Aldrich,
David Rothstein, NEXSEN, PRUET, JACOBS & POLLARD, L.L.P.,
Columbia, South Carolina, for Appellant.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
Diane Harris and Marina Prasky sued their former employer, L & L
Wings, Inc., for sexual harassment in violation of Title VII. A jury
awarded Harris and Prasky compensatory and punitive damages. The
district court declined to set aside the awards on Wings' post-trial
motions. Wings disputes the sufficiency of the evidence for the jury's
verdicts and challenges the trial court's award of attorneys' fees to
Harris and Prasky. We affirm.
I.
Defendant Wings is a beachwear retailer that had several stores and
four warehouses in the Myrtle Beach, South Carolina area during the
time relevant to this lawsuit. Wings employed more than five hundred
people year round, a number that swelled to more than one thousand
workers during the busy summer season. Harris and Prasky were
hourly workers in various capacities in Wings' warehouses. Given
that they prevailed before the jury, we must review the evidence on
appeal in the light most favorable to them. See Winant v. Bostic, 5
F.3d 767, 774 (4th Cir. 1993).
Harris suffered sexual harassment for much of the time she was
employed by Wings. The harassment began in early 1991, when she
became assistant floor manager at Wings' Main Warehouse under the
supervision of floor manager Ely Levy. This position required Harris
2
to share a desk with Levy. On an almost daily basis, Levy grabbed
Harris, embraced her, stroked her hair, massaged her back and shoul-
ders, fondled her legs, and/or followed her around the warehouse.
Once Levy pinned Harris against a box and tried to kiss her. In addi-
tion to these assaults, Harris endured persistent boasts by Levy about
his sexual prowess, offers to promote her in exchange for dating him,
and another offer of a hundred dollars if Harris would go to bed with
him. Levy even offered to reward Harris' son with a raise if he would
convince his mother to go out with him. When Harris resisted Levy's
advances and complained to the warehouse manager, Shay Gat, and
other members of Wings management about Levy's conduct, the
harassment intensified. Levy also retaliated by interfering with Har-
ris' job performance, hiding her paperwork and humiliating her in
front of other employees.
While she worked at the Main Warehouse, Harris was placed in
uncomfortable situations by other Wings employees as well. Their
acts included repeated embraces, continuing attempts to engineer soli-
tary situations, and a swat on her rear end.
Even after Harris escaped the Main Warehouse and Levy's direct
supervision, harassment by him continued. In January 1992 Harris
became the supervisor of Wings' Warehouses 1 and 2. She still went
to the Main Warehouse almost every day to submit paperwork, how-
ever, and Levy continued to harass her on a near-daily basis. Every
time Harris encountered Levy, he would either touch her or make vul-
gar comments or sexual advances to her or both. After early 1993,
when Harris became supervisor of Warehouse 24, her personal con-
tact with Levy was less frequent, but no less offensive; Levy groped
her or made sexually crude remarks to her at virtually every opportu-
nity. The harassment continued unabated until Harris was terminated
in July 1993.
While she was employed at Wings, Prasky had to run a similar
gauntlet of abuse. When she replaced Harris as Levy's assistant at the
Main Warehouse in early 1992, Levy subjected her to much the same
treatment as Harris: constant strokes, caresses and embraces as well
as verbal harassment, including vulgar comments and sexual
advances. When he saw her talking to other employees, he would
grab her and say things like, "Don't talk to her. She's my wife,"
3
though of course she was not. On one occasion in 1992, Levy showed
Prasky a T-shirt depicting frogs in twelve different sexual positions
and said to her, "This is what I can do for you." Again, when Prasky
resisted Levy's advances and complained to management, Levy got
angry and the harassment intensified.
Prasky also suffered persistent harassment at the hands of other
Wings employees. Jacky Heby, Wings' General Manager, tugged on
her shorts and gestured as if to pull them down nearly every time he
encountered her in the warehouse. He made suggestive and offensive
remarks, once insisting that he had seen her perform as a stripper,
"same size butt, same size breasts," and that he remembered shoving
money into her underwear. And on one occasion Heby dismissed Ely
Levy from the desk Levy shared with Prasky, sat beside Prasky him-
self, and grabbed and rubbed her leg. Norman Kleiman, Wings'
swimwear buyer, once put his arm around Prasky and said "You can
call it sexual harassment if you want, but you've got a great behind."
