Ocheltree v. Scollon Productions, Inc.

WILLIAMS, Circuit Judge,

dissenting in part and concurring in the judgment in part:

In all candor, I share with my colleagues the personal preference that all people treat each other with respect and decency, in and out of the workplace. My disagreement with the result reached by the majority should in no way be interpreted as condoning the deplorable behavior exhibited by the employees of Seollon Productions. The question, I submit, is whether we, as federal judges, should devise our own policy or follow that which was clearly expressed by Congress in Title VII. The answer is clear: “[o]ur compass is not to read a statute to reach what we perceive— or even what we think a reasonable person should perceive — is a ‘sensible result’; Congress must be taken at its word unless we are to assume the role of statute revisers.” Bijulco v. United States, 447 U.S. 381, 401, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980) (Burger, J., concurring). “Our duty, to paraphrase Mr. Justice Holmes in a conversation with Judge Learned Hand, is not to do justice but to apply the law and hope that justice is done.” Id. at 402, 100 S.Ct. 2247 (citing The Spirit of Liberty: Papers and Addresses of Learned Hand 306-307 (Dilliard ed.1960)). Congress has proscribed gender-motivated discrimination in the workplace, not immorality, vulgarity, or disrespect. With all respect to my esteemed colleagues, I cannot agree that this jury verdict can be sustained by simply recounting various types of vulgarity and then concluding ipse dixit that such behavior constituted gender-motivated discrimination. Because I believe the majority’s opinion reflects a fundamental misconception of the meaning of “discrimination] ... because of ... sex” and effectively insulates the district court’s denial of the motion for judgment as a matter of law from meaningful appellate review, I respectfully dissent from the majority’s decision to affirm the compensatory damages award. I concur in the majority’s judgment that the punitive damages award must be reversed.

I.

A court should render judgment as a matter of law when “a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on thatis-sue.” Fed.R.Civ.P. 50(a)(1); see also Weisgram v. Marley Co., 528 U.S. 440, 448, 120 S.Ct. 1011, 145 L.Ed.2d 958 (2000) (“[Rule 50(a) ] allows the trial court to remove cases or issues from the jury’s consideration when facts are sufficiently clear that *338the law requires a particular result.” (internal quotation marks and citation omitted)). “While we are compelled to accord the utmost respect to jury verdicts and tread gingerly in reviewing them, we are not a rubber stamp convened merely to endorse the conclusions of the jury, but rather have a duty to reverse the jury verdict[ ] if the evidence cannot support it.” Price v. City of Charlotte, 93 F.3d 1241, 1250 (4th Cir.1996) (internal citations omitted). “Judgment as a matter of law is proper when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment.” Id. at 1249 (internal quotation marks and citation omitted). .

II.

To determine whether there is a legally sufficient evidentiary basis to sustain the jury’s verdict, I begin with the text of Title VII. Title VII makes it an “unlawful employment practice for an employer ... to fail or refuse to hire or to discharge ... or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.” 42 U.S.C.A. § 2000e-2(a)(l) (West-1994). Because the workplace environment is one of the “terms, conditions, or privileges of employment,” see Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), a plaintiff may establish a violation of Title VII by proving that “discrimination] ... because of ... sex” has created a hostile or abusive work environment, see id. at 66, 106 S.Ct. 2399. As the majority explains, to' make out a hostile work environment claim, the claimant must prove: (1) that the subject conduct was unwelcome; (2) that the plaintiff. was “discriminate^] against ... because of [her] sex”; (3) that the gender-motivated discriminatory behavior was sufficiently severe or- pervasive to create an abusive working environment; and (4) that some basis exists for imputing liability to the employer. (Maj. Op. at 331.) Scollon Productions contends that the evidence was insufficient with respect to elements (2), (3), and (4). I will address elements (2) and (3) in turn.

A.

