USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1224
DARLENE F. MORRISON,
Plaintiff, Appellee,
v.
CARLETON WOOLEN MILLS, INC. and MICHAEL RILEY,
Defendants, Appellants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Boyle,* Senior District Judge.
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David J. Kerman with whom Robert Lewis and Jackson, Lewis,
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Schnitzler & Krupman were on briefs for appellants.
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Peter B. Bickerman with whom Robert J. Stolt, Walter F. McKee and
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Lipman & Katz, P.A. were on brief for appellee.
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March 19, 1997
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*Of the District of Rhode Island, sitting by designation.
CAMPBELL, Senior Circuit Judge. These appeals and
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cross-appeals relate to actions heard in the district court
arising from federal and state claims of sexual harassment,
sex discrimination, and disability discrimination brought by
Darlene F. Morrison against her employer Carleton Woolen
Mills, Inc. (the "Company"), and two of her supervisors,
Michael Riley and Lee Moody. We affirm certain parts of the
district court's judgment and reverse others.
I.
In Count I of her amended complaint, Morrison
alleged that she was subjected by Carleton and the other
defendants to sexual harassment, in violation of the Maine
Human Rights Act, 5 M.R.S.A. 4551, and Title VII of the
Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. In Count
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II, she alleged violation of the same state and federal
statutes by reason of sex discrimination. In Counts III and
IV, Morrison alleged that defendants had subjected her to
discrimination on account of disability, in violation of the
Maine Human Rights Act and the Americans with Disabilities
Act of 1990 (the "ADA"), 42 U.S.C. 12101 et seq.
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Trial before a jury began in the district court on
October 4, 1994.1 The Title VII claims of sexual harassment
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1. By consent of the parties, a United States Magistrate
Judge presided over the jury trial and subsequently
determined the various non-jury issues. 28 U.S.C. 636(c)
(West 1993).
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(Count I) and sex (gender) discrimination (Count II) were
presented to the jury but only insofar as these claims were
based upon conduct occurring on or after November 21, 1991,
the effective date of the 1991 Civil Rights Act. See
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Landgraf v. USI Film Products, 511 U.S. 244 (1994). The ADA
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disability discrimination claim (Count IV) was likewise
presented to the jury. However, the Maine law claims for
sexual harassment, sex discrimination and disability
discrimination, and the Title VII claims for pre-November 21,
1991 conduct did not go to the jury but rather were reserved
for later decision by the magistrate judge.
During the jury trial, the court, upon defendants'
motion, dismissed as a matter of law all the claims (jury and
non-jury) against Moody and many of the claims against Riley,
to wit, the claims for sexual harassment (Count I) after
November 21, 1991, for sex discrimination (Count II), and for
disability discrimination (Counts III and IV). The court
denied the Company's motions to dismiss the claims against
itself.
On October 14, 1994, the jury returned verdicts in
Morrison's favor on her Title VII post-November 21, 1991
sexual harassment claim (Count I) and her ADA disability
claim (Count IV). The jury awarded Morrison $50,000 in
compensatory damages and $100,000 in punitive damages. The
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jury found against Morrison, and in favor of the Company, on
her Title VII gender discrimination claim (Count II).
On April 10, 1995, the court issued its Memorandum
of Decision deciding the non-jury claims that it had reserved
for bench determination. On Count I, the court found that
Morrison had been subjected to sexual harassment sufficiently
severe and pervasive to create a hostile work environment
prior to November 21, 1991. Consequently, it ruled in
Morrison's favor, and against the Company and Riley, on her
Maine law sexual harassment claim, and also on her Title VII
sexual harassment claim for conduct prior to November 21,
1991. The court assessed a civil penalty for $10,000 under
state law. 5 M.R.S.A. 4613(2)(B)(7) (West Supp. 1996).
On Count II (gender discrimination) the court found
no incidents of gender discrimination before November 21,
1991. It, therefore, ruled in favor of the defendants and
against Morrison under Title VII. The court determined,
however contrary to the jury's Title VII verdict that,
after November 21, 1991, Morrison had been subjected to
gender discrimination, finding the Company liable under the
Maine Human Rights Act.2 The court declined, however, to
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2. In making this finding, the court specifically noted
that, in differing with the jury, it did not intend to
suggest that the jury lacked sufficient evidence from which
to conclude contrary to the court's findings. "The Court
simply disagrees with the jury's conclusion in certain
respects."
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award her back pay, because it would be duplicative of the
jury's damages award.
Finally, as to Count III, the court determined that
plaintiff had not been disabled within the meaning of Maine
law, and hence found against Morrison and for defendants on
the Maine law disability claim. In determining that Morrison
was not disabled, the court found that the Company "did not
perceive her to be unable to perform a major life activity,
specifically work." The court noted that the Company had
only perceived Morrison as incapable of performing the single
position of floorperson.
Defendants' post-trial motions for judgment as a
matter of law, for new trial, and other relief were denied.
Plaintiff's own motion for new trial was also denied.
The Company and Riley appeal, and Morrison cross-
appeals, from the judgment and the rulings on the various
motions below. Morrison has since expressly waived her
cross-appeal from the jury's adverse verdict under Count II
(gender discrimination).
II.
The evidence at trial, construed in the light most
favorable to Morrison, showed essentially the following.
On August 23, 1983, Morrison was hired by the
Company to work as a "spinner" in the spinning department.
Later that year, Morrison bid on and was awarded the position
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of "sewer." Months later, she bid on and was awarded the
position of "coner" in the yarn preparation department.
Morrison held this position from approximately May of 1984
until January of 1987. All the positions held by Morrison up
to this time were traditionally filled by female employees.
In December 1986, Morrison bid on the position of
"temporary floorperson" on the third shift in the yarn
preparation department. At this time, Riley was the shift
supervisor on the third shift in the yarn preparation
department. Riley was angry with Morrison for bidding on the
floorperson position. Prior to December 1986, Morrison had
once had an angry encounter with Riley when they both worked
on the second shift. Riley had screamed at her for leaving
her machine to go to the restroom.
A month later, Morrison was awarded the temporary
floorperson position. As shift supervisor, Riley approved
her transfer to the position and certified her satisfactory
completion of the thirty-day probationary period. However,
he had no discretion under the Company's contract with the
Union to refuse a position to the most senior qualified
person who bid on it, which, in this case, was Morrison.
