Homesley v. Freightliner Corp.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

REBEKAH HOMESLEY, 
Plaintiff-Appellee,
and
MICHAEL HOMESLEY,
Plaintiff,
v.  No. 02-1158
FREIGHTLINER CORPORATION,
Defendant-Appellant,
and
ROBERT YARBOROUGH, a/k/a Butch,
Defendant.

REBEKAH HOMESLEY; MICHAEL 
HOMESLEY,
Plaintiffs-Appellants,
v.
FREIGHTLINER CORPORATION,  No. 02-1242
Defendant-Appellee,
and
ROBERT YARBOROUGH, a/k/a Butch,
Defendant.

2 HOMESLEY v. FREIGHTLINER CORP.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Carl Horn, III, Chief Magistrate Judge.
(CA-98-134-3-H)

Argued: January 22, 2003

Decided: April 22, 2003

Before WIDENER and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

COUNSEL

ARGUED: Raboteau Terrell Wilder, Jr., KILPATRICK STOCK-
TON, L.L.P., Charlotte, North Carolina, for Appellant. George Daly,
GEORGE DALY, PA, Charlotte, North Carolina, for Appellees. ON
BRIEF: Amy L. Layton, KILPATRICK STOCKTON, L.L.P., Char-
lotte, North Carolina, for Appellant. Anna Daly, COZEN &
O’CONNOR, Charlotte, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

OPINION

PER CURIAM:

Following a jury trial, Rebekah Homesley (Homesley) was
awarded $200,000 in compensatory damages on her Title VII hostile
 HOMESLEY v. FREIGHTLINER CORP. 3
work environment claim against Freightliner Corporation (Freight-
liner). After a United States Magistrate Judge1 entered judgment,
Homesley was awarded $165,270.21 in attorney’s fees and costs. On
appeal, Freightliner challenges the jury’s verdict, the jury’s compen-
satory damage award, and the award of attorney’s fees and costs. On
cross-appeal, Homesley challenges the magistrate judge’s decision
not to include $3771 in the award of attorney’s fees to account for a
delay in payment and her husband, Michael Homesley, challenges the
magistrate judge’s decision to dismiss his loss of consortium claim
against Freightliner. We affirm.

I

A

In 1995, Homesley began working as a "manual" welder at Freight-
liner’s plant in Gastonia, North Carolina. As the group leader of man-
ual and "spot" welders, Robert Yarborough (Yarborough) was
Homesley’s supervisor.

Some time after Homesley began working for Freightliner, Yarbor-
ough, on occasion, made lewd gestures and comments to Homesley.
This sporadic conduct, which Homesley described as not "that bad,"
continued until 1997, when Yarborough’s conduct became much
more offensive.

On several occasions during the first half of 1997, Yarborough told
Homesley he had just eaten lunch but had not known her name was
lunch; told Homesley that he was going to eat lunch and then grinned
and wiped his mouth; and scooted down in his chair, rolled his eyes,
licked his lips and rubbed his groin area while staring at Homesley.

In February 1997, Yarborough came into a welding booth where
Homesley and another manual welder were discussing how to weld
a fixture. Yarborough rubbed Homesley on her breast, said she had
dirt on her name tag, laughed, and left. Yarborough had rubbed her
1
By consent of the parties, the case was tried before a United States
Magistrate Judge. 28 U.S.C. § 636(c).
4 HOMESLEY v. FREIGHTLINER CORP.
for several seconds and Homesley could feel the rubbing through her
welding jacket.

Within a week, Homesley complained to Yarborough about his
behavior.2 She told Yarborough to stop touching her and to stop mak-
ing lewd comments directed toward her. Yarborough replied that he
was her boss and he would do as he liked and there was nothing she
could do about it.

In April 1997, Yarborough came into Homesley’s welding booth,
and in the presence of two other manual welders, rubbed her breast
as before, and again said she had dirt on her name tag, laughed, and
left. Homesley immediately called Michael Tolbert (Tolbert), Freight-
liner’s personnel manager, and asked him to come to her welding
booth. When he arrived, Homesley asked him, "hypothetically speak-
ing, what if an employee is having problems with sexual harass-
ment?" After some pressure from Tolbert, Homesley told him it was
Yarborough who was harassing her and "went in detail with what had
happened." Tolbert suggested she have her husband "whip [Butch’s]
butt outside the gate." He then said he would give her the weekend
to think it over and decide whether to "go and make a formal complaint."3

