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Appeals court overturns most of dismissal in same-sex harassment suit

Appeals court overturns most of dismissal in same-sex harassment suit

NEW ORELANS—A federal appeals court has overturned a lower court's dismissal of most claims in a same-sex harassment case, saying the evidence supported a jury's conclusion that the plaintiff was sexually harassed and the employer failed to promptly respond to his complaint.

However, in its decision last week in John Cherry vs. Shaw Coastal Inc., a panel of the 5th U.S. Circuit Court of Appeals in New Orleans said the district court correctly dismissed claims for retaliation, loss of overtime and punitive damages.

According to the unanimous decision, Mr. Cherry, an employee of Houma, La.-based Shaw Coastal, and Mr. Cherry's supervisor complained of harassment toward Mr. Cherry by another supervisor, Michael Reasoner, including touching Mr. Cherry and sending him sexually explicit text messages.

However, Shaw Coastal concluded after an investigation by its human resources department that it could not determine whether the conduct occurred “because there was not enough evidence and it was ‘one word against the other,'” according to the appeals court ruling.

Mr. Cherry resigned in September 2007 and filed suit.

A jury concluded that he had been sexually harassed, that there was some indication Mr. Reasoner had a “sexual interest in males,” that the conduct was sufficiently severe or pervasive to create a hostile work environment, and that Shaw Costal “knew or should have known of the harassment and failed to take action.” The jury also found in Mr. Cherry's favor on a battery claim.

After the trial, the district court granted Shaw Coastal's motion to dismiss all but the battery claim in 2010.

In its ruling last week, the appeals court decided that the punitive damages claim was correctly dismissed because the company's behavior “did not rise to the level of malice or reckless indifference.”

But in overturning the district court's ruling on the sexual harassment claim, the appeals court said, “Cherry presented more than sufficient evidence to support the conclusion that Reasoner's harassment was sexual in nature.” Based on interactions between the two men and the text messages, “The jury was reasonable in determining that the harassment was severe and pervasive,” the appeals court ruled.

“The evidence supports the jury's finding that Shaw Coastal did not take prompt remedial action,” and Mr. Cherry and his supervisor “complained to their supervisors to no avail,” the appeals court ruled. “The human resource staff's decision not to act because of ‘insufficient evidence' could reasonably be interpreted as a failure to take prompt remedial action,” the court ruled in remanding the case.

The most significant part of the ruling was that the human resources department's investigators “just got it wrong,” said Russell D. Cawyer, a partner with Kelly Hart & Hallman L.L.P. in Fort Worth, Texas, who was not involved with the case.

It was not clear from the ruling whether the HR department's decision was “because of a desire to have a result that was employer-friendly or if they truly believed” it was a case of one man's word against another's, “despite the eyewitness and the text messages,” Mr. Cawyer said.

More men are alleging sexual harassment in the workplace, a trend many attorneys expect to continue.