Curry v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 1999 Decided November 9, 1999

No. 98-7121

Cynthia D. Curry,
Appellee

v.

District of Columbia,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 97cv01088)

Donna M. Murasky, Assistant Corporation Counsel, ar-
gued the cause for the appellant. Jo Anne Robinson, Interim
Corporation Counsel, and Charles L. Reischel, Deputy Corpo-
ration Counsel, were on brief.

Elizabeth Margaret Boyle argued the cause for the appel-
lee. Ted Justice Williams was on brief.

 Before: Wald, Henderson and Randolph, Circuit Judges.

Opinion for the court filed Per Curiam.

Circuit Judge Henderson filed a separate opinion.

Circuit Judge Wald filed a separate opinion.

Circuit Judge Randolph filed a separate opinion.

Per Curiam: In accordance with the accompanying sepa-
rate opinions, the district court's order denying the motion for
judgment as a matter of law is affirmed in part and reversed
in part and the district court's judgment on the verdict for
plaintiff is affirmed.

Karen LeCraft Henderson, Circuit Judge:

Cynthia D. Curry brought suit against her employer, appel-
lant District of Columbia (District), claiming sexual harass-
ment in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. ss 2000e et seq. The source of the
alleged sexual harassment was a co-worker in the District's
Metropolitan Police Department (MPD). Following trial in
the district court, a jury awarded Curry $100,000 in damages.
The District filed a motion for judgment as a matter of law
or, in the alternative, for a new trial or remittitur. Upon the
district court's denial of its motion, Curry v. District of
Columbia, 9 F. Supp. 2d 1 (D.D.C. 1998), the District appeal-
ed. On appeal, the District challenges both the jury's finding
of liability and the award of damages. As explained below,
we affirm the district court's denial of post-trial relief in part
and reverse in part. In addition, I would remand for further
proceedings as to damages.

I.

Curry joined the MPD as a uniformed officer in October
1986. Six years later, she was transferred to the Domestic
Security Section of the MPD's Intelligence Unit where she
met Detective Condwell Freeman. Curry and Freeman soon
began an intimate relationship which lasted about six months
and then "just ended" in April 1993. Joint Appendix (JA)
111.

In July 1993 Curry was again transferred to a different
unit and did not return to the Intelligence Unit until the
following May. Upon Curry's return, Freeman began a daily
routine of telling her sexual jokes and suggesting, while
grabbing his crotch, that she allow him to "slip her the
lizard."1 JA 112-13. This conduct continued from mid-May
1994 until August 12, 1994, when Curry stopped speaking to
Freeman.

In early September 1994 Curry told Sergeant Jacob Major,
who was her (and Freeman's) direct supervisor, that Freeman
had been sexually harassing her. Her report followed a
three-week period for which Major, who was on vacation
during that period, had appointed Freeman acting sergeant in
charge of the Unit. Upon his return, Major admonished
Curry for submitting an untimely report. Curry explained
that she had completed the work but waited for Major's
return before re-submitting the report because she wanted to
avoid Freeman.2 Major then referred Curry to the MPD
Labor Relations, EEO Office. Adhering to the MPD's formal
complaint procedure, Major initially denied Curry's request
that he speak with Freeman about the problem. Subsequent-
ly, however, Major asked Freeman about the allegations,
which Freeman denied, and advised Freeman that sexual
harassment would not be tolerated. Major also alerted Lieu-
tenant Cheryl Peacock, the MPD's EEO Officer, to Curry's
complaint. Although Curry did not contact the EEO Office
until September 30, Peacock began to investigate the matter
immediately. The investigation lasted over four months and
included interviews of Freeman and other co-workers.

__________
1 Curry understood from their earlier relationship that Freeman's
references to "lizard" and "zard" meant his penis.

2 Freeman had ordered Curry to make corrections to the first
draft of the report. Finding certain corrections had not been made,
Freeman demanded them again for the second draft. Curry told
him she thought he was harassing her for rebuffing his sexual
overtures and that she intended to wait for Major's return before
re-submitting the report.

 On September 30, 1994 Curry filed a complaint with the
MPD's EEO Office. Earlier that day, Freeman, while speak-
ing loudly to a third party in earshot of Curry, had stated
repeatedly that he would sue anyone who made unsubstanti-
ated allegations against him. Curry at that time told Peacock
about Freeman's "lizard" remarks, including that they had
ceased. She also reported the incident involving the redraft-
ed reports when Freeman was acting sergeant and Freeman's
remarks she had overheard that morning. Curry reported no
other form of harassment. Shortly thereafter, she requested
and received a transfer to the Analytical Section of the
Intelligence Unit, which was on the same floor as the Domes-
tic Security Section but in a different wing of the building.
JA 497. Roughly ten months later, during August 1995, the
MPD undertook a wholesale reorganization of its offices
which put Curry's and Freeman's offices in closer proximity.

On January 23, 19953 the EEO Office issued a report on its
investigation of Curry's charges. The report found probable
cause to believe Freeman had verbally harassed Curry, that
is, probable cause "to sustain the allegations that sexual
harassment has occurred."4 JA 776. Peacock, the investigat-
ing officer who authored the report, testified that "the work-
place ... was filled with sexual jokes, sexual language." JA
306. Captain Alan Dreher, the head of the Intelligence Unit,
learned of the report and personally admonished Freeman
that sexual harassment would not be tolerated and, if it was
going on, it was to stop. The EEO Office advised Curry by
letter that she could file a complaint with the District's
Department of Human Rights and Minority Business Devel-
opment (DHR).5 The EEO Office's finding notwithstanding,

__________
3 The EEO Office's investigative report bears a January 23, 1996
date stamp. JA 771. As the parties and the record make clear, the
correct date of the report is January 23, 1995. See Br. of Appellant
at 14; Br. of Appellee at 3; JA 798.

4 The report responded to Curry's formal complaint of verbal
harassment.

5 The MPD's EEO Office and the parties refer to the DHR as the
"Office of Human Rights" and the "OHR." E.g., JA 798. Its

the MPD's collective bargaining agreement and D.C. Code
s 1-617.1(b-1)(1) (1992)6 prohibited the MPD from taking
disciplinary action against an officer more than forty-five days
after the MPD became aware of the officer's improper con-
duct. Peacock's investigation took more than forty-five days
to complete and the District took no formal disciplinary action
against Freeman. In June 1996 Curry transferred to the
Court Intelligence Unit.

