STATEMENT OF JURISDICTION

This action was authorized and initiated pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-5. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1345. The district court entered judgment on October 9, 2012. R726.[1] On October 23, 2012, AA Foundries filed a timely notice of appeal. R825. The Commission filed a timely notice of cross appeal on December 7, 2012. R831. This Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

I. Whether the district court properly exercised its discretion when admitting testimony about a noose hung at AA Foundries, given that the testimony was relevant, highly probative evidence relating to the Commission’s hostile work environment claim and posed minimal prejudice to AA Foundries.

II. Even assuming the district court committed error in admitting that testimony, whether such error was harmless, as the record contains more than sufficient evidence of other racially harassing conduct to support the jury’s verdict as to claimants Strickland, Bacon, and Beal.

III. Given that claimant Kathy White testified about her regular observations of racially harassing conduct at AA Foundries toward others in her protected group, whether the district court committed reversible error when it refused to adopt the Commission’s proposed instruction that direct harassment of a claimant was not required to show the claimant had been subjected to a hostile work environment based on race.

IV. As a deficient jury charge, under this Court’s precedent, is ground for reversal where it allows the jury to overlook a key aspect of the liability determination, whether reversal is warranted as to the judgment on the Commission’s claim seeking relief for Kathy White.

STATEMENT OF THE CASE

I. Nature of the Case and Course of Proceedings

On September 23, 2011, the Equal Employment Opportunity Commission (“EEOC” or “Commission”) filed suit in district court alleging that AA Foundries had subjected claimants Christopher Strickland, Kenneth Bacon, Leroy Beal, and Kathy White, and other similarly situated individuals, to a hostile work environment based on race. R14. Bacon, White, and Mary Johnson intervened in the case on January 26, 2012, alleging, inter alia, the same. R119.

On June 4, 2012, AA Foundries moved to separate the claims of Mary Johnson from the claims of the other claimants pursuant to Federal Rule of Civil Procedure 42(b). R138-40. The district court granted the motion and ordered a separate trial as to the claims on behalf of Johnson (“Johnson trial”). R169. The Johnson trial, which took place on July 9 and 10, 2012 (R 339-42), culminated in a verdict in favor of AA Foundries. R365. That verdict was premised on the jury’s conclusion that Johnson had not been subjected to racial harassment by AA Foundries supervisor Ronnie Hunt. R362.

The second trial on the Commission’s hostile work environment claim seeking relief for Strickland, Bacon, Beal, and White was heard before a separately impaneled jury and commenced on September 24, 2012. R670-71. On September 26, 2012, that jury returned a verdict in favor of the Commission as to its claim on behalf of Strickland, Bacon, and Beal. R698-700. The jury concluded, however, that White had not been subjected to racial harassment. R698. Accordingly, on October 9, 2012, the district court entered judgment in favor of the Commission as to its claim on behalf of Strickland, Bacon, and Beal, but against the Commission as to White. R726.

On October 23, 2012, AA Foundries timely filed this appeal challenging the verdict of the second trial. R825. On December 7, 2012, the Commission timely filed its cross-appeal. R831.

II. Statement of Facts

A. Ronnie Hunt and the work environment at AA Foundries

AA Foundries is a manufacturer of metal pumps. R1346. Ronnie Hunt has been its plant superintendent, the highest ranking position at the AA Foundries plant, since 1978. R1258-59. Though William (“Bill”) Ranzinski is second in command (R1024), and Moumouni Adamou is one level below Ranzinski (R1028), “[e]verything started and ended with Ronnie.” R1347. Hunt controls and is responsible for the work environment at the plant (R1280), and has daily contact with everyone who works there. R1260. Hunt had daily contact with Christopher Strickland, Kenneth Bacon, Leroy Beal, and Kathy White during the respective times of their employment. R1261-62.

Strickland, Bacon, and Beal are African-American males who were employed at AA Foundries through 2010. [2] R1342, R888, R859. Kathy White is an African-American female and worked at AA Foundries as Hunt’s secretary from August 2008 to August 2009. R1262, R910.

The employee break room, where employees have lunch, is right outside Hunt’s office. R1273. The break room is situated in the plant so that nearly every employee, on a daily basis, walks through, passes by, or spends time inside it. R1337-38. Bacon saw Hunt print materials from his computer that “degrade[ed] blacks” and hang them in the break room window. R894-95. There was “[a] lot” of this material. R894. One cartoon in the break room depicted “a deer and a black man,” with a white man dressed in camouflage holding a rifle asking the reader, “Which one do you think should be shot?” and answering, “The black man.” R868, R1318. Kathy White, who cleaned the break room daily as part of her job,[3] recalled another cartoon on the window that read “Hang this nigger, or, Kick this nigger’s ass,” which Bacon saw as well. R917-18. Hunt testified that if there were any materials placed in the break room, it was usually he who placed them there. R1274.

Bacon complained about the cartoons in the break room, but there was no stop to the posting of such materials at any time during his employment. R897-98. White observed Hunt do nothing to stop the posting of these materials. R920. Nor did Hunt ever instruct her to remove materials that she found offensive. R919-20.

Hunt used the “n” word on multiple occasions in front of and toward his employees. When a newscast showing on the break room television reported that a black man had been shot in his back, Hunt — in front of White and other employees — said he “would have shot that nigger in his back too.” R915-916. Hunt referred to President Obama as the “n” word, telling employees shortly after his election that “I know y’all wish that nigger hadn’t got elected.” R1315. White also heard Hunt say “what’d y’all niggers get?” in relation to having voted for President Obama. R914.

Hunt referred to a hand tool (used for digging holes in the ground for posts, called a post hole digger (R1264)), as a “nigger digger.” R1315. Bacon heard Hunt tell two black employees that “he was going to get rid of all you niggers.” R869. Hunt also spoke to Beal and Adamou[4] “about going to take us somewhere and shooting us.” R864-65. Specifically, “[Hunt] told Adam and Leroy if we was back in the day, he would take you out back and shoot you in the head like a mule.” R1316. On another occasion, Hunt called a black male employee who had recently bought a pair of eyeglasses “the monkey with glasses.” Id.

Hunt would also refer to African-Americans, as a group, as “you people.” R895. This was an “everyday thing with Mr. Hunt” and was always said negatively, without exception. R896. For example, Hunt would say “you people don’t know how to do this; you people always crying about something.” Id. Hunt, referring to Beal, Bacon, and Strickland, would say “You people couldn’t be raised well, were all raised wrong. You people don’t know how to do nothing.” R865-66. Hunt told Beal that “you people like to steal.” R867. Hunt admitted to telling Strickland “something like” “[y]ou people are always trying to get on welfare” and “[y]ou people are always trying to get a hand out,” when Strickland — an Army veteran — was applying for benefits through the Veterans Administration. R1276. Hunt also told white and Hispanic employees, in reference to blacks, that “[t]hese guys don’t know how to take care of their women, they have -- they have all these kids and on child support.” R867-68. Hunt never used the phrase “you people” to refer to white or Hispanic employees. R896.

At AA Foundries, people know each other’s name and normally address each other by name. R1347. It was “an every day thing,” however, for Hunt to refer to black male employees as “boy.” R889. Beal testified that from the time he met Hunt, though Hunt knew his name, he called him “boy” on a weekly basis. R862. Beal also heard Hunt call Strickland and Bacon “boy.” R862-63. Hunt addressed Strickland as “boy” “[w]henever he felt like it” (R1354), though Strickland told Hunt he “was 49 years old at the time and I…had a head full of gray hair.” R1357. On one occasion, Strickland asked Hunt if he, as the other employees had, could receive his check one day early (on Wednesday instead of Thursday). R1355. Hunt responded, “Boy, if you don’t get your mother fucking ass back in there and work, get the fuck out my plant. That’s how he used to talk to me.” Id. Multiple witnesses testified that Hunt never referred to white or Hispanic male employees as “boy.” R1311, R1356, R865.

Hunt also referred to Strickland, Bacon, and Beal collectively as “boys.” For example, when announcing the end of a work break, and even though they were already in the general work area, Hunt “would ring his car alarm” and walk over to Strickland, Bacon, and Beal “and look at us in a derogatory manner and say, You boys better get your butts back up there to work.” R1356.

Hunt also addressed the black male employees as “Obama boy.” R915, R1359. Hunt, referring to Bacon, called out, “Hey, come here . . . . Come here, Obama Boy, I got a job for you, I want you to do this.” R951. Hunt addressed Beal as “Obama boy” on multiple occasions. R865. Hunt addressed Strickland as “Obama boy” in front of other employees including White, Bacon, and Beal, as “[Hunt] didn’t care who was around” when addressing him that way. R1359. Being called “Obama boy” was racially offensive because the basis for the association was race, black. R1359. Hunt conceded calling Strickland and Bacon “Obama boy.” R1268. He did so not knowing whether Bacon had voted at all. R1268. Multiple witnesses testified that Hunt never referred to white or Hispanic employees as “Obama boy.” R1359, R865, R891-91.