Notably, “Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘ discrimination] ... because of ... sex.’ ” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 676 (7th Cir.l993) (noting that there would be no cause of action for race discrimination under Title VII for a “daily routine of race-neutral verbal abuse”). Thus, a pervasively hostile or abusive atmosphere does not create a cause of action for sexual harassment under Title VII unless the plaintiff is able to show discriminatory treatment because of sex. Meritor Sav. Bank, 477 U.S. at 66, 106 S.Ct. 2399 (“[C]ourts have uniformly held, and we agree, that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.’’). “[Workplace harassment, even harassment between men and women, is [not] automatically discrimination because of sex merely because the words used have sexual content or connotations.” Oncale, 523 U.S. at 80, 118 S.Ct. 998. “ The critical issue, Title VII’s text indicates, 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.’ ” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (Ginsburg, J., concurring)). Stated another way, “would the complaining employee *339have suffered the harassment had he or she been of a different gender?” Hopkins v. Balt Gas & Elec. Co., 77 F.3d 745, 750 (4th Cir.1996) (quoting Bundy v. Jackson, 641 F.2d 934, 942 n. 7 (D.C.Cir.1981)).

Based upon the foregoing principles, this court has consistently and correctly recognized that a finding of “discrimination] ... because of ... sex” depends not simply on identifying some quantum of harassing behavior to which an individual is exposed. Rather, the statutory language itself requires a showing that the harassing behavior constituted disparate treatment and that this disparate treatment was motivated by the plaintiffs gender. See Lack v. Wal-Mart, Inc., 240 F.3d 255, 260 (4th Cir.2001) (“This emphasis on discrimination as sex-differential treatment resonates throughout ... Oncale.” (emphasis added)); id. at 261 (asking whether offensive comments were “animated by Bragg’s hostility to Lack as a man”). In other words, there must be evidence that supports an inference that the harassing conduct is both “discrimination]” and is “because of ... sex.” See Oncale, 523 U.S. at 80-81, 118 S.Ct. 998; Smith v. First Union Nat’l Bank, 202 F.3d 234, 242 (4th Cir.2000) (“An employee is harassed or otherwise discriminated against ‘because of his or her gender if,’but for’ the employee’s gender, he or she would not have been the victim of the discrimination.”) (citing Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138, 142 (4th Cir. 1996)).

Applying these principles here, I turn first to the question of whether the vulgar talk and antics detailed by the majority amounted to discrimination. With respect to the vast majority of vulgar talk and behavior upon which the majority relies, there is no suggestion that Ocheltree was subjected to any different treatment than that to which the other workers in the production shop were subjected. Tellingly, of the eleven men who worked in the production shop, three of them — Steve Zouras, John Riddle, and Brian Hodge— were offended by, and also complained about, the talk and behavior.1 There is simply no evidence that Ocheltree was the “individual target” of the vulgar talk and behavior, as is suggested by the majority. (Maj. Op. at 332.) Indeed, giving Ocheltree the benefit of all reasonable inferences, only a minimal quantum of the vulgar behavior and antics could be perceived as having been aimed at her. For example, the vulgar song was sung directly to Ocheltree, and the book with pictures of pierced male genitalia was shown directly to Ocheltree.2 (J.A. at 115, 117-18.) Additionally, there was one incident with a mannequin about which Ocheltree testified that could be perceived as having been targeted toward her in particular.3 Set*340ting aside these three incidents,4 the remainder of the vulgar talk and behavior cannot reasonably be perceived as having been aimed or directed at Ocheltree in any way. The vast majority of the talk and behavior occurred in group settings as part of the male workers’ daily bantering with one another and was overheard or witnessed by Ocheltree. Cf. Hopkins, 77 F.3d at 753-54 (finding that the harassing conduct was “often not directed specifically at [the plaintiff]” because “several of the incidents upon which Hopkins relies occurred in group settings”); White v. Fed. Express Corp., 939 F.2d 157, 160 (4th Cir. 1991) (noting that “[m]ost of the racist incidents detailed ... were not directed against plaintiff ...” (internal quotation marks omitted)). The uncontested evidence was that Ocheltree overheard most of the sexually explicit conversations because the men in the production shop “had to speak in a loud tone above all the equipment running and everything going.” (J.A. at 201). Significantly, Ocheltree testified that Harold Hirsch would “always apologize if he knew [Ocheltree] could hear” what was being said. (J.A. at 146.) Ocheltree also testified that Jason Salvage and Barry Brown, two of the men who regularly engaged in the vulgar talk and behavior, “did not care what they said and to who they said it,” (J.A. at 146). Thus, Ocheltree’s own testimony confirms that much of the sexual talk and antics were not aimed at her.