The following Monday, Homesley sought out Tolbert and told him
she had decided not to pursue the matter. She did this because she
feared for her job if she complained about Yarborough. Tolbert told
her that he had already informed Buddy Kircus (Kircus), the plant
manager, of the complaint. She said, "well, I guess I’ve messed up
now" and walked away.
2
The record reflects that Freightliner had several anti-harassment poli-
cies which outlined the rights of employees and the responsibilities of
management. One of Freightliner’s anti-harassment policies instructed an
employee who believed she was being sexually harassed to report the
sexual harassment to her supervisor. Another policy indicated that, if an
employee was sexually harassed by a supervisor, the employee "need not
bring the complaint to their . . . supervisor."
3
One of Freightliner’s anti-harassment policies required that formal
complaints, informal complaints, and rumors of sexual harassment be
investigated.
 HOMESLEY v. FREIGHTLINER CORP. 5
In June 1997, Yarborough again rubbed Homesley on her breast in
front of a male coworker. The following month, while in her welding
booth, Homesley bent over a basket looking for a welding part. Yar-
borough stealthily came up behind her and got "right up on [her]" and
said "at least I’ve caught you in the right position."

On July 12, 1997, Rita Chitwood (Chitwood), a spot welder, came
to Homesley’s welding booth and saw her crying. Homesley told her
of the sexual harassment by Yarborough. Chitwood said Yarborough
had been doing the same thing to her and to Tona Collins (Collins),
another spot welder. In fact, in early 1997, Yarborough made vulgar
remarks directed at Chitwood and, on one occasion, rubbed Chit-
wood’s arm and tried to slip his hand under her sleeve. Chitwood
complained to Jerry Lang (Lang), the departmental supervisor, "a
couple of months" before July 1997 about Yarborough rubbing her
arm, trying to reach up her sleeve and his vulgar talk. In response,
Lang said "he’s just kidding, [and] he don’t mean nothing by it." In
June 1997, Yarborough grabbed Chitwood by her belt loop and tried
to pull her onto his lap, in the presence of a male coworker. In late
June or early July 1997, Yarborough was eating yogurt or pudding at
his desk when Chitwood came to get a work order. Yarborough asked
Chitwood if she had ever been eaten like pudding.

After speaking with Homesley on July 12, 1997, Chitwood went to
Lang and complained again. Chitwood told Lang, among other things,
that Yarborough was harassing Homesley and Collins. Lang told her
that "he had been hearing some things, some rumors, but he couldn’t
do anything about it until the individuals came to him and told him
specifically what had happened."

Homesley then went to Lang’s office and spoke with him for about
five minutes. She told him that Yarborough had touched her on her
breast and made lewd gestures and remarks. After listening to Homes-
ley, Lang said "well, I guess I’m going to have to do something about
it now."

Collins went to Lang that same day and told him that, in the past
six months, Yarborough had asked her to unbutton her blouse, had
looked at her butt and licked his lips and said "that looks good," and
had asked her if he could have her unlisted home number.
6 HOMESLEY v. FREIGHTLINER CORP.
Lang talked to Yarborough later that day. Yarborough told Lang he
"could have told [Collins] to let me button it up instead of unbutton-
ing it"; he "could have made" the in-the-right-position remark; and he
"thought he did brush lint off Becky’s [Homesley’s] badge."

Yarborough continued as group leader the following Monday and
Tuesday. On Tuesday, Lang reported the matter to Kircus and to
Michael Holloman (Holloman), who had recently replaced Tolbert as
personnel manager. Thereafter, Lang and others met separately with
Homesley, Chitwood, and Collins to discuss Yarborough’s conduct.4

The next day, Holloman, Lang, and Kircus met with Yarborough
for about forty-five minutes. A written warning which had been pre-
pared the previous day was given to him at this meeting. This warning
read:

SUBJECT: WRITTEN WARNING FOR UNACCEPT-
ABLE BEHAVIOR
TO: PERSONNEL FILE OF BUTCH YARBOROUGH

FROM: MIKE HOLLOMAN/JERRY LANG
DATE: 7/1[6]/97

JERRY LANG AND I [Holloman] MET WITH BUTCH
ON TUESDAY, 7/15, TO DISCUSS THREE DIFFERENT
COMPLAINTS THAT WERE MADE ABOUT HIM BY
THE FOLLOWING EMPLOYEES:

BECKY HOMESL[E]Y
RITA CHITWOOD
TONA COLLINS

THE COMPLAINTS WERE OF A SEXUAL RELATED
NATURE AND WERE VIEWED TO BE SERIOUS. AS A
RESULT OF THIS WE DECIDED IT WAS NECESSARY
TO DOCUMENT THIS SITUATION IN A FORMAL
4
One of Freightliner’s anti-harassment policies required that sexual
harassment complainants be interviewed by "an appropriate person of the
same sex."
 HOMESLEY v. FREIGHTLINER CORP. 7
MANNER. BUTCH WAS TOLD NOT TO ENGAGE IN
THIS TYPE BEHAVIOR AGAIN. IF HE DOES HE
COULD BE GIVEN FURTHER DISCIPLINARY
ACTION UP TO AND INCLUDING TERMINATION.