Strickland, Bacon, and Beal all complained about Hunt’s use of the word “boy” to refer to them. R863-64. Strickland complained about it “every time.” R1356. He told Hunt that he was a father of five boys, none of whom he ever addressed as “boy.” Id. He explained to Hunt that where Strickland had grown up, referring to a black man as boy was “a way to show him up; you know, to make him feel bad” and that it “was deeply offensive” to him. R1356-57.[5] Hunt admitted that Strickland had complained to him about being called “boy” and that in response, he told Strickland to act like a man. R1270. After these complaints, Hunt continued to address Strickland as “boy.” R1357-58.

Bacon complained to Hunt “all the time” about his use of the word “boy,” to which Hunt responded, “[Y]ou can find another job.” R889-90. Hunt admitted to receiving complaints from Bacon about being called “boy,” and that Bacon had also complained to Hunt that he spoke to him like a slave master. R1272. White witnessed Bacon asking Hunt “not to talk to him like that because he was a grown man,” and Hunt telling “Kenny B. he could talk to him any kind of way too because he signed his paycheck.” R917. Beal complained to Adamou about Hunt’s reference to him as “boy,” as “Adam was the head of the floor” and workers had been told they could raise complaints with him. R871. Nothing changed about Hunt’s conduct after his complaint. Id.

White worked as Hunt’s secretary, directly under his supervision (R910), with her office in the same room as his. R945. She interacted with him throughout the day and daily observed his conduct and speech. R910-11. She saw that Hunt treated black employees differently from white and Hispanic employees. R914. For example, if a non-black employee asked for an early advance on their pay, Hunt would allow it, but not for a black employee. Id. She heard Hunt use the “n” word and refer to black males as “Obama boy.” R914-15. Though Hunt never directed these words specifically to her, she felt personally offended by his use of them about her race. R931-32.

Racial comments that White heard in the break room, like Hunt’s statement that he “would have shot that nigger in his back too,” led White to stop eating in the break room. R915. She felt that “every time you look up it’s about your color. It was very uncomfortable to me.” R926.

White also complained to Hunt about how he spoke to her, to which his response was, “I sign your check. I can do what I want to.” R916-17. Hunt cursed at her on several occasions. R925. On one occasion, for example, he called her a “stupid mother fucker.” R922. Eventually, White quit “because I was tired of Ronnie Hunt talking to me like I was a nobody” and because of “the way he was talking to me, period . . . since I had been there.” R934. She never observed Hunt speaking to any non-black employee with either the language or manner he used with her. R935. She believed that he spoke to her “like a nobody” because of her race. Id.

B. Hanging of a noose at AA Foundries

Strickland filed a charge with the EEOC around January 26, 2010, alleging a hostile work environment based on race at AA Foundries. R1349. Bacon filed his EEOC charge on January 26, 2010. R30. White filed her EEOC charge on May 25, 2010 (R31), and Beal on July 27, 2010. Pl. Trial Ex.1 ¶ 7 (Stipulated Facts).

In October 2010, the EEOC was investigating these charges when Wayne Moss, a white employee at AA Foundries (R1318), hung a noose at the plant. R1052-53. It was a hangman’s noose, which he hung at the entrance of the break room. R1045. Though Ranzinski recognized the noose’s racist meaning, untied it, and told Moss that it was offensive to black employees (R1047), neither he nor Hunt disciplined him for the incident through his pay, a demotion, suspension, or termination. R1046. Nor was Moss sent home early that day. R1048. Instead, as Moss had hung the noose at the beginning of morning break, Ranzinski finished his morning break and thereafter went into the office to write Moss up. R1048.

Hunt testified that the noose was “[n]o big deal.” R1056. He neither called for an internal investigation into the matter nor a meeting about what had happened. R1048. Hunt did not instruct Ranzinski to take any action with regard to Moss at all. R1046. When Hunt learned of the noose from black employee Janice Beal, he told her that “they didn’t only hang black people with a noose” and that “people are too sensitive.” R1053-54. When Janice Beal explained to him that the noose was more degrading for blacks because blacks had been hanged because of their race, Hunt told her that was “bullshit.” R1054. Aside from the one-page write-up in Moss’ personnel file, which no one could access but Hunt, Moss received no other form of discipline for hanging the noose. R1055-56.

Prior to his hanging of the noose, Moss had used the “n” word. R1350. When Moss and Strickland were working together on an assignment that involved fixing something, Moss told Strickland, “let’s nigger rig it.” Id. Strickland told Hunt “exactly what happened. I told [him] that Wayne was talking about nigger rigging and using that word . . . . I didn’t want to hear it.” R1352. In response, Hunt had done nothing. Id. Moss, according to Hunt’s testimony, would also place materials in the break room. R1275.

C. Admission of testimony relating to the noose

Before trial, the Commission filed a motion in limine seeking to admit evidence of the noose, arguing it was relevant to show Hunt’s racial animus and the hostile work environment at AA Foundries. R609. The court denied the motion without prejudice, holding that it was inadmissible in the EEOC’s case-in-chief, but could “become admissible in rebuttal,” depending on the evidence offered by AA Foundries. R630-31.

At trial, out of the jury’s presence, the Commission made an offer of proof to admit evidence related to the noose — the fact that it was hung, AA Foundries’ response to the incident, and employee complaints about the noose. R1281-82. Plaintiff-intervenors’ counsel joined in that offer of proof, and also conducted an offer of proof examination of Hunt about the noose. R1283-89. The court did not rule on the offer of proof at that time. R1282, R1289.

During the plaintiff’s case-in-chief, counsel asked Hunt a series of questions about whether and how Hunt had reprimanded employees for using offensive language at the workplace. R1297-99. Hunt testified that there had been no acts — “not one” — of racial harassment or discrimination, ever, at the company. R1303. Nor, Hunt testified, had he ever received any other complaints of racial discrimination or insensitivity apart from the individuals who had filed EEOC charges. R1299.[6] At that point, and outside the jury’s presence, plaintiff-intervenors’ counsel again sought permission from the court to ask about the noose to “impeach the witness because he’s just categorically denied there was ever any racial incident at all in the workplace” and because the noose evidence could “come in as rebuttal at this point because I believe they’ve just opened the door.” R1305. The court responded that “rebuttal is something that you do after they rest their case” and would not permit questioning about the noose at that time, stating, “I’m not saying it won’t come in at some point, but I’ve ruled on it for now.” R1305-1306.

As part of AA Foundries’ case-in-chief, counsel for AA Foundries, on direct examination, asked AA Foundries manager Ranzinski about the “racial environment” at the company. R1024. Ranzinski testified that the racial environment was “normal” and “I haven’t see[n] any . . . tensions.” R1024-25. [7] During cross-examination, Ranzinski was then asked further questions about the working environment at AA Foundries. R1040-41. Ranzinski testified that since July 2010, there had been no more complaints at AA Foundries about anything racially offensive, and that the working environment had not been “that bad to begin with,” though he “guess[ed]” that there was an improvement given the absence of complaints. R1041.[8] Before counsel asked his next question, AA Foundries’ counsel objected, arguing that the court had already ruled to exclude any evidence relating to the noose. R1042. The district court overruled the objection, stating that Ranzinski’s testimony had “opened [the] door to it.” Id. As plaintiff-intervenors’ counsel began asking questions relating to the noose, AA Foundries again objected and the district court again overruled the objection, ruling that it was permissible cross-examination. R1043. After a few more questions about the noose, AA Foundries objected a third time, this time arguing that evidence related to the noose was “irrelevant to these four plaintiffs” because its hanging had occurred after their employment at AA Foundries, and because AA Foundries’ counsel had “specifically limited my question [about improved race relations] to while these people were still there.” R1044. The district court responded, “No, I don’t believe that’s correct. If that’s an objection, it’s overruled.” Id.

After the court’s ruling, Ranzinski testified that Moss had hung a noose outside the break room, that other employees had seen it, that Moss had hung the noose during the pendency of the EEOC’s investigation into the charges filed by the claimants, and that Hunt did not instruct Ranzinski to take any action with regard to Moss. R1045-48. Hunt corroborated the hanging of the noose and the timing of the incident. R1052-53. He also admitted that he had received complaints about the noose from AA Foundries employees Janice Beal and Rosa Hernandez, and he testified about his response to the incident, and that Moss had received no other discipline aside from a one-page write-up. R1053-56. Though plaintiff-intervenors’ counsel moved the court to admit a photograph of the noose hanging outside the break room, the district court sustained AA Foundries’ objection. R1044-46.

D. Proposed jury instructions on a hostile work environment and objections at trial

The Commission submitted proposed jury instructions before trial. R397. Therein, the Commission requested that the jury charge defining a hostile work environment state: “There is no requirement that the conduct be directed at Claimants nor that the conduct be psychologically injurious to claimants.” R413. At trial, before closing argument, all counsel had an opportunity to review the jury instructions and verdict form. R1087. The Commission made several objections concerning the instruction defining a hostile work environment, at that time emphasizing that the “case law makes it clear that even though harassment may not have been targeted to one person of a protected class, if they’re aware of it, then they also can have been subjected to [a] hostile work environment.” R1088-89. The Commission objected on the same basis to Interrogatory No. 1 in the verdict form because it implied that “racial harassment [had] to be directed at an individual claimant. . . . People that are aware of harassment directed to others in their protected class can also be subjected to racial harassment, even if it wasn’t directly directed at them by Mr. Hunt.” R1092-93.[9]

The next day, before the jury reconvened for closing arguments, the district court presented counsel its “somewhat revised instructions and a somewhat revised set of interrogatories.” [10] R1111. At that time, EEOC counsel reiterated, among other objections, that a hostile work environment claim can be premised on harassment directed toward other people in an individual’s protected group, and asked “that the Court would also add this one sentence: [There] is no requirement that the conduct be directed at claimants.” Id. The court did not adopt the Commission’s proposed changes and overruled its objections. R1114.

