Tortica Anderson v.  G.D.C., INCORPORATED, d/b/a Unlimited Trucking, Incorporated

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 TORTICA ANDERSON,
Plaintiff-Appellant,
v. No. 01-1086 
G.D.C., INCORPORATED, d/b/a
Unlimited Trucking, Incorporated,
Defendant-Appellee. 
 TORTICA ANDERSON,
Plaintiff-Appellee,
v. No. 01-1118 
G.D.C., INCORPORATED, d/b/a
Unlimited Trucking, Incorporated,
Defendant-Appellant. 
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-00-418-A)
Argued: December 4, 2001
Decided: February 25, 2002
Before WILKINS and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part, reversed in part, vacated in part, and remanded by
published opinion. Judge Wilkins wrote the opinion, in which Judge
Michael and Senior Judge Hamilton joined.

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COUNSEL
ARGUED: Annette Kay Rubin, Leesburg, Virginia, for Appellant.
Tina Marie LePoer, Manassas, Virginia, for Appellee.
OPINION
WILKINS, Circuit Judge:
Tortica Anderson brought this action against her former employer,
G.D.C., Incorporated (G.D.C.), alleging discrimination and retaliation
in violation of Title VII of the Civil Rights Act of 1964, see 42
U.S.C.A. §§ 2000e-2(a)(1), 2000e-3(a) (West 1994). Anderson now
appeals rulings of the district court granting judgment as a matter of
law to G.D.C. on the retaliation claim and denying her motion for a
new trial on the issue of punitive damages. She also appeals the
amount of attorneys’ fees awarded by the court. G.D.C. cross-appeals
the denial of its motion for judgment as a matter of law on Ander-
son’s discrimination claim. For the reasons set forth below, we affirm
in part, reverse in part, vacate in part, and remand for further proceed-
ings.
I.
The facts, viewed in the light most favorable to Anderson, see
Sales v. Grant, 158 F.3d 768, 775 (4th Cir. 1998), are as follows.
G.D.C. is a trucking company located in Woodbridge, Virginia.
Anderson began employment with G.D.C. as a dump truck driver in
November 1996. While employed at G.D.C., Anderson was super-
vised by Donald Cooper. Cooper was the general manager and dis-
patcher for G.D.C., and he possessed authority to hire, fire, and
discipline drivers.1
When Anderson interviewed for the position, she informed G.D.C.
that because her son’s day-care center did not open until 6:30 a.m.,
1Cooper was also a vice-president of G.D.C., but evidence presented
at trial indicated that the title was nominal.
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she could not report for work until 6:45. Although the normal time for
G.D.C. employees to begin work was 5:00, Anderson was informed
that arriving at 6:45 would be "fine" and that "there was always work
to do." J.A. 28-29. Anderson spent approximately two weeks training
with other G.D.C. employees. After completing her training, Ander-
son worked as a driver for six days, for a total of 39.5 hours. Work
as a dump truck driver was not always available for Anderson by the
time she came in, but when it was not, Cooper assigned Anderson to
other tasks.
Throughout Anderson’s tenure at G.D.C., she was barraged with
comments of a sexual nature. The worst perpetrator was Cooper, who
made vulgar comments regarding Anderson’s breasts and buttocks on
a daily basis and who repeatedly stated that he "heard black women
had the best p***y" and that "you hadn’t f***ed until you have been
with a black woman." Id. at 33. Cooper also told Anderson that if he
ever caught her driving on a certain road, he "would f*** [her] in the
a**," id. at 31, and that "all [Anderson] needed was a good f*** and
[she] wouldn’t be so mean," id. at 33. Twice, Cooper touched Ander-
son’s hand in a suggestive manner when she handed him her paper-
work. On one occasion, Cooper paged Anderson and inputted a
telephone sex line as the response number. Anderson called the num-
ber believing it to be her son’s day-care; when she returned to the dis-
patch trailer, she found Cooper and several drivers laughing at her.
The off-color comments did not come solely from Cooper. Male
G.D.C. drivers made numerous comments regarding Anderson’s but-
tocks and stated within Anderson’s hearing that they "would like to
f*** [her] in the a**." Id. at 37. Male G.D.C. drivers also commented
that they would like to perform oral sex on Anderson. Further, they
noted that Anderson wore red lipstick and stated that they "would like
to see the red ring around their d***" and that they bet Anderson
"could suck a good d***." Id. As much as possible, Anderson tried
to avoid using the employee restroom located in the dispatch trailer
because other drivers would make off-color comments when she did
so. Once while Anderson was in the restroom, another driver com-
mented, loudly enough for Anderson to hear, that he "would like to
take a bath in [her] hot p***." Id. at 38.