When Yarborough was presented with this document he became
angry and "repeatedly stated that he thought he was being framed
[and] had been setup" and refused to sign the document. Only Hollo-
man and Lang signed.

Yarborough remained the group leader all that week. Homesley
continued to receive her work assignments from Yarborough, and he
began to persistently stalk and stare at her. According to Homesley,
Yarborough was "watching everything that I was doing." He also
stared at Chitwood in an intimidating manner.

Later in the week, when the complainants still had heard nothing
of any discipline of Yarborough and the persistent staring and stalking
was continuing, they asked Lang to be allowed to meet as a group
with Holloman. No group meeting was allowed, but on Friday each
was allowed to meet individually with Lang and Holloman. As Lang
was escorting Homesley through the plant to her meeting someone
yelled out, "there goes sexual harassment" and laughed. Lang just
kept on walking. During the meeting, Homesley told Holloman and
Lang that Yarborough was stalking and staring at her.

Yarborough remained Homesley’s group leader the next day.
When Homesley came in, a welding job was already set up in her
booth. Yarborough then added on a difficult additional job involving
a very heavy fixture, which required Homesley to get help from two
coworkers to get the fixture into her booth. During this time, Yarbor-
ough paced in front of her booth seven or eight times, writing notes
in a book. He had never before engaged in any such note-taking.
Then, he came into her booth and ordered her coworkers to leave. At
the time, they were helping her with the heavy fixture. At this,
Homesley dissolved into tears. She went to Lang and said Yarbor-
ough was still stalking her. Lang took her, crying, to the office of the
production manager, who appeared indifferent to her situation.
Homesley was too upset to go back to work that day. Homesley
returned to work the following Monday but spent a part of the day
8 HOMESLEY v. FREIGHTLINER CORP.
testing for another job, which would have put her in a different
department from Yarborough, at reduced pay. On Tuesday, without
any announcement, Yarborough was transferred to be the group
leader of the assembly area, which was about 100 feet away from
Homesley’s work station.

After less than three weeks in his new location, Yarborough was
demoted for making derogatory remarks to Linda Mooneyham, a
woman in his new group, about her handicap. Homesley then heard
that Yarborough might be assigned back to her work area as a welder.
Homesley told Lang that having Yarborough as a coworker would be
a problem, but he said he could not do anything about it. Chitwood
then telephoned the former plant manager, now working in the corpo-
rate headquarters, and he intervened and caused Yarborough to be
assigned to a different department. Yarborough’s new location was
again only 100 feet away from Homesley’s work station. There was
no business-related reason for him to come to their area, but he con-
tinued to return and stare at Homesley and Chitwood. Chitwood went
to see Kircus and asked to have Yarborough avoid their area. Kircus
told her she was being "ridiculous."

Homesley and Yarborough were one or the other absent on medical
leave from mid-August until November 1997. A few days after
Homesley returned, Lang called her to his desk and showed her an e-
mail from Kircus which said that, "for [Yarborough’s] protection,"
she was to start using a restroom more distant from her work station.
Homesley was in the habit of using the nearest restroom, which was
between her work station and Yarborough’s work station. Homesley
asked for a copy of the e-mail, but Lang refused to give it to her.
Homesley became upset and asked to meet with Kircus. Kircus told
Homesley that he had issued his bathroom directive "for [Yarbor-
ough’s] protection, that [Yarborough] had bills to pay just like [she]
did and he was trying to keep [Yarborough] a job."

As a result of Yarborough’s conduct, Homesley experienced crying
spells, fatigue, difficulty sleeping, anhedonia, decreased libido, poor
concentration, and feelings of worthlessness. In March 1998, Homes-
ley was diagnosed as "extremely depressed" and "not able to func-
tion" at work. She was prescribed anti-depressant medication and was
written out of work for a week. A week later, Homesley’s medical
 HOMESLEY v. FREIGHTLINER CORP. 9
leave was extended to a month because she continued to be unable to
function at work.

