UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-50247
_____________________
SONJA CHAVEZ,
Plaintiff-Appellee,
versus
KOSA TELEVISION and TIM RIGGAN,
Defendants-Appellants.
________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(M-94-CV-121)
________________________________________________
December 29, 1995
Before REAVLEY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:1
The principal issue in this appeal by KOSA Television and Tim
Riggan is whether lack of prompt remedial action is one of the
elements for this Title VII sexual harassment action brought by
Sonja Chavez. Appellants claim that the district court erred by
denying them judgment as a matter of law and by submitting the
issue of punitive damages to the jury. We AFFIRM.
1
Local Rule 47.5.1 provides: "The publication of
opinions that have no precedential value and merely decide
particular cases on the basis of well-settled principles of law
imposes needless expense on the public and burdens on the legal
profession." Pursuant to that rule, the court has determined
that this opinion should not be published.
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I.
Chavez was hired by Riggan to work as an advertising
salesperson for KOSA-TV on March 25, 1991. Riggan, the head of
sales, began making sexual comments, discussed infra, to Chavez.
In early December 1992, Chavez complained to Sheryl Jonsson, the
KOSA general manager, and Jonsson met with Chavez and Riggan about
the complaint. After this meeting, the sexual comments stopped,
but Riggan then began a campaign of beeping Chavez to check on her
work, instituted new rules that were abandoned when she left,
became cold and distant, and began dealing with her only through
third parties. Chavez testified that the hostility increased until
it became intolerable; she resigned in March 1993, approximately
three months after her complaint of sexual harassment.
Chavez filed this action against KOSA and Riggan in July 1994,
presenting 11 claims; one was for sexual harassment under Title
VII. KOSA and Riggan's summary judgment motion was denied on the
harassment claim, but was granted for the remainder.
After the close of evidence at a jury trial, KOSA and Riggan's
motion for judgment as a matter of law was denied. The jury
awarded Chavez $8,000 in compensatory damages and $35,000 in
punitive damages. Post-judgment, KOSA and Riggan filed a renewed
motion for judgment as a matter of law and a motion for a new
trial; both were denied.
II.
In relevant part, Title VII prohibits an "employer" from
discriminating "against any individual with respect to his
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compensation, terms, conditions, or privileges of employment,
because of such individual's ... sex". 42 U.S.C. § 2000e-2(a)(1).
The issues presented are whether judgment as a matter of law was
appropriate because the conduct did not violate Title VII,
including because of prompt remedial action, and whether punitive
damages were erroneously submitted to the jury in light of the jury
verdict form and insufficiency of the evidence.
A.
The well-known standard of review for a FED. R. CIV. P. 50
motion for judgment as a matter of law is found in Boeing Co. v.
Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc). Boeing states:
If the facts and inferences point so strongly
and overwhelmingly in favor of one party that
the Court believes that reasonable men could
not arrive at a contrary verdict, granting of
the [motion] is proper. On the other hand, if
there is substantial evidence opposed to the
[motion], that is, evidence of such quality
and weight that reasonable and fair-minded men
in the exercise of impartial judgment might
reach different conclusions, the [motion]
should be denied, and the case submitted to
the jury. A mere scintilla of evidence is
insufficient to present a question for the
jury.
411 F.2d at 374. The court must "consider all of the evidence --
not just that evidence which supports the non-mover's case -- but
in the light and with all reasonable inferences most favorable to
the party opposed to the motion". Id.
1.
The elements for this sexual harassment claim are:
(1) That [Chavez] belongs to a protected
class; (2) that she was subject to unwelcome
sexual harassment; (3) that the harassment was
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based on sex; [and] (4) that the harassment
affected a "term, condition or privilege of
employment"....
Nash v. Electrospace System, Inc., 9 F.3d 401, 403 (5th Cir. 1993)
(citing Jones v. Flagship Int'l, 793 F.2d 714, 719-20 (5th Cir.
1986), cert. denied, 479 U.S. 1065 (1987)). The disputed fifth
prong under Nash, 9 F.3d at 403 ("that the employer either knew or
should have known of the harassment and failed to take prompt
remedial action"), is discussed in part II.A.2.