On September 26, 2012, the jury returned a verdict in favor of the Commission’s hostile work environment claim as to claimants Strickland, Bacon, and Beal, but not as to White. R698-700. Specifically, as to Interrogatory No. 1, the jury marked “yes” on the verdict form that Strickland, Bacon, and Beal had been “subjected to harassment based on race,” but wrote “no” as to White. R698-99. For Interrogatory No. 2, the jury marked “yes” that Strickland, Bacon, and Beal were subjected to harassment so severe and pervasive that it resulted in a hostile work environment, and “no” as to White. R699. The jury awarded punitive damages in the amount of $100,000 to Strickland, $60,000 to Beal, and $40,000 to Bacon.[11] R700.

SUMMARY OF ARGUMENT

AA Foundries argues that it was reversible error for the district court to admit testimony at trial, provided by its defense management witnesses, that a noose was hung on work premises. The district court, however, acted well within its discretion in admitting testimony about the noose, as it was relevant and highly probative evidence relating to the Commission’s hostile work environment claim. The hanging of a noose at AA Foundries during the pendency of the EEOC’s investigation, and management’s permissive response to the incident, are evidence demonstrating AA Foundries’ liability — the company allowed acts of racial hostility to occur, even those as overtly hostile as the hanging of a noose in a central location in the plant, without meaningful consequence. The district court’s evidentiary ruling was also consistent with this Court’s precedent on other grounds: the admitted testimony constituted proper cross-examination, rebuttal evidence to challenge testimony denying the occurrence of any racial complaints after July 2010, and was admissible pursuant to Federal Rule of Evidence 404. Importantly, AA Foundries suffered minimal, if any, prejudice from the admission, and certainly not to the degree that would warrant its exclusion under Federal Rule of Evidence 403.

Even assuming the district court committed any error, which it did not, the jury’s conclusion that AA Foundries subjected Strickland, Bacon, and Beal to a racially hostile work environment is well-supported by extensive evidence of other racially harassing conduct. This evidence, apart from the noose, provided ample basis for the jury to reasonably conclude that Strickland, Bacon, and Beal had been subjected to a racially hostile work environment. Any error in admitting the testimony, then, was harmless.

Finally, though the jury instructions properly guided the jury in its deliberations on AA Foundries’ liability on the Commission’s claim seeking relief for Strickland, Bacon, and Beal, the omission of a key instruction allowed the jury to overlook the principal basis for AA Foundries’ liability on the Commission’s claim seeking relief for Kathy White. Unlike the other claimants, who all experienced direct harassment from Ronnie Hunt, White’s experience of racial hostility was premised on her daily observations of Hunt’s harassing conduct toward others in her protected group. By failing to instruct the jury on the legal significance of the Commission’s evidence of indirect harassment as to White — indeed, nearly all of the evidence submitted in support of that hostile work environment claim — the district court committed reversible error. Accordingly, this Court should reverse and remand for a new trial as to White only.

ARGUMENT AS APPELLEE

I. The district court acted well within its discretion and consistent with this Court’s precedent when it admitted testimony at trial about the hanging of a noose at AA Foundries.

The district court properly exercised its discretion in admitting testimony about the noose, the only issue that AA Foundries challenges on appeal. Where a party contends that the district court’s admission of evidence was unfairly prejudicial based on Federal Rule of Evidence 403, as AA Foundries does here,[12] this Court requires a showing of a clear abuse of discretion. U.S. v. Curtis, 635 F.3d 704, 716 (5th Cir. 2011) (citations omitted). “Rare is the appellant who can make that showing,” as the standard is “‘especially high.’” Id. (citations omitted). This is so because “‘all probative evidence is by its very nature prejudicial’ and the Federal Rules of Evidence ‘embody a strong and undeniable preference’ in favor of admitting probative evidence.” Id. at 716-17 (internal citation omitted). Accordingly, “district courts should exclude evidence under Rule 403 in very few circumstances.” Id. at 717 (citations omitted).

A. The district court properly admitted testimony of the noose, as it was relevant and highly probative evidence that a racially hostile work environment existed at AA Foundries.

Testimony about the hanging of the noose at AA Foundries was relevant to the issue of whether racial hostility existed at its plant and evidence specific to the Commission’s claim. It demonstrated Hunt’s racial animus and AA Foundries’ liability for tolerating racial hostility against blacks in its workplace, particularly after having been notified that the Commission was investigating charges against it alleging a racially hostile work environment.

Hunt’s response to the noose, and his recalcitrance in response to complaints about the noose, was relevant and probative evidence of racial animus. See Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d 1130, 1133 (4th Cir. 1998) (stating that “the probative value of statements revealing the racial attitudes of the decisionmaker is great”). Hunt testified, for example, that the hanging of the noose was “no big deal.” Hunt also admitted that when Janice Beal, a black employee, explained that a noose was particularly offensive to African-Americans given the history of being hanged because of race, he told her that was “bullshit.”

Hunt further testified that Moss received no other form of discipline aside from documentation of the incident in his file — indeed, he was not even sent home early that day. The absence of any meaningful discipline of Moss, by Hunt or any other AA Foundries supervisor, is not only troubling given the severity of the noose incident, but also because this was at least the second time Moss was involved in a racial incident. Moss was the same white employee about whom Strickland had already complained to Hunt for using the n-word; Hunt had done nothing in response. This evidence had direct bearing on the claim before the jury — whether AA Foundries allowed a work environment wherein racial hostility toward black employees was accepted without consequence.

That the noose was hung after the four claimants were no longer employed at AA Foundries does not diminish its relevance or strong probative value. Hunt, the principal harasser and highest ranking supervisor at the plant, continued in the same management position after the claimants’ employment with AA Foundries ended, and during the hanging of the noose. His response to the noose, as discussed above, was relevant to show that he was untroubled by even overt acts of racial hostility. The record reflects that Hunt did not instruct Ranzinski to take any action as to Moss beyond a one-page write-up to be placed in an inaccessible personnel file. Hunt’s and AA Foundries’ decision to respond to the incident in this way — as opposed to investigating the matter, calling a company meeting to discuss the incident, or taking any other action that would have conveyed that hanging a noose was intolerable conduct — would allow a reasonable factfinder to infer that Hunt implicitly condoned Moss’s actions.

Moreover, the passage of time between the end of the claimants’ employment at the company and the hanging of the noose is not so significant as to meaningfully attenuate the relevance and probative value of that evidence. The noose was hung only one month after Strickland’s employment at AA Foundries ended, the same year as Bacon and Beal’s separation from AA Foundries, and during the EEOC’s investigation into these very claimants’ charges of a racially hostile work environment.

B. The district court’s evidentiary ruling is also supported by this Court’s precedent, on several other bases.

The district court’s admission of testimony about the noose is not only supported by the strong relevance of that evidence to the Commission’s hostile work environment claim, but also by this Court’s precedent governing permissible cross-examination under Rule of Evidence 611, rebuttal evidence, and evidence of extrinsic acts under Rule of Evidence 404.

i. The eliciting of testimony about the noose was proper cross-examination, as Ranzinski’s testimony portrayed AA Foundries as a racially harmonious workplace during his direct examination.

Federal Rule of Evidence 611(b) limits cross-examination to “the subject matter of the direct examination and matters affecting the witness’s credibility.” Fed. R. Evid. 611(b). This Court has explained that testimony elicited on cross-examination that casts doubt on the testimony elicited during the direct examination is entirely proper. See, e.g., U.S. v. Perez-Solis, 709 F.3d 453, 463-64 (5th Cir. 2013) (where witness “portrayed himself as a legitimate business person on direct,” holding that cross-examination about his finances and tax returns was within the scope of direct as it “cast doubt” on that portrayal; further explaining that an inquiry into a specific “action is not outside the scope of cross merely because that action was not discussed on direct examination”).

During AA Foundries’ case-in-chief, on direct examination, defense counsel asked Ranzinski about the “racial environment” at the plant, to which Ranzinski answered that it was “normal” and that he had not seen any tensions. Cross-examination about incidents, including the noose, that would cast doubt on the portrayal of AA Foundries as a racially harmonious workplace, was therefore properly within the scope of the direct examination. See also U.S. v. Beechum, 582 F.2d 898, 900 (5th Cir. 1978) (holding that where witness on direct examination denied intent to commit the offense, cross-examination generally relevant to the issue of intent was proper, including the eliciting of testimony concerning incidents about which the witness did not specifically refer on direct). Given that context, AA Foundries “may not complain on appeal that [it] was prejudiced by evidence relating to a subject which [it] opened up at trial.” U.S. v. Carey, 589 F.3d 187, 193-94 (5th Cir. 2009) (no abuse of discretion in admitting trial testimony on subject matter of witness’s experience and methodology, where the party opposing admission had first elicited testimony on the matter; stating “we conclude that [appellant] opened the door and invited any error that may have occurred”) (citations omitted).

ii. Ranzinski’s testimony that there were no race-related complaints after the EEOC charges were filed invited testimony about the noose, and complaints about the noose, as rebuttal evidence.