Dr. Francis Daly, a psychiatrist, diagnosed Homesley as having a
"major depression, single episode, severe," commencing in April
1997 because of the sexual harassment by Yarborough. Homesley’s
symptoms were "decreased mood, anhedonia, very prominent feelings
of worthlessness, feelings of guilt that she has put her job in jeopardy
and therefore put her family in jeopardy, significant feeling of hope-
lessness, decreased energy, decreased concentration, decreased sleep,
sleep continuity problems, [and] weight gain." Dr. Thomas Harding
(Dr. Harding), another psychiatrist, gave Homesley a "global assess-
ment of functioning" of fifty out of 100, indicating that she was "hav-
ing a hard time maintaining activities of daily living, including
bathing and sleeping and working."

Homesley suffered from flashbacks and constant headaches and, in
the summer of 1998, Dr. Harding diagnosed post-traumatic stress dis-
order because of the sexual harassment. Homesley was on leave for
depression and post-traumatic stress disorder for about two months in
1998 and for several months at the end of 1999. She continued to suf-
fer crying spells, fatigue, insomnia, and lack of concentration. In her
flashbacks, "in a flooded type of way, all of the emotion, all of the
fearfulness c[ame] back almost as if the event [were] occurring
again." Homesley relived Yarborough "feeling her breast." She had
the flashbacks frequently, both on the job and at night. Homesley also
had "recurring episodes of depression."

Homesley’s condition improved somewhat in the summer of 1998,
but by November of that year her "depression was much worse."
When she was on medical leave, she felt like "a zombie" and spent
days in bed crying, avoiding her friends, and rarely leaving her house.
Homesley’s depression caused difficulties in her relationships with
her husband and son. "I had stopped doing the things that we loved
to do. I stopped doing anything." In May 1999, she exhibited fatigue,
poor concentration, and anhedonia. In the summer of 1999, Homesley
was suffering from a "severe depression." In early 2000, Dr. Harding
certified Homesley to be disabled for any occupation. "She was tear-
ful, unable to sleep, unhopeful about her future . . . [and] unable to
10 HOMESLEY v. FREIGHTLINER CORP.
concentrate." Dr. Harding felt that Homesley’s lack of concentration
was potentially dangerous on her job.

Homesley was on disability leave for depression and post-traumatic
stress disorder for about twenty-four weeks altogether after July 1997
and took six different psychotropic medications. Previously, she had
been on disability leave only for childbirth. In June 2000, her global
assessment of functioning was sixty-five, indicating that she had
symptoms of depression but was nevertheless able to work. Homes-
ley’s condition gradually began to improve in late 2000 and by the
time of trial a year later she was on the way to recovery. At the pres-
ent time, Homesley continues to work for Freightliner.

B

On March 31, 1998, Homesley and Michael Homesley brought this
action against Yarborough and Freightliner in the United States Dis-
trict Court for the Western District of North Carolina. Count One
alleged that the defendants assaulted and battered Homesley in viola-
tion of North Carolina law. In Count Two, Homesley alleged, among
other things, that she was subjected to a hostile work environment
because of her sex in violation of Title VII, 42 U.S.C. § 2000e et seq.
In Count Three, Michael Homesley asserted a loss of consortium
claim against the defendants. The parties consented to proceed before
a United States Magistrate Judge. By stipulation of the parties, Yar-
borough was dismissed as a defendant before trial. Prior to trial, the
magistrate judge dismissed the claims for assault and battery and loss
of consortium, and the case proceeded to trial on the hostile work
environment claim.

At trial, the jury affirmatively answered "issues" that found:

(1) Yarborough sexually harassed Homesley while both
were employed by Freightliner;

(2) Yarborough was Homesley’s supervisor and this status
aided his harassment;

(3) Freightliner did not prove that it used reasonable care
to prevent and correct sexual harassment and that
 HOMESLEY v. FREIGHTLINER CORP. 11
Homesley failed to take advantage of preventive or
corrective opportunities provided by Freightliner;

(4) Homesley proved that supervisory employees of
Freightliner knew or should have known of Yarbor-
ough’s conduct and failed to take prompt and adequate
remedial action; and

(5) Homesley was entitled to recover $200,000 in compen-
satory damages from Freightliner.

Following the entry of the judgment, Freightliner unsuccessfully chal-
lenged the jury’s verdict, filing motions for judgment as a matter of
law or, in the alternative, for a new trial and/or remittitur. As the pre-
vailing party, Homesley made a motion for attorney’s fees, which the
magistrate judge granted. Freightliner noted a timely appeal and the
Homesleys filed a timely cross-appeal.

