*1 92 (Del.Ch. 13, 106509, at *1 Jan. 2009 for mi- WL common law Massachusetts
under 2009), (Cayman Is- quoting Arbitrium closely corpo- held nority shareholders lands) Johnston, 705 A.2d Blackwell, Handels AG v. 626 ration); v. but see Nixon (Del.Ch.1997). 225, Korn also raises (Del.1993) (declining to 1366, 1379-81 A.2d for affir- arguments alternative Dela- several rule under parallel create judicially law). mance. ware common arguments, to address these We decline error, court’s the district Despite legal factual and variety a of present Ker litigation among long history of by that have not been considered issues Korn, corporate entities tesz, and various Indeed, make no court. we the district may of them either or both associated with Kertesz can estab- assessment of whether on other of this case disposing permit ego liabili- any of the elements of alter lish alter-ego under the grounds. prevail “To the district ty. therefore VACATE We veil, need plaintiff theory piercing of dismissing complaint as court’s order actual fraud but prove that there was to the and REMAND the case to Korn mingling operations must show con- proceedings for further district court entity plus owner ‘overall and its ” opinion. with this sistent unfairness.’ injustice or element
NetJets, Harco quoting Farms, Inc., Del.
Nat. Ins. Co. v. Green (Del.Ch.1989). Ker Corp. L.
J. alleges separate two bases complaint
tesz’s (1) establishing injustice or unfairness: into from GVC
Korn’s transfer assets (2) owned; and
corporations solely he GVC, assets Korn’s which had no revival EQUAL EMPLOYMENT OPPOR- business, baseless, continuing pursue or COMMISSION, TUNITY Korn litigation against Kertesz. bad-faith Plaintiff-Appellant, rulings previous in two law argues arguments on preclude suits Kertesz’s KARENKIM, INC., Big Paul’s d/b/a According factual bases.
both these Grocery, M, Big Paul’s M d/b/a Korn, allega and fraud the asset transfer Defendant-Appellee. by for lack of tions are barred dismissal by jurisdiction brought of a suit personal 11-3309-cv. Docket No. against Kertesz Korn the United States Appeals, Court of United States District of District Court for Western Second Circuit. (Walter Smith, Jr., Judge). Texas S. Chief Korn, See Kertesz v. No. W-05-CA-369 Aug. Argued: (W.D.Tex. 21, 2006), aff'd, Fed. Nov. 19, 2012. Decided: Oct. (5th Cir.2007). Korn further Appx. 301 action that forms the argues that claim,
basis of Kertesz’s indemnification Chancery denied
the Delaware Court of because it legal motion for fees
Kertesz’s
found that Kertesz had not demonstrated Gen.
bad faith “clear evidence.” See Kertesz, CIV.A.1922-VCL, Corp. v.
Video *2 where,
tion in the face of egregious acts of perpetuated by single sexual harassment it employee, declines to order ensuring relief directed toward that that *3 longer position individual is no in a harassing continue his conduct. con- We clude that it does.
BACKGROUND trial, pursuant After a two-week to a brought by Complaint Plaintiff-Appellant Equal Employment Opportunity Com- (“EEOC”), jury mission a returned ver- finding dict Kar- Defendant-Appellee enKim, (“KarenKim”), grocery Inc. store operating Oswego, New York under the (1) Big Grocery, name Paul’s M had: sub- jected a class female to a sexually environment, hostile work in vio- lation of Title VII of the Rights Civil Act (“Title 2000e, seq. et §§ U.S.C. (2) VII”), sexually Plain- harassed the Bradford, tiffs-Intervenors Andrea Judith Goodrich, Haskins, and Deborah in viola- tion of Title VII and New York State law. jury compensatory The awarded both punitive damages to a class of ten individu- als who it by found had been victimized KarenKim employee, and its former Allen Manwaring. (Daniel Sloan, Attorney Barbara L. T.