Evidence in favor of Chavez includes the following: when
viewing Chavez walking down the hall, Riggan said daily, "work it,
baby, work it"; when Chavez asked Riggan for assistance on a
business task, he replied, "oh baby, how bad do you need me";
Riggan remarked daily on her cleavage and clothes; in cold weather
Riggan remarked about Chavez having her "party hats on", apparently
in reference to her nipples; several times when Riggan entered
Chavez's office, he told her that he would turn off the light and
put her on the desk; when Chavez requested permission to leave
early one day, Riggan said, "if you show me your tits first, you
can go home"; once, when Chavez called in sick, Riggan asked
whether she was naked in bed; and, on one occasion, Riggan put golf
hats on Chavez's breasts. Witnesses, in addition to Chavez,
testified about similar improper comments and actions by Riggan.
Chavez testified that the remarks by Riggan were continuous
and permeated the work environment. A co-worker testified that
from the time Chavez began working at KOSA and until she complained
of sexual harassment, Riggan seemed to enjoy upsetting Chavez, who
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"would spend a lot of time in the bathroom due to physical
reactions to the tension and the upset". Chavez testified that
after her sexual harassment complaint, she felt that Riggan began
harassing her through his daily actions toward her. Chavez
testified that, because of these post-complaint actions, on a daily
basis she cried, her heart raced, and she was a nervous emotional
wreck.
Appellants respond that there was no "unwelcome sexual
harassment", and that, other than a few offensive remarks by
Riggan, as Chavez testified, she loved her work at KOSA-TV. The
evidence presented in favor of appellants was that Chavez exposed
her breasts to Riggan at a pool party; she acknowledged telling
sexually-oriented jokes at the station; and, after the complaint of
sexual harassment, Chavez was observed touching Riggan at a
Christmas party and making two attempts to grab his buttocks at the
station.
Chavez and a co-worker who was present at the pool party
denied that Chavez showed her breasts to Riggan. And, a co-worker
testified that Chavez's attempt to touch Riggan's buttocks was only
a demonstration of what a former employee had done to Chavez.
In short, Riggan denied the sexual harassment incidents
presented by Chavez; but, the jury obviously believed her. This is
a classic case for the jury; it goes without saying that the jury,
not this court, makes credibility determinations. Based on all the
evidence, considered in the light most favorable to Chavez, a fair-
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minded and impartial jury could have found Title VII sexual
harassment.
2.
KOSA and Riggan assert that the sexual harassment claim fails
because the fifth prong (respondeat superior) of Nash ("that the
employer either knew or should have known of the harassment and
failed to take prompt remedial action") was not satisfied. Nash,
9 F.3d at 402.
Under certain circumstances, the respondeat superior prong
imposes liability on Title VII "employers" for sexual harassment by
a co-worker or supervisor, persons not otherwise liable under Title
VII. The salient question here is whether this prong applies; it
does not, because, as discussed below, the claimed harasser was the
employer.
KOSA and Riggan appear to have conceded, necessarily so, at
oral argument that Riggan is an "employer" for purposes of this
action. In any event, were Riggan not an employer, he could not be
a defendant in this Title VII action, because as quoted earlier,
Title VII only prohibits certain actions by employers. Moreover,
KOSA and Riggan do not challenge the district court's ruling that
this Title VII action could proceed against Riggan. 42 U.S.C. §
2000e(b) defines a Title VII "employer" as "a person engaged in an
industry affecting commerce who has fifteen or more employees ...
and any agent of such a person" (emphasis added). And, our court
gives the phrase "any agent" a liberal construction. Garcia v. Elf
Atochem North America, 28 F.3d 446, 451 (5th Cir. 1994); Harvey v.
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Blake, 913 F.2d 226, 227 (5th Cir. 1990). "`Under this liberal
construction, immediate supervisors are Employers when delegated
the employer's traditional rights, such as hiring and firing.'"
Elf, 28 F.3d at 451 (quoting Harvey, 913 F.2d at 227; emphasis
omitted). In sum, had Riggan not been an "employer", the action
could have proceeded only against KOSA on the basis of respondeat
superior. See Elf, 28 F.3d at 450.
Obviously, respondeat superior is not applicable when, as
here, sexual harassment is by the employer, rather than by a co-
worker or supervisor. See 42 U.S.C. § 2000e-2(a); Nash, 9 F.3d at
404 (respondeat superior liability not at issue when harasser is
president of company) (citing Harris v. Forklift Systems, Inc., ___
U.S. ___, 114 S. Ct. 367 (1993)); Simmons v. Lyons, 746 F.2d 265,
270 (5th Cir. 1984).2
B.