II

Freightliner argues that there is insufficient evidence in the record
to support the jury’s verdict in favor of Homesley on her hostile work
environment claim. We review the denial of a Rule 50 motion for
judgment as a matter of law de novo. Chaudhry v. Gallerizzo, 174
F.3d 394, 404 (4th Cir. 1999). If, viewing the facts in the light most
favorable to Homesley as the nonmoving party, there is sufficient evi-
dence for a reasonable jury to have found in her favor, we cannot dis-
turb the jury’s verdict. See, e.g., Duke v. Uniroyal, Inc., 928 F.2d
1413, 1417 (4th Cir. 1991). While we "are compelled to accord the
utmost respect to jury verdicts and tread gingerly in reviewing them,"
Price v. City of Charlotte, 93 F.3d 1241, 1250 (4th Cir. 1996), we
must grant judgment as a matter of law when "there is no legally suf-
ficient evidentiary basis" for the verdict. Fed. R. Civ. P. 50(a)(1).

Title VII of the Civil Rights Act of 1964 forbids employers from
engaging in actions that "discriminate against any individual with
respect to [her] compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex." 42 U.S.C.
§ 2000e-2(a)(1). A plaintiff may establish a violation of Title VII by
12 HOMESLEY v. FREIGHTLINER CORP.
proving that discrimination based on sex created a hostile or abusive
work environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
73 (1986); see also Smith v. First Union Nat’l Bank, 202 F.3d 234,
241 (4th Cir. 2000) ("An employee’s work environment is a term,
condition, or privilege of employment. . . . A cause of action therefore
may exist under Title VII if sexual harassment creates a hostile work
environment or abusive atmosphere."). Such a showing requires that
the plaintiff demonstrate both that the harassment was because of her
sex and that it created a hostile work environment. Smith, 202 F.3d
at 241-42. The requirement that harassment be "because of sex" does
not mandate that the harassment include sexual advances or proposi-
tions. Id. at 242. Rather, the "critical issue" is "whether members of
one sex are exposed to disadvantageous terms or conditions of
employment to which members of the other sex are not exposed."
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)
(citation and internal quotation marks omitted).

To prevail on her Title VII hostile work environment claim,
Homesley must establish four elements: (1) unwelcomed conduct; (2)
based on Homesley’s gender; (3) sufficiently severe or pervasive to
alter the conditions of employment and to create a hostile work envi-
ronment; and (4) some basis for imputing liability to Freightliner.
Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 266 (4th Cir.
2001); see also Smith, 202 F.3d at 241.

The parties do not dispute that there is sufficient evidence in the
record to support the jury’s finding in favor of Homesley on the first
three elements, which the jury essentially decided under the first
"issue" it answered. Accordingly, we only need to address the fourth
element.

Once a plaintiff has demonstrated that the harassment was unwel-
comed, because of her sex, and was sufficiently severe or pervasive,
the plaintiff must show that her employer bears responsibility for the
harassment. If the harassing party was the plaintiff’s supervisor, the
employer will be strictly liable where the harassment culminated in
a tangible employment action against the plaintiff. Faragher v. City
of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 765 (1998). If the harassing supervisor did not
punctuate his harassment with a tangible employment action, the
 HOMESLEY v. FREIGHTLINER CORP. 13
employer can avoid liability by establishing (1) that it exercised rea-
sonable care to prevent and promptly correct any sexually harassing
behavior and (2) that the plaintiff unreasonably failed to take advan-
tage of any preventive or corrective opportunities that the employer
provided. Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765.

Homesley concedes that there was no tangible employment action
taken against her. Accordingly, Freightliner is entitled to raise the
affirmative defense outlined in Faragher and Ellerth.

We conclude that Freightliner cannot show that it was entitled, as
a matter of law, to the Faragher/Ellerth affirmative defense. The first
part of the affirmative defense requires Freightliner to prove that it,
among other things, exercised reasonable care to promptly correct any
sexually harassing behavior. Faragher, 524 U.S. at 807; Ellerth, 524
U.S. at 765. The evidence in the record, viewed in a light most favor-
able to Homesley, clearly does not support the conclusion that Freigh-
tliner acted reasonably. First, Homesley’s complaint to Yarborough in
February 1997 and her May 1997 complaint to Tolbert were not
investigated at all. When Chitwood complained to Lang in the spring
of 1997 about Yarborough’s attempt to slip his hands under her cloth-
ing, Lang said that Yarborough was "just kidding, [and] he don’t
mean anything by it." When Chitwood complained again, Lang
excused his failure to investigate her earlier complaint by saying that
he had heard "some rumors" but could not take action until the
affected individuals complained. Lang’s approach violated one of
Freightliner’s anti-harassment policies which required that rumors of
sexual harassment be investigated. It was not until Homesley, Chit-
wood, and Collins complained on the same day that Lang decided to
take action. This evidence suggests that Freightliner was not inter-
ested in preventing, let alone correcting, sexual harassment in the
work place. Second, when Yarborough continued to harass Homesley
by stalking and staring at her, cf. Frazier v. Delco Elecs. Corp., 263
F.3d 663, 667 (7th Cir. 2001) (noting that stalking is a "characteristic
form of male aggression toward women"), Freightliner essentially
ignored Yarborough’s behavior. It was only when Homesley broke
down and had to leave work before something was done. The remedy
—moving Yarborough 100 feet away—was grossly inadequate and
did nothing to stop Yarborough’s continued stalking and staring.
Finally, management failed to comply with several of Freightliner’s
14 HOMESLEY v. FREIGHTLINER CORP.
policies designed to correct sexually harassing behavior. In sum, not-
withstanding the existence of Freightliner’s anti-harassment policies,
the evidence in the record, viewed in a light most favorable to
Homesley, does not support the conclusion that Freightliner met the
first part of the Faragher/Ellerth affirmative defense.