Vail, Acting Counsel, Assistant General following facts were adduced tri- Wheeler, Carolyn al, L. Acting Associate Gen- undisputed purposes and are for Counsel, brief), eral on the appeal. for P. David instant KarenKim is owned and Counsel, Lopez, General Equal Employ- managed by Karen January Connors. Commission, Opportunity ment Washing- KarenKim Manwaring, hired Allen ton, D.C., for Plaintiff-Appellant. mid-30s, who was then his as Store months, Manager. Within he and Connors Antonucci, David P. Law Office of David “romantically became App. involved.” Antonucci, Watertown, N.Y., P. for Defen- They engaged been since 2006 danh-Appellee. young and have a together. son Manwar- ing is now in his mid-forties. KATZMANN, Before: WESLEY and LYNCH, Judges. Circuit trial, At a number of current and former KarenKim employees testified that Man-
PER CURIAM: waring subjected repeatedly them to both requires This case physical us determine verbal sexual harassment. whether district court abuses mainly its discre- The verbal harassment consisted comments, der, in,” and innuen- and “lean questions, invading “personal her sexual Anderson, Emily example, testi- space causing dos. bubble” and her to “cringe began working after she fied that soon away.” Id. 393. Rachel ech- Johnson old, years when she was 16 testimony, stating oed this when Manwaring began commenting ap- on her her, speaking Manwaring would stand sexually explicit terms. pearance She very close with his arm bent and a hand on also stated had insinuated shoulder, her pull they her closer until engage that he would like to in a sexual Similarly, were face to face. Amanda Cole relationship with Anderson and her moth- that Manwaring “squeeze” testified would Miller, Similarly, Anna also age er. tiny behind her in the alcove the cash *4 at when she started testified register “press” her, and against “body to Manwaring that would make comments of body almost.” Id. at 621-22. daily a sexual nature to her on a basis and Manwaring’s conduct did not go unno- compliment parts body. of her He also ticed. Former KarenKim Manager Carol boyfriend, that if he her he told her were often, “[p]retty Akers asserted that ... never “let out of his sheets” [her]
would maybe week,” at least twice a she saw years “if he and commented was 10 Manwaring “[g]iving employees] [female younger, top he would be on Id. [her].” ... hugs, standing them, behind giving 1013-14, example, at 1026. In another rub, them a back putting his hands on Manwaring Andrea Bradford testified that their shoulders.” Id. 224. Amanda had discussed his sexual frustrations with Cole testified that she often discussed her, that day and then commented one he Manwaring’s conduct with employ- other “pick up” engage would and in sexual [her] ees, stating that it was “chattered about on her. relations with Id. 885. daily regular basis.” Id. at 632. She harassment, physical As to several wit- stopped in participating such conversa- nesses testified that Manwaring would tions, however, after Manwaring called her touch, regularly massage, and in engage into the stock room and confronted her inappropriate other with teenaged conduct about “rumors that he heard that [she] female employees. KarenKim For exam- spreading was ... him sexually about ha- ple, Anna Miller said that when she was rassing employees,” adding that she was office, working alone the front Manwar- “lucky that he didn’t fire right then [her] deliberately would come and brush and there.” Id. at 637-38. Afraid she arms, her up breast his come behind would be job, terminated from her first put her and his crotch against her buttocks crying. she started Manwaring then whisper and in her ear or breathe on her her, hugged cheek, kissed her on the neck, put his hands on her hips and whispered her ear that “if gonna he was shoulders, squeeze, put rub her his arm sexually anybody, harass it would be around her and hug, by closely or walk so [her].” Id. that his hand would brush her buttocks. KarenKim poli- had no anti-harassment Similarly, Emily Anderson testified that cy mid-2007, until Manwaring touched her did not have a every almost time complaint formal procedure he found her until after massaging alone her shoulders, Nevertheless, hair, trial in this action. touching the back of her several rubbing her KarenKim thigh. employees complained As another exam- to their ple, Abigail Murray supervisors said that when about Manwaring’s Man- conduct. her, waring spoke so, Hamlin, Angela he would often stand The first to do com- close,” “really put Akers, plained his hand on her shoul- to her manager, Carol that that, while she recalled Connors testified inappropriate- her Manwaring had touched letter, Miller had been of a sexual she believed questions her ly and had asked charged nature, lying much she about the harassment. such as how thereafter, Hamlin Shortly acts. sexual trial, that could At Connors testified she Several for absenteeism. was terminated complaints possible only recall two they had testified other witnesses