Christopher LACK, Plaintiff-Appellee, and Susan Willis, Plaintiff, v. WAL-MART STORES, INCORPORATED, a company licensed to do business in West Virginia, Defendant-Appellant, and James Bragg, Defendant. Christopher Lack, Plaintiff-Appellee, and Susan Willis, Plaintiff, v. James Bragg, Defendant-Appellant, and Wal-Mart Stores, Incorporated, a company licensed to do business in West Virginia, Defendant.
Nos. 99-2089, 99-2090.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 27, 2000. Decided Feb. 13, 2001.
240 F.3d 255
Hunt also suggests that while there may be a type of restaurant referred to as a “crab house” in certain parts of the country, there is no such genus of restaurants in the Charleston area.2 Hunt goes on to assert that even if such a genus exists, neither Charleston Crab House nor The Crab House falls into the “crab house” genus of restaurants. The argument that other restaurants called crab houses have more limited menus or more casual atmospheres “does not refute the proposition that ‘[crab] house’ refers to a ‘genus or class’ of facilities that serve [crabs].” Ale House, 205 F.3d at 141.
III.
We conclude that “crab house” is a generic term for a restaurant serving crabs.3 Accordingly, Hunt has no protectable interest in the term “crab house” and the district court properly denied its motion for preliminary injunction preventing Landry‘s from using “The Crab House” at its Charleston location. The decision of the district court is hereby AFFIRMED.
Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.
OPINION
KING, Circuit Judge:
This suit was initiated in state court by Christopher Lack against both Wal-Mart, his former employer, and James Bragg, his former Wal-Mart supervisor. It was premised on Bragg‘s lewd and offensive conduct, which Lack claimed constituted
I.
A.
As assistant manager of the Beckley, West Virginia Wal-Mart from August 1994 to April 1995, James Bragg enjoyed supervisory responsibilities over the store‘s sales associates. Lack, who served as a Wal-Mart sales associate during that period, was under Bragg‘s direct supervision. In April 1996, Lack and a fellow employee, Susan Willis, brought suit against the defendants, alleging that Bragg‘s frequent lewd remarks and gestures had created a hostile work environment, in violation of the
When Lack initiated this litigation, the viability of same-gender harassment claims under the
Lack‘s suit thereafter proceeded to trial in federal court, and the jury returned a verdict in his favor, awarding $80,000 in damages. Additionally, the district court awarded fees and costs to Lack‘s counsel. After their motions for judgment as a matter of law or for a new trial were rejected, the defendants appealed. We possess jurisdiction over their appeals under
B.
1.
In his complaint, Lack generally alleged that Bragg made “inappropriate and demeaning statements ... of a sexual nature” and “regularly [told] vulgar jokes in front of plaintiffs and others.” J.A. 2. Lack further stated that when he resisted this behavior, expressing his distaste for Bragg‘s antics, Bragg retaliated against him “by consistently making his work schedule more burdensome and inconvenient.”4 Id. Although Wal-Mart was allegedly aware of Bragg‘s conduct, Lack
2.
Because we must view the facts in the light most favorable to Lack, we recite the trial evidence regarding the defendants’ misconduct both thoroughly and in that light. See Conner v. Schrader-Bridgeport Int‘l, Inc., 227 F.3d 179, 184 (4th Cir.2000). Specifically, Lack‘s evidence, as presented to the jury, included the following:
- Bragg informed Lack that the customer service manager had asked Lack to report to the personnel office. Lack recalls asking Bragg why the manager wanted to see him, and being told, “[Y]ou‘re probably in trouble for F-ing the cashiers.” After this remark, Bragg allegedly “just laughed and walked away.” J.A. 70.
- Having just arrived for his shift, Lack went to the cloakroom to clock in. Bragg was walking by and said to Lack, “[C]ome here, Chrissy, I want to talk to you.” J.A. 72. When Lack informed him that he was still off the clock, Bragg replied, “[O]h good, I am too” and motioned as if he were going to unzip his pants. Id.
- Once, when Lack was assisting a customer, Bragg approached the counter and told him, “I need a small bag, and not the one between your legs, please.” J.A. 75.