The district court not only correctly ruled that questioning and testimony about the noose was proper cross-examination, but also rightly concluded that testimony from AA Foundries witness Ranzinski had “opened [the] door to it.” Ranzinski followed the above cited testimony by testifying that there had been no complaints about racially offensive acts after July 2010. It was at this juncture that the district court admitted the challenged testimony as rebuttal evidence, as the Commission’s offer of proof submitted earlier in trial reflected that the noose was hung in October 2010, and that employees had complained about it.[13] Though the questioning on direct examination about the “racial environment” made testimony of racial tension fair ground for cross-examination, certainly Ranzinski’s testimony about the absence of any complaints invited further rebuttal evidence on the matter, including complaints about the noose. U.S. v. Caron, 474 F.2d 506, 508 (5th Cir. 1973) (noting that witness’s categorical denial “effectively opened the door to the questions which the prosecutor put to him” of facts that undermined his testimony on direct).

iii. Evidence of the noose was also admissible to show modus operandi and establish the requisite discriminatory intent.

Finally, the district court’s ruling is also supported by this Court’s precedent concerning Federal Rule of Evidence 404(b), which permits the admission of evidence of “a crime, wrong, or other act” for the purpose of proving, inter alia, motive, intent, or absence of mistake. Fed. R. Evid. 404(b)(1) and (2).[14] In Alaniz v. Zamora-Quezada, 591 F.3d 761 (5th Cir. 2009), for example, this Court held pursuant to Rule 404 that evidence of the defendant’s harassment of other employees aside from the plaintiffs was admissible and “highly probative” to show discrimination relevant to the plaintiffs’ Title VII hostile work environment claims. Id. at 774-75 (also holding that the admission was not unfairly prejudicial). That evidence, this Court explained, showed that the defendant supervisor had a “modus operandi” of making sexual overtures to female subordinates. Id. at 775 (stating the same evidence was also admissible to show the supervisor’s motive, absence of mistake, or plan). In this case, evidence of racial hostility (here, in the form of Hunt’s response to the noose) towards others at AA Foundries aside from the claimants, was admissible for the same purposes. It was “highly probative” to show his modus operandi of acting with racial hostility toward black employees at AA Foundries.

Under Rule 404, it was also admissible to show Hunt’s discriminatory intent. In U.S. v. Mortazavi, 702 F.2d 526 (5th Cir. 1983), this Court affirmed the district court’s admission of evidence under Rule 404 establishing that the defendant had committed an uncharged criminal act, though that act was not the subject of trial. Because the intent required to commit that act “was identical” to the intent required to commit the charged offense, this Court concluded that the evidence was “solidly relevant” and “precisely on point by way of proving his intent,” though the uncharged act had occurred nine years prior to the charged offense. Mortazavi, 702 F.2d at 528. Rejecting the defendant’s contention that the admission was unfairly prejudicial under Rule 403, this Court concluded that “[w]hatever prejudice there was arose from [its] firm relevance.” Id.

Here, the racial animus reflected by Hunt’s response to the noose is evidence of the intent required for proving any intentional, race-based Title VII violation — discriminatory intent. See, e.g., Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005) (discussing plaintiff’s burden in a Title VII action to present credible evidence of “discriminatory animus”). As AA Foundries sought to depict Hunt’s conduct toward the claimants as race-neutral banter, (e.g., R1139, 1141), evidence of Hunt’s permissive, even defensive, response to the hanging of a noose at a central location in the plant was admissible to show that Hunt’s other behavior toward the claimants was motivated by racial animus. Testimony about the noose supported the Commission’s contention that Hunt’s use of “boy,” “Obama boy,” and “you people,” among other comments, was most certainly not race-neutral.

As the foregoing demonstrates, the district court’s evidentiary ruling is consistent with this Court’s precedent on several other grounds.

C. There is no indicia of unfair prejudice.

Even though testimony about the noose was strongly relevant, under Rule 403, its exclusion would be warranted if its “probative value is substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. Because there is no indicia of unfair prejudice, AA Foundries argument challenging the testimony’s admissibility on that basis is unavailing.

This Court instructs that unfair prejudice “is not to be equated with testimony that is merely adverse to the opposing party. Virtually all evidence is prejudicial; otherwise it would not be material. The prejudice must be ‘unfair.’” Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 427 (5th Cir. 2006) (discussing Rule 403) (citation omitted). See also U.S. v. Pruett, 681 F.3d 232, 244-45 (5th Cir. 2012) (holding that challenged evidentiary admission was not unfairly prejudicial, as the admitted evidence did not overwhelm the other evidence presented in support of the claim and there was “no indication that the [challenged] evidence played more to the jury’s emotions than it did” to the central issue of intent). Rather, this Court has instructed that for evidence to be unfairly prejudicial, it must “lure the factfinder into declaring guilt” on a different basis than what the claim at issue requires. Perez-Solis, 709 F.3d at 464-65. Moreover, “[t]he standard provided in Rule 403 is whether the probative value is ‘substantially outweighed’ by the danger of unfair prejudice.” U.S. v. Powers, 168 F.3d 741, 749 (5th Cir. 1999) (citations omitted).

There is nothing in the record to suggest that testimony about the noose elicited the kind of improper emotional excitability from the jury that would have led them to decide the case on any basis other than the court’s instructions on the law. The questioning did not attempt to sensationalize the incident. Rather, the record reflects that counsels’ questioning about the noose was limited to a factual recounting of the incident — that a noose had been hung, when it had been hung, who had hung it, complaints about the noose, and the company’s response. See R1044-48; 1052-57. Moreover, out of the well over five hundred pages of the trial transcript in this case, Ranzinski’s and Hunt’s combined testimony about the noose comprises only nine pages. Id. Thus, neither the substance nor breadth of the testimony constituted unfairly prejudicial evidence. In addition, though the district court allowed testimony about the noose, it did not permit the admission of a photograph of the noose as an exhibit in evidence.

AA Foundries also appears to argue that evidence of the noose was unfairly prejudicial because a noose, in and of itself, is patently offensive. That a noose, however, “has an extremely ugly and inflammatory significance in American history, especially as it relates to African-Americans” (Def. Appellant Br. p. 10), and that one such noose was hung at AA Foundries during the EEOC’s investigation, does not render trial testimony about the noose unfairly prejudicial in a case where the claim at issue is a racially hostile work environment.

To the contrary, and as the Fourth Circuit has explained, “[t]he source of the emotional reaction that the company fears illustrates why the danger of ‘unfair’ prejudice is not so substantial as to outweigh probative value here. . . . The [conduct] involved here [is] offensive precisely because [it] convey[s] the idea of racial bigotry. . . . The emotional reaction claimed to be unfairly prejudicial is thus closely tied to the inquiry into state of mind that is specifically required by

§ 1981 .” Mullen, 853 F.2d at 1134-35 (alterations added). See also id. at 1135 (stating that “[j]ury trials are not antiseptic events, and in a case involving racial discrimination, upsetting facts may well emerge. The general policy of the Federal Rules, however, is that all relevant material should be laid before the jury”). Though testimony concerning racial conduct is “certain to be emotionally charged,” that alone does not warrant its exclusion. Id. at 1134. Indeed, facts reflecting racial bigotry at the workplace form the very basis of a hostile work environment claim.

D. The district court’s ruling had no impact on AA Foundries’ substantial rights.

The record also refutes AA Foundries’ contention that it suffered harm from the district court’s evidentiary ruling on the basis that the admission came as an unfair surprise for which it had not adequately prepared. Def. Appellant Br. 11-13. The record shows that AA Foundries had ample opportunity to both anticipate and mitigate the admission of this evidence at trial, well before and after the district court’s ruling.

The Commission filed a motion in limine seeking admission of this evidence before trial began, which the district court denied. In its denial, the district court expressly noted that evidence of the noose could “become admissible” at trial in the form of rebuttal evidence. R630. Then at trial, during its case-in-chief, the Commission submitted an offer of proof regarding the noose and again sought admission of testimony relating to the incident. AA Foundries’ assertion that the district court’s eventual admission was harmful error, because it prejudiced AA Foundries’ ability to lessen the impact of the noose evidence, is simply unsupportable. Def. Appellant Br. 12-13. All counsel was on notice of this contested evidentiary issue and aware of the potential for admission during trial, even and specifically as rebuttal evidence. AA Foundries had multiple opportunities to adjust or reshape its litigation strategy accordingly. The district court’s evidentiary ruling did not affect AA Foundries’ rights here, let alone its substantial rights as required for reversal.

Finally, AA Foundries attempts to distract this Court by emphasizing an earlier order by the district court which severed the trials of the Commission’s hostile work environment claim seeking relief for Mary Johnson from the trial of its hostile work environment claim relating to the other claimants. That order has no bearing on this appeal. The reasoning of the severance order had no precedential effect on the district court’s rulings at trial — a point that AA Foundries seems to press and for which it offers no authority.[15] See Def. Appellant Br. 12-13. Certainly, it is not controlling upon this Court.

