Morrison v. Carleton Woolen Mills, Inc.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1224

DARLENE F. MORRISON,

Plaintiff, Appellee,

v.

CARLETON WOOLEN MILLS, INC. and MICHAEL RILEY,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Boyle,* Senior District Judge.

David J. Kerman with whom Robert Lewis and Jackson, Lewis,

Schnitzler & Krupman were on briefs for appellants.

Peter B. Bickerman with whom Robert J. Stolt, Walter F. McKee and

Lipman & Katz, P.A. were on brief for appellee.

March 19, 1997

*Of the District of Rhode Island, sitting by designation.

CAMPBELL, Senior Circuit Judge. These appeals and

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

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.

Trial before a jury began in the district court on

October 4, 1994.1 The Title VII claims of sexual harassment

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

Landgraf v. USI Film Products, 511 U.S. 244 (1994). The ADA

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

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,

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

district court's determination de novo, applying the same

standards. Id.

Our review of a district court's own findings of

fact is for clear error only; we review its legal rulings de

novo. Damon v. Sun Co., Inc., 87 F.3d 1467, 1483 (1st Cir.

1996).

IV.

A. Sexual Harassment (Count I)

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.

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

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

Bowen v. Department of Human Servs., 606 A.2d 1051, 1053 (Me.

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

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) (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;

see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 23

(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,

477 U.S. at 67)4, this court held that, for sexual harassment

4. We note that the plaintiff's claims in Lipsett actually

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

"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.

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,

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

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

court also found that Morrison "'subjectively perceive[d] the

environment to be abusive.' Id." This hostile environment

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

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

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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-