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Judy Greenwald

Boh Brothers settles EEOC same-sex harassment suit for $125,000

February 28, 2014 - 3:48pm


Boh Brothers Construction Co. L.L.C. reached a $125,000 settlement in a same-sex harassment lawsuit with the Equal Employment Opportunity Commission, in a case in which Boh Brothers had lost an appellate ruling last year, it was announced Thursday.

Kerry Woods, a male construction worker for New Orleans-based Boh Brothers who was assigned to the maintenance crew for the Twin Spans bridge between New Orleans and Slidell, La., claimed that crew superintendent Charles Wolfe engaged in same-sex harassment against him, including by simulating anal intercourse with him and using foul language, according to a ruling in September by the en banc 5th U.S. Circuit Court of Appeals in New Orleans in Equal Employment Opportunity Commission v. Boh Brothers Construction Co. L.L.C.

The alleged harassment was provoked by Mr. Woods' use of wet wipes instead of toilet paper, which Mr. Wolfe viewed as “kind of gay” and “feminine,” according to the appellate ruling.

After Mr. Woods complained about Mr. Wolfe's harassment to a supervisor in November 2006, Mr. Woods was sent home for three days without pay for reasons that are unclear and upon his return was hired at a different Boh Brothers site, according to the ruling.

After he was laid off for lack of work in February 2007, Mr. Woods filed a discrimination charge with the EEOC, alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 because of his removal from his original job.

Protracted litigation

A long trail of litigation ensued. A U.S. District Court jury in New Orleans issued a verdict in Boh Brothers' favor on the retaliation claim, but on the sexual harassment claim awarded Mr. Woods $201,000 in compensatory damages and $250,000 in punitive damages, with the former reduced to $50,000 because of a statutory damages cap.

Boh Brothers appealed, and a unanimous three-judge panel of the 5th Circuit vacated the award.

But the en banc court disagreed with the panel in a 10-6 ruling. In its ruling, the appellate court cited the U.S. Supreme Court's 1989 Price Waterhouse v. Hopkins decision in which the high court held that a plaintiff can rely on gender-stereotyping evidence to show that discrimination occurred; and the Supreme Court's 1998 ruling in Oncale v. Sundowner, in which it held that discrimination charges can be made when the plaintiff and defendant are of the same sex. “In sum, nothing in Oncale overturns or otherwise upsets the court's holding in Price Waterhouse: a plaintiff may establish a sexual harassment claim with evidence of sex-stereotyping,” said the court.

Damages reconsidered

The en banc court upheld dismissal of the punitive damages award but remanded the case to the District Court to consider whether the evidence was sufficient to support the jury's $201,000 compensatory damages award. Boh Brothers.

However, Boh Brothers is settling the case for $125,000 rather than continuing the litigation.

“The EEOC's recent record in winning jury trials like this one is remarkable, and the full 5th Circuit here reaffirmed the critical part juries play in deciding discrimination cases,” EEOC General Counsel David Lopez said Thursday in a statement. “This resolution remains faithful to the jury's verdict by providing meaningful relief to Mr. Woods and helping to prevent Boh Bros. from discriminating again.”

“We felt like the (appellate panel) and the dissenting vote (in the en banc ruling) got it right, and did not establish a violation,” said Boh Brothers' attorney Walter W. Christy, a director in the labor and employment section of Coats Rose P.C. in New Orleans.

However, “all things considered,” it was a “reasonable settlement and it accomplished what my client wanted to do,” which was closure in the matter, Mr. Christy said.

 



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