- When Lack called Bragg over for assistance, e.g., to authorize a refund, Bragg allegedly would say, “I‘m coming” or “I‘m coming for you” in a “real sexual” tone. J.A. 76.
- Lack recalled that “any time if you saw [Bragg] coming toward you, you could expect something to come out of his mouth sexually.” J.A. 72-73. He told jokes “contain[ing] the word F-ing” every day. J.A. 73.
- Bragg was apparently fond of juvenile wordplay. He made comments about having “penis butter and jelly sandwiches” for lunch, and ended phone conversations with the phrase “spank me very much.” Id. Similarly, he would exclaim “oh my rod” when he saw an attractive woman. Lack perceived these expressions to be delivered in a “very sexual manner.” Id.
- Bragg would approach customers standing at the cash register, “mak[ing] it very clear he was checking them out[.]” J.A. 76. According to Lack, if Bragg “liked what he saw, he would stand there and act like he was just going to grab their behind right there.” Id.
- At the store‘s Christmas party, Bragg approached Lack while he was standing with some of his coworkers and, grabbing his own crotch, said, “[H]ey, Chris, here is your Christmas present[.]” J.A. 77. Feeling “humiliated,” Lack recalled glaring and telling him, “[Y]ou‘re stupid.” Id. Bragg allegedly responded, still in front of everybody, “[W]ell, if I‘m stupid, you can work on Christmas. And you better be here and I mean it.” Id.
Following this last exchange, Bragg allegedly altered the posted work schedule so that Lack would be on duty on Christmas Day. Accusing Bragg of retaliation, Lack insisted that his schedule became more onerous in the ensuing months. Lack stated that he was frequently scheduled to stay late at night and return early the next morning, and that he was assigned to work weekends more frequently than before the Christmas incident. According to Lack, such changes were imputable both to Bragg and to Wal-Mart.
Several Wal-Mart employees corroborated Lack‘s portrayal of Bragg as a supervisor with an unabashed taste for lewd humor. Bragg himself admitted to many
II.
We review de novo a district court‘s denial of a Rule 50 motion for judgment as a matter of law. Chaudhry v. Gallerizzo, 174 F.3d 394, 404 (4th Cir.1999). If, viewing the facts in the light most favorable to the non-moving party, there is sufficient evidence for a reasonable jury to have found in Lack‘s favor, we are constrained to affirm the jury verdict. See, e.g., Duke v. Uniroyal, Inc., 928 F.2d 1413, 1417 (4th Cir.1991). While we “are compelled to accord the utmost respect to jury verdicts and tread gingerly in reviewing them,” Price v. City of Charlotte, 93 F.3d 1241, 1250 (4th Cir.1996), we must grant judgment as a matter of law when “there is no legally sufficient evidentiary basis” for the verdict, see
III.
A.
In order to sustain a sexual harassment claim under the
On appeal, Wal-Mart specifically challenges the sufficiency of Lack‘s evidence with respect to the second and third elements of his sexual harassment claim.5
B.
As noted, the viability of same-sex harassment claims under the
This emphasis on discrimination as sex-differential treatment resonates throughout both Willis and Oncale. In Oncale, the Supreme Court distinguished between harassment that is sexual in content, on the one hand, and harassment that is sexually motivated, on the other:
Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at “discrimina[tion] ... because of ... sex.” We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations.
523 U.S. at 80, 118 S.Ct. 998. As the Willis court recognized, the causation element poses an especially formidable obstacle in same-sex harassment cases. Once again, the West Virginia court looked to Oncale for guidance as to proof of causation:
[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.... Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted “discrimina[tion] ... because of sex.”
504 S.E.2d at 653 (quoting Oncale, 523 U.S. at 80-81, 118 S.Ct. 998 (emphasis added)).
In denying Wal-Mart‘s request for judgment as a matter of law, the district
The causation element must be analyzed in its proper context. Importantly, the
In his effort to sustain the jury‘s verdict, Lack seeks to divorce Willis‘s requirement that the conduct be gender-based from its requirements of unwelcomeness and severity. These elements, however, cannot be analyzed in such an isolated fashion. Lack cannot rely on the sex-specific nature of the “F-ing the cashiers” or “small bag” comments, without producing plausible evidence that such comments were animated by Bragg‘s hostility to Lack as a man.