My colleagues in the majority acknowledge that men were exposed to and offended by the sexual talk and antics, but they suggest that gender-motivated discrimination may be inferred because “[t]here is no evidence ... that [the] outrageous conduct was aimed at getting an embarrassed reaction from these men or that it was calculated to generate laughter at the expense of any man.” (Maj. Op. at 332.) A review of the evidence, however, belies this assertion. For example, Ocheltree testified about an incident where Harold Hirsch told two male employees that he “would like to have sex with young boys.” (J.A. at 119.) According to Ocheltree, this comment was said in front of Steve Zouras, who responded “that is enough, this cannot go on in here.” (J.A. at 119.) Zouras’s response immediately provoked laughter from the men. (J.A. at 119.) Thus, the uncontested evidence shows that the men “enjoyed watching and laughing at the reactions” of anyone who was offended by their childish and immature conduct, not that the men “enjoyed watching and laughing at the reactions of the only woman in the shop,” (Maj. Op. at 332), as the majority concludes.

At bottom, the majority simply fails to acknowledge the uncontested evidence showing that the vulgar talk and behavior was experienced by, and equally offensive to, all of the production shop workers, irrespective of gender. In light of this evidence, Ocheltree is unable to establish that she was subject to any meaningful difference in treatment when compared to her co-workers. Lack, 240 F.3d at 262 (“Lack [a male plaintiff] fails to come to grips with the fact that female employees (including his original co-plaintiff Susan *341Willis) also lodged similar complaints regarding Bragg’s behavior. This fact undercuts Lack’s claim to a substantial extent.”); id. (“In its totality, the evidence compels the conclusion that Bragg was just an indiscriminately vulgar and offensive supervisor, obnoxious to men and women alike.”); Scusa v. Nestle U.S.A. Co., Inc., 181 F.3d 958, 965 (8th Cir.1999) (“Appellant admitted that Schoenfeld used profanity toward both male and female employees, and she believed that Lonnie would have reacted the same way had a male co-worker laughed at his mistakes.”); Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.1982) (holding that where a supervisor makes sexual overtures to employees of both genders, or where the conduct is equally offensive to male and female workers, the conduct may be actionable under state law, but it is not actionable as harassment under Title VII because men and women are accorded like treatment). Thus, the majority of the vulgar talk and antics trumpeted by the majority did not constitute discrimination.

Moreover, with regard to the second part of this inquiry, there is no evidence that this non-discriminatory vulgar talk and behavior occurred “because of’ Ochel-tree’s sex. In fact, the uncontested evidence before the jury conclusively establishes otherwise. Zouras, who worked at Scollon Productions prior to Ocheltree becoming an employee, testified that “the same kind of conversations went on before [Ocheltree] came to work [at Scollon Productions] as after she arrived” and that it would be “fair to say there was no change in the atmosphere at the shop when [Ocheltree] arrived.” (J.A. at 241^12.) Given that the behavior occurred prior to Ocheltree’s employment with Scollon Productions, it follows a fortiori that the behavior could not have been motivated by her sex.5