Freightliner fares no better under the second part of the affirmative
defense, which requires Freightliner to prove that Homesley unrea-
sonably failed to take advantage of any preventive or corrective
opportunities that Freightliner provided. Faragher, 524 U.S. at 807;
Ellerth, 524 U.S. at 765. Freightliner essentially concedes that
Homesley, in compliance with Freightliner’s anti-harassment policies,
complained of Yarborough’s conduct to her supervisor (who hap-
pened to be Yarborough) in February 1997. However, Freightliner
argues that Homesley acted unreasonably when she did not complain
to Yarborough in 1995, but rather waited until February 1997 to do
so.

Unquestionably, it was a jury question on the second part of the
Faragher/Ellerth affirmative defense. Homesley testified that Yarbor-
ough’s isolated conduct was not "that bad" from 1995 through the end
of 1996. This testimony suggests that Yarborough’s isolated conduct
from 1995 through the end of 1996 was not sufficiently pervasive or
severe to alter the conditions of Homesley’s employment and to
create a hostile work environment. Cf. Matvia, 259 F.3d at 270 (hold-
ing that plaintiff could not be excused from reporting sexual harass-
ment on December 16, 1997 where the sexual harassment from
September 1997 through December 15, 1997 was "persistent"). In
February 1997, the sexual harassment intensified. Indeed, before
1997, there was no touching of Homesley and there appears to be no
incident at all as to Chitwood or Collins. When Homesley was
touched and the harassment went from sporadic to persistent, Homes-
ley promptly complained about the unwelcomed conduct to her super-
visor in compliance with Freightliner’s anti-harassment policies.
Under these circumstances, a jury could properly conclude that
Homesley did not unreasonably fail to take advantage of any preven-
tive or corrective opportunities that Freightliner provided. Cf. Watts
v. Kroger Co., 170 F.3d 505, 510-11 (5th Cir. 1999) (holding that,
even though some sexual harassment occurred in 1993, it intensified
 HOMESLEY v. FREIGHTLINER CORP. 15
in the spring of 1994 and a jury could find that waiting until July 7,
1994 to complain was not unreasonable).

III

Freightliner also attacks several portions of the magistrate judge’s
instructions to the jury concerning the Faragher/Ellerth affirmative
defense. In reviewing the adequacy of a trial court’s chosen jury
instructions, we allow the trial court much discretion and will not
reverse as long as the instructions, taken as a whole, adequately state
the controlling law. United States v. Hassouneh, 199 F.3d 175, 181
(4th Cir. 2000).

With regard to the Faragher/Ellerth affirmative defense, the mag-
istrate judge instructed the jury as follows:

[I]f you answer the question about supervisory authority aid-
ing sexual harassment in the affirmative, the defendant,
Freightliner, is liable for the sexual harassment unless it
proves by the greater weight of the evidence both that it
exercised reasonable care to prevent and promptly correct
sexual harassment and that the plaintiff, Rebekah Homesley,
unreasonably failed to take advantage of preventative or cor-
rective opportunities which Freightliner provided.

***

To determine if Freightliner exercised reasonable care to
prevent any sexually harassing behavior, you should con-
sider both any sexual harassment policy Freightliner Corpo-
ration may have had and how it administered the policy
when complaints were received.

You may consider, for example, the extent to which defen-
dant, Freightliner Corporation, followed its own regulations
in handling plaintiff, Rebekah Homesley’s complaints; the
promptness or lack of promptness of its investigation of
them, the effectiveness or ineffectiveness of actions taken
against Mr. Yarborough, whether its harassment policy was
16 HOMESLEY v. FREIGHTLINER CORP.
designed to encourage victims of harassment to come for-
ward, whether it adequately trained Mr. Yarborough as to
his duty to avoid sexual harassment in employment and any
other circumstances arising from the evidence and its greater
weight which tend to show that defendant, Freightliner Cor-
poration, did or did not take reasonable care to prevent Mr.
Yarborough’s sexual harassment of plaintiff, Rebekah
Homesley.