When Morrison told Fred DeVaudreuil, the department
supervisor and Riley's superior, that she had been awarded
the floorperson position, he asked her to reconsider taking
it. He indicated that the Company was not happy with her
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getting the job. Morrison believed that he was concerned
thatshewould beinjured andassured himthatshe wouldbe careful.
In April 1987, seven female employees of Carleton
filed a formal grievance against Riley, charging that he was
harassing employees at the Company by yelling, making false
accusations and threatening their jobs. The Company
responded by stating that it did not condone shouting by
anyone, but that employees must recognize that they are not
at liberty "to ignore management directives or to be tardy in
following them." Ultimately, this grievance was resolved
informally, with Plant Manager Everett Owens advising Riley
about the need to be more "low key."
In February 1988, Morrison bid on the permanent
opening for the position of floorperson on the third shift.
Once again, Riley became very angry, telling Morrison that
the job was not for her, and that she was taking jobs away
from men. Days after Morrison was awarded the floorperson
bid, Riley told her that she was going to regret it, and that
sooner or later he was going to get her out of the job.
The floorperson is responsible for bringing boxes
of yarn on bobbins to the machine operators, for taking full
cones of yarn, weighing them and storing them, and for
changing the warp beams. Changing a warp beam, which can
weigh up to 1,100 pounds when full of yarn, involves several
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steps. First, the warp is removed from its cradle with a
crow-bar type of tool. The warp then drops about two inches,
after which it must be rolled to where it can be picked up by
a hydraulic lift and moved into a storage area.
Morrison remained in the floorperson position until
March of 1989. During that time various incidents occurred
that are relevant to the present action.
After changing a warp beam, Morrison went to wash
her hands. When she left the restroom moments later, Riley
was waiting for her. He accused her of being in the restroom
for a long time and threatened to write her up.
Riley took Morrison into the plant manager's
office. He then told her that he was a big person within the
Company and that "any woman would be proud to have a man in a
position like this."
Several female employees complained that the room
was too hot because of the machinery. They asked Riley if he
could open more of the ceiling vents. Riley said he thought
that they were just having "hot flashes", and walked away.
Riley threatened to fire Morrison if she did not
drive his girlfriend (and future wife) and co-employee,
Juanita Courtney, to her house from work during her shift.
Riley told several people in Morrison's presence
that the other female floorperson, Linda Paul, was able to
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stay in such a position because she and Moody patted each
other on the rearend.
Morrison reported a problem with a box of yarn to
Riley, who told her she was probably so dumb she created the
problem herself.
Riley told Morrison that Courtney was pregnant. He
said "you thought I was too old, didn't you", and "I showed
you."
In March 1989, Morrison accepted a position as the
medical clerk for the Company nurse, Lucille Turner. Two
months later, Morrison decided that she wanted to return to
her former position.
In October 1989, Morrison bid on a temporary coner,
fixer and tender ("fixer") position. Riley flew into a rage,
telling Morrison that she was "stepping out of bounds" and
that "her place was in the kitchen."
Thereafter, Morrison bid on a permanent fixer
position. Riley told her fellow workers that if she got the
job, she would have to travel to a training seminar and share
a motel room with Moody and another male worker. Morrison
voided her bid in an effort to stop speculation about the
seminar, and returned to her floorperson position.
In June 1990, a first shift floorperson, William
Rogers, asked Morrison to swap shifts with him. Even though
Riley had moved to the first shift, Morrison agreed to the
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switch. Riley told Morrison that he "was not going to put up
with any bullshit on the first shift" and that he "had enough
bitches in the first shift." Riley also called a male co-
worker over to where he and Morrison were standing and began
patting him in the rearend, and told her that she would have
to get used to such behavior in the first shift.
Riley and Moody moved their desk near the women's
restroom, explaining that they wanted to watch the usage of
the restroom so that they could write female workers up for
abusing the privilege of using the restroom. Also, they
regularly made comments about Morrison bending over boxes to
the point where she felt very uncomfortable having to do so.
Other incidents occurred between the spring of 1990
and the fall of 1991.
Riley handed Morrison a piece of paper, which he
said was an application for a fixer position. She turned
over the paper and discovered, to her annoyance, that it was
entitled "Application for a Piece of Ass."
Riley gave Morrison an ink-blot that, when folded,
depicted various sexual acts involving persons and animals.
He called her a "dumb broad" for being unable to properly
fold it, after which he folded it for her. Morrison became
very upset and called Riley a "filthy pig."
Riley told Morrison that Moody wanted to do "funny
things" to her body, although Moody later denied ever making
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such a comment. On another occasion, Moody approached
Morrison and told her that he would like to see her naked.
Moody handed Morrison a document entitled "Canadian
Condom Marketing Board", which contained sexually-oriented
attempts at humor. Morrison asked Moody why he was doing
this, and he replied something to the effect that he takes
his orders from the office.
Riley asked Morrison if she knew what a man with a
ten-inch penis eats for breakfast. When she did not respond,
he proceeded to tell her what he had eaten for breakfast.
Riley gave Morrison a document entitled "Proposed
Restroom Policy." This document, another crude attempt at
humor, informed employees that if they occupied the bathroom
stalls for more than three minutes, certain events would
occur, including the taking of their photographs in the
stalls.
Riley regularly screamed and hollered at the women
employees in the yarn preparation department, but not at the
men. If any of the women indicated that they might complain
about his behavior, he would tell them "pay-back's a bitch."
During this period of time, Morrison went, on two
occasions, to the office of Annette McGowan, the Company's
personnel manager, to complain about Riley's harassing
behavior. On neither occasion was Morrison allowed to speak
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with McGowan. McGowan's secretary told Morrison that she
would not be allowed to see McGowan without her supervisor's
permission, even though Morrison informed her that her
complaint was about Riley, her supervisor.
In May 1991, Morrison injured her shoulder at work.
She kept working, but was eventually diagnosed with
tendinitis, and told to take ibuprofen and learn to pace
herself.
In October 1991, Morrison injured her back at home
while she was making her bed. Morrison went to the Belgrade
Regional Health Center where she saw Gretchen Hill, a
registered nurse-practitioner. Hill found that Morrison
appeared to have a lower lumbar muscle strain without any
disc problems. Hill informed Turner, the Company's nurse,
that Morrison would be absent for one week.