Finally, my colleagues in the majority suggest that a jury could reasonably infer gender-motivated discriminatory treatment because Ocheltree was harassed “in such sex-specific and derogatory terms ... as to make it clear that the harasser [was] motivated by general hostility to the presence of women in the workplace.” See Oncale, 523 U.S. at 80, 118 S.Ct. 998. While I do not condone the vulgar talk that frequently took place at Scollon Productions, I disagree that it could reasonably be perceived as so “sex-specific and derogatory” as to give rise to an inference of gender-motivated discriminatory treatment. At the outset, I note that the lewd, vulgar remarks had nothing to do with the presence of women in the workplace. The conversations about the men’s sexual exploits simply described — albeit in graphic and lewd terms — heterosexual sex, including oral sex, between consenting adults.OTCcaie specifically instructs that comments do not amount to discriminatory sexual harassment simply because of their sexual content. Oncale, 523 U.S. at 80, 118 S.Ct. 998 (explicitly rejecting the prop*342osition that harassment directed at plaintiff with sexual content automatically constitutes discrimination because of sex). On their face, the comments do not portray women in any negative or demeaning light. The sexual behavior described by the male co-workers is not by definition passive or subservient. Significantly, the comments do not suggest any abuse, control, or the use of force; the men were simply bragging about the sexual prowess of their partners. Further, in modern times, there is nothing particularly derogatory, demeaning, or subservient about a woman participating in consensual heterosexual sex.- As women have sought and achieved sexual equality in this society, and as moral beliefs and taboos about oral sex have broken down, it seems illogical to assert that comments about consensual sex between adults necessarily imply male dominance or power.

To be sure, sexually explicit conversations could be so sex-specific and derogatory as to permit an inference of gender-related hostility. For example, if the conversations included unambiguous gender-related epithets, it would be permissible to infer that the vulgar behavior was intended to be discriminatory and was animated by hostility toward women. Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir.2001). No such conversations, however, were alleged here. Apart from the sexual content of the conversations, there is no nexus whatsoever between the conduct and Ocheltree’s gender. To conclude that these conversations portray women in derogatory terms simply because they depict women engaging in consensual heterosexual sex would be, I believe, to misapply the Supreme Court’s teaching on the relationship between sexual conversations and sexual harassment and to misunderstand modern societal views regarding women’s sexuality. “[W]hile there are still people in this country, male as well as female, who are deeply offended by dirty words, employers are not under a legal duty enforceable by suits under Title VII to purify the language of the workplace.” Carr v. Allison Gas Turbine Div., Gen. Motors Corp., 32 F.3d 1007, 1010 (7th Cir.1994) (citing Rabidue v. Osceola Refining Co., 805 F.2d 611, 620-21 (6th Cir.1986)).

In sum, after applying the appropriate analytical framework, it is clear that there is no legally sufficient evidentiary basis upon which the jury could have concluded that the majority of vulgar talk and behavior that took place at Scollon Productions amounted to gender-motivated discriminatory treatment.6 Assuming arguendo that *343the three incidents that could be perceived as having been directed at Ocheltree (e.g., the vulgar song, the body piercing book, and the mannequin incident) amounted to gender-motivated discrimination, I next proceed to determine whether there is a legally sufficient evidentiary basis to support Title YII’s third requirement for establishing a hostile work environment claim.

B.

The third requirement for a Title VII claim is proof that the discrimination is “sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.” Meritor Sav. Bank, 477 U.S. at 67, 106 S.Ct. 2399 (internal quotation marks omitted; alteration in original). “Not all sexual harassment that is directed at an individual because of his or her sex is actionable.” Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 772-73 (4th Cir.1997) (citation omitted). “The ‘occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers’ would be neither pervasive nor offensive enough to be actionable. The workplace that is actionable is the one that is ‘hellish.’ ” Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir.1997) (quoting Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir. 1995)).

The behavior here falls well short of that mark. As discussed above, the vast majority of the vulgar talk and behavior that occurred at Scollon Productions does not constitute “discriminat[ion] ... because of ... sex.” Of course, it is inappropriate to evaluate the severity or pervasiveness of non-discriminatory conduct for purposes of imposing liability under Title VII. Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (“[W]hether an environment is sufficiently hostile or abusive is determined by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” (emphasis added and internal quotation marks omitted)); see also Hartsell, 123 F.3d at 772 (isolating gender-motivated discriminatory conduct and then evaluating whether such conduct was severe or pervasive). Even assuming that the few incidents that could be viewed as having been directed at.Ocheltree during the year and a half that she was employed at Scollon Productions each amounted to gender-motivated discrimination, I have no difficulty concluding that these incidents were not severe or pervasive for purposes of Title VII as a matter of law. See, e.g., Hartsell, 123 F.3d at 773 (“But the claims propounded by Hartsell— even assuming them all to be true — are so trivial, so isolated, and so far from the paradigmatic ease of sexual harassment, that summary judgment was clearly appropriate.”); Hopkins, 11 F.3d at 754 (listing cases involving infrequent, isolated incidents in which we have held that harassment was not severe or pervasive as a matter of law). Because Ocheltree has failed to introduce sufficient evidence establishing the third element of her hostile work environment claim, the claim is not cognizable as a matter of law.7

*344In my good colleague Judge Niemeyer’s separate opinion, he agrees, as he did initially as a member of the panel, that these three incidents, taken in isolation, were not severe or pervasive as a matter of law. He further agrees that virtually all of the vulgar talk and antics relied upon by the majority cannot reasonably be viewed as gender-motivated discrimination. Nevertheless, he now finds that the three incidents that arguably were directed at Ocheltree could be considered severe or pervasive upon consideration of this background, non-discriminatory conduct. I disagree.

Although it is true that determining the severity or pervasiveness of the gender-motivated discrimination requires careful consideration of the social context in which particular behavior occurs, Oncale, 523 U.S. at 81-82, 118 S.Ct. 998; Meritor Sav. Bank, 477 U.S. at 69, 106 S.Ct. 2399, this contextual analysis weakens — rather than bolsters — Ocheltree’s sexual harrassment claim. For example, it is not severely or pervasively abusive for a coach to smack a professional football player on the buttocks as he heads on the field, “even if the same behavior would reasonably be experienced as abusive by the coach’s secretary ... back at the office.” Oncale, 523 U.S. at 81, 118 S.Ct. 998. Similarly, the three isolated incidents of gender-motivated discrimination were not severe or pervasive, considering the coarse social context of the production shop where the background environment was and had been generally crude and vulgar, but non-discriminatory. See Gross v. Burggraf Construction Co., 53 F.3d 1531, 1537-39 (10th Cir.1995) (evaluating claim of gender discrimination in light of the profanity and vulgarity prevalent in “the real world of construction work”).

A contrary conclusion would eviscerate the purpose underlying the severe or pervasive requirement by allowing sporadic instances of gender-motivated discrimination to give rise to Title VII liability. See Faragher, 524 U.S. at 788, 118 S.Ct. 2275. If non-discriminatory background conduct can somehow transform isolated incidents of discrimination into a severe and pervasive environment, its practical effect mirrors that of the majority — to avoid Title VII liability, employers will be forced to alter the workplace environment by eliminating the background, non-discriminatory conduct. When a non-discriminatory workplace environment is required to change because of the introduction of a female employee, Title VII has become a code of civility that requires that women be afforded preferential treatment beyond non-discrimination. I cannot agree that Title VII permits or sanctions such a result.

III.

Finding that there is not a legally sufficient evidentiary basis to support the jury’s verdict, I respectfully dissent from my colleagues’ decision to affirm the compensatory damages award. I concur in the majority’s judgment that the punitive damages award must be reversed.

. John Riddle specifically testified that he did not know whether Ocheltree overheard the vulgar talk and did not believe that the talk or behavior was directed at her, and yet he complained about the conduct and language. (J.A. at 273-74, 279-80.)

. The evidence shows that several of the men were looking at the book when one of the men took the book and held it up about "four feet away” from Ocheltree and said, "[w]hat do you think about this?” (J.A. at 117.) The uncontested evidence shows that Ocheltree later voluntarily looked at this book "by herself” while on break. (J.A. at 343.)

.Although the majority discusses numerous incidents involving simulated sexual acts with mannequins, (Maj. Op. at 328-329), Ocheltree only testified about one such incident, (J.A. at 116-17). From Ocheltree's testimony about this one incident, and giving her the benefit of all reasonable inferences, a jury could conclude that it was staged for her benefit. Brian Hodge, a co-worker of Ocheltree’s, testified that employees would regularly simulate sexually explicit acts on mannequins, but *340there is no legally sufficient evidentiary basis to conclude that Ocheltree was aware of these other incidents. To the extent that Ocheltree was not confronted with the other incidents about which Hodge testified, I question how the incidents could contribute to her hostile work environment claim.

. I have assumed arguendo that these three incidents are "discriminat[ion] ... because of ... sex.” I discuss in the next section why, even accepting that these three incidents satisfy the second element of Ocheltree’s claim, the claim nonetheless fails as a matter of law.

. The majority suggests that the "misconduct worsened as time went on, especially after Ocheltree complained to the men and the shop supervisor, Harold Hirsch.” (Maj. Op. at 328, 332.) The uncontested evidence is that any worsening in the conduct was experienced by all employees and that similar complaints were lodged prior to the worsening by Ocheltree’s male co-workers. Thus, even viewing the inferences in the light most favorable to Ocheltree, the worsening of the conduct does not establish that Ocheltree was exposed to "disadvantageous terms or conditions of employment to which members of the other sex [were] not exposed.” Oncale, 523 U.S. at 80, 118 S.Ct. 998 (internal quotation marks and citation omitted). The conduct itself does not amount to gender-motivated discrimination; thus, the simple fact of its worsening cannot convert the otherwise vulgar but lawful conduct into "discrimination] ... because of ... sex.”

. Given the absence of a sufficient basis for concluding that this vulgar talk and behavior constituted gender-animated discriminatory treatment, the analysis and result crafted by the majority creates a rule requiring that women be given preferential accommodation in the workplace beyond non-discrimination. I view this as contrary to Title VII's statutory demand of equality, as well as contrary to the Supreme Court’s and this court’s instruction on gender neutrality in employment decisions. Moreover, I reject the notion that female workers are in need of “the protection of a preferential standard.” DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 593 (5th Cir.1995) (Jones, J.); see also Radtke v. Everett, 442 Mich. 368, 501 N.W.2d 155, 167 (1993) ("The belief that women are ... in need of a more protective standard ... degrades women and is repugnant to the very ideals of equality that [employment discrimination law] is intended to protect."); Margaret Talbot, Men Behaving Badly, N.Y. Times Magazine, October 13, 2002, at 52-55 (opining that a hostile work environment framework that is grounded in the assumption that the "presence of sexuality in the workplace, however motivated, is inherently threatening to women and prevents them from enjoying their work and succeeding on the same basis as men ... offers a paternalistic view of women as paradigmatic victims in need of protection from all forms of sexual expression”).

. Because I conclude that the gender-based conduct was not sufficiently severe or pervasive for Ocheltree to establish a prima facie case of sexual harassment under Title VII, I do not reach the questions of whether the conduct could be imputed to Scollon Productions or whether Scollon Productions is entitled to operation of the Faragher /Ellerth affirmative defense. Faragher, 524 U.S. at 807, 118 S.Ct. 2275; Ellerth, 524 U.S. at 765, 118 *344S.Ct. 2257. Moreover, insofar as Ocheltree failed to establish the essential elements of a sexual harassment claim, I concur with the portion of the judgment that reverses the district court’s denial of Scollon Productions’ motion to set aside the jury's award of punitive damages.