involving Manwaring, and harassment Manwaring’s conduct. complained about complaints ap- were handled she felt both testified Emily Anderson example, For Kelsey The first came from propriately. Manag- to KarenKim complained that she school, Rose, com- high then still in who had Davis because er Marlene Manwaring suddenly stuck his plained that employee that he wanted told another talking on tongue in her mouth as she was Anderson. relations with engage sexual away phone day, one and then walked Anderson, However, according to Davis face.” Id. at 1133-34. “with a smirk on his follow-up on away and did not had hurried 1134-35, “[hjysterically,” id. at she Crying promised. as she had the conversation complain called her friend’s mother addition, testified that Anna Miller Akers Rose police arrived soon thereafter. *5 to her and Davis that Manwar- complained implicating a statement gave police pretty Miller that she was “so ing had told Manwaring never returned to work and to young” anyone that would want and Manwaring pled guilty KarenKim. to sec- response, In “sleep with” her. Id. at 244. harassment, that degree ond but testified Manwaring, Akers and Davis confronted always felt it was an “in heart [his] [he] “just didn’t telling probably him that he incident.” at 1663. joking accidental Id. inappro- are things realize ... that certain employee Another testified that Manwar- priate.” Id. at 245. lying about ing told others that Rose was reported had Akers testified that she the incident. Id. 1178. to complaints of sexual harassment Con- testimony In heard deposition addition, In Lorraine Warren said nors. jury, Connors stated that she did be- at her complained that she to Connors Manwaring anything wrong had done lieve Manwaring pulled up after parents’ urging incident, regard accepted to this and his comments her underwear and made sexual that he had into” explanation “f[allen] to stock the deli. There- as she bent over Nevertheless, she sus- Rose. Id. at 1957. after, with Connors and Man- Warren met Manwaring days pay for 30 with pended waring, point Manwaring at which accused if and warned him that he would be fired story. making up Warren Warren com- she received another harassment also testified was then fired. Bradford However, plaint. Manwaring went into employees ap- that other she and several during suspen- the store a few times in her office and de- proached Connors sion, consequence. Following without in which Man- specific scribed incidents incident, an em- Rose KarenKim drafted waring engaged had in sexual harassment. contains a sexual- ployee handbook which responded by crying initially and Connor policy and directs harassment her com- appeared to believe Bradford and harassment to report to instances sexual panions, later decided that the com- but Employees required are to take Connors. Similarly, Anna plaints were unfounded. home, sign a copy of the handbook form quit Miller testified she work- when it, they have read acknowledging that she left a letter for ing KarenK- signed return it with the form to detailing Manwaring’s sexual Connors im. years. over several harassment her Davis, incident involved Kim instant lawsuit in
The second which she asserted that complained night only several times to her harassment I have “[t]he who received is manager Manwaring that made comments from the EEOC” because “[the EEOC’s her, expressed attorney] his trial stop trying of a sexual nature will not to con- her, sexual relations with tact me.” Id. at 1195. desire Soon after Davis statement, inappropriately prepared Manwaring touched her on the her start- reappearing buttocks. She testified that she did not ed around the store. Davis directly, once, how- initially complain only to Connors saw him supervisor but her told ever, had shown her because Connors her had he been there several other times resignation Anna Miller’s letter and stated conveyed message says that “Allen Manwaring about that Miller’s comments November, In hi.” Id. late Davis May all while were lies. this smoking marijuana was fired for on her pending, fight lawsuit was Davis had a agreed testify break. She on behalf of boyfriend. Seeing upset, with her her lawsuit, stated, the EEOC in this she be- said, “[w]hy you don’t tell longer she no anything cause had to lose [your boyfriend] wanting that I’ve been and, moreover, help put “wanted to a stop you year sex for a and a half with] [have Manwaring] doing this [to future to Thereafter, Id. at 1179. Davis now[?]” people.” Id. at 1196. Connors denied tell- and her told Connors about incident dictating Davis to lie or language past experiences Manwaring, told However, in Davis’ statement. she admit- quitting. was In re- Connors she giving lawyer ted Davis’ statement to her testified, sponse, Davis Connors cried. though even she knew Davis had in Thereafter, called Davis and told Connors fact been harassed at work and that the *6 Manwaring her she had fired and asked lawyer would forward the statement to the at the her to return to work store. Davis EEOC.