Anderson repeatedly protested the sexual comments directed
toward her. Fearful of losing her job, however, she attempted to
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"candy coat" her objections. Id. at 33. At some point, Anderson com-
plained to a coworker, who then spoke to Cooper. Cooper then
responded to Anderson, telling her that she "might as well get used
to it" and that "[t]hat was the way of G.D.C." Id. at 34.
In mid-December, Anderson asked Cooper for assistance with a
question regarding her paperwork. In the guise of assisting her, Coo-
per came up behind Anderson and pressed his penis into her buttocks
("the touching incident"). Anderson whirled around and told Cooper
that she would "cut his f***ing throat if he ever did it again." Id. at
40. When Anderson arrived for work on the following workday, Coo-
per told her that no work was available that day and that, in the future,
she should call ahead to find out if work was available. The following
week, each time Anderson called, Cooper told her that there was no
work available for her. Thereafter, Cooper failed to return Anderson’s
calls. Frustrated, Anderson contacted Ronald Cooper (Ronald), Coo-
per’s brother and a vice-president of G.D.C., and explained the situa-
tion. Ronald told her that "work was slow" and that she should speak
with Cooper.2 Id. at 42. Anderson continued to call Cooper for
another two weeks, with no success. During this period, Anderson
observed G.D.C. trucks on the road and saw employment advertise-
ments that G.D.C. had placed in the local newspaper.3 Anderson ulti-
mately abandoned her efforts to work at G.D.C. and obtained
employment elsewhere.
After pursuing her administrative remedies, Anderson filed this
2Ronald testified that he told Anderson there was work available if she
would arrive at 5:00 a.m. He did acknowledge, however, that Cooper
would usually try to find something for an employee to do if no driving
work was available.
3Ronald testified that during the week following the touching incident,
there was very little work available for dump truck drivers because of the
Christmas holiday and poor weather. However, the division of G.D.C.
that provided trash-hauling services was still active, and a snow storm
during the week of Christmas provided three days of work for those driv-
ers qualified to do snow removal. Anderson was not qualified to do snow
removal. Ronald further testified that G.D.C. constantly runs advertise-
ments for new drivers, even when it is fully staffed, because of high
employee turnover.
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action alleging that she had been the victim of a hostile environment
and of retaliation by G.D.C. Following the presentation of Anderson’s
case, the district court granted G.D.C.’s motion for judgment as a
matter of law as to the retaliation claim but denied G.D.C.’s motion
as to the hostile environment claim. Additionally, the court refused to
submit the issue of punitive damages to the jury. The jury returned a
verdict in favor of Anderson and awarded her $15,000 in compensa-
tory damages.
In post-trial motions, Anderson requested a new trial on punitive
damages and an award of attorneys’ fees. The district court denied the
motion for new trial, reasoning that the evidence did not support an
award of punitive damages. The court did award attorneys’ fees, but
in an amount substantially less than the amount Anderson had
claimed. The district court reduced the "lodestar" figure by 80 percent
to account for the great difference between Anderson’s requested
damages (not less than $100,000) and the award actually made by the
jury ($15,000).
Both parties now appeal. Anderson appeals the granting of
G.D.C.’s motion for judgment as a matter of law on the retaliation
claim, the denial of her request for an instruction on punitive dam-
ages, and the amount of attorneys’ fees awarded. G.D.C. cross-
appeals the denial of its motion for judgment as a matter of law on
Anderson’s hostile environment claim.
II.
We begin with Anderson’s appeal of the grant of judgment as a
matter of law on her retaliation claim, a ruling we review de novo.
See Anderson v. Russell, 247 F.3d 125, 129 (4th Cir. 2001). We must
view the evidence in the light most favorable to Anderson, the non-
movant, and draw all reasonable inferences in her favor without
weighing the evidence or assessing the witnesses’ credibility. See
Sales v. Grant, 158 F.3d 768, 775 (4th Cir. 1998). Judgment as a mat-
ter of law is proper only if "there can be but one reasonable conclu-
sion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986).
Title VII prohibits discrimination against any employee who "has
opposed any . . . unlawful employment practice" under Title VII. 42
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U.S.C.A. § 2000e-3(a). In order to establish a prima facie case of
retaliation, an employee must present evidence that she engaged in
protected activity, that her employer took an adverse employment
action against her, and that there was a causal connection between the
two events. See Tinsley v. First Union Nat’l Bank, 155 F.3d 435, 443
(4th Cir. 1998). Once the plaintiff has established a prima facie case,
the burden shifts to the employer to articulate a legitimate, non-
retaliatory reason for the adverse employment action. See id. at 442.