Morrison returned to see Hill one week later. By
that time, the pain was gone, although she was experiencing
some stiffness. Hill was considering allowing Morrison to
return to work, so she called Turner again. Turner suggested
that Morrison should be kept out of work for two more weeks,
a suggestion that Hill accepted.
On November 8, 1991, Hill issued Morrison a return
to work slip for full activity. Hill testified that she
would have preferred Morrison to work in a limited capacity
for a short period of time, but she felt that Morrison could
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successfully return to work without restriction. Following
another conversation with Turner, Hill wrote a new note on
November 13, 1991, which suggested that Morrison be placed on
light duty work from November 11 through November 22, and
then return to regular duty.
Turner and McGowan met with Morrison and informed
her that the Company had no light duty work available at the
time. McGowan then offered Morrison the option of bidding
into a different position, or accepting a layoff slip, which
would entitle her to unemployment benefits. Morrison did not
want to lose her floorperson seniority by bidding into a
different position, so she accepted the layoff.
Morrison believed that she had medical clearance to
return to regular duty after November 22, 1991, and so, on
November 25, 1991, she went to the yarn preparation
department and sought to punch in. Morrison could not find
her own timecard, and asked Moody where she could find it.
Moody responded by saying, "Girlie, I don't know. You're not
coming back to my department. Go see nursie." Morrison felt
"stupid."
Turner told Morrison that she remained on layoff,
and that she had no authority to allow her to work. Turner
advised Morrison to speak with McGowan. McGowan informed
Morrison that she did not have the authority to return her to
work absent medical clearance, and suggested that she see Dr.
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Barron, the Company's physician. On November 26, 1991, the
next day, Morrison went to see Dr. Barron.
The examination of Morrison consisted of the nurse
taking her blood pressure, temperature and weight, and the
doctor asking her how she felt. Dr. Barron advised Morrison
that he would be going to view the floorperson position, but
he reported to her (and wrote in his office notes) that he
saw no physical reason why she could not return to work.
After he viewed the floorperson position, Dr.
Barron wrote the following notation:
"I feel that [Morrison] can do most of
the work without any problems. However,
when it came to watching the warp
removed, I felt that this was far too
much for a woman with tendinitis and a
back problem. I understand that these
warps weigh in the neighborhood of 500
pounds and the manipulation of moving
them onto a hydraulic lift is certainly
more than she can do. Over a period of
time, I feel that she would be crippled
doing this job. With tendinitis and back
problems within a year she will be out of
work and on disability. My
recommendation is that she not be put on
this type of job."
Dr. Barron did not speak to Morrison's treating physician or
her nurse-practitioner. Dr. Barron disregarded their
opinions which indicated that Morrison was capable of
fulfilling her duties, because they had not seen the
floorperson position. At the time of trial, Morrison was
still not permitted to work in the floorperson position on
the basis of Dr. Barron's evaluation.
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On November 23, 1992, Morrison returned to work
after she decided to bid on a fixer position. She received
the position, although after a month she was "bumped", was
laid off for a few weeks, accepted a creeler position, and
eventually returned as a fixer. After a dispute over being
paid as a temporary fixer, Morrison finally attained
permanent fixer status. Since she returned, Morrison has
worked primarily on the third shift, under different
supervisors from Riley and Moody. Morrison testified that
she had no problems with Riley and Moody after she returned
as they stayed away from her. The Company's personnel
manager told Morrison that she had spoken to the people
Morrison would be working with and that they would not harass
her about her former complaints. Morrison was to report back
any complaints she might have.
Morrison further testified, however, that, after
her return, most of her co-workers would no longer speak to
her. She felt that this was due to the fact that most of
those who spoke to her were harassed afterwards by
supervisors for doing so. Also, the third shift supervisor,
Ernest Clark, often criticized Morrison for her job
performance. The Company, moreover, never asked Morrison to
substitute when the floorperson was absent, even though
employees with less experience were asked to do the
floorperson's job. And finally, Morrison became very upset
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and angry when she saw a petition, expressing support for
Riley and Moody, being circulated among Carleton employees.
III.
Defendants appeal from the adverse jury verdicts,
from the adverse findings of the district court and from the
denial of various motions including their motion for judgment
as a matter of law.
A federal district court may not set aside a jury
verdict and direct the entry of a contrary verdict, unless no
reasonable jury could have returned a verdict adverse to the
moving party. Jacques v. Clean-Up Group, Inc., 96 F.3d 506,
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509 (1st Cir. 1996). In making this determination, the court
examines the evidence adduced at trial in the light most
favorable to the nonmoving party, drawing all reasonable
inferences in its favor. Id. On appeal, we review the
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district court's determination de novo, applying the same
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standards. Id.
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Our review of a district court's own findings of
fact is for clear error only; we review its legal rulings de
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novo. Damon v. Sun Co., Inc., 87 F.3d 1467, 1483 (1st Cir.
____ _____ ______________
1996).
IV.
A. Sexual Harassment (Count I)
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Title VII of the Civil Rights Act of 1964 provides
that it is an "unlawful employment practice for an employer
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. . . to discriminate against any individual with respect to
his compensation, terms, conditions or privileges of
employment because of such individual's . . . sex." 42
U.S.C. 2000e-2(a)(1) (West 1994). The Maine Human Rights
Act, likewise, provides that it is unlawful employment
discrimination for an employer to discriminate against an
employee on the basis of sex "with respect to hire, tenure,
promotion, transfer, compensation, terms, conditions or
privileges of employment . . . ." 5 M.R.S.A. 4572(1)(A)
(West Supp. 1996).3
In 1980, the Equal Employment Opportunity
Commission ("EEOC") promulgated guidelines specifying that
sexual harassment is a form of employment discrimination
based on sex in violation of Title VII. See 29 C.F.R.
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1604.11 (1996). Under Title VII, "unwelcome sexual advances,
requests for sexual favors, and other verbal or physical
conduct of a sexual nature constitutes sexual harassment
when: (1) submission to such conduct is made either
explicitly or implicitly a term or condition of an
individual's employment; (2) submission or rejection of such
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3. The Maine courts have relied on the federal case law
surrounding Title VII for the purpose of construing and
applying the provisions of the Maine Human Rights Act. See
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Bowen v. Department of Human Servs., 606 A.2d 1051, 1053 (Me.