Because the noose was relevant and highly probative on the key issue before the jury — whether the work environment at AA Foundries was hostile to black employees — and no unfair prejudice resulted from its admission, the district court’s evidentiary ruling was wholly proper under this Court’s precedent.

II. Even assuming error, the verdict is well-supported by extensive evidence of racial hostility, separate and apart from testimony relating to the noose, thereby rendering the admission of that testimony harmless.

Hunt’s repeated use of the epithet “nigger,” his “every day” use of the word “boy” to refer to black male employees, his pejorative descriptions of African-Americans as “you people,” his frequent use of the term “Obama boy” and other racially derogatory phrases, and his posting of racial cartoons in the employee break room, provided more than sufficient evidence for the jury to conclude that Strickland, Bacon, and Beal were subjected to a racially hostile work environment. Therefore, even if the district court committed any error in admitting testimony about the noose, as AA Foundries incorrectly contends, such error was harmless because a review of the entire record demonstrates that the jury’s verdict was amply supported by the evidence, even without consideration of the noose. See Kelly v. Boeing Petroleum Services, Inc., 61 F.3d 350, 361 (5th Cir. 1995) (“Erroneous evidentiary rulings by the trial court constitute reversible error only when those rulings have affected a party’s substantial rights. An error does not affect substantial rights ‘if the court is sure, after reviewing the entire record, that the error did not influence the jury or had but a very slight effect on its verdict.’”) (citations omitted).

Testimony from various witnesses established that Hunt, in the presence of his employees, used the n-word on multiple occasions and also made threatening remarks about and toward African-Americans. For example, when television news in the break room reported that a black man had been killed, Hunt said he “would have shot that nigger in his back too.” On another occasion, Hunt told two black male employees that he was “going to get rid of all you niggers.” Hunt referred to a tool used at the plant as a “nigger digger.” On another occasion, Hunt referred to President Obama as a “nigger.” Hunt also told Beal and another black employee that “if we was back in the day,” he would take them out back and shoot them in the head like a mule.

That Hunt used the n-word, among other terms, in the context of describing acts of violence against blacks — killing, shooting, and “getting rid” of black men — is strongly indicative that his harassing conduct was severe and altered the working environment for black employees. See Abner v. Kansas City Southern Railroad, Co., 513 F.3d 154, 164-65 (5th Cir. 2008) (evidence of hostile work environment included use of the n-word and remarks by a supervisor that he was “going to run two ‘black a_ _es off’”). Indeed, Hunt’s repeated use of the racial epithet “nigger” is, standing alone, evidence that may be sufficient to establish a racially hostile work environment. See Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013) (citing a supervisor’s use of the word “nigger” to observe that “[t]his single incident might well have been sufficient to establish a hostile work environment”); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (“Perhaps no single act can more quickly ‘alter the conditions of employment and create an abusive working environment,’ than the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his subordinates.”) (internal citation omitted).

Hunt’s discriminatory conduct, however, went further than his repeated use of the n-word. He daily used the word “boy” to address black male employees. See Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (in Title VII race discrimination case, holding that use of the word “boy” to refer to black plaintiffs could constitute evidence of racial animus, depending on factors such as “context, inflection, tone of voice, local custom, and historical usage”). Here, though everyone at the plant called each other by their names, Hunt called the black male employees — and them only — “boy.” He persisted in doing so despite repeated complaints made directly to him about it, including Strickland’s explanation that it was “deeply offensive.” See Bailey v. USF Holland, Inc., 526 F.3d 880, 881-84, 886 (6th Cir. 2008) (evidence of a racially hostile work environment presented at bench trial included the “persistent taunting of [plaintiffs] with the word ‘boy’”; stating that continued use of the word “boy” to refer to black employees, despite receiving multiple complaints from plaintiffs to stop, was indicative of racial animus). Beal testified that Hunt called him “boy” from the time he met Hunt — a period of approximately six years (as Beal began working at AA Foundries in 2004 and ended his employment in 2010). The jury was thus presented with ample contextual evidence from which to reasonably infer that Hunt’s use of the word “boy” toward black males was racially derogatory. Hunt also spoke regularly and disparagingly about African-Americans as a group, referring to them as “you people” and making comments such as “you people like to steal” and “[y]ou people don’t know how to do nothing.” He also called black male employees “Obama boy” and referred to another black male employee as a “monkey.”

These offensive comments, their regularity, and singular use toward black employees support the jury’s finding of a racially hostile work environment. See, e.g., EEOC v. WC&M Enterprises, Inc., 496 F.3d 393, 400-401 (5th Cir. 2007) (citing evidence of “verbal harassment on a regular basis for a period of approximately one year,” mocking and name-calling, and other negative comments about plaintiff’s national origin and religion, among facts sufficient to create a triable issue of a hostile work environment); Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000) (facts sufficient to create a triable issue of a racially hostile work environment, where two black employees were subjected to “offensive remarks,” such as being compared to slaves and monkeys and conversations in which a co-worker and supervisor used the word “nigger,” among other “patently offensive remarks”). At trial, Hunt testified that he would probably still use language like “boy” today. R1057.

Evidence of racial cartoons posted in AA Foundries’ break room provides even further support for the jury’s verdict. Of the various images, witnesses testified that one depicted a black man and a deer standing before a white man in camouflage asking which one he should shoot. Another cartoon advocated that a “nigger” be hanged or kicked. Bacon testified that he saw Hunt print materials from his computer and post them in the break room — material that degraded blacks. The content of these images, their ongoing appearance in the break room, and testimony that it was Hunt who posted at least some of them, are also indicative of a racially hostile work environment. See Abner, 513 F.3d at 156, 165, 167 nn.70-71, 168 n.74 (upholding jury verdict in favor of plaintiffs, where evidence of racially hostile work environment included racial graffiti in the workshop bathrooms that said “Ni_ _ _ _ s go home”); Waltman v. Int’l Paper Co., 875 F.2d 468, 477-78 (5th Cir. 1989) (finding triable issue as to plaintiff’s hostile work environment claim based on evidence that included “ongoing sexual graffiti on the walls”). See also, Watson v. CEVA Logistics U.S., Inc., 619 F.3d 936, 938, 943-44 (8th Cir. 2010) (stating that a jury could reasonably conclude, from testimony regarding racial graffiti at a central location in the workplace, that “the plaintiffs saw this graffiti on numerous occasions and, furthermore, that their mere awareness of its ongoing presence — regardless of the exact number of times they can remember seeing it — could contribute to a hostile work environment”; also emphasizing the long-lasting effect of racial graffiti, as “‘the slur is heard once’ and ‘vanishes in an instant, while graffiti remains visible until the employer acts to remove it’”) (citation omitted).

Consequently, in light of the record as a whole, it cannot be said that the admission of testimony relating to the noose, even if erroneous, constituted reversible error. See Alaniz, 591 F.3d at 776 (upholding jury verdict in favor of plaintiffs’ sexually hostile work environment claim, despite district court’s erroneous evidentiary ruling, because the challenged testimony could not have “had more than a slight effect on the jury’s verdict”). This Court has upheld jury verdicts, despite an evidentiary error by the district court, where the record “is replete” with other evidence supporting the verdict. Id. (though the district court erred in admitting hearsay testimony, holding it was not reversible error, given the extensive witness testimony about a sexually hostile work environment to otherwise support the verdict and corroborate the challenged hearsay testimony); Abner, 513 F.3d at 168 (even presuming district court error in admitting certain testimony, holding it was harmless because “the record is also replete with testimony” supportive of the plaintiffs’ claims). Even assuming that the district court committed error in admitting testimony regarding the noose, which it did not, such error was harmless. Accordingly, this Court should affirm the jury verdict as to Strickland, Bacon, and Beal.[16]

ARGUMENT AS CROSS-APPELLANT

The absence of a jury instruction on the legal significance of evidence that a claimant was exposed to racially harassing conduct towards others in her protected group requires reversal of the judgment as to claimant Kathy White.

A critical omission in the jury charge led the jury to analyze liability as to the Commission’s claim seeking relief for White without considering the legal significance of almost all of the evidence the Commission presented in its claim as to White — her witnessing of discriminatory conduct toward other black employees. Whereas the other claimants testified as to racial harassment targeted at them directly by Hunt, White principally testified as to her witnessing of that racial harassment, as opposed to being targeted in the same way.

Given this distinction, the Commission requested that the district court adopt an instruction making clear that harassing conduct need not have been directly targeted at a claimant for the jury to find that claimant was subjected to a racially hostile work environment. Because the requested instruction was legally correct, was not included in the charge as a whole, and concerned a critical component of the liability analysis as to White, this Court should remand for a new trial on the Commission’s claim as to White.[17]

This Court reviews a district court’s refusal to adopt a requested jury instruction for an abuse of discretion. Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d 568, 578 (5th Cir. 2004) (citation omitted). Reversal is warranted if the instruction 1) was a substantially correct statement of law, 2) was not substantially covered in the charge as a whole, and 3) concerned an important point in the trial such that the failure to instruct the jury on the issue seriously impaired the party’s presentation of a given claim. Id.