The harassment ended only when Prasky was terminated in August
1993.
The fact that two female employees experienced a virtually identi-
cal course of harassment indicates that this was not an isolated phe-
nomenon. Further, at Warehouse 24 Harris witnessed Nisso Mizrahi,
a supervisor, "touching [two female employees], always trying to get
them in a corner." Harris' son testified that when he worked at Wings
he saw Ely Levy "touch a couple [female employees] on the shoul-
ders, massage their shoulders, rub on their back." And a female for-
mer employee testified that she also experienced daily groping and
sexual remarks by Ely Levy.
Nor did this harassment take place in a vacuum; the walls, tables,
and bathrooms of the workplace were covered with graffiti, including
slang references to sexual organs and sex acts. The walls were also
covered with posters of scantily clad women, some of which had been
defaced with obscene drawings of sexual organs and crude graffiti. As
Harris put it, "It was filthy drawings, dirty jokes, racial slurs, the F-
word everywhere. Swimwear posters with added parts drawn on." She
saw Ely Levy himself sketching a private part on one poster.
4
The evidence presented at trial included the testimony of Harris
and Prasky and other employees who witnessed and experienced
harassment. Neither Shay Gat nor Ely Levy testified, although Shaul
Levy and other Wings managers did appear at trial. In light of this
evidence, the jury returned verdicts for both Harris and Prasky on
their Title VII sexual harassment claims. The jury awarded Harris
$6,933 and Prasky $5,915 in compensatory damages. 1 The jury also
awarded Harris and Prasky each $150,000 in punitive damages.
Wings moved for judgment as a matter of law or for a new trial. The
district court denied these motions and awarded Harris $68,491 and
Prasky $57,838 in attorneys' fees and costs, less than each had
sought. Wings appeals.
II.
A.
Wings first challenges the jury's award of compensatory damages
to Harris and Prasky on their Title VII hostile environment claims.2
The company argues that it cannot be held liable for damages caused
by the harassing conduct of its employees because no representative
of the company had any notice of the harassment. See, e.g., Andrade
v. Mayfair Management, Inc., 88 F.3d 258, 261 (4th Cir. 1996);
Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1130 (4th
Cir. 1995). Ample evidence, however, supports the conclusion that
the company had notice of its employees' harassing conduct and
failed to respond to it. Therefore, the jury's compensatory awards
stand.
_________________________________________________________________
1 Harris and Prasky advanced both quid pro quo and hostile environ-
ment theories of Title VII liability. The jury found in their favor on both
theories, but the district court allowed compensatory damages to be
awarded only once to each plaintiff. Because we find that the verdicts on
hostile environment harassment are supported by the evidence, we need
not consider the claims of quid pro quo harassment.
2 Wings also challenges the propriety of consolidating the plaintiffs'
suits. Federal Rule of Civil Procedure 42(a) approves consolidation of
actions that involve a "common question of law or fact." These claims,
brought against the same defendant, relying on the same witnesses, alleg-
ing the same misconduct, and answered with the same defenses, clearly
meet this standard.
5
Wings was put on notice of the harassment Harris and Prasky expe-
rienced by repeated, specific complaints that each woman made to
several managers. Harris complained of sexual harassment to Shay
Gat, the warehouse manager, six to ten times beginning in May or
June of 1991. She also complained to Hugo Schiller, Wings' internal
management consultant. Harris even complained to Jacob Frank,
another warehouse manager, about the harassment she saw Mizrahi
perpetrate at Warehouse 24 against other female employees. And Har-
ris testified that a month before she was terminated she threatened
that if Wings did not do something about the intolerable work envi-
ronment the employees "were going to do something." Prasky com-
plained about sexual harassment to Gat and to Frank when he
replaced Gat as warehouse manager in April 1993. And she com-
plained to Schiller, once going into his office crying and begging him
to get her away from Ely Levy. Prasky also complained to Schiller
about the offensive graffiti on the walls and tables of the warehouse.