Although she made no mention of it until November 1995,
Curry also claimed Freeman regularly glared at her in a
harassing manner from the time his verbal harassment
ceased in August 1994 until her June 1996 transfer out of the
Unit. She testified that Freeman "would look at [her] in a
way that made [her] most uncomfortable, as if he was un-
dressing [her]." JA 235. Although Curry never invoked the
MPD's formal complaint procedure with regard to Freeman's
glaring, she did report it to supervisory personnel. She first
complained on November 7, 1995, during a telephone conver-
sation initiated by Lieutenant Emmogean Simpson-Jones of
the MPD's Labor Relations, EEO Office, who asked her how
things were going. Although the record is unclear, apparent-
ly sometime between November 7 and December 14, 1995
Curry also requested that the MPD transfer Freeman. On
December 14, 1995 the EEO Office issued a memorandum in
which the MPD's EEO Director Brenda Wilmore noted that
Curry complained she was "experiencing a 'hostile environ-
ment,' because [Freeman] constantly 'glare[d]' at [her]" and
that there was "no verbal communication" between the two.
JA 760. The memorandum concluded that "agency con-
straints" left the EEO Office unable to act on her request to

__________
proper name is as noted in the text. JA 761. Ultimately, on June
10, 1996 the DHR also found probable cause to believe that Free-
man sexually harassed Curry. JA 761.

6 In 1995 section 1-617.1(b-1)(1) provided that "no corrective
adverse action shall be commenced pursuant to this section more
than 45 days ... after the date that the agency knew or should
have known of the act or occurrence allegedly constituting cause."
It has since been repealed. See D.C. Code s 1-617.1 (1999).

transfer Freeman.7 The Director did offer to help Curry
transfer if she so desired. At that time Lieutenant Alton
Bigelow, another EEO officer, advised Freeman of Curry's
report about his glaring and "warned him against acts of
intimidation." JA 764. Bigelow asked Freeman to agree to a
transfer, a request Freeman declined.8

II.

This court reviews de novo the trial court's denial of a
motion for judgment as a matter of law or, in the alternative,
for a new trial. Swanks v. Washington Metro. Area Transit
Auth., 179 F.3d 929, 933 (D.C. Cir. 1999). The jury verdict
stands "unless the evidence and all reasonable inferences that
can be drawn therefrom are so one-sided that reasonable men
and women could not disagree on the verdict." Smith v.
Washington Sheraton Corp., 135 F.3d 779, 782 (D.C. Cir.
1998) (internal quotation marks omitted). Nevertheless, evi-
dence supporting the verdict must be "more than merely
colorable; it must be significantly probative." Id. (internal
quotation marks omitted).

A.

Title VII of the Civil Rights Act of 1964 makes it unlawful
for an employer "to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privi-
leges of employment, because of such individual's race, color,
religion, sex, or national origin." 42 U.S.C. s 2000e-2(a)(1).
A claim of sexual harassment is cognizable under this provi-
sion if the alleged harassment alters, either expressly or

__________
7 The memorandum uses the term "agency constraints" without
elaboration. Although there was evidence that the term referred to
the forty-five day rule, JA 378, 380, apparently the MPD's collective
bargaining agreement prohibited an officer's involuntary transfer
for disciplinary reasons, the precise request Curry made regarding
the glaring. See Br. of Appellant at 15; JA 538.

8 Curry testified that she also reported the glaring to Bigelow but
the record does not reflect when or how. JA 285.

constructively, the terms or conditions of an individual's
employment. See, e.g., Meritor Savings Bank, FSB v. Vin-
son, 477 U.S. 57, 67-68 (1986). Courts describe an explicit
alteration as "quid pro quo" harassment and a constructive
alteration as "hostile work environment" harassment. Bur-
lington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998). To
be actionable, however, the latter must be severe or perva-
sive. Id.; Oncale v. Sundowner Offshore Servs., Inc., 118 S.
Ct. 998, 1002-03 (1998); Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993).

An employer's liability for a hostile work environment
sexual harassment claim differs depending on who does the
harassing. The harasser can be a supervisor or someone else
whose position in the workplace affords authority over the
target of the harassment such that the harasser is aided by
the "agency relation" in harassing the other employee. El-
lerth, 118 S. Ct. at 2269; see Mikels v. City of Durham, 183
F.3d 323, 331-32 (4th Cir. 1999) ("The fundamental determi-
nant of this form of vicarious liability is not, therefore, the
harasser's formal rank vis-a-vis that of the victim in the
particular employment hierarchy, ... but whether the partic-
ular conduct was aided by the agency relation.") (internal
quotation marks omitted). The United States Supreme Court
recently clarified the employer liability standard for supervi-
sory harassment of an employee in Ellerth and Faragher v.
City of Boca Raton, 524 U.S. 775 (1998).9 There the Supreme
Court further noted that circuit courts had not determined
employer liability for co-worker harassment in the same way.
See Faragher, 524 U.S. at 799. In Faragher the Court
further noted and declined to disturb the general agreement
among circuits that a negligence standard governs employer
liability for a co-worker's harassment. Id. at 799-801. Every
circuit that has addressed co-worker harassment in the "post-

__________
9 The Supreme Court announced inter alia that the employer can
be held vicariously liable even if the employer did not know of the
harassment. If no "tangible employment action" results from the
harassment, the employer may avoid liability by asserting a two-
part affirmative defense. See Ellerth, 524 U.S. at 764-65; Faragh-
er, 524 U.S. at 804-07.

Faragher era" has distinguished the standard applicable to
co-worker harassment from that governing harassment by a
supervisor, applying to the former a variation of the negli-
gence standard the circuit had applied pre-Faragher.10

While the reasonableness of an employer's response to
sexual harassment is at issue under both standards, the
plaintiff must clear a higher hurdle under the negligence
standard, where she bears the burden of establishing her
employer's negligence, than under the vicarious liability stan-
dard, where the burden shifts to the employer to prove its
own reasonableness and the plaintiff's negligence. See Shaw

__________
10 See Richardson v. New York State Dep't of Correctional Servs.,
180 F.3d 426, 441 (2d Cir. 1999) (discussing Faragher and then
concluding "[i]n contrast, if the harasser is the victim's co-worker,
the employer will be liable only if it is negligent, that is, if it either
provided no reasonable avenue for complaint or knew of the harass-
ment and did nothing about it") (internal quotation marks omitted);
Mikels, 183 F.3d at 332 (no vicarious liability for co-worker harass-
ment); Sharp v. City of Houston, 164 F.3d 923, 929 (5th Cir. 1999)
(imposing liability if employer "knew or should have known of the
harassment in question and failed to take prompt remedial action"
and noting standard "was not disturbed by Faragher or Burling-
ton"); Hafford v. Seidner, 183 F.3d 506, 513 (6th Cir. 1999) (stating
"[e]mployer liability for co-worker harassment is based directly on
the employer's conduct" and employer is liable if it "knew or should
have known of the charged sexual harassment and failed to imple-
ment prompt and appropriate corrective action"); Wilson v. Chrys-
ler Corp., 172 F.3d 500, 508 (7th Cir. 1999) ("Liability for co-worker
harassment requires a showing of negligence ... [so] a plaintiff
must show that her employer failed to take reasonable steps to
discover and remedy the harassment."); Dhyne v. Meiners Thrift-
way, Inc., 184 F.3d 983, 987 (8th Cir. 1999) (noting distinction
between types of harassment and stating "[o]ur court has long
recognized that an employer may be directly liable ... if it knew or
should have known of the conduct and failed to take proper remedi-
al action"); Burrell v. Star Nursery, Inc., 170 F.3d 951, 955 (9th
Cir. 1999) (employer liable only for what management knew or
should have known in co-worker harassment scenario); Wilson v.
Tulsa Junior College, 164 F.3d 534, 541 n.4 (10th Cir. 1998) (noting
distinction between vicarious liability and negligence standard).