The Commission’s objections at trial to the jury instructions also preserved review by this Court of the jury charge as a whole, for an abuse of discretion. U.S. v. Patino-Prado, 533 F.3d 304, 310 n.2. (5th Cir. 2008) (objection to jury instruction preserved review of the charge for abuse of discretion). Under that analysis,[18] the charge and the surrounding circumstances of trial — including the verdict form, testimony at trial, and closing arguments — similarly demonstrate that reversal is warranted. See U.S. v. Jones, 132 F.3d 232, 243 (5th Cir. 1998) (stating that this Court will reverse “if the interpretation urged by the appellant is one that a ‘reasonable jury could have drawn from the instructions given by the trial judge and from the verdict form[s] employed in this case’”) (citations omitted).

A. The Commission’s proposed instruction and objection correctly stated the law.

Before trial, the Commission proposed a jury instruction that “[t]here is no requirement that the conduct be directed at Claimants” for the jury to find that each claimant had been subjected to a racially hostile work environment. At trial, the Commission objected to the court’s jury charge for its omission of this instruction and again proposed its inclusion. The Commission argued that the jury instructions defining a hostile work environment should “not limit [a hostile work environment claim] to the acts of their supervisor. We look at the entire spectrum of what took place at the workplace . . . And case law makes it clear that even though harassment may not have been targeted to one person of a protected class, if they’re aware of it, then they also can have been subjected to hostile work environment.” R1088-89.

The Commission’s proposed instruction and objection that a hostile work environment claim may be premised on harassing conduct at the workplace toward others in the same protected group, reflect the law of this Court and numerous other Circuits.[19] In this Court’s view, evidence of harassment toward others based on the same protected characteristic is relevant to show that the plaintiff was subjected to a hostile work environment. See, e.g., Waltman, 875 F.2d at 477-78 (discussing relevance of “ongoing sexual graffiti” at workplace to female plaintiff’s hostile work environment claim, though not all the graffiti was specifically directed at her). Accord, Walker v. Ford Motor Co., 684 F.2d 1355, 1359 n.2 (11th Cir. 1982) (concluding that racially abusive language used at workplace, such as “black-assed” and “nigger-rigged,” contributed to a racially hostile work environment, and stating that “[t]he fact that many of the epithets were not directed at [the plaintiff] is not determinative”).

More recently, in Hernandez v. Yellow Transportation, Inc., 670 F.3d 644 (5th Cir. 2012), this Court approvingly discussed its holding in Waltman and reiterated the relevance of evidence of discrimination against others in the same protected group to analyze a hostile work environment claim. 670 F.3d at 652-53 (discussing precedent in which a plaintiff was allowed to introduce evidence of discriminatory acts against others in the same protected group).[20] Given that the very premise of a hostile work environment claim is that the work environment is abusive, it is not surprising that this Court has acknowledged that evidence of harassing conduct toward others in the plaintiff’s protected group can create a hostile work environment for the plaintiff. Hernandez, 670 F.3d at 653 (noting this Court’s agreement that “‘a woman who was never herself the object of harassment might have a Title VII claim if she were forced to work in an atmosphere in which such harassment was pervasive’”) (quoting Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985)).

B. Neither the Commission’s proposed instruction, nor any instruction on the legal significance of evidence that claimants observed racial harassment of others in their protected group, were covered in the charge as a whole.

No part of the charge stated or implied that the jury could predicate a finding that White was subjected to a racially hostile work environment on evidence of her exposure to discriminatory conduct directed toward others in her protected group. Nor did the charge inform the jury that it could even consider an employee’s view on the harassment or discriminatory conduct toward others in her protected group. But see, e.g., Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1094 n.10, 1095 (10th Cir. 2007) (in Title VII case brought by several female plaintiffs alleging a sexually hostile work environment, approvingly discussing jury instruction that stated “[h]arassment, hostility or abuse not directed at a plaintiff herself, but directed at her co-workers, or at customers, or at others around her, may also constitute evidence of a sexually hostile work environment”).

Rather, aspects of the jury charge and verdict form, read together, suggested the opposite — that the jury had to find that Hunt personally harassed each claimant in order to conclude that each had been subjected to a hostile work environment. The charge, for example, stated that a predicate for awarding compensatory damages was the finding that each claimant “was racially harassed by the foundry supervisor, Ronnie Hunt.”[21] Additionally, though the Commission had submitted a proposed verdict form that framed the violation as whether each claimant “was subjected to a racially hostile work environment,” R419-22, the district court instead provided the jury with a verdict form that framed the violation as whether each claimant had been harassed based on race.[22] (At trial, the Commission also objected to the language of this interrogatory, arguing that it implied that “racial harassment [had] to be directed at an individual claimant . . . People that are aware of harassment directed to others in their protected class can also be subjected to racial harassment.”)[23]

The likelihood that a reasonable jury would have interpreted the verdict form and charge to require personalized race harassment is strong, as commonplace use of “harass” or “harassment” usually contemplates actions directed at an individual, not actions that are observed, and — by way of observation or awareness — become harassing to another.[24] See Wells v. Hico Independent School District, 736 F.2d 243, 258 (5th Cir. 1984) (in light of the “general public commonsense perception” that job loss can be stigmatizing in itself, reversing verdict because deficient jury instructions did not adequately define what is legally necessary to show that plaintiffs were stigmatized within the meaning of a liberty interest claim). Where, as here, the jury charge and verdict form implied that direct race harassment was necessary, the district court’s omission of an instruction on indirect discriminatory conduct as an evidentiary basis for a hostile work environment claim was all the more essential to prevent the jury from being misguided in its deliberations. See id. (misleading aspect of instruction compounded by instruction in another part of the charge and verdict form, making it “essential” that the jury had been properly instructed on the legal meaning of stigmatization). Indeed, the Commission’s claim with respect to White was largely premised on a different kind of evidence altogether — regular exposure to racial hostility toward other members of her protected group.

C. As the instruction was critical to the analysis of the Commission’s claim as to White, its omission affected the Commission’s substantial rights and warrants reversal as to that aspect of the judgment.

The instruction not only “concerned an important point in the trial,” (Kanida, 363 F.3d at 578), but one that was critical to the disposition of the Commission’s claim as to White. Though White testified that Hunt would speak to her “as if she was a nobody” — and on one occasion called her a “stupid mother fucker” — her testimony on direct examination principally concerned her first-hand observation of Hunt’s racially hostile behavior toward other black male employees, and African-Americans generally.

Among these facts, White testified that she heard Hunt say the word “nigger” twice, once in the context of Hunt stating his approval of shooting a black man and on another occasion in relation to voting for President Obama. She heard Hunt call Strickland “Obama boy,” though Hunt never referred to her by that term. She testified about seeing Hunt tell Bacon that he (Hunt) could speak to him however he wanted, when Bacon asked Hunt to stop calling him “boy.” White saw racially degrading cartoons in the break room — it was part of her job responsibility to clean the break room every day. She observed Hunt treat black employees differently than white employees, testifying that Hunt would grant a white employee a salary advance, but not a black employee. She testified that she avoided eating in the break room because she felt as though there was constant discussion about her race.

By contrast, with regard to Hunt’s conduct directed towards her, White testified that Hunt cursed at her on three occasions. This aspect of the evidence — the minimal “direct” harassment that White had experienced from Hunt relative to the other claimants — was highlighted in AA Foundries’ cross-examination of White.[25] During closing argument, AA Foundries again emphasized the absence of direct harassment toward White, stating that she had only been cursed at by Hunt on three occasions: “She didn’t like the fact that Ronnie cussed at her. And I ask[ed] her how often it happened, she said three times. Three times over a one-year period. . . . that’s what she said from the stand. I asked her, How often? She said, Three times.” R1143-44. When discussing damages, AA Foundries reiterated the absence of any direct harassment toward White, stating “Well, you know, being cursed at three times in a year . . . You can - - and answer for yourself whether you think this type of person had really experienced any mental anguish at all as a result of racial - - a racially hostile work environment? And - - and I think the answer is no.” R1145.

Though the Commission, in its closing, attempted to explain the legal significance of the facts relating to White’s first-hand observations of Hunt’s discriminatory conduct,[26] the district court twice instructed the jury that it was to follow the district court’s statement of the law. Before the Commission began its closing, the district court informed the jury that it would provide it with the jury charge after all closings, “which explains the law that you must follow and apply in arriving at your verdict.” R1117. Then, immediately after closing arguments, the district court instructed the jury “to follow the law as I shall state it to you” and that “[r]egardless of any opinion you may have as to what the law is or ought to be, it would be a violation of your sworn duty to base a verdict upon any view of the law, other than that given in the instructions of the Court.” R1169-70. The Commission’s closing was thus book-ended by the district court’s instruction that the jury was to follow only its definition of the law.