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1992). We, therefore, apply the same legal standards in
considering whether or not the evidence was sufficient to
support determinations under both the state and federal
statutes.
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conduct is used as the basis for employment decisions
affecting such an individual; or (3) such conduct has the
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purpose or effect of unreasonably interfering with an
_____________________________________________________________
individual's work performance or creating an intimidating,
_____________________________________________________________
hostile or offensive working environment." 29 C.F.R.
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1604.11(a) (1996) (emphasis added).
In Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57
_________________________ ______
(1986), the Supreme Court confirmed that a violation of Title
VII can be established through evidence of an abusive,
hostile or offensive work environment. Quoting from the EEOC
guidelines, the Supreme Court stated that the existence of
sexual harassment must be assessed "in light of the record as
a whole and the totality of the circumstances." Id. at 69;
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see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
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(1993) (relevant factors, though no single one is required,
include the frequency of the discriminatory conduct; its
severity; whether it is threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes
with an employee's work performance).
In Lipsett v. University of Puerto Rico, 864 F.2d
_______ __________________________
881, 897-98 (1st Cir. 1988) (quoting Meritor Savs. Bank, FSB,
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477 U.S. at 67)4, this court held that, for sexual harassment
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4. We note that the plaintiff's claims in Lipsett actually
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proceeded under Title IX of the Civil Rights Act of 1964.
This court, however, viewed the standards for sexual
harassment claims under Title IX to be equivalent to those
used under Title VII. See Lipsett, 864 F.2d at 899.
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to be actionable, "it must be 'sufficiently severe or
pervasive to . . . create an abusive working environment.'"
See also Harris, 510 U.S. at 21. We said that an employer
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"is liable upon a finding of hostile environment sexual
harassment perpetrated by its supervisors upon employees if
an official representing that institution knew, or
. . . should have known, of the harassment's occurrence,
unless that official can show that he or she took appropriate
steps to halt it." Lipsett, 864 F.2d at 901.
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Claimants under Title VII were, until recently,
limited to the equitable remedies of injunctive relief and
back pay. The 1991 Civil Rights Act, which became effective
on November 21, 1991, amended Title VII, and, for the first
time, authorized individuals alleging intentional unlawful
discrimination to seek compensatory and punitive damages
against their employers. The 1991 Act also conferred upon
Title VII plaintiffs the right to a trial by jury. See 42
___
U.S.C. 1981a(b)-(c) (West 1994). In Landgraf, the Supreme
________
Court held that the right to such damages and to a jury trial
did not apply to conduct that occurred prior to the effective
date of the Act, i.e. prior to November 21, 1991. Landgraf,
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511 U.S. at 244-45.
Pursuant to Landgraf, Morrison's Title VII sexual
________
harassment claim was tried to the jury only insofar as based
upon conduct on and after November 21, 1991. Insofar as the
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Title VII harassment claim was for conduct prior to that
date, it was tried to the magistrate judge, who also
determined in its entirety Morrison's claim that the alleged
sexual harassment violated the Maine Human Rights Act.
Because Title VII damages were only recoverable for post-
November 21, 1991 sexual harassment, that date assumes great
importance here.
1. Before November 21, 1991
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During the pre-November 21, 1991 period, as to
which the magistrate judge rather than the jury was the trier
of fact, the court determined under Count I that Morrison
"was subjected to sexual harassment sufficiently 'severe or
pervasive enough to create an objectively hostile or abusive
work environment'", quoting Harris, 510 U.S. at 21. The
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court also found that Morrison "'subjectively perceive[d] the
environment to be abusive.' Id." This hostile environment
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was found to have existed prior to November 21, 1991, and the
Company was found to have known about it, or should have
known about it, because it was so pervasive. The Company's
plant manager and plant supervisor5 were found to have worked
in the same general area as plaintiff and Riley, "and could
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5. Carleton and Riley point out in their appellate brief
that there is no such position as "plant supervisor" at the
Company, nor was there any testimony at trial about any
comparable position. Notwithstanding any error in this
particular, we uphold the court's finding of knowledge.
Infra.
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not have missed the discriminatory atmosphere that permeated
the department." Based on these conclusions, the court found
against the Company and Riley on Morrison's claims of hostile
environment sexual harassment under Maine law and under Title
VII for conduct occurring before November 21, 1991. We find
ample record evidence to sustain these findings.
As an initial matter, we turn to defendants'
contention that the federal and state statutes of limitations
do not allow us to look at any conduct antedating the middle
of 1991 in support of the hostile environment claims.
Section 2000e-5(e)(1) of Title VII provides that claimants
must file a charge of discrimination with the EEOC within 300
days of the alleged discriminatory act. 42 U.S.C. 2000e-
5(e)(1) (West 1994). Section 4613(2)(C) of the Maine Human
Rights Act states that "[t]he action shall be commenced not
more than two years after the act of unlawful discrimination
complained of." 5 M.R.S.A. 4613(2)(C) (West 1989).
Since Morrison filed her charge with the EEOC on
April 23, 1992, and her complaint with the district court on
September 3, 1993, the appellants argue that only acts of
sexual harassment occurring after June 27, 1991, for her
federal claim, and after September 3, 1991, for her state
claim, should be considered in reviewing the sufficiency of
the evidence. We disagree. The district court found that
the hostile environment at Carleton had existed for a number
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of years prior to November 21, 1991 and continued beyond
September 3, 1991. We have held that there is no prohibition
on recovery for earlier conduct if the "systemic violation"
extends into the limitation period. See Jensen v. Frank, 912
___ ______ _____
F.2d 517, 523 (1st Cir. 1990). Here, the systemic violation
continued without interruption from the late 1980's onward
through September 3, 1991. It was, therefore, appropriate
for the district court to look at defendants' conduct dating
back to the 1980's, and we may do likewise, in evaluating
Morrison's federal and state sexual harassment claims.
From the late 1980s into the fall of 1991, there
was ample evidence of crude, demeaning and sexually-oriented
behavior by Riley and others directed at Morrison. A
rational factfinder could conclude that the harassment was so
severe or pervasive that it created a work environment
abusive to Morrison because of her gender. Harris, 510 U.S.