v. Autozone, Inc., 180 F.3d 806, 812 n.2 (7th Cir. 1999) ("[T]he
reasonableness of the employer's actions in preventing and
responding to sexual harassment is relevant under both stan-
dards, the difference being who bears the burden of proof.").
Indeed, in Faragher the Supreme Court reasoned that a
supervisor's harassment is both more detrimental (or threat-
ens to be) to the terms and conditions of an individual's
employment and more difficult to stop or have stopped than
similar behavior by a co-worker. See Faragher, 524 U.S. at
803. Moreover, the employer has a greater opportunity to
guard against the misconduct of supervisors than that of
fellow employees, see id., and, inversely, an employee has a
greater opportunity to stop harassment by a co-worker in the
first instance. See id. ("When a fellow employee harasses,
the victim can walk away or tell the offender where to go, but
it may be difficult to offer such responses to a supervi-
sor....").

Our circuit has not articulated an employer liability stan-
dard for co-worker harassment since the Faragher and El-
lerth decisions nor had it squarely done so before.11 Consis-
tent with the approach of our sister circuits recognized in
Faragher, 524 U.S. at 799, we announce the following stan-
dard:12 An employer may be held liable for the harassment of
one employee by a fellow employee (a non-supervisor) if the
employer knew or should have known of the harassment and

__________
11 In Vinson v. Taylor, 753 F.2d 141 (D.C. Cir. 1985), the court
distinguished, in a footnote, a case involving harassment by a
supervisor from those involving harassment by co-workers "who
differ radically from supervisors in the scheme of vicarious liabili-
ty." 753 F.2d at 147 n.45. And in a supervisor harassment case,
Gary v. Long, 59 F.3d 1391 (D.C. Cir. 1995), we noted without
comment the parties' recognition that the negligence standard
applies in certain circumstances. 59 F.3d at 1397.

12 Both parties get the standard wrong, to wit: Curry asserts that
the employer liability standard for supervisory harassment applies,
Br. of Appellee at 10-14, and the District proposes a modified
supervisory harassment standard for co-worker harassment, Br. of
Appellant at 28-31.

failed to implement prompt and appropriate corrective ac-
tion.13

Curry's complaint specified two kinds of harassment for
which we must determine whether a reasonable jury could
find that the District knew or should have known of the
harassment and failed to implement prompt and appropriate
corrective action.14 The first occurred from May 1994 to mid-

__________
13 The district court's jury charge used a negligence standard:
"Plaintiff must prove that management level employees knew or
should have known of the alleged sexual harassment ... and failed
to take immediate and appropriate corrective action." JA 742-43.
Delay inherent in personnel actions, however, particularly in large
organizations, does not necessarily render an otherwise reasonable
response inadequate. See Waymire v. Harris County, 86 F.3d 424,
429 (5th Cir. 1996) ("[I]n analyzing the promptness of response it is
important to keep in mind the entity's lines of command [and]
organization format.") (internal quotation marks omitted); see also
Dhyne, 184 F.3d at 988 ("An employer must be allowed some time
to gauge the credibility of the complainant and the seriousness of
the situation if we are to observe the Supreme Court's caution that
Title VII is not 'a general civility code for the American work-
place.' ") (quoting Oncale, 118 S. Ct. at 1002).

14 Given the differences in Freeman's behavior (explicitly sexual
verbal harassment at first and silent "glaring" subsequently) and,
more important, the manner in which Curry handled each (Curry
applied self-help to the verbal harassment and reported it after it
had ceased while she waited more than one year before complaining
about the glaring), we believe each kind of harassment, and the
District's responses thereto, should be analyzed separately. Cf.
Sabree v. United Bhd. of Carpenters and Joiners Local No. 33, 921
F.2d 396, 401-02 (1st Cir. 1990) (no continuing violation because
plaintiff "believed, at every turn, he was being discriminated
against" but failed to file timely claim for earlier incidents); Rush v.
Scott Specialty Gases, Inc., 113 F.3d 476, 483 (3d Cir. 1997)
(continuing violation where harassment intensified after plaintiff
filed EEOC charge); see generally West v. Philadelphia Elec. Co.,
45 F.3d 744, 755-56 (3d Cir. 1995) (in determining continuing
violation vel non, court considered similarity, continuity and fre-
quency of offensive conduct and whether harassment caused dis-
crete event triggering duty to assert rights); Berry v. Board of

August 1994 and consisted of Freeman's blatantly sexual
remarks. No supervisor ever heard them. Neither Curry
nor anyone else made them known to a supervisor or EEO
official until after the conduct had ceased. Although a rea-
sonable jury could have found from the evidence that Curry's
workplace was filled with sexual banter, that fact alone cannot
support a finding that the District should have known of
Freeman's harassment of Curry, especially in the absence of
any similar problems or complaints. The District had in
place a policy against harassment, it had made its policy
known and it had established an effective complaint proce-
dure. The District, therefore, was entitled to rely on its
employees to bring problems with their co-workers to its
attention.

Once Curry reported the harassment, the District respond-
ed quickly and reasonably. Major advised EEO Officer
Peacock of Curry's complaint even before Curry lodged a
formal complaint and Peacock began her investigation imme-
diately. Major also admonished Freeman that, if he was
harassing Curry, he was to stop immediately. The probable
cause finding four months later led to a similar warning by
Captain Dreher, the head of the Intelligence Unit. Although
the District took no formal disciplinary action, the clear,
prompt admonitions were appropriate and, at least for this
conduct, effective. Accordingly, we conclude that the evi-
dence supporting the verdict as to Freeman's verbal harass-
ment occurring between May and August 1994 was, at most,
"merely colorable," Smith, 135 F.3d at 782, and we therefore
reverse the district court's denial of the District's motion for
judgment as a matter of law to the extent it encompasses that
conduct.15

__________

Supervisors, 715 F.2d 971, 981 (5th Cir. 1983) (setting forth three
factors for determining if plaintiff alleges continuing violation: (1)
subject matter; (2) frequency; and (3) degree of permanence which,
inter alia, may trigger plaintiff's duty to assert rights).