The omitted instruction would have allowed, but not compelled, the jury to find that AA Foundries had subjected White to a racially hostile work environment. Under similar circumstances, this Court in Ratliff v. City of Gainesville, Texas, 256 F.3d 355 (5th Cir. 2001), held that the district court erred when it failed to include an instruction that liability could — but not necessarily — be established by evidence of pretext. [27] Id. at 359-61 (stating that the “inference instruction would have allowed the jurors to infer discriminatory motive from [the plaintiff]’s prima facie case combined with proof that [the defendant]’s proffered reasons were pretextual”). Though the jury had been generally instructed that it could draw reasonable inferences from the evidence in its determination (id. at 360 n.5), this Court concluded it was error not to specifically give an inference instruction to the jury. Id. at 360-61, 364. Likewise, here, the jury charge’s general description of the kind of conduct — such as verbal or physical conduct — that would constitute racial harassment was similarly inadequate. The absence of a specific instruction on indirect discriminatory conduct (as a permissible evidentiary basis for a hostile work environment) prevented the jury from considering key evidence in its analysis as to White.

The failure to adopt the Commission’s instruction on a central point in the liability determination thus prejudiced the Commission’s substantial rights, as the charge left the jury unaware of a basis for liability presented by the record in this case or otherwise impacted the liability determination. See Perez v. Texas Dept. of Criminal Justice, Instit. Div., 395 F.3d 206, 213-15 (5th Cir. 2004) (deficient jury instruction on comparators in a Title VII case allowed the jury to overlook factual distinctions that could have affected the liability finding; stating that because a jury applying the correct legal standard could have found those distinctions significant, “we cannot say that the district court’s instruction . . . could not have affected the outcome of the case”); Ratliff, 256 F.3d at 359-62, 364 (remanding for a new trial on age discrimination claim, as omission and error in the jury charge affected the pretext analysis and misstated the plaintiff’s evidentiary burden); Davis v. Ector Cty., Texas, 40 F.3d 777, 786-788 (5th Cir. 1995) (though “impossible to say whether the jury properly understood the law,” concluding that jury charge was prejudicial and constituted reversible error, as the causation instruction permitted the jury to make a liability determination on an improper basis). See also Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir. 2005) (plainly erroneous jury instruction misstated the requisite standard of proof in Title VII retaliation claim, thereby affecting “the ultimate question” in the case and prejudicing the appellant’s substantial rights).

In light of this critical omission, this Court should reverse the judgment as to White and remand for a new trial.[28]

CONCLUSION

This Court should affirm the verdict as to Strickland, Bacon, and Beal. The district court’s cautious and well-considered evidentiary ruling admitting testimony about the noose is consistent with this Court’s precedent on multiple bases. Even assuming the district court committed error in admitting that brief and limited testimony, it had minimal effect given the ample record in this case of other racially harassing conduct to support the jury’s finding that Strickland, Bacon, and Beal were subjected to a racially hostile work environment.

The jury charge in this case, however, lacked a critical instruction on how to analyze evidence of indirect racial harassment, leaving the jury unaware of the principal basis for liability on the Commission’s claim as to White. This deficiency in the jury charge warrants reversal of the district court judgment as to White and remand for a new trial on that claim.

Respectfully submitted,

P. DAVID LOPEZ General Counsel

LORRAINE C. DAVIS

Acting Associate General Counsel

CAROLYN L. WHEELER

Assistant General Counsel

S/Christine J. Back__________________

CHRISTINE J. BACK

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street, NE, Room 5SW24L

Washington, DC 20507

(202) 663-4734

christine.back@eeoc.gov

CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the type-volume limitation, and typeface and type style requirements set forth in Fed. R. App. P. 28.1(e)(2) and Fed. R. App. P. 32(a)(5) and (a)(6). I certify that this brief was prepared with Microsoft Office Word 2007 and uses Times New Roman type, size 14 point. I further certify that the entirety of this brief contains 13,722 words, as determined by the Microsoft Word 2007 word count function.

S/Christine Back_____________________

CHRISTINE BACK

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street, NE, Room 5NW14G

Washington, DC 20507

(202) 663-4734

christine.back@eeoc.gov

CERTIFICATE OF SERVICE

I, Christine J. Back, hereby certify that I filed the foregoing brief electronically in PDF format with the Court via the ECF system on this 3rd day of July, 2013. I further certify that I served the foregoing brief electronically in PDF format through the ECF system this 3rd day of July, 2013, to all counsel of record.

S/Christine Back____________________

CHRISTINE BACK

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street, NE, Room 5NW14G

Washington, DC 20507

(202) 663-4734

christine.back@eeoc.gov

[1] “R[#]” refers to the paginated, certified record on appeal.

[2] Strickland worked at AA Foundries from 2008 to September 2010 as a replacement operator and molder. R1345-46. Bacon worked at AA Foundries from 2005 to January 2010 as a molder. R886-87. Beal worked at AA Foundries from 2004 to 2010, with metals, molds, and cores. R860-61.

[3] White would clean the break room after lunch, but there were times when she got to work the following morning at 6:30 a.m. to find new materials had been placed there. R919. She observed that Hunt and Ranzinski were at work before she arrived to work, and the rest of the employees usually arrived after her. Id.

[4] Adamou, known as Adam (R937), is from Niger in West Africa (R938) and is black (R939).

[5] Strickland also testified that his father would tell him that “he didn’t raise no boys” and “would roll over in his grave if he knew that I was susceptible to that. You know, accepting a person calling me a ‘boy,’” as “black men had went through a lot just [to] be . . . considered men.” R1357.

[6] The following are relevant excerpts of that examination:

Q: Let me ask you this . . . are you saying that other than the people that have actually filed charges of discrimination with the EEOC, you’ve never received any complaints from any employee about any [racial] discrimination harassment or insensitivity?

A: No.

Q: So only the people who went to EEOC in your 36 years at AA Foundries, your testimony is they’re the only people that ever complained about any form of racism?

A: Yes. (R1299)

…

Q: And it’s your testimony you’ve had no acts of racial harassment or discrimination the workplace --

A: No.

Q: -- is that correct?

A: No, we sure haven’t.

Q: Not one?

A: Not one. (R1303).

[7] Q: Okay. You’ve -- as far as the -- the environment that the -- the racial environment at AA Foundries, how do you characterize it?

A: Normal. I -- I don’t know that it would be anything other than that. I haven’t see[n] any . . . tensions. R1024-25.

[8] Q: Now, did I understand…did you say it’s improved since the EEOC filings were made by the four complaining parties here?

A: I don’t think it’s -- I don’t think it was that bad to begin with, but . . . I haven’t noticed anything. There seems to be no complaints. If there’s no complaints…I guess that’s an improvement.

Q: I think the record’s going to reflect that the filings by the four plaintiffs in this lawsuit were done in -- Mr. Bacon filed the charge in January of 2010; Mr. Beal, in July of 2010; Mr. Strickland in January of 2010; and Ms. White in May of 2010. So between January and July of 2010, all four of these EEOC filings were made.

A: You just asked me since then.

Q: Well, yeah . . . if you’ll accept the accuracy of that record, when you’re saying ‘since,’ you’re saying, since July of 2010 things have improved at AA Foundries; is that your testimony?

A: There no – there’s been no more complaints.

Q: There’s been no complaints about anything racially offensive since July of 2010; is that your testimony?

A: I -- none to my knowledge. R1040-41.

[9] Similarly, the Commission objected to Interrogatory No. 4, which concerned damages, because it also implied that a claimant could only recover for conduct that was directed at him or her. R1094.

[10] The final verdict form included these interrogatories:

Interrogatory No. 1 asked: “Do you find from a preponderance of the evidence that the following employees of AA Foundries, Inc. were subjected to harassment based on race?” and instructed jurors to answer “yes” or “no” beside each claimant’s name. R698.

Interrogatory No. 2 asked: “Do you find from a preponderance of the evidence that the harassment to which the employees were subjected was so severe or pervasive that it resulted in a hostile work environment?” and instructed jurors to answer “yes” or “no” beside each claimant’s name. R699.

[11] Subsequently, upon the Commission’s motion, the district court amended the judgment to reduce the awards pursuant to Title VII’s statutory cap. See District Court Docket Nos. 117-118.

[12] AA Foundries asserts that Rule 403 is not at issue in its appeal because evidence of the noose — in its view — was not relevant to the Commission’s hostile work environment claim, and Rule 403 only concerns relevant evidence. Def. Appellant Br. 13. Yet its principal argument is that the admission of this testimony was unfairly prejudicial for its “emotional impact” and constituted reversible error because AA Foundries did not have an “opportunity to properly prepare a case for trial” in a manner that would minimize that impact. Id. Indeed, AA Foundries characterizes the testimony as “[t]roubling evidence” with “a dramatic, inflammatory and historically significant impact.” Id. Therefore, Rule 403 is central to the resolution of this aspect of the appeal, as AA Foundries argues that the noose was irrelevant and highly prejudicial.

[13] EEOC Offer of Proof and accompanying exhibits, R632 - 669.

[14] This rule is applicable in discrimination cases. Alaniz v. Zamora-Quezada, 591 F.3d 761, 774 (5th Cir. 2009).