______
at 22. There is, indeed, evidence that the harassment went
so far as to adversely affect Morrison's ability to function,
by making her fearful to apply for certain employment
opportunities and undermining her mental and emotional well-
being.
Even so, the appellants argue that the Company, as
an entity, cannot be held liable because Morrison has not
shown that it knew, or should have known, of the harassment.
Morrison did not complain of harassment to the Company during
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the period, even though there were procedures available to
file such complaints. This is a closer question, but we find
sufficient evidence to support the finding of the magistrate
judge that the Company knew or should have known that the
hostile environment existed despite plaintiff's failure to
use official procedures to complain. In April 1987, several
female employees of Carleton had filed a grievance against
Riley, alleging that he was harassing them. At that time,
Plant Manager Everett Owens told Riley to be more "low key",
but never took any action to discipline or more closely
supervise him. In the years before the trial of this case,
Union President Gwendolyn Gatcomb brought several complaints
concerning Riley's behavior to the attention of Company
personnel. In spite of these complaints, Riley and other
Carleton supervisors were allowed to continue with their
responsibilities and their harassing conduct. Morrison
testified that she had tried to bring the matter to the
attention of Personnel Manager Annette McGowan, but had been
unable to see her. The magistrate judge found that the
layout of the mill was such that higher management "could not
have missed the discriminatory atmosphere that permeated the
department." We are satisfied that the evidence sufficiently
supports the court's above finding, and can see no
justification to disturb it on appeal.
2. After November 21, 1991
_______________________
-23-
For us to affirm the jury's award of damages to
Morrison on her Count I Title VII sexual harassment claim,
the record must reveal evidence of conduct on or after
November 21, 1991 the effective date of the 1991 Civil
Rights Act sufficient to have created a hostile
environment as that term is used under Title VII. Landgraf,
________
511 U.S. at 244-45. Hostile environment sexual harassment is
a particular species of sex discrimination. The EEOC's
regulations, as noted, describe it as "[u]nwelcome sexual
advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature . . . when . . . (3) such
conduct has the purpose or effect of unreasonably interfering
with an individual's work performance or creating an
intimidating, hostile, or offensive working environment." 29
C.F.R. 1604.11(a) (1996). The Supreme Court speaks of a
"workplace . . . permeated with 'discriminatory intimidation,
ridicule and insult' . . . that is 'sufficiently severe or
pervasive to alter the conditions of a person's employment
and create an abusive working environment.'" Harris, 510
______
U.S. at 21 (citations omitted).
In the present case, the jury heard extensive
evidence of the vulgar pre-November 21, 1991 incidents which,
as we have held, amply support the magistrate judge's finding
of hostile environment sexual harassment during that earlier
time. However, the jury's task was to determine Title VII
-24-
liabilities and damages for the period from November 21,
1991 onward. The jury could take the earlier conduct into
account only to the extent it was legally relevant to what
later happened for example, to help prove the intent
behind an act committed after November 21, 1991, or the act's
likely effect on someone like Morrison. See, e.g., Fed. R.
___ ____
Evid. 402, 403, 404(b), 406, 412. The earlier abuse is no
substitute for proof of actual sexual harassment occurring in
the post-November 21, 1991 period. Because we cannot find
evidence of sexually abusive conduct in this later period
sufficient to support the jury's Title VII award under Count
I, we are obliged to reverse that part of the verdict.
From October 19, 1991 until November 23, 1992,
Morrison was either on medical leave or on layoff from
Carleton, hence she could not, during that period, have been
subjected to workplace abuse, nor could her work performance
at Carleton have been interfered with by abusive conduct
while there. The only incident during that period that might
be construed as workplace sexual harassment occurred on
November 25, 1991, when Morrison went to Carleton seeking to
return to work. Moody refused to let her punch in, telling
her she had first to get medical clearance. In turning her
away, Moody called Morrison "Girlie" and told her to go see
"nursie", raising the question whether use of these terms
made Moody's remark so offensive as to support a finding of
-25-
hostile environment sexual harassment. In order to assess
Moody's probable intent when he spoke as he did on November
25, 1991 and the reasonable effect of the phraseology on
Morrison, see Harris, 510 U.S. at 22 (citing Meritor Sav.
___ ______ ____________
Bank, FSB, 477 U.S. at 67), the jury could consider the
__________
evidence of Moody's and others' prior offensive conduct and
remarks in the period before November 21, 1991. In light of
that history, the jury could reasonably construe Moody's use
of the terms "Girlie" and "nursie" as demeaning, rather than
as merely light-hearted banter, and could also determine that
Morrison had reason to be offended. Morrison testified that
Moody's remark, made at a time when "everybody was lined up
getting ready to punch in", made her feel "stupid."
We are unable to conclude, however, that Moody's
"Girlie-nursie" remark was, by itself, a sufficient basis to
hold the Company liable to Morrison under her Title VII
sexual harassment claim. Morrison was not working at the
time. Her contact on this one day with the Company's work
environment was fleeting. There is no evidence the Company
knew of or sanctioned Moody's particular phraseology. We
know of no case where a single, brief encounter of this
mildly offensive sort, at a time when the plaintiff was not
actually working, and hence could not be affected in her work
performance and conditions of employment, has been held to
create a sexually hostile workplace environment. See, e.g.,
___ ____
-26-
Harris, 510 U.S. at 21 (conduct must be severe or pervasive
______
enough to create an objectively hostile or abusive work
environment affecting employee's conditions of employment);
Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 783 (1st Cir.
__________ _________________
1990) (single or isolated remarks do not establish a hostile
environment). Even assuming this incident, when coupled with
the more serious pre-November 21, 1991 incidents, might lead
a rational jury to conclude that the earlier abusive
environment would have remained the same through November 25,
1991, the fact that Morrison was not working at Carleton from
November 21, 1991 until November 23, 1992 a year later
makes this conclusion largely irrelevant to her claim for
damages during this period. Morrison could not have been
injured by hostility at a workplace she did not attend.6
We realize that Morrison contends that she accepted
layoff status only because of the Company's refusal during
this period to let her return to her floorperson position.
Morrison insists that the refusal, while supposedly based on
health concerns, was actually based on the Company's bias
against women working as floorpersons. The jury, however,
specifically rejected Morrison's Count II, Title VII sex
____________________
6. Obviously, an award of $150,000 in compensatory and
punitive damages would be patently excessive for one mildly
offensive remark. Even supposing the workplace itself
remained potentially abusive during Morrison's absence, this
would be irrelevant while she was on layoff status and not
present.