15 Judge Wald is "puzzled" by this statement (Op. of Wald, J. at
1) and is "unclear what exactly the panel is reversing, and why."
(Id. at 1.) The jury verdict necessarily determined the District's

 According to Curry, the second type of harassment began
when the first ended. Thus, from mid-August 1994 until
her transfer in June 1996, Curry experienced sexual harass-
ment in the form of Freeman's glaring at her.16 Neverthe-

__________
liability for the verbal sexual harassment. The district court then
denied the District's motion for judgment as a matter of law and, to
the extent its denial reaffirmed the District's liability for the verbal
sexual harassment, we reverse that denial--in short the District is
not liable to the plaintiff for the verbal sexual harassment because it
had no notice of the conduct until after the conduct had ceased. Its
response once it learned of the conduct was appropriate as a matter
of law. The District is liable, however, for the subsequent nonver-
bal harassment, and we therefore partially affirm the district court's
denial of the District's post trial motion, because we cannot con-
clude as a matter of law that the District's response was appropri-
ate once it learned of the nonverbal harassment.

16 Although the District, in its post-trial motion below, disputed
the hostile work environment finding based on Freeman's glaring
JA 808, it does not raise the issue on appeal. If it had, this appeal
might have been disposed of at an earlier analytical stage, namely,
in determining whether the conduct is sufficiently severe to create a
hostile work environment. "Discriminatory conduct results in a
hostile work environment when it is so severe or pervasive that it
create[s] a work environment abusive to employees because of their
race, gender, religion, or national origin, thus offending Title VII's
broad rule of workplace equality." Park v. Howard Univ., 71 F.3d
904, 906 (D.C. Cir. 1995) (quoting Harris, 510 U.S. at 22) (internal
quotation marks omitted). In determining if the plaintiff satisfies
this requirement, the court must consider all of the circumstances,
including "the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an
employee's work performance." Harris, 510 U.S. at 23. Other
courts have held that a co-worker's staring, even when accompanied
by physical touching, is not conduct severe enough to alter the
terms and conditions of an individual's employment. See generally
Adusumilli v. City of Chicago, 164 F.3d 353, 357 (7th Cir. 1998)
(teasing plaintiff, police department employee, that waving at squad
cars makes her look like prostitute, comments to her about bananas,
rubber bands and low-neck tops, staring and attempts to make eye

less, Curry first brought this harassment to light on No-
vember 7, 1995 in response to a supervisor's inquiry. Until
then, the District reasonably believed all problems between
Curry and Freeman had been resolved. She never filed a
formal complaint regarding Freeman's glaring. In response
to the complaint Curry did voice to Simpson-Jones over the
telephone, however, an EEO officer (Bigelow) simply told
Freeman about the complaint, warned him against the ob-
jectionable conduct (which he denied) and requested that he
voluntarily transfer. EEO Director Wilmore then sent Cur-
ry a memorandum informing her the only available remedy
was her own transfer. In view of this evidence, especially
the fact that Freeman by this point was a "repeat offender,"
see Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 676 (10th
Cir. 1998),17 we cannot say that "the evidence and all rea-
sonable inferences that can be drawn therefrom are so one-
sided that reasonable men and women could not disagree"
on the adequacy of the District's response once it knew of
Freeman's glaring. Smith, 135 F.3d at 782. We therefore
affirm the district court's denial of the District's motion for

__________
contact and four isolated incidents in which co-worker briefly
touched plaintiff's arm, fingers or buttocks fall within the "safe
harbor for employers"); Shepherd v. Comptroller of Pub. Accounts,
168 F.3d 871, 874 (5th Cir. 1999) (stares and arm touching were not
severe where none was physically threatening or likely to under-
mine reasonable plaintiff's workplace competence).

17 "The employer is, of course, obliged to respond to any repeat
conduct; and whether the next employer response is reasonable
may very well depend upon whether the employer progressively
stiffens its discipline, or vainly hopes that no response, or the same
response as before, will be effective." 144 F.3d at 676; see also
Carter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999) ("Factors
in assessing the reasonableness of remedial measures may include
the amount of time that elapsed between the notice and remedial
action, the options available to the employer, possibly including
employee training sessions, transferring the harassers, written
warnings, reprimands in personnel files, or termination, and wheth-
er or not the measures ended the harassment.") (citations omitted)
(emphasis added).

judgment as a matter of law with regard to Freeman's
glaring.18

B.

The District challenges the district court's denial of its
post-trial motion requesting, in the alternative, remittitur of
the $100,000 damages award. See 9 F. Supp. 2d at 4. We
order remittitur only where, after a "detailed appraisal" of
the evidence bearing on damages, we find the award grossly
excessive. See Grunenthal v. Long Island R.R. Co., 393 U.S.
156, 159 (1968). An award is grossly excessive if "it is so

__________
18 In addition to challenging liability, the District appeals the trial
court's admission into evidence of portions of the DHR probable
cause report. Curry disputes that the District preserved its objec-
tion below, Br. of Appellee at 16, and the record is unclear on the
issue. Compare Reply Br. at 18 and JA 6-32 with JA 149-56, 371-
77. Assuming arguendo the District properly objected below, its
objection was based on Rule 403, Federal Rules of Civil Procedure,
and we believe the district court's reasons are sufficient for us to
conclude that it did not abuse its discretion in admitting the
evidence. See 9 F. Supp. 2d at 3-4.

The District also challenges the district court's failure to charge
the jury that an employee who at one time has a consensual
intimate relationship with a co-worker is obliged to tell the co-
worker that advances are no longer welcome. Whether familiarity
of a sexual nature is "unwelcome" is a question of fact. See
Meritor, 477 U.S. at 68 ("[T]he question whether particular conduct
was indeed unwelcome ... turns largely on credibility determina-
tions committed to the trier of fact, ... [and t]he correct inquiry is
whether respondent by her conduct indicated that the alleged
sexual advances were unwelcome...."). Here, the district court
properly presented to the jury Curry's and Freeman's past history
as a factor for it to consider in determining harassment vel non.
JA 743 ("The Defendant contends that Detective Curry had en-
gaged in welcome sexual conduct with Detective Freeman and
therefore, she had a burden to inform the District when the conduct
became unwelcome, which she failed to do."). The lapse of time
between the end of their relationship and the alleged harassment,
coupled with Freeman's persistence in spite of Curry's unrespon-
siveness, are sufficient to support a finding of harassment.

inordinately large as obviously to exceed the maximum limit
of a reasonable range within which the jury may properly
operate." Langevine v. District of Columbia, 106 F.3d 1018,
1024 (D.C. Cir. 1997) (quoting Williams v. Stewart Motor Co.,
494 F.2d 1074, 1085 (D.C. Cir. 1974)). We allow remittitur,
however, "only if the reduction permits the highest amount
the jury tolerably could have awarded." Langevine, 106 F.3d
at 1024 (quoting Carter v. District of Columbia, 795 F.2d 116,
135 n.13 (D.C. Cir. 1986)) (internal quotation marks omitted).

The jury's liability verdict itself reveals the district court's
legal error in denying a new trial on damages. As the trial
court's order makes clear, the court and the jury considered
the harassment beginning in May 1994, which consisted of the
"lizard" remarks, as well as the glaring that began some
three months later. With the District's liability limited to the
"glaring" harassment, Curry's damages must likewise be
limited: she can recover only for the glaring that occurred
after she reported it on November 7, 1995 and continued until
her departure in June 1996. At trial, however, the damages
evidence covered, as the district court emphasized, see
9 F. Supp. 2d at 4, a two year period as opposed to the eight
months for which the District can be held liable. Moreover,
Curry's physical problems, including acne, nightmares, head-
aches, loss of appetite and accompanying weight loss, oc-
curred sometime in 1994, nearly one full year, if not more,
before she reported the glaring. The corroborating testimo-
ny of both Curry's sister and Curry's prayer partner, which
described a "dramatic change in [Curry's] appearance and
behavior," 9 F. Supp. 2d at 4, related to late 1994.19

Curry's damages evidence also included the testimony of
her pastor and her supervisor after she transferred to the
Court Intelligence Unit in June 1996. Curry's pastor, Rever-
end Thomas J. Baltimore, testified that he had counseled her
for more than three years. The two worked "through a

__________
19 Although her sister testified that Curry's acne was "just now
starting to clear," JA 426, Curry testified only to physical problems
that developed "when [the harassment] first started occurring." JA
170.

number of crises" which, apart from the workplace harass-
ment, included her father's death and "conflicts" with other
family members and fellow church members. JA 477-78.
Baltimore testified that he continued to counsel Curry, who
"worries [him] to death." JA 477. William E. Wagner, her
supervisor after she transferred, testified that Curry was
emotionally upset in July 1996, manifested by her difficulty in
concentrating and sitting still and by "paranoi[a] in her
work."20 JA 472. Curry eventually told him that her prob-
lems related to the pending sexual harassment litigation.
Curry also testified that she was reluctant to seek counseling
from a psychiatrist or psychologist because she feared it
would jeopardize her eligibility to obtain a higher level of
security clearance which she eventually attained.

In my view, the damages award exceeds "the maximum
limit of a reasonable range" of damages for Freeman's glar-
ing harassment which occurred over a period of eight months
and caused Curry some degree of emotional upset. Although
Freeman and Curry apparently had nearby offices during
that time, they no longer worked together. Assuming the
glaring occurred every time Curry saw Freeman, her contact
with him was isolated, incidental to her law enforcement
duties and passing. On these facts, I believe that an award of
$100,000 in damages is grossly excessive. See, e.g., Hutchin-
son v. Stuckey, 952 F.2d 1418, 1422 (D.C. Cir. 1992) ($50,000
was excessive for permanent "significant injury" to finger);
Johnson v. Parrish, 827 F.2d 988, 991 (4th Cir. 1987)
($150,000 was excessive for partially disabling neck and arm
injury).

III.

For the foregoing reasons, the district court's denial of the
District's motion for judgment as a matter of law or, in the

__________
20 Wagner described Curry's paranoia as follows: "She would do
something and immediately bring it to me for approval to see if it
was done properly. Overly to the point where I spent a lot of time
just overlooking her work that she did because she would keep
bringing it to me." JA 472.

alternative, for a new trial or remittitur is affirmed in part,
that is, as it relates to the District's liability for the sexual
harassment Curry first reported in November 1995. With
regard to the District's liability for harassment occurring
before that date, the district court's denial of the motion for
judgment as a matter of law is reversed. I would remand the
damages award to the district court for further proceedings
consistent with this opinion. See Hutchinson, 952 F.2d at
1423 n.5.

 Wald, Circuit Judge: The Supreme Court recently defined
negligence by an employer in the Title VII context: "An
employer is negligent with respect to sexual harassment if it
knew or should have known about the conduct and failed to
stop it." Burlington Indus. v. Ellerth, 524 U.S. 742, 759
(1998). There is ample evidence in this record to support the
jury's verdict that the District of Columbia was negligent in
not stopping the sexual harassment of Det. Cynthia Curry by
Det. Condwell Freeman, and that because of its negligence
Curry suffered $100,000 worth of damages.

At the outset, I agree with my colleagues that no finding of
liability could be sustained against the District based solely
on its conduct in the period May-August 1994, since there is
not sufficient evidence on this record that the District was on
notice of Freeman's harassing behavior until Curry's com-
plaint in September 1994.1 I am somewhat puzzled, however,
by my colleagues' statement that "we ... reverse the district
court's denial of the District's motion for judgment as a
matter of law to the extent it encompasses that conduct."
Henderson Op. at 11. The district court was quite clear in its
denial of the District's motion for judgment as a matter of law
(j.m.l.) that "[t]here was sufficient evidence introduced at trial
that would support a finding of continued harassment after
the time Defendant claims it had notice." Curry v. District
of Columbia, 9 F. Supp. 2d 1, 3 (D.D.C. 1998) (emphasis
added). Since there is no reason to believe the district
court's order was based on faulty analysis, I am unclear what
exactly my colleagues are reversing, and why.

__________
1 This is not to say, of course, that actual notice is always
required to hold an employer liable for co-worker sexual harass-
ment under Title VII. See, e.g., Williamson v. City of Houston, 148
F.3d 462, 465 (5th Cir. 1998) ("[c]onstructive notice can result from
showing the pervasiveness of the harassment.") (internal quotation
marks omitted); Adler v. Wal-Mart Stores, Inc., 144 F.3d 644, 673
(10th Cir. 1998) ("[M]any courts have held that the pervasiveness of
sexual harassment can properly lead to an inference of knowl-
edge."); Hall v. Gus Constr. Co., 842 F.2d 1010, 1016 (8th Cir. 1988)
(incidents of harassment so numerous that employer held liable for
not discovering and ending harassment).

 It appears that my colleagues, the district court, and I all
agree that the District can be found liable for harassment
which occurred after it had notice. See Henderson Op. at 9-
10, 11-12 n.15. The only question before us then is whether
the damages the jury awarded Curry are "beyond all reason
or so great as to shock the conscience. Courts may not set
aside a jury verdict merely deemed to be generous; rather,
the verdict must be so unreasonably high as to result in a
miscarriage of justice." Langevine v. District of Columbia,
106 F.3d 1018, 1024 (D.C. Cir. 1997) (internal quotation marks
and citation omitted). In my view, the jury's award of
$100,000 to a police officer who suffered years of harassment
does not remotely qualify as a miscarriage of justice, whether
Curry can recover for damages incurred before November 7,
1995, as I would find, or only for damages incurred after that
date, as my colleagues find.

"[T]he jury's verdict will withstand challenge unless the
evidence and all reasonable inferences that can be drawn
therefrom are so one-sided that reasonable men and women
could not disagree on the verdict." Swanks v. WMATA, 179
F.3d 929, 933 (D.C. Cir. 1999) (quotation marks omitted). I
believe on the evidence in the record a reasonable jury could
have found the following facts.

Curry was harassed continually from May 1994 until she
transferred out of her unit in June 1996. At first, the
harassment took the form of daily requests for sexual favors,
which Curry testified she told Freeman were not appreciat-
ed.2 After Curry brought this verbal harassment to her
supervisor's attention, he went to Freeman and asked him "to
stop whatever you are doing to Cindy." J.A. at 786. Free-
man then threatened to sue Curry if she pursued a harass-
ment complaint, and said he would "take [her] home and [her]
automobile." J.A. at 779. Freeman stopped making his daily
requests for sex, but instead began to harass her by glaring

__________
2 Curry stated she did not complain at first about Freeman's
behavior because, based on what she had seen happen to other
female police officers, she did not think it would be good for her
career if she complained. She seems to have been prescient in that
regard.

at her in an intimidating way and by staring at her as if he
were mentally undressing her.3 After a month or two of this
behavior, Curry sought a transfer out of her office to avoid
Freeman.

The Metropolitan Police Department investigated Curry's
complaint and concluded that there was probable cause that
Freeman was verbally harassing Curry. However, the De-
partment was unable to take any action against Freeman
because its investigation took roughly four months, and then-
D.C. law prohibited disciplining an MPD employee more than
45 working days after the Department had notice of the cause
for discipline. MPD could not even transfer Freeman to
another unit without his consent, which he declined to give.
Freeman's supervisor testified that he did not learn the

__________
3 I disagree with the gratuitous dicta in Judge Henderson's
opinion that Freeman's glares may not have been sufficiently severe
to be actionable under Title VII. See Henderson Op. at 12-13 n.16.
Whether harassing behavior was sufficient to create a hostile work
environment is an intensely fact-based question. See Howard v.
Burn Bros., 149 F.3d 835, 840 (8th Cir. 1998) ("Once there is
evidence of improper conduct and subjective offense, the determina-
tion of whether the conduct rose to the level of abuse is largely in
the hands of the jury."); Paroline v. Unisys Corp., 879 F.2d 100,
105 (4th Cir. 1989) ("Whether Moore's harassment was sufficiently
severe or pervasive is quintessentially a question of fact."), vacated
in part on other grounds, 900 F.2d 27 (4th. Cir. 1990) (en banc).
The fact that other courts have found harassing behavior which
included staring not to be actionable does not establish any sort of
generalization that "a co-worker's staring, even when accompanied
by physical touching, is not conduct severe enough" to be action-
able. Henderson Op. at 12 n.16. There was ample evidence
presented that Freeman's harassment affected Curry's ability to
work, and it is far from clear that no reasonable person would have
been affected by Freeman's intimidation tactics. Cf. Shepherd v.
Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir. 1999)
(finding boorish behavior not actionable because it did not under-
mine plaintiff's workplace competence); see also Saxton v. Ameri-
can Tel. & Tel. Co., 10 F.3d 526, 536 n.18 (7th Cir. 1993) (mere
presence of an employee who has engaged in particularly severe
harassment can create hostile work environment); Ellison v. Bra-
dy, 924 F.2d 872, 883 (9th Cir. 1991) (same).

results of the Department's investigation of Freeman until
trial, and expressed his view that "[i]t would gain the Depart-
ment nothing for me to know" that the investigation had
found probable cause that Freeman was harassing Curry.
J.A. at 537. Similarly, a year later, when Curry complained
about the constant glaring she was experiencing, the MPD
told her that it was unable to do anything to help her.4
Meanwhile, Curry was ostracized as a result of the complaints
she filed.

Given this record evidence, I cannot credit my colleague's
confident assertion that the District "had established an
effective complaint procedure." Henderson Op. at 11. The
record shows that the only results of Curry's two complaints
made a year apart were requests that Freeman stop harass-
ing Curry (which did not stop the harassment), an investiga-
tion which substantiated Curry's allegations (but whose re-
sults were never shared with Freeman's supervisor), and the
ostracism of Curry.5

This meager response is not, in my view, consistent with
what courts have required of a reasonable employer under
Title VII. "Title VII requires more than a mere request to
refrain from discriminatory conduct." Ellison v. Brady, 924

__________
4 An officer did ask Freeman to stop harassing Curry, but that
request had no effect.

5 In its effort to support the notion that the District acted
"quickly and reasonably," Judge Henderson's opinion considerably
overstates the evidence about what Freeman's supervisors said to
him. See Henderson Op. at 11. Far from issuing "clear, prompt
[and effective] admonitions," id., Freeman's supervisors merely
indicated in general terms that sexual harassment was not accept-
able, and that if it was going on it should stop. See J.A. at 340-43,
496. There was no evidence that once the MPD concluded that
Freeman had been harassing Curry it said anything more serious to
him. In fact, the Department did not think it necessary to share
the results of the investigation with Freeman's supervisor. Fur-
ther, I do not consider the "admonitions" to have been effective or
adequate, since their only apparent effect was to convert Freeman's
harassment from verbal requests for sex into silent but intimidat-
ing, sexually evaluative stares.

F.2d 872, 882 (9th Cir. 1991). Where evidence of harassment
exists, an employer cannot avoid liability by simply making
known a general policy against harassment. See Jackson v.
Quanex Corp., -- F.3d --, --, 1999 WL 707766 at *17 (6th
Cir. Sept. 9, 1999); Adler v. Wal-Mart Stores, Inc., 144 F.3d
664, 676 (10th Cir. 1998) ("Courts have explained that simply
indicating to a perpetrator the existence of a policy against
harassment is usually insufficient."); cf. J.A. at 342-43 (Capt.
Dreher testifying that "in the aftermath" of Curry's com-
plaint, he "let it be known verbally to my officials to pass
along that it wouldn't be tolerated in the workplace"). This
court has previously found that agency managers should
"promptly take all necessary steps to investigate and correct
any harassment, including warnings and appropriate disci-
pline directed at the offending party." Bundy v. Jackson,
641 F.2d 934, 947 (D.C. Cir. 1981) (Wright, J.); accord
Yamaguchi v. United States Dep't of the Air Force, 109 F.3d
F.3d 1475, 1482 (9th Cir. 1997) (remedial measures must be
reasonably calculated to end the current harassment and to
deter future harassment).

It is undisputed that Freeman was never disciplined for his
harassment. At the very least, a reasonable juror could
conclude that the failure to take any action against Freeman
for his verbal harassment contributed to Freeman's decision
to continue to harass Curry by staring at her. "Employers
send the wrong message to potential harassers when they do
not discipline employees for sexual harassment." Ellison,
924 F.2d at 882. "Title VII does not permit employers to
stand idly by once they learn that sexual harassment has
occurred. To do so amounts to a ratification of the prior
harassment." Fuller v. City of Oakland, 47 F.3d 1522, 1529
(9th Cir. 1995). "In such instances, the combined knowledge
and inaction may be seen as demonstrable negligence, or as
the employer's adoption of the offending conduct and its
results, quite as if they had been authorized affirmatively as
the employer's policy." Faragher v. City of Boca Raton, 524
U.S. 775, 789 (1998). Thus I believe that under precedent
from the Supreme Court, this court, and our sister circuits,
the District could be held liable for failing to take action to

deter future harassment once it had knowledge of the harass-
ment in September 1994.

A reasonable juror, admittedly, might have concluded that
the District's "admonitions" were sufficient to deter future
harassment. Compare Yamaguchi, 109 F.3d at 1483 ("[T]o
avoid liability an employer must take at least some form of
disciplinary action against a harassing co-worker ...."), with
Knabe v. Boury Corp., 114 F.3d 407, 412 n.8, 414 (3d Cir.
1997) (remedy may be adequate as a matter of law even
where it fails to stop harassment, so long as it could reason-
ably have been expected to deter harassment; punitive action
not always necessary). But surely a reasonable juror would
not be compelled to reach that conclusion. See, e.g., Adler,
144 F.3d at 676 ("Repeat conduct may show the unreason-
ableness of prior responses."); Paroline v. Unisys Corp., 879
F.2d 100, 106-07 (4th Cir. 1989) (reasonable fact finder could
conclude that severe warning, delayed salary increase, and
similar punitive measures not adequate remedies), vacated in
part on other grounds, 900 F.2d 27 (4th Cir. 1990) (en banc).

My colleagues override the jury and the district court in
finding that the District cannot be held liable for harassment
occurring between September 1994 and November 1995 by
viewing the two phases of Freeman's harassment, the verbal
phase and the staring phase, as totally separate and uncon-
nected. It is of course possible that a reasonable juror could
also view the situation in such a fragmented way, so that
Curry's complaint about the verbal aspect of Freeman's be-
havior provided no notice to the District that Freeman might
continue to harass her in other ways, and thus the District
had no remedial obligation following notice of the verbal
harassment because it did not recur in that precise form.
But cf. Fuller, 47 F.3d at 1529 (city always has obligation to
take remedial actions against harasser once it learns of
harassment); Paroline, 879 F.2d at 107 (employer's knowl-
edge of prior harassment sufficient to impute liability for
later harassment in the absence of adequate remedial mea-
sures).

 However, it certainly cannot be assumed that all reasonable
jurors would have to view the evidence of harassment in that
compartmentalized way. In fact, it does not appear the MPD
itself understood Curry's complaint about glaring as com-
pletely separate from the earlier harassment. If it had, then
nothing would have barred the Department from disciplining
Freeman for the glaring--because the 45-day clock was
triggered only when the Department learned of a reason for
discipline. Yet, when Curry complained that Freeman's glar-
ing was creating a hostile work environment, the MPD told
her, in less than 40 days, that it was unable to take any action
to solve the problem. The only reasonable explanation for
that powerlessness is that the Department was already on
notice of Freeman's behavior, but had failed to act within 45
days.6 Thus, the MPD believed that Freeman could not be
transferred in December 1995, because the MPD had been on
notice of his harassment since September 1994. But yet my
colleagues say that Curry cannot recover for pre-November
1995 damages, because the MPD was not on notice of Curry's
ongoing problems with Freeman until November 1995. That
result may make sense to my colleagues, but surely not every
reasonable juror would be compelled to so conclude.

My colleagues also assert that the District could not rea-
sonably be faulted during the period when the verbal harass-
ment had ceased and Curry had not yet complained to anyone
of the staring. But I do not believe that Title VII law
supports such a demarcation between the two types of
harassment such that the District's obligation to monitor the
type of harassment it knew about necessarily stops at the line

__________
6 Judge Henderson suggests the possibility that it was the MPD's
collective bargaining agreement (CBA) that prevented the transfer
of Freeman in December 1995. See Henderson Op. at 6 n.7.
However, Lt. Peacock's testimony was that the CBA prevented the
MPD from transferring an officer as an alternative to discipline,
where discipline was barred by the 45-day rule. See J.A. at 311-
12. Where the 45-day rule was not a barrier to discipline, Sgt.
Major testified that transfer of the offending officer was the usual
practice when there was probable cause to believe one officer had
sexually harassed another officer. See J.A. at 537-38.

where a new kind of harassment begins. The District was on
notice that an identified employee had been harassing a co-
worker; it may therefore be held responsible for failing to
prevent the continuation of that harassment, whether in the
same form or a different form, and whether reported or not.
See Sharp v. City of Houston, 164 F.3d 923, 931 (5th Cir.
1999) (police department liable for harassment despite lack of
complaint by plaintiff where officer had made harassing re-
marks in past to other women officers; "despite having been
put on notice that [he] might be a problem, [the department]
had made no effort to supervise or constrain his behavior");
Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777,
784 (10th Cir. 1995) (prior harassment of other women can
serve as sufficient notice to hold employer liable for harassing
conduct of co-worker); Paroline, 879 F.2d at 107 (same);
Yates v. Avco Corp., 819 F.2d 630, 635-36 (6th Cir. 1987) (fact
that company was aware that supervisor had harassed women
in past and took no remedial action could establish construc-
tive notice of later harassment because it was evidence of
harassing tendencies and of the failure of company's anti-
harassment policy).

Finally, I believe my colleagues misunderstand the extent
of an employer's liability for co-worker harassment. Judge
Henderson's opinion appears to suggest that an employer's
liability only extends to the harassment which occurred after
the point at which it had knowledge. But that is not what the
cases say. See Fuller, 47 F.3d at 1529 (employer who fails to
take appropriate remedial action after notice liable for past
harassment even where harassment stopped after employer
received notice); see also Knabe, 114 F.3d at 413-14 (consid-
ering whether employer's response was sufficiently reason-
able to avoid liability despite fact that plaintiff had quit the
day employer responded to her complaint). In fact, the
Supreme Court has also indicated that an employer's failure
to remedy harassment may constitute ratification of past
harassment: "[T]he combined knowledge and inaction may be
seen as ... the employer's adoption of the offending conduct
and its results, quite as if they had been authorized affirma-
tively as the employer's policy." Faragher, 524 U.S. at 789;

accord Fuller, 47 F.3d at 1529 (employer's failure to act
"amounts to a ratification of the prior harassment"). Thus,
regardless of the District's knowledge vel non of Freeman's
harassment prior to November 7, 1995, its failure to act after
that date could be found to constitute "adoption" of Free-
man's conduct up to that point.7

In the end, we have before us here a classic case of
harassment. The evidence shows that Curry was harassed on
a continuous basis from May 1994 until June 1996, with only
partial relief occasioned by her repeated efforts to transfer
away from Freeman, which were temporarily successful in
1995 and finally successful in 1996. The MPD knew of
Curry's allegations in September 1994, and concluded they
were justified in January 1995. However, MPD was prohibit-
ed from doing anything to effectively address the problem by
the 45-day rule, so the only actions ever taken in response
were vague requests that if harassment were going on, it
should stop. Unsurprisingly, given these circumstances, the
harassment did not stop, although it changed to a more subtle
form. This case falls squarely within Ellerth: "An employer
is negligent with respect to sexual harassment if it knew or
should have known about the conduct and failed to stop it."
524 U.S. at 759; see also Faragher, 524 U.S. at 789 ("[c]om-
bined knowledge and inaction may be seen as demonstrable
negligence ...."). Thus, I cannot agree with my colleagues
that Curry can recover only for harassment which occurred
after November 7, 1995.

In sum, I believe that the jury would have been fully
justified in awarding Curry compensation for damages suf-
fered before November 1995. But, more than that, I do not
believe that the award of $100,000 was excessive, even adopt-

__________
7 There is no reason why this approach is inconsistent with Title
VII's " 'primary objective' " of preventing harassment, Faragher,
524 U.S. at 806, since an employer who acts appropriately once it
has knowledge will never be liable. On the contrary, it would be
strange if the particular date on which an employee made a futile
complaint had significance for the amount of damages for which she
could recover.

ing my colleagues' view that compensable damages could only
accrue beginning in November 1995.8 Judge Henderson
states that "the jury considered the harassment beginning in
May 1994." Henderson Op. at 15. The jury returned a
general verdict. There is simply no evidence in the record as
to when the jury found that damages began to accrue, and
this court is required to uphold the jury's verdict if there is
any reasonable basis for it.9 Judge Henderson's opinion
appears to assume that because the jury heard evidence of
damages dating back to 1994, the jury's damage award was
based on the period 1994-1996, and therefore the jury would
have awarded less had it confined itself to the period after
November 1995. This inference is irrelevant to our review of
a jury verdict. We do not sit to second-guess the jury; we
can only order remittitur if the verdict is "beyond all reason."
Langevine, 106 F.3d at 1024. A reasonable jury could well
have found that the harassment which occurred from Novem-
ber 1995 to June 1996, when Curry left the unit, caused
Curry to suffer $100,000 in damages, especially when viewed
against the backdrop of Freeman's prior harassment.

Similarly, Judge Henderson's opinion appears to place
great weight on the fact that Curry's physical problems began
to manifest themselves in 1994, "nearly one full year, if not
more, before she reported the glaring." Henderson Op. at
15. The fact that Curry had suffered prior to November in
no way detracts from her damages from November onward.
Curry testified she had nightmares and felt the need to sleep

__________
8 It is not at all clear on what basis Judge Henderson's opinion
asserts, without citation to the record, that Curry's contact with
Freeman after November 1995 was "isolated, incidental ... and
passing." Henderson Op. at 16. Freeman testified that during this
time his office was roughly 25 feet from her desk. J.A. at 592. I
do not see how that fact supports an inference that the two had
merely isolated and passing contact with one another, particularly
given our deferential standard of review for a jury verdict. See
Swanks v. WMATA, 179 F.3d 929, 933 (D.C. Cir. 1999).

9 Thus, there is no basis in the record for the assertion that "[t]he
jury verdict necessarily determined the District's liability for the
verbal sexual harassment." Henderson Op. at 11-12 n.15.

with her gun next to her pillow. Her skin broke out, she had
headaches, and lost her appetite. Other witnesses testified
that she became extremely nervous and would call her sister
almost every night, very late, crying.

Moreover, I can find no evidence to support the suggestion
that damages ceased to accrue in June 1996. See Henderson
Op. at 15 (evidence on damages went beyond "the eight
months for which the District can be held liable"). William
Wagner supervised Curry after her transfer in June 1996,
and he testified that, even in the absence of Freeman, she
was "really emotionally upset." J.A. at 470. "[S]he was
having problems concentrating with the things that I was
trying to discuss with her, almost to the point that she was in
tears." Id. at 471. Curry's sister testified that Curry's skin
problems were, in March 1998, "just now starting to clear."
Id. at 426. Curry's sister also testified that Curry's face was
still "drawn in ... this is not what my sister looked like
[before 1994]." Id. at 427. Similarly, her pastor testified
that he had been counseling her, trying to help her regain her
confidence, from late 1994/early 1995 at least until trial in
March 1998.

The question then that the jury had to decide was what
amount would compensate Curry for the damage she suffered
from Freeman's harassment that can be attributed to the
District's negligence. There was substantial evidence before
the jury that Curry's damages continued until the time of
trial, and perhaps have continued to this day. Cf. id. at 806
(court instructing jury that it could award damages for "emo-
tional and mental anguish and anxiety the Plaintiff has suf-
fered or will continue to suffer") (emphasis added).

"A court must be especially hesitant to disturb a jury's
determination of damages in cases involving intangible and
non-economic injuries." Langevine, 106 F.3d at 1024. I see
no basis for concluding that an award of $100,000 for eight
months of harassment and years of stress is "beyond all
reason." Cf. id. ($200,000 for largely emotional distress
damages from false arrest not excessive); Smith v. Northwest
Fin. Acceptance, Inc., 129 F.3d 1408, 1417 (10th Cir. 1997)

($200,000 emotional distress damages not excessive where
plaintiff's symptoms included headaches, sleeplessness, and
frequent crying); Kientzy v. McDonnell Douglas Corp., 990
F.2d 1051, 1062 (8th Cir. 1993) (damages of $125,000 for past
emotional distress and $25,000 for future emotional distress
from discriminatory discharge not excessive); see also Ruiz v.
Gonzalez Caraballo, 929 F.2d 31, 34 (1st Cir. 1991) ("[T]rans-
lating legal damage into money damages--especially in cases
which involve few significant items of measurable economic
loss--is a matter peculiarly within a jury's ken.") (quotation
marks omitted).

In sum, I do not believe that Curry could only recover
damages which accrued after November 7, 1995. Even if I
did, however, I would still find the jury's verdict a sustainable
and reasonable one.

For these reasons, I would affirm the district court's deci-
sion in its entirety and I concur in the decision not to require
remittitur of the jury verdict.

 Randolph, Circuit Judge, concurring: I join all of Judge
Henderson's opinion except for Part II-B. For the reasons
given by Judge Wald regarding the period after October
1995, I agree that the jury's award of $100,000 must be
sustained.