To further support his position, Lack identifies several comments that he perceived as sexual overtures. He emphasizes the frequency and sexual tone of Bragg‘s “I‘m coming, Chrissy” assurances, and cites Bragg‘s crotch-grabbing gestures, as evidence that Bragg harbored—indeed pursued—a sexual interest in Lack. While there is some authority indicating that an earnest sexual solicitation by a harasser will support an inference that the harassment was because of the plaintiff‘s sex, see, e.g., Tietgen v. Brown‘s Westminster Motors, Inc., 921 F.Supp. 1495, 1502 (E.D.Va.1996), Bragg‘s conduct here cannot reasonably be construed as an “earnest sexual solicitation.”8 Accepting Lack‘s testimony as true, Bragg taunted Lack with sexual gestures, but he neither proposed sex nor initiated it (as by touching Lack).9 Indeed, Lack himself acknowledged that Bragg did not limit his jokes, lewd behavior, or sexual attention to him individually, or to men more generally. Bragg‘s “oh my rod” comments were apparently provoked by the sight of attractive women; similarly, it was Lack who described his supervisor‘s propensity for “checking out” attractive women at the
Moreover, Lack fails to come to grips with the fact that female employees (including his original co-plaintiff Susan Willis) also lodged similar complaints regarding Bragg‘s behavior. This fact undercuts Lack‘s claim to a substantial extent. In its totality, the evidence compels the conclusion that Bragg was just an indiscriminately vulgar and offensive supervisor, obnoxious to men and women alike. While the female employees’ complaints do not, as a matter of law, preclude Lack‘s claim, compare Holman v. Indiana, 211 F.3d 399, 402 (7th Cir.2000) (
IV.
In holding same-gender harassment claims cognizable under the
The real aim of harassment litigation ... are those situations when “an employee is made the unwilling target of repeated, sexually-charged and gender-based remarks, when he is threatened with sexual assault, and when he is subjected to unwelcome sexual contact.”
504 S.E.2d at 654 (quoting Doe v. City of Belleville, 119 F.3d 563, 591-92 (7th Cir.1997)). In our view, those meritorious situations envisioned in Willis and Oncale are readily distinguishable from the vulgar banter and offensive behavior presented in this case.
Because Lack failed to demonstrate gender-based harassment, the jury‘s verdict cannot be sustained. Accordingly, we reverse and remand so that judgment may be entered in favor of the defendants.
REVERSED AND REMANDED.
KING, CIRCUIT JUDGE
Notes
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when either:
(1) Such conduct has the purpose or effect of unreasonably interfering with an individual‘s work performance or creating an intimidating, hostile, or offensive working environment; (HOSTILE ENVIRONMENT THEORY)
or
(2) Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual. (RETALIATION THEORY)
To establish his claim, Lack must prove the following four (4) elements by a preponderance of the evidence:
First: The assailed conduct was unwelcome;
Second: It was based on Lack‘s gender;
Third: It was either (1) sufficiently severe or pervasive to alter Lack‘s conditions of employment and create an abusive work environment; or (2) [Lack‘s] submission to or rejection of sufficiently severe or pervasive conditions became the basis of an employment decision; and
Fourth: The conduct was imputable on some factual basis to the employer, Wal-Mart, that is, it knew or should have known of Bragg‘s actions against Plaintiff and the reasonably foreseeable effects of such conduct.
As the district court crisply noted, Lack‘s “retaliation theory” of sexual harassment generated some confusion among the parties. See J.A. 227, n. 5 (“The Court took great pains both prior to and during trial to clarify this issue [i.e., the nature of Lack‘s retaliation claim], with little help from the parties[.]“). The confusion lingers on appeal. Neither the complaint nor the jury charge specifically identifies the statutory basis for Lack‘s retaliation theory, but the charge tracks the language in Section 2.2.2 of the West Virginia Human Rights Commission‘s regulations defining sexual harassment. See