agreed. on foregoing, jury Based the the re further testified that Connors Davis turned a verdict for the EEOC and the her, lawsuit, light pending asked in Plaintiff-Intervenors, finding that Kar everybody [Manwaring] “to he and tell was Manwaring enKim and were liable for farming,” saying instead of that he had maintaining “sexually hostile work envi sexuahy harassing fired for her. Id. been ronment” with “malice or reckless indiffer addition, at 1188. In Connors asked Davis rights young ence” to the female Kar protective against not to seek a order employees. enKim Id. In so Manwaring, explaining that “if [Davis] finding, jury implicitly rejected the Kar forward, to come [Connors] were would arguments enKim’s that it took reasonable everything lose and she would lose the steps stop prevent sexual harass agreed. store.” Id. Davis The first time ment, that the failed to Manwaring the EEOC learned that had complain any about harassment that oc been fired for sexual harassment was at (jury curred. See id. at 2201-2205 instruc deposition, three Connors’ weeks before defenses). jury tions on the two The trial. awarded the ten members the class a $10,080 early In compensatory damages November at Connors’ total of in $1,250,000in request, punitive damages.1 Davis wrote a statement for the $50,000. statutory subsequently applicable cap 1. The district court ordered that See 1981a(b). damages § damages actually on U.S.C. awarded the Title VII claims to the awarded to Plaintiff-Intervenors not re- to each member of the class be reduced were trial, to al- Id. at 67-69. The EEOC also noted that Following the EEOC moved judgment under Rule of a training ter and amend the course consists short on- 59(e) Proce- module, the Federal Rules of Civil completed which can be in a line broad relief impose dure so as to by simply clicking rapidly few minutes particular, In against KarenKim. pages and allows an through the individual that relief was EEOC contended print multiple completion out certifi- necessary KarenKim has not because cates at once. See id. at 75-76. that adopted adequate measures to ensure re- foregoing, Based on the EEOC in of the kind at issue this harassment wide-rang- that the district issue a quested In support, action does not recur. ing injunction, lasting years, for ten Manwaring that EEOC noted Connors (a) order, among things: would other that in relationship;
remained a romantic may KarenKim not create or maintain a verdict, jury following Manwaring con- hostile work environment or retaliate deny in publicly engaged tinued to he had against engaging individuals for Title harassment; any sexual and that Manwar- (b) protected activity; VII that KarenKim presence continued to be a at the store may employ compensate or otherwise contractor, capacity produce in his new as a Manwaring any way, except pur- for KarenKim. The EEOC also recounted (c) him; chasing produce from that Karen approximately incident that occurred n Manwaring entering Kim must bar from six weeks after the trial in which Lorraine (d) Warren, action, grocery building; store that Kar- a claimant this and her M, produce copies enKim must and distribute attempted Big husband to enter Paul’s immediately” indicating but were ordered to “leave of a notice was they longer and told were “no allowed from entering building, along barred addition, the store.” Id. at 81-82. copies Manwaring’s photograph; injunction, (e) EEOC noted absent an pay KarenKim must for an inde- legal there is no bar to KarenKim re- pendent continually monitor review hiring Manwaring. employment practices KarenKim’s and in- vestigate possible instances of sexual Further, adopted while KarenKim poli- *7 (f) harassment; that KarenKim must requiring cies employees undergo its to amend policy its nondiscrimination and instituted, training anti-harassment and complaint procedure variety ways, and complaint procedure employ- which its prominently post policy; (g) that Kar- report ees can instances of sexual harass- training enKim must conduct an annual ment, the EEOC contended that both of session on sexual harassment for its em- facially these measures are inadequate to (h) and ployees; the EEOC is author- prevent future Spe- violations of Title VII. ized to monitor KarenKim’s compliance cifically, the EEOC noted that the com- injunction, with the and that KarenKim plaint procedure requires employees to cooperate compli- must in bi-annual complain EEOC days “within 30 from the date object ance reviews. KarenKim did not Complainant first knew or rea- injunction’s sonably proposed provision prohib- should have known” of the unlaw- “discriminatory act,” iting employing it from compensating ful and or states circumstances, except Manwaring, injunc- in “rare” but contended that the compa- ny only will act on complaints, provisions unnecessary “formal” tion’s other were in writing special overly which must be on a form. and burdensome.