If the employer succeeds in doing so, the plaintiff must then demon-
strate that the employer’s asserted reason is simply a pretext for retali-
ation. See id.
Anderson presented sufficient evidence to reach a jury on her retal-
iation claim. She testified that the next working day after she pro-
tested Cooper’s physical touching of her (which G.D.C. does not
dispute, and we assume without deciding, is protected activity), there
was suddenly no work available for her and Cooper began requiring
her to telephone him before coming in. This was in marked contrast
to Cooper’s behavior before the touching incident, when he had con-
sistently assigned Anderson to other tasks when no driving work was
available. Anderson further testified that although she called numer-
ous times, Cooper either told her no work was available or failed to
return her calls. During this period, Anderson observed G.D.C.’s
trucks on the road and saw advertisements for new drivers in the
newspaper. While G.D.C. presented testimony tending to explain the
presence of the trucks and the newspaper advertisements, the exis-
tence of this evidence only serves to demonstrate that a triable issue
of fact existed as to Anderson’s retaliation claim.
III.
We turn next to the challenges related to Anderson’s hostile envi-
ronment claim. We first consider G.D.C.’s argument that the district
court should have granted its motion for judgment as a matter of law
on that claim. Since, as explained below, we conclude that the district
court correctly denied G.D.C.’s motion, we then address Anderson’s
contention that the district court erred in refusing to submit the issue
of punitive damages to the jury.
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A.
In prohibiting discrimination in the "terms, conditions, or privileges
of employment," 42 U.S.C.A. § 2000e-2(a)(1), Title VII does not
merely proscribe discriminatory acts that result in "tangible loss of an
economic character," Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
64 (1986) (internal quotation marks omitted). Rather, Title VII is also
violated when an employee suffers sexual harassment that is "suffi-
ciently severe or pervasive to alter the conditions of . . . employment
and create an abusive working environment." Id. at 67 (internal quota-
tion marks omitted). In order to prevail on a claim for sexual harass-
ment amounting to a hostile work environment, a plaintiff must prove
"(1) unwelcome conduct; (2) that is based on the plaintiff’s sex; (3)
which is sufficiently severe or pervasive to alter the plaintiff’s condi-
tions of employment and to create an abusive work environment; and
(4) which is imputable to the employer." Conner v. Schrader-
Bridgeport Int’l, Inc., 227 F.3d 179, 192 (4th Cir. 2000).
G.D.C. disputes the adequacy of Anderson’s evidence as to the
third element, contending that Anderson did not present sufficient evi-
dence for a rational jury to conclude that the environment at G.D.C.
was so polluted with sexual harassment that it altered the terms and
conditions of her employment. Although the third prong of a hostile
environment claim includes both objective and subjective compo-
nents, see Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993),
G.D.C. does not dispute that Anderson subjectively perceived the
environment to be hostile. It argues only that the environment was not
objectively hostile, i.e., that a reasonable person would not have
found the environment at G.D.C. to be hostile or abusive. See id. at
21.
In assessing whether a work environment is objectively hostile, a
court must consider "all the circumstances," including "the frequency
of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether
it unreasonably interferes with an employee’s work performance." Id.
at 23. No single factor is determinative. See id. In assessing whether
the environment was objectively hostile, a reviewing court must bear
in mind that Title VII is "designed to protect working women from
the kind of male attentions that can make the workplace hellish for
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women. . . . It is not designed to purge the workplace of vulgarity."
Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir. 1995); see
Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 773 (4th Cir. 1997)
(noting that "Title VII is not a federal guarantee of refinement and
sophistication in the workplace").
The evidence was unquestionably sufficient to submit Anderson’s
hostile environment claim to the jury. Anderson was subjected, on a
daily basis, to verbal assaults of the most vulgar and humiliating sort.
Such evidence suffices to create a jury question regarding whether the
harassing conduct was sufficiently severe or pervasive to alter the
terms and conditions of employment. See EEOC v. R&R Ventures,
244 F.3d 334, 340 (4th Cir. 2001) (concluding that environment was
hostile when employee was subjected to comments about her breasts
and buttocks and inappropriate sexual remarks on a daily basis); Car-
ter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999) (concluding
that district court erred in granting summary judgment for employer
on hostile environment claim when plaintiff produced evidence of "a
host of indignities" including "verbal abuse interlaced with sexual and
racial epithets," "[r]ude sexual gestures," and "sexual insults . . . writ-
ten on the walls of the company restroom").