[15] In any event, the basis of that severance order — upon which AA Foundries heavily relies — was flawed. The Commission’s case on behalf of all the claimants concerned the same legal claim, the same principal harasser, alleged similar misconduct, at the same work place, around the same general period of time. Under this Court’s precedent, severance of the proceeding into two trials under those factual circumstances was not warranted. See Alaniz, 591 F.3d at 774 (affirming district court’s denial of defendant’s motion to sever; explaining that there was “no real prejudice” to defendant given that all the plaintiffs’ claims centered on sex discrimination committed by the defendant, based on a similar series of acts, thereby making each plaintiff’s claim and evidence relevant to the others’ allegations “while prejudice to the defendant, if any, was minimal”). Cf. FDIC v. Selaiden Builders, Inc., 973 F.2d 1249, 1253 (5th Cir. 1992) (concluding that severance was warranted, as the claims had “nothing in common”). The district court’s Rule 403 analysis in its severance order, and its subsequent denial of the Commission’s motion in limine, were erroneous. The district court’s proper admission of the noose evidence at the second trial, however, obviated those errors.

[16] AA Foundries states in its brief that in the first, severed trial on the Commission’s hostile work environment claim on behalf of claimant Mary Johnson, “the noose was a dominant theme.” Def. Appellant Br. 13. That trial resulted in a jury verdict in AA Foundries’ favor. It strains credulity for AA Foundries to now argue that evidence about the same incident introduced at the second trial improperly inflamed the jury verdict against it. To the contrary, the different outcomes of the two trials, despite evidence of the noose introduced in both proceedings, suggest that admission of the noose testimony was not dispositive in the jury’s deliberations.

[17] Though an instruction like the one requested by the Commission is not mandatory in all hostile work environment cases, it was requisite here, triggered by the nature of the evidence in support of the Commission’s claim as to White and necessary for the jury’s disposition of that claim. See Ware v. Reed, 709 F.2d 345, 352 (5th Cir. 1983) (“An instruction to the jury is, of course, warranted when there has been substantial evidence adduced during the trial to create a fact question for the jury to settle.”) (citations omitted).

[18] This Court examines “the court’s charge as a whole and the surrounding context of the trial” to determine if the instructions correctly reflected the legal issues. U.S. v. Flores, 63 F.3d 1342, 1374 (5th Cir. 1995).

[19] At least three Circuits have recognized that a Title VII hostile work environment claim may be solely premised on harassment targeted at the plaintiff’s protected group, though the plaintiff was not the direct target. Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 803-804, 811 (11th Cir. 2010) (en banc) (reversing grant of summary judgment to employer, as evidence of sex-based harassing conduct toward other women — observed by, but not directed at, female plaintiff — was sufficient to create a triable issue as to whether plaintiff was subjected to a hostile work environment; stating that “words and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff”); Huff v. Sheahan, 493 F.3d 893, 903 (7th Cir. 2007) (“Indeed, this court has acknowledged that sexual harassment may be actionable under Title VII by a plaintiff who was not the direct target of workplace conduct if the plaintiff is within the protected class the conduct targets generally.”); Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985). Meanwhile, numerous other Circuits have acknowledged the strong relevance of such evidence in supporting a plaintiff’s hostile work environment claim. See, e.g., Watson v. CEVA Logistics U.S., Inc., 619 F.3d 936, 943 (8th Cir. 2010) (noting that evidence of racial animus directed at co-workers in the same protected group is relevant in assessing the existence of a hostile work environment, particularly where plaintiffs are aware of the conduct); Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (“Just as a racial epithet need not be directed at a plaintiff in order to contribute to a hostile work environment, the fact that a plaintiff learns second-hand of a racially derogatory comment or joke by a fellow employee or supervisor also can impact the work environment.”) (internal citation omitted); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415-16 (10th Cir. 1987) (holding that harassment directed at employees other than the plaintiff can be used as proof of the plaintiff’s claim, as “one of the critical inquiries in a hostile environment claim must be the environment”) (emphasis in original).

[20] This Court cited this line of cases in the context of addressing a flawed analysis by a district court that refused to consider evidence of discriminatory conduct in a Title VII analysis, in part, because the plaintiffs had not personally experienced it. Hernandez, 670 F.3d at 652.

[21] “If any of you find that any of the employees on whose behalf this suit is brought was racially harassed by the foundry supervisor, Ronnie Hunt, and that Defendant AA Foundries, Inc. is responsible for the harassment, then you must determine an amount that is fair compensation for his or her damages.” R693.

[22] Interrogatory No. 1 read: “Do you find from a preponderance of the evidence that the following employees of AA Foundries, Inc. were subjected to harassment based on race? Please answer ‘Yes’ or ‘No’ as to each employee.” R698. Cf. Abner, 513 F.3d at 157 (in a trial on plaintiffs’ racially hostile work environment claim, noting, without disapproval, that the verdict form asked the jury “Do you find by a preponderance of evidence that [Plaintiff] was subjected to a hostile working environment as defined in instruction number 7?”).

[23] Given the suggestion that direct harassment was required to show a hostile work environment, this Court’s holding in Ware is instructive. There, this Court held that the “core defect” of a given instruction — that a person had a right not to be subjected to unreasonable or excessive force — was its implicit “suggestion” that some force was permissible. Ware, 709 F.2d at 351. This was reversible error, this Court explained, because liability would have been established if the jury found any use of force at all during the plaintiff’s interrogation, as the plaintiff had done nothing to provoke the use of force. Id. at 350-52. The instruction had erroneously implied a higher burden of proof than necessary for the plaintiff to establish liability, and moreover, one that was inapplicable to the facts. Id. at 351-52. Likewise here, the instruction and verdict form emphasized direct harassment, when no such evidence was needed to establish a Title VII hostile work environment claim as to White.

[24] See, e.g., Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/harass (May 29, 2013, 11:04 AM) (giving three examples of use of the term “harass,” all of which presume a direct act by one party to another: 1) “She was constantly harassed by the other students;” 2) “He claims that he is being unfairly harassed by the police;” and 3) “The troops harassed the defeated army throughout its retreat.”).

[25] For example, AA Foundries asked, “did [Hunt] ever make any racial comments to you?” to which White answered, “no, sir.” R930. During re-direct, counsel elicited testimony from White that, though Hunt never directed any racially derogatory words to her specifically, she was personally offended by his use of the word “nigger” in her presence, and his use of the word “boy” to address black male co-workers. R931-32.

[26] The Commission, in its closing, argued that “conduct can be racially harassing even if it’s not directed specifically at you as an African-American, but also if it’s directed at other African-Americans” (R1119) and that White “saw the black men being racially demeaned and was thus harassed herself.” R1124. Plaintiff-intervenors’ counsel, in closing, told the jury “[w]hat affects one African-American affects all of them. When Kathy White heard black males in the workplace being called ‘boy,’ that affected her because it demeaned her and her people.” R1164-65. The Commission presented its closing argument first, followed by AA Foundries, and lastly by plaintiff-intervenors’ counsel. See R1117-69. There was no separate rebuttal time allotted for the Commission. Id.

[27] There, the plaintiff had urged an instruction stating: “If the Plaintiff disproves the reasons offered by Defendants by a preponderance of the evidence, you may presume that the employer was motivated by age discrimination.” Ratliff v. City of Gainesville, TX, 256 F.3d 355, 359 (5th Cir. 2001).

[28] The jury instructions do not constitute reversible error for any other aspect of the verdict, as all the other claimants experienced direct racial harassment by Hunt.

STATEMENT CONCERNING ORAL ARGUMENT

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF JURISDICTION

STATEMENT OF THE ISSUES

STATEMENT OF THE CASE

I. Nature of the Case and Course of Proceedings

II. Statement of Facts

A. Ronnie Hunt and the work environment at AA Foundries

B. Hanging of a noose at AA Foundries

C. Admission of testimony relating to the noose

D. Proposed jury instructions on a hostile work environment and objections at trial

SUMMARY OF ARGUMENT

ARGUMENT AS APPELLEE

I. The district court acted well within its discretion and consistent with this Court’s precedent when it admitted testimony at trial about the hanging of a noose at AA Foundries.

A. The district court properly admitted testimony of the noose, as it was relevant and highly probative evidence that a racially hostile work environment existed at AA Foundries.

B. The district court’s evidentiary ruling is also supported by this Court’s precedent, on several other bases.

i. The eliciting of testimony about the noose was proper cross-examination, as Ranzinski’s testimony portrayed AA Foundries as a racially harmonious workplace during his direct examination.

iii. Evidence of the noose was also admissible to show modus operandi and establish the requisite discriminatory intent.

C. There is no indicia of unfair prejudice.

D. The district court’s ruling had no impact on AA Foundries’ substantial rights.

II. Even assuming error, the verdict is well-supported by extensive evidence of racial hostility, separate and apart from testimony relating to the noose, thereby rendering the admission of that testimony harmless.

ARGUMENT AS CROSS-APPELLANT

The absence of a jury instruction on the legal significance of evidence that a claimant was exposed to racially harassing conduct towards others in her protected group requires reversal of the judgment as to claimant Kathy White.

A. The Commission’s proposed instruction and objection correctly stated the law.

B. Neither the Commission’s proposed instruction, nor any instruction on the legal significance of evidence that claimants observed racial harassment of others in their protected group, were covered in the charge as a whole.

C. As the instruction was critical to the analysis of the Commission’s claim as to White, its omission affected the Commission’s substantial rights and warrants reversal as to that aspect of the judgment.

CONCLUSION

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE