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EEOC v. Boh Bros. Construction Co., No. 11-30770 (5th Cir. Sept. 27, 2013)

EEOC v. Boh Bros. Construction Co., No. 11-30770 (5th Cir. Sept. 27, 2013)

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Published by Michael Pancier
5th Circuit Upholds decision for male employee who was subjected to hostile working environment based on sexual stereotypes.
5th Circuit Upholds decision for male employee who was subjected to hostile working environment based on sexual stereotypes.

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Categories:Types, Business/Law
Published by: Michael Pancier on Sep 29, 2013
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IN THE UNITED STATES COURT OF APPEALSFOR THE FIFTH CIRCUIT
No. 11-30770EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,Plaintiff - Appellee,v.BOH BROTHERS CONSTRUCTION COMPANY, L.L.C.,Defendant - Appellant. Appeal from the United States District Courtfor the Eastern District of LouisianaBefore STEWART, Chief Judge, and KING, JOLLY, DAVIS, JONES, SMITH,DeMOSS, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK,HAYNES, GRAVES, and HIGGINSON, Circuit Judges.JENNIFER WALKER ELROD, Circuit Judge, joined by STEWART, Chief Judge, and KING, DAVIS, DENNIS, PRADO, SOUTHWICK, HAYNES,GRAVES, and HIGGINSON, Circuit Judges:This Title VII case arises out of alleged sexual harassment by ChuckWolfe, the superintendent of an all-male crew on a construction site operated byBoh Bros. Construction Company (“Boh Brothers”). During a three-day jurytrial, the Equal Employment Opportunity Commission (“EEOC”) presentedevidence that Wolfe subjected Kerry Woods, an iron worker on Wolfe’s crew, toalmost-daily verbal and physical harassment because Woods did not conform toWolfe’s view of how a man should act. The jury found in favor of the EEOC on
United States Court of AppealsFifth Circuit
F I L E D
September 27, 2013Lyle W. CayceClerk
Case: 11-30770 Document: 00512389958 Page: 1 Date Filed: 09/27/2013
 
No. 11-30770its hostile-environment claim, awarding compensatory and punitive damages.Boh Brothers appeals the district court’s denial of its motion for judgment as amatter of law and motion for new trial. Drawing all reasonable inferences in thelight most favorable to the verdict, as we must, we AFFIRM in part, REVERSEin part, and REMAND for further proceedings consistent with this opinion.
I.
Woods is an iron worker and structural welder. Boh Brothers hired Woodson November 3, 2005, to work on crews repairing the Twin Spans bridgesbetween New Orleans and Slidell after Hurricane Katrina. In January 2006, thecompany transferred Woods to a bridge-maintenance crew. Wolfe was the crewsuperintendent, with about five employees under his supervision.The worksite was an undeniably vulgar place. Wolfe and the crewregularly used “very foul language” and “locker room talk.” According to othercrew members, Wolfe was a primary offender: he was “rough” and “mouthy” withhis co-workers and often teased and “ribbed on” them.By April 2006, Woods had become a specific and frequent target of Wolfe’sabuse. Wolfe referred to Woods as “pu--y,” “princess,” and “fa--ot,” often “two tothree times a day.” About two to three times per week—while Woods was bentover to perform a task—Wolfe approached him from behind and simulated analintercourse with him. Woods felt “embarrassed and humiliated” by the name-calling and began to look over his shoulder before bending down. In addition,Wolfe exposed his penis to Woods about ten times while urinating, sometimeswaving at Woods and smiling.One time, Wolfe approached Woods while Woods was napping in his lockedcar during a break. According to Woods, Wolfe “looked like he was zipping hispants” and said, “[i]f your door wouldn’t have been locked, my d-ck probablywould have been in your mouth.”
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Wolfe also made a lewd comment about Woods’s daughter—“You better hope yourdaughter don’t ever grow up and become a stripper because I won’t tip her”—which made
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Case: 11-30770 Document: 00512389958 Page: 2 Date Filed: 09/27/2013
 
No. 11-30770 According to Wolfe, some of his teasing originated from Woods’s use of WetOnes instead of toilet paper, which Wolfe viewed as “kind of gay” and “feminine.”In an interview with the EEOC, Wolfe explained:Mr. Woods sat at a table with a bunch of iron workers and told usthat he brought, you know, feminine wipes—not femininewipes—but Wet Ones or whatever to work with him because hedidn’t like it, didn’t like to use toilet paper. It’s [not] the kind of thing you’d want to say in front of a bunch [of] rough iron workersthat they had there. They all picked on him about it. They saidthat’s kind of feminine to bring these, that’s for girls. To bring WetOnes to work to wipe your ass, you damn sure don’t sit in front of abunch of iron workers and tell them about it. You keep that toyourself if in fact that’s what you do.Woods complained about Wolfe’s treatment to his foreman, Tim Carpenter,“two or three times.” Specifically, Woods said that he “didn’t like how [Wolfe]spoke to” him and asked Carpenter to reprimand Wolfe for urinating on thebridge. According to Woods, he elected not to complain about all of Wolfe’sbehavior because he was afraid “to cause more of a conflict.”Boh Brothers transferred Woods off of the bridge-maintenance crew to the Almonaster yard, the central location for Boh Brothers work, after an incidentin November 2006. According to Boh Brothers, Woods approached an inspectorwith Volkert Construction Services—an entity that oversaw the Twin Spansbridges site and approved Boh Brothers’s employees’ time records—and askedto see the maintenance crew’s time-sheets. Boh Brothers’s policy prohibited anemployee from viewing his co-workers’ time-sheets, and Woods’s purportedattempt to do so was a terminable offense. The inspector reported Woods’sconduct to Wolfe. Wolfe, in turn, notified Wayne Duckworth, the generalsuperintendent for Boh Brothers’s Heavy Highway Department, adding that he“didn’t care for” Woods because he was “different” and “didn’t fit in.” Wolfetestified that, at that point, he was “done with” Woods.
Woods cry.
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Case: 11-30770 Document: 00512389958 Page: 3 Date Filed: 09/27/2013

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