In this case, the complaints Harris and Prasky lodged gave Wings
sufficient notice to impute liability to the company. First we observe
that because Wings had no written grievance procedure or sexual
harassment policy Harris and Prasky had no guidance about whom to
contact in the event of a problem. They logically concluded that it
made sense to complain to warehouse manager Gat, who both super-
vised Ely Levy, the primary harasser, and reported directly to the
President of Wings, Shaul Levy. Harris and Prasky also introduced
evidence that Shaul Levy was not accessible to them. Though his
office was adjacent to the Main Warehouse, it was behind a door
secured by a lock to which Harris and Prasky did not have the combi-
nation, and he came into the warehouse only infrequently. Further-
more, when the President was in the warehouse, Prasky testified that
"He was usually with Shay [Gat] or Ely[Levy] and Jacky [Heby], and
any time a regular worker wanted to go up and talk to him, Ely or
Jacky or Shay would kind of just shoo them away." From this evi-
dence the jury could reasonably conclude that it was impractical for
Harris or Prasky to complain directly to the company President, who
was physically separated from them and who, when he was in the
warehouse, was usually shielded by the harassers about whom they
sought to complain.
Even so, sufficient evidence supports the inference that the mes-
sage made its way to the top of Wings management. Gat and Shaul
6
Levy were known to be close, and in fact Shaul Levy testified gener-
ally that Gat brought many complaints about Ely Levy to him. Shaul
Levy did occasionally come to the warehouse, where he must have
witnessed firsthand the profusion of graffiti and pornography that
covered the walls and contributed to the sexually hostile environment.
In light of all this evidence the jury reasonably concluded that Wings
itself had sufficient notice of Harris' and Prasky's plight to be liable
for compensatory damages.
B.
We next address Wings' challenge to the jury's award of punitive
damages to Harris and Prasky. Punitive damages are"an extraordi-
nary remedy," to be reserved for egregious cases. Stephens v. South
Atlantic Canners, Inc., 848 F.2d 484, 489 (4th Cir. 1988). It is well
established that exemplary damages are not an element of recovery in
every case involving an intentional tort. McKinnon v. Kwong Wah
Restaurant, 83 F.3d 498, 508-09 (1st Cir. 1996). Specifically, the text
and background of the Civil Rights Act of 1991, which authorizes
punitive damages, emphasize that this extraordinary remedy is not to
be awarded automatically in every successful Title VII suit. The 1991
Act approves punitive damages only "if the complaining party dem-
onstrates that the respondent engaged in a discriminatory practice or
discriminatory practices with malice or with reckless indifference to
the federally protected rights of an aggrieved individual." 42 U.S.C.
§ 1981a(b)(1) (emphasis added). Indeed, "[p]laintiffs must first prove
intentional discrimination, then must prove actual injury or loss aris-
ing therefrom to recover compensatory damages, and must meet an
even higher standard (establishing that the employer acted with mal-
ice or reckless or callous indifference to their rights) to recover puni-
tive damages." H.R. Rep. No. 40(I), 102d Cong., 1st Sess., at 72
(1991), quoted in McKinnon, 83 F.3d at 507.
This provision was enacted against a backdrop of prevailing doc-
trine that punitive damages are to be awarded only in cases where the
twin aims of punishment and deterrence are paramount. See, e.g., City
of Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-68 (1981) (puni-
tive damages are intended to punish and deter "extreme conduct");
Beauford v. Sisters of Mercy-Province of Detroit, Inc., 816 F.2d 1104,
1109 (6th Cir. 1987) (punitive damages have "generally been limited
7
to cases involving egregious conduct or a showing of willfulness or
malice on the part of the defendant"). And even when they are avail-
able, punitive damages remain wholly within the jury's discretion and
"are never awarded as of right, no matter how egregious the defen-
dant's conduct." Smith v. Wade, 461 U.S. 30, 52 (1983); see also
McKinnon, 83 F.3d at 508.
In order to reach the jury on the issue of punitive damages, a plain-
tiff generally must make a "heightened showing" of the culpable state
of mind of the employer, not just of the harasser. See Pandazides v.
Virginia Bd. of Educ., 13 F.3d 823, 830 n.9 (4th Cir. 1994). In a sex-
ual harassment case, clearing this "higher hurdle," Emmel v. Coca-
Cola Bottling Co. of Chicago, 95 F.3d 627, 636 (7th Cir. 1996),
demands more than mere proof of the notice required for compensa-
tory damages. "[W]here intentional discrimination occurs outside the
scope of the agency relationship between employer and employee --
in a hostile work environment case, for example-- evidence suffi-
cient to support employer liability may not establish that the employer
maliciously or recklessly permitted the offending conduct." Kolstad
v. American Dental Ass'n, 108 F.3d 1431, 1439 (D.C. Cir.), reh'g in
banc granted, 108 F.3d 1446 (D.C. Cir. 1997).
In evaluating the sufficiency of evidence on the malice or reckless
indifference of employers, courts have focused on three types of evi-
dence: (1) evidence of the employer's attitude towards sexual harass-
ment; (2) direct statements by the employer about plaintiffs' rights or
complaints; and (3) the egregiousness of the conduct at issue.
As to the employer's attitude or state of mind, our sister circuits
have considered such evidence as whether the employer instituted a
written sexual harassment policy and whether the employer's
response adequately addressed complaints of harassment. In some
cases, the existence of a written policy instituted in good faith has
operated as a total bar to employer liability for punitive damages. See,
e.g., Reynolds v. CSX Transp., Inc., 115 F.3d 860, 869 (11th Cir.
1997), petition for cert. filed, 66 U.S.L.W. 3324 (U.S. Oct. 27, 1997)
(No. 97-726); Splunge v. Shoney's, Inc., 97 F.3d 488, 491 (11th Cir.
1996); Fitzgerald v. Mountain States Tel. and Tel. Co., 68 F.3d 1257,
1264 (10th Cir. 1995). And in one case the Court of Appeals for the
Eighth Circuit based its approval of punitive damages on the fact that
8
the employer had ignored its own written harassment policy and
responded to plaintiff's repeated complaints with the unacceptable
suggestion that she move to a less attractive job to avoid the harasser.
Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 576 (8th Cir. 1997).
In light of these precedents, Wings' failure to implement any sexual
harassment or grievance policy and its utter failure to respond to
repeated complaints of pervasive sexual harassment do little to bolster
its challenge to the punitive award.
Of course, the absence of a written sexual harassment policy can-
not alone establish employer liability even for compensatory dam-
ages, Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1180 (2d Cir.
1996); Bouton v. BMW of North America, Inc., 29 F.3d 103, 109 (3d
Cir. 1994), so it is in no way dispositive of a claim for punitive dam-
ages. And we are not today suggesting that employers are required to
enlist a small army of experts and consultants in order to craft such
a policy. We note simply that the institution of a written sexual
harassment policy goes a long way towards dispelling any claim
about the employer's "reckless" or "malicious" state of mind. Had
Wings implemented such a policy, the evaluation of the punitive dam-
ages question would have taken that into account.
Wings suggests, however, that the complex legal requirements in
this whole area left it at sea. We are mindful of the difficulty employ-
ers face when dealing with claims of harassment, finding themselves
between the rock of an inadequate response under Title VII and the
hard place of potential tort liability for wrongful discharge of the
alleged harasser. The legal standard of "prompt and adequate reme-
dial action" in no way requires an employer to dispense with fair pro-
cedures for those accused or to discharge every alleged harasser.
Knabe v. Boury Corp., 114 F.3d 407, 414 (3d Cir. 1997) ("[A]n
employer, in order to avoid liability for the discriminatory conduct of
an employee, does not have to necessarily discipline or terminate the
offending employee as long as the employer takes corrective action
reasonably likely to prevent the offending conduct from reoccur-
ring."). And a good faith investigation of alleged harassment may sat-
isfy the "prompt and adequate" response standard, even if the
investigation turns up no evidence of harassment. Kilgore v. Thomp-
son & Brock Management, Inc., 93 F.3d 752, 754 (11th Cir. 1996).
Such an employer may avoid liability even if a jury later concludes
9
that in fact harassment occurred. See Fitzgerald , 68 F.3d at 1264. But
Wings did absolutely nothing to address the harassment of which Har-
ris and Prasky complained. And this total absence of a response, not
to mention a "prompt and adequate" one, is cognizable evidence of
Wings' indifference to the federally protected rights of those in its
employ.
There is also direct evidence here of the employer's wanton disre-
gard for its employees' rights. In his testimony at trial the President
of Wings, Shaul Levy, dismissed questions about why Wings did not
have a written policy against sexual harassment by saying: "It's a
ridiculous thing. Am I the judge to say who is right and who is wrong.
In my opinion, they [the female employees] should go to somebody
who has authority to be a judge. I'm not a judge. I'm just an
employer." The jury could reasonably interpret this statement as a dis-
avowal by Levy of any responsibility to rid his workplace of sexual
harassment. Such direct disavowal of any Title VII responsibilities
contributes to the case for punitive damages against the employer. See
Beardsley v. Webb, 30 F.3d 524, 531 (4th Cir. 1994); Nicks v.
Missouri, 67 F.3d 699, 705 (8th Cir. 1995).
The final factor in evaluating the propriety of punitive damages,
the egregiousness of the conduct at issue, also supports the district
court's submission of the question of punitive damages to the jury.
The evidence presented to the jury described constant, often daily
harassment of Harris and Prasky as well as other female employees
of Wings. In addition to a torrent of vulgarities, including crude
remarks and unwelcome sexual advances, Harris and Prasky were
routinely grabbed, groped, fondled and otherwise physically assaulted
by their supervisor "every chance he got" and by several other
employees. As Prasky described, Levy "was always touching me. . . .
He would run his fingers through my hair. He would touch my shoul-
ders. Sometimes touch my leg. He would come up from behind me
and grab my waist." Harris endured this conduct for more than two
years before she was terminated, and Prasky suffered similar molesta-
tion for more than a year before she too was fired. The working envi-
ronment was permeated with innuendo and graffiti that included "a lot
of profanity, a lot of F-words, a lot of drawings, a lot of dirty jokes,"
and lewd, explicitly embellished posters. This was not a case of
ambiguous or episodic behavior on the part of a defendant or of ultra-
10
sensitivity on the part of a plaintiff. Rather, the harassment was crude,
persistent, demeaning, unrelenting, and widespread. The two employ-
ees were pawed over or propositioned nearly every day they went to
work. Taken together, the egregious conduct at issue and the direct
evidence of Wings' reckless indifference to the same suffice to sus-
tain the jury's punitive verdicts.
Wings finally contends that most, if not all of the $150,000 Harris
and Prasky each received as punitive damages constitutes an imper-
missible retroactive recovery for harassment that occurred before
November 21, 1991, the date of enactment of the Civil Rights Act
authorizing punitive damages. See Landgraf v. USI Film Prods., 511
U.S. 244 (1994) (damages provisions of Civil Rights Act of 1991 do
not apply retroactively). We disagree. Harris and Prasky introduced
sufficient evidence that the harassment continued until they were ter-
minated, long after November 1991, to establish the reasonableness
of the jury's punitive damage awards. Moreover, the jury was specifi-
cally instructed that it ought not to consider evidence of incidents that
occurred before enactment of the Civil Rights Act of 1991 in assess-
ing damages. We have "no reason to depart from`the almost invari-
able assumption of the law that jurors follow their instructions.'"
Shannon v. United States, 512 U.S. 573, 585 (1994) (quoting
Richardson v. Marsh, 481 U.S. 200, 206 (1987)); Aspen Skiing Co.
v. Aspen Highlands Skiing Corp., 472 U.S. 585, 604 (1985).
III.
Wings also alleges that the district court's calculation of attorneys'
fees and costs impermissibly included charges for secretarial work,
vague and duplicative entries, and fees and costs for claims on which
Harris and Prasky did not prevail. We review the district court's
awards for abuse of discretion. Trimper v. City of Norfolk, 58 F.3d 68,
74 (4th Cir. 1995). Harris sought attorneys' fees and costs in the
amount of $90,190.21 and received $68,491. Prasky sought attorneys'
fees and costs of $71,200.56 and received $57,838. The district court
meticulously deducted fees and costs associated with unsuccessful
claims, eliminated hours spent on secretarial tasks from its calculation
of the lodestar, and declined plaintiffs' request for an upward adjust-
ment to the lodestar figure. This careful consideration of the fee
awards was not an abuse of discretion.
11
IV.
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED
12