-27-
discrimination claim premised on such a theory, finding for
the Company on Count II. The magistrate judge, contrary to
the jury, later upheld Morrison's sex discrimination claim
under Maine law, holding that the Company's refusal to allow
_______________
Morrison to go back to her floorperson position was gender-
based and discriminatory. But the jury's verdict is
conclusive on the part of the Count II claim seeking damages
under Title VII. The jury found for Morrison on her Count I
claim of hostile environment sexual harassment, but, as we
discuss here, there was insufficient evidence of abuse during
the post-November 21, 1991 period for us to affirm the award
of damages under that theory.7
Following the period of over a year during which
she did not work at the Company (from October 19, 1991 until
November 23, 1992), Morrison finally returned to work. But
the record covering the period after Morrison's return to
work on November 23, 1992 provides scant support for her
hostile environment claim. When she returned, she accepted a
different, somewhat higher-paying position8, and reported to
____________________
7. The jury's finding against Morrison under Count II
refutes any argument that the jury based its Count I sexual
harassment verdict on a finding that Morrison was
discriminated against when denied the opportunity to return
to the floorperson position. Cf. Chamberlin, 915 F.2d at
__ __________
782-83.
8. The Company's personnel manager testified that, at the
time of trial, a fixer was paid $9.64 per hour, while a
floorperson was paid $8.54 per hour. Morrison herself
testified that a similar pay difference existed in 1989 when
-28-
new supervisors. There is no evidence that, in this new
position, her supervisors, or any other person for that
matter, subjected her to "discriminatory intimidation,
ridicule and insult", Harris, 510 U.S. at 21, much less to
______
sexually offensive, embarrassing or vulgar conduct or
remarks, or other sex-based conduct or remarks, such as had
occurred prior to November 21, 1991 when she was working as a
floorperson under Riley. The Company's personnel manager
advised her that employees had been warned to treat her
fairly and equitably, and that she was to report anything
offensive immediately so that it could be corrected.
Morrison did not thereafter complain of sexual harassment to
Company personnel. Morrison conceded that her old nemeses,
Riley and Moody, stayed away from her, and never harassed her
after she returned to work. Morrison, nonetheless, points to
certain incidents that occurred during this later period,
which, according to her, gave rise to a hostile work
environment at Carleton.
Morrison testified that most of the people with
whom she had worked for years would no longer speak to her
when she returned to work in November 23, 1992, ostensibly
____________________
she had briefly worked as a fixer. There was a period
shortly after her return when she was "bumped", laid off,
returned as a creeler, and ultimately restored to fixer
status. Morrison and the Company thereafter skirmished over
her fixer pay scale, whether it was temporary or permanent;
eventually she got the permanent rating.
-29-
because discouraged by management from doing so. The few
that did were reprimanded by their supervisors afterwards.
Morrison felt that some of her co-workers would no longer
cooperate with her, thereby making her job much more
difficult, and that one of her new supervisors, Ernest Clark,
would occasionally assign her excessive work. Ernest Clark,
according to Morrison, would also follow her around and look
for flaws in her work, and would often blame her for mistakes
that were not of her own doing. Morrison further complained
that, for some time after she had completed a training
period, she received temporary pay, instead of regular pay,
for her work as a fixer, and that, despite her seniority, she
never was asked to fill in for those employees with higher-
ranking jobs within the Company. Lastly, Morrison claimed
that she saw a petition expressing support for Riley and
Moody circulating throughout the Company, an event that, she
says, led her to seek professional counselling.
Morrison argues that she does not need to show that
management's conduct during this later period was "expressly
sexual" in order to establish a sexually hostile work
environment based on gender discrimination. We accept that
many different forms of offensive behavior may be included
within the definition of hostile environment sexual
harassment. See Spain v. Gallegos, 26 F.3d 439, 447 (3d Cir.
___ _____ ________
1994) (employee can show that there is a sexually hostile
-30-
work environment "without proving blatant sexual
misconduct."). However, the overtones of such behavior must
be, at the very least, sex-based, so as to be a recognizable
form of sex discrimination. McKinney v. Dole, 765 F.2d 1129,
________ ____
1138 (D.C. Cir. 1985). Merely because a supervisor is
overbearing or fellow employees unsociable and hard to get
along with, does not suffice unless underlying motives of a
sexual or gender discriminatory nature are implicated.
Spain, 26 F.3d at 449.
_____
The post-November 23, 1992 conduct alleged by
Morrison occurred over a year after the earlier sexually-
explicit misconduct by the other supervisors in her former
position. The later conduct, as said, was not the kind
associated with a claim for hostile environment sexual
harassment. See, e.g., Gross v. Burggraf Constr. Co., 53
___ ____ _____ _____________________
F.3d 1531, 1546 (10th Cir. 1995) (employee did not establish
a gender-based hostile environment by showing that employer
reprimanded her in front of other employees, grilled her
about some plans to bring discrimination charges against him,
and told her "she was skating on thin ice."). It was not
shown that Supervisor Clark's harshness was based on
annoyance with her as a woman, or because he regarded the
fixer position as off limits for women. A connection between
Morrison's gender and the incidents she complains of was not
established. The record contains no evidence that Morrison
-31-
complained to the Company that she was being subjected at
this time to further sexual harassment or that the Company
knew or should have believed that Morrison was being
subjected to sexual harassment then. If the Company
deliberately sought to isolate or punish Morrison for her
earlier complaints of harassment, by telling other employees
not to speak to her, such conduct might have supported a
claim for unlawful retaliation, but not for sexual
harassment.9 The evidence presented by Morrison is simply
insufficient to establish a post-November 21, 1991 sexually
hostile work environment created by severe or pervasive sex-
based harassment.
Morrison seeks to overcome the deficiencies in the
evidence by contending that the more recent, non-sexual
incidents could be linked to the pattern of vulgar, sexually-
related misconduct that occurred at Carleton prior to the
effective date of the 1991 Civil Rights Act. Morrison urges
that the later incidents could be evaluated by the jury, not
in isolation, but rather as a continuation of what she and
____________________
9. Title VII of the Civil Rights Act of 1964 has a separate
statutory provision, not at issue here, making it an unlawful
employment practice for an employer to discriminate against
an individual because of his or her having opposed another
unlawful practice or made a charge under the subchapter. 42
U.S.C. 2000e-3(a) (West 1994); see also Fennell v. First
___ ____ _______ _____
Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996)
____________________
(outlining the elements of a retaliation claim).
-32-
other employees encountered at the Company before November
21, 1991.
This point might have arguable merit relative to
Moody's "Girlie-nursie" remark on November 25, 1991, were it
not for the isolated nature of this incident, occurring as it
did when Morrison was on continuous leave, hence not at the
workplace so as to be exposed to a hostile environment. As
to the events after her return to work on November 23, 1992,
the pre-November 21, 1991 harassment was too remote in time
and character to transform the later conduct into the
different kind of behavior needed to support a damages claim
for hostile environment sexual harassment. Morrison, by
then, was working in a new position with other supervisors.
To establish that she was entitled to damages for being
subjected to hostile environment discrimination during this
later period, she had to show some conduct within that time
frame fitting into a cognizable definition of abusive work
environment harassment. If this were not so, the Company
would be held liable for conduct which it would not have
known was either improper or a source of potential liability
under the "hostile environment" theory at issue.
In light of the foregoing, we hold that there was
insufficient evidence from which a rational factfinder could
conclude that Morrison was subjected to a sexually hostile
work environment at Carleton after November 21, 1991.
-33-
B. Gender Discrimination (Count II)
________________________________
In Count II, the district court ruled in the
Company's favor on Morrison's federal claim, finding that
there were no incidents of sex discrimination against
Morrison prior to November 21, 1991.10 The district court,
_____
however, held that Morrison had established sex
discrimination after November 21, 1991, and entered judgment
in her favor under Maine law. We find that there is
sufficient evidence in the record below to support the
court's state law ruling and, accordingly, we affirm its
judgment in this respect.
The district court first found that Morrison was
not permitted to return to her floorperson position on
November 25, 1991 "because of Lucille Turner's, Annette
McGowan's, and Dr. Barron's perception that women would more
likely be severely injured in the floorperson position than
would men." The record permits the inference that Morrison's
injury was temporary and not especially serious. The
evidence shows that Turner convinced Hill to extend
Morrison's layoff, and later suggested that Morrison should
____________________
10. As with Count I, the issue of whether Carleton
discriminated because of gender against Morrison after
November 21, 1991 in violation of Title VII was presented to
the jury. The jury found against Morrison on that claim, as
noted. The magistrate judge subsequently found otherwise on
the same facts for purposes of Morrison's Maine law sex
discrimination claim, finding gender discrimination after
November 21, 1991 based on the Company's refusal to let
Morrison continue in the floorperson position.
-34-
not be allowed to return to the floorperson position. When
Morrison was given the choice of either accepting a layoff or
leaving the floorperson position, McGowan told her that "she
should have seen this coming because . . . [the Company] did
not want [her] on the job." Finally, even though Dr. Barron
talked extensively with Turner about Morrison's physical
condition, he refused to consult with her treating physician
or her nurse-practitioner, both of whom felt she was fit to
perform her floorperson duties, in recommending that she be
kept out of the job.
The district court stated that it was satisfied
that "a man presenting the same medical history and clearance
to return to work would have been immediately permitted to do
so." The record below gives credence to this statement, as
two long-time Carleton employees, William Rogers and Norman
Williams, testified that the Company has permitted them to
remain in their physically-demanding jobs, despite the fact
that they have, respectively, a chronic back problem and a
ruptured cervical disc. Moreover, Leland Rice, who, at one
time, worked as a floorperson at Carleton, and who is only
five foot three inches tall and weighs no more than 140
pounds, testified that he did not find any aspect of the job,
including the removal of the warp beam, to be very difficult
to perform. It could be found, therefore, that, while
Carleton seized upon Morrison's relatively minor medical
-35-
problems to exclude her from the floorperson position, it
allowed other male employees, with more serious ailments and
less physical abilities, to continue working for the Company.
It is true, to be sure, that there was also
evidence suggesting that legitimate health-based
considerations had motivated the Company's decision. But
this is the kind of matter best sorted out by the trial
court. There was sufficient evidence to support a reasonable
trier's finding that Morrison was rejected because of her
gender. The court was entitled to conclude that Morrison's
sex "was a substantial motivating factor in the adverse
employment decision." Cumpiano v. Banco Santander Puerto
________ _______________________
Rico, 902 F.2d 148, 155 (1st Cir. 1990). Finding no error,
____
we affirm. We also hold that, on remand, the court should
reopen the issue of back pay given our vacation of the
damages awards under Counts I and IV.
C. Disability Discrimination (Count IV)
____________________________________
In Count IV, the jury returned a verdict in
Morrison's favor on her federal ADA claim. When this claim
was submitted to the jury, the court correctly told the jury
that Morrison could recover only for violations of the Act
occurring on or after July 26, 1992, the effective date of
the Act. Because the record reveals no evidence of any post-
July 26, 1992 violations, we are obliged to overturn the
verdict.
-36-
Ever since the ADA became effective on July 26,
1992, the courts have consistently held that the Act is not
retroactive. Miller v. CBC Cos., 908 F. Supp. 1054, 1062
______ _________
(D.N.H. 1995) ("there is little doubt the First Circuit would
decline to extend the continuing violation theory to permit
[plaintiff] to recover for the defendants' pre-ADA
conduct."). As a result, to uphold a claim under the ADA,
there must be evidence that the claimant was discriminated
against because of a disability on or after July 26, 1992.
Morrison's discrimination claim, however, is based
on Carleton's rejection of her request, made in the fall of
1991, to be allowed to continue in the floorperson position
that she had previously held. The Company's decision to bar
her from the position was effectively made, and communicated
to her, in November 1991, eight months before the statute's
effective date. While Morrison grieved the decision through
her union, in proceedings strenuously pursued through
February of 1992, and while the grievance process itself
appears to have continued into 1993, when the matter was
stated to be arbitrated, its subject was the Company's
alleged unfair practice in the fall of 1991. Morrison has
not pointed to additional incidents that took place on or
after July 26, 1992, which constituted separate violations of
the ADA during the later period.
-37-
The regulations promulgated pursuant to the ADA add
nothing to Morrison's claim. These regulations prohibit
disability discrimination with respect to " . . . layoff,
termination, right to return from layoff, and rehiring." 29
___________________________
C.F.R. 1630.4(b) (1996) (emphasis added). However, the
denial of any right Morrison had to return from layoff was
complete well before July 26, 1992. Morrison was denied the
floorperson position in the fall of 1991 after she sought to
return from medical leave. By then Morrison had already
accepted a layoff slip in lieu of bidding on another job, and
remained on layoff until November 23, 1992, when she accepted
the "fixer" position with the Company. Morrison would have
us find a continuing violation, based on a theory that not
restoring her to her old floorperson position formed part of
a continuous chain of misconduct extending beyond the July
26, 1992 deadline. But the Company's inaction is not enough.
As we said in a somewhat analogous situation, "'it was
incumbent upon [her] to allege facts giving some indication
that the later refusals were themselves separate
. . . violations.'" Velazquez v. Chardon, 736 F.2d 831, 833
_________ _______
(1st Cir. 1984) (quoting Goldman v. Sears, Roebuck & Co., 607
_______ ____________________
F.2d 1014, 1018 (1st Cir. 1979)).
As Morrison does not demonstrate that
discriminatory conduct forming a basis of her ADA claim
occurred after July 26, 1992, we need not decide the
-38-
Company's further contention that Morrison's claim failed
because her purported disability did not meet the
definitional requirements of the Act. There may be merit to
this and related substantive contentions, but we do not reach
them because Morrison's asserted violation of the ADA
occurred prior to July 26, 1992.
D. Riley's Individual Liability
____________________________
In footnotes in their briefs, the parties contest
whether Riley can be held liable under Count I in his
individual capacity for violations of Title VII and the Maine
Human Rights Act. We deal separately with the federal and
the state aspects of this issue.
1. Individual Liability under Title VII
____________________________________
Title VII defines "employer", in relevant part, as
"a person engaged in an industry affecting commerce who has
fifteen or more employees . . . and any agent of such a
person." 42 U.S.C. 2000e(b) (West 1994). There is
controversy over whether this language allows a corporate
supervisor, such as Riley, to be sued as the "agent of such a
person." Several circuits have held "No." See, e.g., Tomka
___ ____ _____
v. Seiler Corp., 66 F.3d 1295, 1313-17 (2d Cir. 1995); but
____________ ___
see id. at 1318-24 (Judge Parker's dissenting opinion). The
___ ___
question has no very obvious answer.
We decline to answer it here. The district court's
ruling that Riley was liable under Title VII for pre-November
-39-
21, 1991 sexual harassment (Count I) has little or no actual
impact on Riley that we can discern. Neither the Company nor
Riley were or can be held answerable in damages for the pre-
November 21, 1991 conduct, and it is not apparent that any
other available type of federal relief can be applied against
Riley notwithstanding the court's determination that he is
liable under Title VII. In such circumstances, and given the
absence of developed argument by the parties and of a
reasoned disposition of this question by the court below, we
are not inclined to seize this opportunity to create circuit
precedent on this relatively complex issue.
2. Individual Liability under the Maine Human Rights Act
_____________________________________________________
In finding Riley liable, together with his
employer, under Maine state law for sexual harassment under
Count I, the court imposed a $10,000 civil penalty.
Authority for the penalty is found in the Maine Human Rights
Act. 5 M.R.S.A. 4613(2)(B)(7) (West Supp. 1996). Riley's
liability for that penalty is apparently joint and several
with the Company's. The state law judgment against Riley,
therefore, is not merely academic, as was the adverse Title
VII finding, supra.
_____
Still, we are disinclined to rule at this time on
whether or not Maine law allows individual liability. While
arguably the different language of the Maine law more clearly
allows individual liability than does Title VII, there is no
-40-
relevant state court precedent. A federal district court in
Maine has construed the law as disallowing individual
___________
liability, relying on the federal precedent that trends that
way. Quiron v. L.N. Violette Co. Inc., 897 F. Supp. 18, 20-
______ ______________________
21 (D. Me. 1995). Appellants' objection to allowing
individual recovery here was not set out in the statement of
issues in their brief, and consists of one sentence in a
footnote, together with a citation to Quiron and a subsequent
______
case. We have said that a party owes this court "developed
argumentation." United States v. Caraballo-Cruz, 52 F.3d
______________ ______________
390, 393 (1st Cir. 1995); cf. Kost v. Kozakiewicz, 1 F.3d
__ ____ ___________
176, 182 (3d Cir. 1993) (casual mention in footnote, without
citation, not enough). See Wright, Miller, Cooper and
___
Gressman, Federal Practice and Procedure, Vol. 16, 3974,
________________________________
n.1 (West 1977 & Supp. 1996). The district court itself did
not have occasion to discuss the issue, although appellee
concedes that defendants raised it in one of their trial
motions. Riley is represented by the same attorneys as the
Company and, for all that appears, may never be required by
his employer to share personally in the payment of the
$10,000 penalty.
Under these circumstances, we think the most
satisfactory way to handle the issue is to vacate the
individual judgment against Riley under Count I and remand
with instructions that, if either party wishes, the court
-41-
shall reopen, and expressly rule upon, the issue of whether
the Maine Human Rights Act provides for individual liability.
In so doing, the court may, in its discretion, certify the
question to the Supreme Judicial Court of Maine. This course
will ensure either a reasoned decision or a dispositive
ruling by Maine's highest court. It will also enable the
parties and the court to drop the matter if, as the parties'
casual treatment suggests, it is of no practical interest to
them.
The legal questions of individual liability under
both Title VII and the Maine statute are significant ones.
Precisely because this is so, we do not wish to decide them
in the fragmented, undeveloped setting in which they appear.
V.
We affirm the district court's rulings on Counts I
and II, except we vacate the finding against Riley under
Count I. We reverse the jury's verdicts on Counts I and IV.
We vacate the court's amended judgment and remand for further
proceedings, and for the entry of a new judgment, not
inconsistent with this opinion. Upon remand the district
court shall reopen the question of back pay and any other
available form of relief that may now be appropriate under
the affirmed claims given our reversal of the jury's verdicts
under Counts I and IV. The parties shall bear their own
costs of appeal.
-42-
It is so ordered.
-43-