B.
Anderson challenges the denial of her motion for a new trial on the
issue of punitive damages. This court reviews the grant or denial of
such a motion for abuse of discretion. See Chesapeake Paper Prods.
Co. v. Stone & Webster Eng’g Corp., 51 F.3d 1229, 1237 (4th Cir.
1995). We conclude that the district court erred in denying Ander-
son’s motion for new trial.
An award of punitive damages is allowed in a Title VII action
when the plaintiff demonstrates that the defendant employer engaged
in intentional discrimination "with malice or with reckless indiffer-
ence to the federally protected rights of" the plaintiff. 42 U.S.C.A.
§ 1981a(a)(1), (b)(1) (West 1994); see Kolstad v. Am. Dental Ass’n,
527 U.S. 526, 534 (1999). In Kolstad, the Supreme Court rejected the
rule that punitive damages are available when the discrimination is
particularly egregious or severe. See Kolstad, 527 U.S. at 534-35.
Instead, the Court held that "[t]he terms ‘malice’ and ‘reckless’ ulti-
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mately focus on the actor’s state of mind," id. at 535; thus, punitive
damages are appropriate at least when a person discriminates "in the
face of a perceived risk that [his] actions will violate federal law," id.
at 536. Additionally, the plaintiff must demonstrate that liability for
punitive damages should be imputed to the employer. See id. at 539.
Stating the test in the negative, the Court held that "an employer may
not be vicariously liable for the discriminatory employment decisions
of managerial agents where these decisions are contrary to the
employer’s good-faith efforts to comply with Title VII." Id. at 545
(internal quotation marks omitted). This circuit has summarized the
principles set forth in Kolstad as follows: When an employee has dis-
criminated in the face of a known risk that his conduct will violate
federal law,
an employer may be held vicariously liable for a punitive
damage award in a Title VII case for the intentionally dis-
criminatory conduct of its employee, where the employee
served the employer in a managerial capacity[ and] commit-
ted the intentional discrimination at issue while acting in the
scope of employment, and the employer did not engage in
good-faith efforts to comply with Title VII.
Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 442 (4th Cir.), cert.
denied, 531 U.S. 822 (2000); see id. at 443.
Applying these principles here, we hold that the district court
abused its discretion in denying Anderson’s motion for a new trial on
punitive damages. First, a reasonable jury could conclude, from the
evidence presented, that Cooper engaged in his harassing conduct
despite knowing that such conduct might violate federal law. Cooper
testified that he had seen an EEOC poster regarding sexual harass-
ment in the dispatch trailer. The poster, which was admitted into evi-
dence, was titled "Sexual Harassment" in bold letters approximately
one inch high; the poster informed readers that
[s]exual harassment is unlawful and unacceptable in the
workplace. Unwelcome sexual advances, requests for sexual
favors, and other verbal and physical conduct of a sexual
nature constitute sexual harassment.
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Sexual harassment is illegal whether it is initiated by a
supervisor, a manager, a coworker, or any non-employee.
Def.’s Ex. 4. Although Cooper denied having read the poster, a rea-
sonable jury could nevertheless infer that Cooper’s awareness of the
poster suggested at least a rudimentary knowledge of its import.
Additionally, a reasonable jury could conclude that the rank offen-
siveness of Cooper’s conduct demonstrates a deliberate disregard for
Anderson’s rights. See Kolstad, 527 U.S. at 535 (observing that "egre-
gious misconduct is evidence of the requisite mental state"); Delph v.
Dr. Pepper Bottling Co. of Paragould, 130 F.3d 349, 358 (8th Cir.
1997) (concluding that evidence supported conclusion that harassing
supervisors were recklessly indifferent to plaintiff’s rights, even
though they had no training on workplace discrimination, because
"one simply does not refer to black employees as did [plaintiff’s] two
supervisors without knowing that such language would offend a rea-
sonable person in [plaintiff’s] position"). Cooper’s reckless indiffer-
ence to Anderson’s rights is further demonstrated by his response to
her complaints regarding his conduct—that Anderson "might as well
get used to it" because "[t]hat was the way of G.D.C.," J.A. 34. See
Beardsley v. Webb, 30 F.3d 524, 531 (4th Cir. 1994) (upholding puni-
tive damages award in light of evidence that when plaintiff com-
plained about harassment, harassing supervisor told plaintiff "that she
chose to work in a field occupied primarily by men, and if she didn’t
like it she could just get out" (internal quotation marks omitted)).