duced; $50,000 the amount awarded over law was reallocated to state claims. 17, 2011, By any dated June the dis- crimination of Order other kind arise in request denied the future, trict court EEOC’s ... KarenKim will not take entirety, concluding relief in its seriously. them requested all the relief was unneces- Id. at *7-8. Accordingly, the court con sary overly and burdensome. As to the cluded that cognizable danger there is no relief, the court burdensomeness that KarenKim engage will in recurrent injunction proposed noted that the would VII, violations of Title imposi so the years “requires last ten the defendant tion of relief is not warranted in drastically its employment prac- alter the circumstances of this case.2 Id. at *10. and hire an independent tices monitor concluding, In so rejected the court as whom, EEOC, together with the will re- “specious” the arguments EEOC’s that the critique any present view and or future personal continuation of the relationship practices respect employment sex- between Conners and could re Equal Emp’t ual harassment.” Opportu- sult in the resurrection of the hostile work KarenKim, Inc., nity Comm’n No. 5:08- environment or allow Manwaring to en CV-1019(NAM), 2011 WL at *6 gage in further sexual harassment of Kar (N.D.N.Y. 2011). June As to the ne- employees. enKim Id. at *8-9. relief, cessity of the the district court stat- evidentiary ed that the record: The appealed. EEOC suggests discriminatory ... that the
unlawful actions this case were isolat- DISCUSSION involving ed instances a manager who is A district court’s decision to longer employed by company no grant deny injunctive or relief is reviewed longer employed who are no for abuse of discretion. Malarkey v. Texa by the company, occurring during pe- Inc., (2d Cir.1993). co company riod when the did not have “A clearly established district court abuses its if poli- anti-harassment discretion it (1) .... cies bases its decision on an error of law or (2) standard; wrong legal uses the bases Given the existence of an anti-harass- clearly its decision on a erroneous factual ... policy company’s ment and the now (3) finding; or issue, reaches a conclusion keen awareness of the the Court though necessarily hard-pressed imagine product that should of a complaints by employees concerning legal clearly error or a erroneous factual employment sexual harassment or finding, dis- cannot be located within range EEOC, district party court concluded that the less which bore the initial burden of *8 moving party, proof, as the bore the burden of dem- we need not here address whether the onstrating appropriateness injunctive the placing of district court was correct in that bur- 2462297, relief. See 2011 WL den on the EEOC. The EEOC did not ask this recognize *7. We that several of our sister Court to shift the burden to the defendant- employer Circuits have held injunctive where violations of to show that relief is not proven, injunctive appropriate. Appellant’s Title VII been relief is See Br. at 43 n. 10. presumptively appropriate Although and the defendant- counsel for the EEOC stated at oral employer argument great” therefore bears the burden of show- that it "would be if the Court See, so, ing e.g., Equal Emp’t it is not. did she contended that "it doesn’t matter” Bros., Inc., Opportunity Rogers Comm’n v. 470 in the circumstances of this case because the 965, (5th Cir.1972) curiam). (per presented F.2d 966-67 ample pre- EEOC had evidence to However, "regardless we party because conclude that the dis- vail of which has the bur- deny- proof.” Transcript Argument trict court has abused its discretion in den of of Oral 23, injunctive 2012). regard- (argued Aug. agree. all relief to the EEOC at 9 We 100 VII, the court Title “[i]f Under Millea v. Met- decisions.” permissible (2d intentionally has Co., 154, respondent that the 166 finds 658 F.3d R.R.
ro-North
intentionally
in
engaging
in
Cir.2011) (internal
engaged
or
marks omit-
quotation
charged
employment practice
ted).
an unlawful
may enjoin the
complaint,
the court
the
injunction is
Generally, “[a]n
engaging
from
in such unlawful
respondent
discretion;
it does not
equitable
matter of
and order such affir
employment practice,
merits as a
on the
from success
follow
42
may
appropriate.”
mative action as
be
v. Natural Res.
matter of course.” Winter
Accordingly,
2000e-5(g)(l).