KOSA and Riggan contest punitive damages on two bases: the
punitive damages question submitted to the jury did not contain the
word "malice"; and there was insufficient evidence to support the
award.
2
Our court first used the five-prong test for "hostile
work environment" in Jones v. Flagship Int'l, 793 F.2d 714 (5th
Cir. 1986), which borrowed the test from Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). Henson stated that
respondeat superior applies when "the plaintiff seeks to hold the
employer responsible for the hostile environment created by the
plaintiff's supervisor or co-worker", 682 F.2d at 905, and that,
if the alleged harasser [Riggan] "was her employer, the City of
Dundee [KOSA] would be liable for his action without the
operation of respondeat superior". Id. at 905 n.9.
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1.
Although the jury instruction included "malice" ("You may also
award punitive damages, if [Chavez] has proved that the defendants
acted with malice or willfulness or with callous and reckless
indifference to the rights of [Chavez]."), question number three on
the jury verdict form did not ("Did the defendants intentionally,
willfully, or with reckless disregard violate the rights of
[Chavez]?"). But, KOSA and Riggan objected to question number
three only generally; they did not object specifically to the
failure to include "malice". Their counsel stated:
My final objection, if Your Honor please,
would be to Question Number 3 as submitted by
the Court, and that is the question concerning
punitive damages, because of the same reasons
as outlined above in that the test for
punitive damages, number one, has not been met
by [Chavez] in this case under the evidence,
and number two, the Court's charge does not
meet the burden and does not place upon
[Chavez] the burden that [Chavez] would have
to bear in order to get punitive damages.
Restated, contrary to FED. R. CIV. P. 51, KOSA and Riggan did not
state distinctly that they objected to the omission of "malice".
Rule 51 states:
No party may assign as error the giving or the
failure to give an instruction unless that
party objects thereto before the jury retires
to consider its verdict, stating distinctly
the matter objected to and the grounds of the
objection.
(Emphasis added).
Under Highlands Ins. Co. v. Nat'l Union Fire Ins. Co., 27 F.3d
1027, 1032 (5th Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct.
903 (1995), "so long as the trial judge gives counsel a fair
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opportunity to object, we will listen to unobjected-to rulings only
in those handful of cases that can meet the exacting requirements
of plain error". As stated in Highlands,
[f]ew jury charges in cases of complexity will
not yield "error" if pored over, long after
the fact in the quiet of the library -- if
such an enterprise is to be allowed. It is
not. The reality is that most such "errors"
will be washed away if the trial court is
given a fair opportunity to consider them.
27 F.3d at 1032. Due to the general nature of KOSA and Riggan's
objection, the trial court was not given fair opportunity to
consider the omission of "malice". Therefore, we review only under
the plain error standard:
(1) that an error occurred; (2) that the error
was plain, which means clear or obvious; (3)
the plain error must affect substantial
rights; and (4) not correcting the error would
"seriously affect the fairness, integrity or
public reputation of judicial proceedings."
Highlands, 27 F.3d at 1032 (citing United States v. Olano, 507 U.S.
725, ___, 113 S. Ct. 1770, 1779 (1993)). Needless to say, any
error in not including "malice" does not meet this strict standard.
Among other things, as discussed infra, the omission did not affect
substantial rights.
In the alternative, even assuming, arguendo, that KOSA and
Riggan did object sufficiently, the error was harmless. An award
of punitive damages is appropriate under 42 U.S.C. § 1981a(b)(1) if
the defendant "engaged in a discriminatory practice ... with malice
or with reckless indifference". (Emphasis added.) The jury found
reckless indifference; the omission of "malice" did not affect the
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outcome. See F.D.I.C. v. Mijalis, 15 F.3d 1314, 1318 (5th Cir.
1994); Bender v. Brumley, 1 F.3d 271, 276-77 (5th Cir. 1993).
2.
KOSA and Riggan claim that there was insufficient evidence to
support submission of punitive damages to the jury. Under the
above discussed Boeing and punitive damages standards, we conclude
that the evidence was sufficient for a fair-minded juror to find
that reckless indifference was present.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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