Second, Cooper was unquestionably a managerial employee. The
evidence at trial established that he possessed authority to hire and
fire drivers and to impose lesser forms of discipline, including dock-
ing a driver’s wages. See Lowery, 206 F.3d at 444 (concluding that
supervisor with hiring authority was a managerial employee); EEOC
v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1247 (10th Cir. 1999) (hold-
ing that assistant store manager with authority to suspend subordi-
nates and to make hiring and firing recommendations was a
managerial employee).
The third requirement—that the employee "committed the inten-
tional discrimination at issue while acting in the scope of employ-
ment," Lowery, 206 F.3d at 442—is also satisfied. Although Lowery
phrased this requirement in terms of the "scope of employment," the
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fundamental purpose of the requirement is best understood as assur-
ing that some basis exists for imputing liability to the employer.
While "[t]he general rule is that sexual harassment by a supervisor is
not conduct within the scope of employment," Burlington Indus., Inc.
v. Ellerth, 524 U.S. 742, 757 (1998), the supervisor nevertheless may
be aided in his harassment by his position with the employer, see id.
at 763. Accordingly, in the context of a hostile environment claim, the
third requirement is satisfied when "a supervisor with immediate (or
successively higher) authority over the [victimized] employee"
creates "an actionable hostile environment." Id. at 765.
Finally, the court must examine whether G.D.C. engaged in good
faith efforts to comply with Title VII. Such efforts may include the
implementation of a written policy against discrimination, see Low-
ery, 206 F.3d at 446, and employee training regarding federal anti-
discrimination laws, see Wal-Mart Stores, 187 F.3d at 1248. Here, the
evidence established that G.D.C. never adopted any anti-
discrimination policy, nor did it provide any training whatsoever on
the subject of discrimination. Ronald Cooper’s placement of the
EEOC poster regarding discrimination in the dispatch trailer simply
does not constitute a good faith effort to forestall potential discrimina-
tion or to remedy any that might occur. Indeed, Anderson testified
that she was not even aware of the existence of the poster. Under
these circumstances, a rational jury could conclude that G.D.C. did
not engage in good faith efforts to comply with Title VII.
IV.
Finally, Anderson challenges the amount of attorneys’ fees
awarded by the district court. Initially, Anderson requested a fee
award of $36,695. This amount comprised 139.9 hours of principal
attorney time at a rate of $200 per hour, plus 58.1 hours of associate
attorney time at a rate of $150 per hour. In calculating the "lodestar"
amount, the district court reduced the associate hours to 16.85, on the
basis that the claimed amount of associate time was excessive. This
yielded a lodestar amount of $30,507.50. The court then imposed an
80 percent reduction to account for Anderson’s limited success, which
it determined based largely on a comparison between the ad damnum
in Anderson’s complaint and the amount of damages actually
awarded by the jury. But see Coutin v. Young & Rubicam P.R., Inc.,
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124 F.3d 331, 338 & n.4 (1st Cir. 1997) (noting that "[t]he use of the
ad damnum for [the purpose of determining the degree of a plaintiff’s
success] is suspect because the ad damnum is an inherently artificial
construct" and that even "a chasmal gulf between the damages
requested . . . and the damages awarded" should be but one factor in
the calculus). Anderson appeals this award, maintaining that the dis-
trict court abused its discretion in imposing the 80 percent reduction
(she does not challenge the reduction of the associate time).
In view of our rulings that the jury should have been entitled to
consider Anderson’s retaliation claim and her request for punitive
damages, we conclude that the best course is to vacate the fee award
so that the district court may recalculate it in light of the results of fur-
ther proceedings.
V.
In summary, we conclude that Anderson presented evidence from
which a rational jury could conclude that she suffered retaliation as
a result of protesting the touching incident; accordingly, we reverse
the grant of judgment as a matter of law on that count and remand for
a new trial. Additionally, we conclude that the district court correctly
denied G.D.C.’s motion for judgment as a matter of law on the hostile
environment claim but that it erred in denying Anderson’s motion for
new trial on the question of punitive damages on that claim. Accord-
ingly, we reverse the denial of the motion for new trial and remand
for a new trial on punitive damages. Finally, we vacate the award of
fees and costs so that it may be recalculated in light of the results of
further proceedings.
AFFIRMED IN PART; REVERSED IN PART;
VACATED IN PART; AND REMANDED
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