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Equal Employment Opportunity Commission v. EmCare, Inc.

United States Court of Appeals, Fifth Circuit

May 19, 2017

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee,
v.
EMCARE, INCORPORATED, Defendant-Appellant.

         Appeal from the United States District Court for the Northern District of Texas

          Before SMITH, PRADO, and GRAVES, Circuit Judges.

          EDWARD C. PRADO, Circuit Judge:

         Following a six-day trial, a jury found that EmCare, Inc. ("EmCare") terminated three employees in retaliation for complaining of sexual harassment in the workplace. The district court denied EmCare's motion for judgment as a matter of law. EmCare appeals the judgment with respect to one employee, Luke Trahan. Specifically, EmCare contends that the Equal Employment Opportunity Commission ("EEOC") failed to present sufficient evidence of a causal link between Trahan's protected activity and termination because there was no evidence that the individual who decided to terminate Trahan was aware he had engaged in protected activity. Because we find there was sufficient evidence to support the jury's verdict, we AFFIRM.

         I. BACKGROUND

         Trahan worked for EmCare's AnesthesiaCare division from November 2008 to August 7, 2009. EmCare provides physicians as well as physician management services to hospitals and emergency centers. Trahan was hired as a physician recruiter but was quickly promoted to recruiting manager. During his time at EmCare, Trahan headed the credentials and billing enrollment teams. At the time, AnesthesiaCare had only recently been acquired by EmCare, and one of Trahan's responsibilities was updating and editing provider contracts to reflect the acquisition. For the first few months of his employment, Trahan was supervised by Jim McKinney, the CEO of AnesthesiaCare. Sean Richardson, the chief operating officer, became Trahan's supervisor in April 2009. The other characters in this case include: Karen Thornton, EmCare's vice president for human relations and head of AnesthesiaCare's human resources ("HR") office; Lewis Johnson, AnesthesiaCare's HR manager; Gloria Stokes, McKinney's executive assistant; Yvonne Shaw, a senior credentialing coordinator; and Ken Thompson, another credentialer. Johnson spoke to Thornton every day, and Thornton testified that Johnson reported to her, that the two spoke every day, and that Johnson would have made her aware of any complaint made by an AnesthesiaCare employee regarding sexual harassment.

         This case arises from McKinney's frequent and persistent sexual remarks and gestures in the workplace. At trial, numerous witnesses testified to various examples of the following conduct: McKinney constantly commented on women's bodies, asking them to lower their blouses, hike up their skirts, show more cleavage, or turn around, he often referred to the size of women's breasts, made groping gestures, and sought intimate hugs, he made inappropriate comments about his employees' wives, and he offered commentary on which female employees he regarded as "hott[ies]." One AnesthesiaCare employee told the EEOC investigator that she called McKinney "the boob man" because he commented on women's breasts so frequently. Both Trahan and Shaw testified that Thornton and Johnson were occasionally present for McKinney's comments but never reprimanded McKinney. Furthermore, Shaw testified that Richardson heard at least one offensive comment and stated "one day" McKinney would "get [them] in trouble."

         Trahan, Shaw, and Stokes all testified that they complained to Thornton and/or Johnson about McKinney's behavior and the work environment it created, but that they never heard of any investigative or remedial action taken by EmCare. In addition, Trahan testified that every time he complained to HR about McKinney, "McKinney would tell him shortly thereafter that he 'needed to shape up and do things better'" but would not point out any deficiencies when Trahan asked for specifics.

         The situation took a turn for the worse in June 2009, when AnesthesiaCare hosted a "Bring Your Child to Work Day" ("BYCTW Day"). Shaw brought her fifteen-year-old daughter to the office. She testified that when she introduced her daughter to McKinney, McKinney stated, "[T]here is no way she is 15 with breasts like that." Shaw recalled that McKinney laughed when Shaw became visibly upset. She then went to HR to complain, accompanied by Trahan and Thompson. At this point in his employment, Trahan had already complained to HR at least four times about McKinney's behavior. Johnson, who appeared distressed by their account, told them to submit a formal complaint. Trahan did so that day.

         In July, Thornton suggested that Trahan's and Shaw's units be audited. An employee from EmCare's management services audited Trahan's unit and summarized her findings to Richardson. The reported listed several problems with the unit's performance that were caused by the failures of a regional vice president, an issue that Trahan had already reported to Richardson. Nonetheless, the report was essentially positive regarding Trahan's performance, particularly as it compared to that of another recruiter who did not get fired. Trahan never received any feedback from his superiors about the audit. On August 7, 2009-six weeks after BYCTW Day and four days after Richardson received the audit report-EmCare fired the three employees who had complained on BYCTW Day: Trahan, Shaw, and Thompson. Thornton and Richardson met with Trahan and told him he was being terminated because "it was [not] working anymore." Richardson testified that it was his decision to terminate Trahan, but acknowledged that he discussed the decision with Thornton and McKinney beforehand. Thornton entered Trahan's termination into the computer database, which she only did when there was a "backlog or if [she] was personally involved in the transaction."

         EmCare maintains that Trahan was fired due to the "quality of his work and inaccuracies in his contracts." Both parties acknowledge that in December 2008, shortly after Trahan began his employment, numerous errors arose with regard to some of the company's contracts in El Paso. Trahan characterized the mistakes as the result of a computer glitch and testified that he resolved the issue in a timely manner. EmCare concedes that the mistakes were corrected and no business was lost but maintains that the incident caused McKinney to become very upset and was part of an "ongoing problem" with Trahan's performance. At trial, Richardson testified that Trahan had difficulty editing contracts, Trahan was verbally counseled at certain times to improve his performance, and the audit performed following BYCTW Day was "not a complimentary review."

         By contrast, Trahan asserted that the limited feedback he received at EmCare was positive. In February 2009, Trahan was given a 90-day performance review during which McKinney told him to keep doing what he was doing-a statement that was repeated to him by Richardson as late as mid-July. According to Trahan, the only concrete example of a performance issue he was made aware of was the incident with the El Paso contracts.[1]

         The EEOC filed suit in federal district court on August 15, 2011, seeking injunctive relief and monetary damages under Title VII on behalf of Gloria Stokes, Luke Trahan, and Yvonne Shaw. The EEOC alleged that Stokes had been subjected to a hostile work environment based on her sex and fired in retaliation for her complaints; likewise, it alleged that Trahan and Shaw were terminated in retaliation for their complaints about McKinney's behavior. EmCare did not seek dismissal or summary judgment, and in October 2014, the case proceeded to a six-day jury trial. The jury found in favor of the EEOC and awarded $167, 000 in back pay for Trahan, $82, 000 in back pay for Shaw, and $250, 000 in punitive damages for Stokes.

         The district court denied EmCare's renewed motion for judgment as a matter of law and motion for a new trial. Shaw and Stokes have settled their claims. ...


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