§
U.S.C.
Inc.,
7, 32, 129
555 U.S.
Council
Defense
a violation of Title VII has been
“[o]nce
(2008).
In
365,
249
172 L.Ed.2d
S.Ct.
broad,
established, the district court has
moving party
injunction, “the
seeking an
unlimited,
fashion the
power
not
albeit
is needed.
court that relief
satisfy
must
the
Bridgeport
appropriate.”
relief it believes
is that there
necessary
determination
City Bridgeport,
Inc. v.
933
Guardians
danger of recurrent
cognizable
exists some
(2d Cir.1991).
1140,
“The
1149
F.2d
States v. W.T. Grant
violation....” United
the
discretion are set
bounds of
court’s
633,
894,
Co.,
629,
97
73 S.Ct.
345 U.S.
VII,
are to
of Title
purposes
(1953);
Emp’t
Equal
1303
see also
L.Ed.
equal
and achieve
prevent discrimination
Everdry Mktg.
v.
Comm’n
Opportunity
in the
fu
opportunity
employment
(2d
677,
Fed.Appx.
Mgmt., 348
”
York,
City
ture .... Berkman v.
New
order) (no
Cir.2009) (summary
abuse of
(2d Cir.1983).
584,
705 F.2d
denying injunctive
relief
discretion
standards,
foregoing
Applying
Title
entity
that violated
VII
where
exists”).
court abused
... we conclude that the district
“The factors
longer
“no
as it denied the
pro
its discretion insofar
pertinent
assessing
are
[that]
injunctive
spe
relief
request
EEOC’s
relief’ are “the balance
priety
ensuring
toward
public
cifically
directed
equities
and consideration of
32,
Winter,
longer
position
is no
555 U.S. at
interest.”
Al
sexually
employees.
harass KarenKim
power
grant
S.Ct. 365.
court’s
“[T]he
ordinary
recognize
in the
though
discontinuance of
we
relief survives
Grant,
case, terminating a lone sexual harasser
illegal conduct.”
345 U.S.
W.T.
894;
633,
may very
well be sufficient to eliminate
73 S.Ct.
see also Reiter
Auth.,
danger” that a defendant-em
“cognizable
MTA N.Y.C. Transit
(2d Cir.2006) (“Under
VII,
engage in “recurrent viola
equi ployer
Title
will
VII,
Grant,
monetary
of Title
W.T.
345 U.S.
tion[s]”
table relief is not incidental to
relief.”).
ordinary
this is not an
determining
whether to im
73 S.Ct.
case,
Notably, in this
the lone haras
injunction
where a defendant has
case.
pose
ser,
conduct,
just
supervi
one
may
Manwaring, was
offending
courts
ceased
many, but was the
sory employee among
of the [defen
consider “the bona fides
authority over all the
Manager, with
expressed
comply”
intent
with Store
dant’s]
More
law,
defendant-employer’s employees.
“the effectiveness of the discontin
over,
longstanding
in a
uance,”
he was and remains
past
and “the character of the
*9
Connors,
Grant,
the
relationship with
345 U.S. at
romantic
violations.” W.T.
894;
officer of the defendant-
Malarkey,
highest
F.2d
owner and
see also
73 S.Ct.
Moreover, the record makes
employer.
of
(noting
at 1215
the relevance
whether
relationship be
that this romantic
“isolated” or “wide
evident
past violations were
Manwaring was the
tween Connors
spread”).
why Manwaring’s
reason
harass-
we conclude
primary
at mini
years, subjecting mum,
unchecked for
ment went
the district court
scope
exceeded the
young female KarenKim
an entire class of
(a)
of
in declining
its discretion
to order
sexually
working
to a
hostile
employees
prohibited
KarenKim is
from directly
injunction,
Absent an
noth-
environment.