In determining whether Freightliner Corporation exercised
reasonable care to prevent sexual harassment, whether or
not specific training was given is only one factor for you to
consider. In other words, you should consider whether or
not specific training in sexual harassment was given
together with all other relevant evidence to determine
whether the company acted reasonably or unreasonably.

Similarly, whether the defendant, Freightliner, followed its
own internal policies and procedures in responding to the
sexual harassment complaints is another factor for you to
consider in determining whether the company acted reason-
ably.

In other words, while a company’s failure to follow its own
policies or procedures may be evidence of unreasonable-
ness, it is also possible for you to conclude that the company
failed to follow its own policies or procedures but, neverthe-
less, took other steps and actions to make its overall
response to the sexual harassment complaint in this case rea-
sonable and adequate.

As to whether defendant, Freightliner, has shown that
Rebekah Homesley unreasonably failed to take advantage of
any corrective or preventative opportunities it provided, you
may consider whether the delay, if any, in reporting her alle-
gations of sexual harassment was an unreasonable delay in
light of all the evidence which has been admitted.

Under the law a person has a duty to report misconduct
promptly even if she is embarrassed or afraid of retaliation
 HOMESLEY v. FREIGHTLINER CORP. 17
from co-workers or managers so that the company has an
opportunity to correct the problem internally.

Fear that report — the report will be ineffective does not
relieve an employee of her obligation to report misconduct
promptly. For example, reporting is required even if the
employee believes friendships of management and/or other
employees makes it less likely that the company will take
appropriate action.

In deciding whether the plaintiff acted reasonably in com-
plaining [about] the misconduct you should consider all of
the alleged harassment that forms the basis of her complaint,
not just conduct you consider more egregious.

Freightliner argues that the magistrate judge should have instructed
the jury that "Freightliner’s policies were compelling or even just
strong evidence of reasonableness." Appellant’s Br. at 10; cf. Matvia,
259 F.3d at 268 ("Our cases have held that dissemination of an effec-
tive anti-harassment policy provides compelling proof that an
employer has exercised reasonable care to prevent and correct sexual
harassment.") (citation and internal quotation marks omitted). In our
view, no "compelling proof" instruction was required under Faragher
and Ellerth.

First, the first part of the Faragher/Ellerth affirmative defense asks
the jury to assess the reasonableness of the employer’s action in pre-
venting and correcting sexually harassing behavior in the work place.
As with most reasonableness determinations, in making the reason-
ableness determination under the first part of the Faragher/Ellerth
affirmative defense, the jury must focus on a multitude of factors.
While the existence of an anti-harassment policy may be more proba-
tive (and thus more "compelling") on the question of the reasonable-
ness of the employer’s actions, it does not follow that the jury should
be specifically instructed that an effective anti-harassment policy pro-
vides compelling proof that an employer has exercised reasonable
care to prevent and correct sexual harassment. Rather, it is the jury’s
responsibility to assess what weight should be given to each piece of
evidence. Put simply, we are confident that the jury on its own can
discern what evidence is more compelling than other evidence before
18 HOMESLEY v. FREIGHTLINER CORP.
it, so no separate instruction is required. Second, we do not read
Supreme Court precedent or the precedent from this circuit as requir-
ing that we turn the first part of the Faragher/Ellerth affirmative
defense into a burden shifting scheme, requiring the defendant to
demonstrate that the effective policy exists and then requiring the
plaintiff to demonstrate that the policy was implemented in bad faith
or that the defendant was deficient in enforcing it. After all, the first
part of the Faragher/Ellerth affirmative defense is just that, an affir-
mative defense—the plaintiff carries no evidentiary burden in proving
its elements.

Freightliner also argues that the magistrate judge should have spe-
cifically instructed the jury that it must consider Yarborough’s 1995
and 1996 sporadic lewd conduct in determining whether Homesley
promptly availed herself of Freightliner’s corrective measures. In
another argument, Freightliner argues that the jury should have been
instructed that Freightliner was legally justified in not investigating
Yarborough when Homesley instructed Tolbert not to investigate.
These proposed instructions, which both relate to the issue of whether
Homesley unreasonably failed to take advantage of any preventive or
corrective opportunities that Freightliner provided, were substantially
covered by the magistrate judge’s instructions: (1) that "[u]nder the
law a person has a duty to report misconduct promptly even if she is
embarrassed or afraid of retaliation from co-workers or managers so
that the company has an opportunity to correct the problem inter-
nally"; (2) to "consider all of the alleged harassment that forms the
basis of her complaint, not just the conduct you consider more egre-
gious"; and (3) to "consider whether the delay, if any, in reporting her
allegations of sexual harassment was an unreasonable delay in light
of all the evidence which has been admitted." Thus, the magistrate
judge’s instruction, taken as a whole, adequately stated the controlling
law. Hassouneh, 199 F.3d at 181.

IV

Freightliner challenges the jury’s award of $200,000 in compensa-
tory damages. Under Title VII, compensatory damages are available
for, among other things, "emotional pain, suffering, inconvenience,
mental anguish, loss of enjoyment of life, and other nonpecuniary
losses." 42 U.S.C. § 1981a(b)(3). Freightliner contends that the evi-
 HOMESLEY v. FREIGHTLINER CORP. 19
dence adduced at trial does not support the jury’s award of $200,000
in compensatory damages.

"‘A jury’s award of damages stands unless it is grossly excessive
or shocking to the conscience.’" Fox v. Gen. Motors Corp., 247 F.3d
169, 180 (4th Cir. 2001) (quoting O’Rourke v. City of Providence,
235 F.3d 713, 733 (1st Cir. 2001)); see also Hetzel v. County of
Prince William, 89 F.3d 169, 171 (4th Cir. 1996) (holding that a
jury’s award of compensatory damages will be set aside on the
grounds of excessiveness only if the verdict is against the clear weight
of the evidence or will result in a miscarriage of justice). We defer
to a jury’s award of damages for intangible harms, such as emotional
distress, "because the harm is subjective and evaluating it depends
considerably on the demeanor of the witnesses." Fox, 247 F.3d at 180
(citation and internal quotation marks omitted).

In our view, the $200,000 compensatory damage award is not
excessive. The record demonstrates that Homesley’s depression had
its onset in the spring of 1997; that her psychiatrist testified that her
depression and post-traumatic stress syndrome were caused by Yar-
borough’s sexual assaults; that for considerable periods of time over
the next few years her illnesses were severe and physically debilitat-
ing; that she was on medical leave for approximately twenty-four
weeks over a two and one-half year period and required major doses
of psychotropic medications; that because of her post-traumatic stress
disorder, also occasioned by the sexual assaults, she suffered debili-
tating flashbacks; and that these illnesses had a devastating effect on
her weight, her family, and her social life.

In Fox, we upheld a $200,000 compensatory damage award for a
hostile work environment claim under the ADA. In that case, we
observed:

Fox testified that he suffered anxiety, severe depression, and
a worsening of his already fragile physical condition as a
result of the constant harassment and humiliation he experi-
enced at the hands of his supervisors at GM. Both Fox’s
neurologist, Dr. Lieberman, and his psychiatrist, Dr. Soule,
offered testimony that supported these claims. Although
Fox’s depression admittedly had other causes, such as his
20 HOMESLEY v. FREIGHTLINER CORP.
health and personal problems, there can be no doubt that it
was at least in part attributable to the hostile work environ-
ment at GM. Furthermore, the worsening of Fox’s back
injury, which led to increased pain and suffering, appears to
have been triggered solely by the harassment Fox experi-
enced at work.

Given Fox’s testimony as to the specific nature of his emo-
tional pain, suffering, mental anguish, and loss of enjoyment
of life, . . . and the corroboration of his claim by medical
professionals, we cannot conclude that the $200,000 award
was grossly excessive or shocking to the conscience.

Id. at 180 (citations and internal quotation marks omitted). The inju-
ries in Fox are sufficiently analogous to the injuries in this case.
Moreover, like Fox, Homesley’s testimony concerning her injuries
was corroborated by medical professionals. Under Fox, we must con-
clude that the jury’s $200,000 compensatory damage award is not
excessive.

V

The parties raise additional arguments which they contend should
be resolved in their favor. Freightliner argues that the magistrate
judge erred when he admitted certain evidence concerning Yarbor-
ough’s stalking and staring and erred in calculating the award of attor-
ney’s fees. On cross-appeal, Homesley argues that the magistrate
judge erred when he declined to include $3771 in the award of attor-
ney’s fees to account for a delay in payment and her husband argues
that the magistrate judge erred when he dismissed his loss of consor-
tium claim against Freightliner. We have reviewed these arguments
and find them to be without merit. Accordingly, for the reasons stated
herein, the judgment of the court below is affirmed.

AFFIRMED