future,
employing Manwaring
the
again
from once
hir-
ing prevents Connors
(b) that
prohibited
KarenKim is
from per
In addi-
ing Manwaring
employee.
as
mitting Manwaring
premises.
to enter its
tion,
re-employed
even if
is not
sure,
To be
the district court was well
KarenKim, Manwaring’s status as
Con-
in concluding
within its discretion
fiancé,
relationships
nors’s
as well as his
requested
some of the EEOC’s
relief—
employees,
with other current KarenKim
requiring
such as
KarenKim to distribute
likely
it
that he will remain a
renders
photographs
wallet-sized
of Manwaring to
(“[T]he
presence
the store. See id.
employees,
its
or to hire
pay
for an
effectiveness of the discontinuance” of the
independent monitor to continually review
a
violating conduct is
relevant factor
employment
KarenKim’s
practices and in
determining
appropriateness
injunc-
the
of
vestigate possible instances of sexual
relief.). Finally,
past
tive
Connors’s
refus-
harassment —are
dispropor
overbroad and
adequately respond
al
to multiple
to
credi-
tionate to the scale of KarenKim’s unlaw
complaints
Manwaring’s
ble
about
conduct
And,
ful behavior.
while we share the
suggests
long Manwaring
so
as
re-
EEOC’s concerns regarding
adequacy
in a
relationship
mains
romantic
with Kar-
newly-adopted policies
KarenKim’s
re
officer,
highest
enKim’s owner and
Kar-
quiring sexual
training
harassment
and in
adequate
will not take
enKim
remedial
stituting
complaint procedure,3
we leave
in response
any
measures
future harass-
to the district court’s sound discretion
part Manwaring.
ment on the
See id.
whether
policies
reformation
these
is
(The
past
“character of the
violations” is
necessary
prevent
recurrence of the
in determining
appropriateness
factor
misconduct in this case.
relief.).
reasons,
foregoing
For
the post-
While it is not our role to fashion
judgment
deny-
order of the district court
specific
necessary
prevent
measures
Manwaring’s
request
the recurrence of
misconduct
EEOC’s
for
relief
resulting
entirety
and the
hostile work environment
its
is hereby VACATED and the
act,”
particular,
adequacy
complaint
following
alleged discriminatory
3.
procedure
suspect
respects.
2000e-5(e)
in a number of
App.
Compare
§
42 U.S.C.
all,
First of
it directs
to submit
(providing
day statutory
window
Connors,
complaints
ignored
who has
employees may generally
within which
file
against
complaints
complain
and retaliated
charges
long
they
in federal court so
as
past. Additionally,
ants in the
its use of tech
proceedings
also instituted
with a state or
language
"discriminatory
nical
such as
act”
agency,
providing
day
local
a 180
win
appears
employee
ill-suited to KarenKim's
filed);
charges
dow if no local
have been
Kas
many
population,
teenagers.
of whom are still
ten v. Saint-Gobain
Plastics
Performance
Equal
Opportunity
Emp’t
See
Comm’n v. V &
-
-,
1325, 1335,
Corp.,
U.S.
131 S.Ct.
Foods,
(7th Cir.2007)
J
(2011) (To trigger
case is
of Title VII as “not
2000e-5(g)(l)
tion
consistent
proceedings
for further
the
merely [granting
with]
district courts
Opinion.
this
remedy
injunctive relief to
power” to issue
VII,
on
imposing
Title
but
violations of
KATZMANN,
Judge,
Circuit
duty to render a decree which
them “the
concurring:
possible
far
eliminate the dis
will so
as
past
as well as
criminatory effects
judgment
the
I concur in
Court’s
future.” Al
like discrimination
bar
reasoning.
sepa-
I write
with its
agree
405,
Moody,
v.
422 U.S.
Paper
bemarle
Co.
my
question
views on
rately to add
(1975)
418,
2362,
hand” and “remand[ing] the case to the court can grant
district so that it the re-
quested it persuasive relief’ unless “finds relief’). particular deny
reasons items
I with the agree Court’s conclusion appeal, order resolve the instant we
need determine whether re-