White v. New Hampshire Department of Corrections

United States Court of Appeals
For the First Circuit

No. 99-1818

SHERRI WHITE,

Plaintiff, Appellee,

v.

NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Boudin, Circuit Judge.

Nancy J. Smith, Assistant Attorney General, with whom Philip T.
McLaughlin, Attorney General, was on brief for appellant.

Michael J. Sheehan for appellee.

August 2, 2000
2
 BOWNES, Senior Circuit Judge. The plaintiff-appellee, Sherri

White, brought suit in the United States District Court for the

District of New Hampshire against the defendant-appellant, the New

Hampshire Department of Corrections (“DOC”), alleging violations of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000h-6,

and state law claims of wrongful discharge and intentional infliction

of emotional distress.1 Specifically, the plaintiff claimed that she

was the victim of direct sexual harassment, of a hostile work

environment, and of retaliation after she complained of the harassment.

The defendant moved for summary judgment on the sexual

harassment claim. The court (Barbadoro, J.) denied the motion and the

case proceeded to trial. The defendant moved in limine to limit

evidence to issues in the administrative complaint and the federal

complaint. The district court denied this motion. At the close of the

plaintiff's case, the defendant moved for judgment as a matter of law.

The district court took the motion under advisement. The court charged

the jury, and the defendant objected to part of the charge.

Defendant's objection was overruled and the court submitted the case to

the jury. The jury returned a verdict for the plaintiff on all three

claims with an award of damages in the amount of $45,000.00. The

1 Following an uncontested motion by the DOC, the district
court dismissed the state law claims.

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defendant renewed its motion for judgment as a matter of law verbally

when the verdict was returned and thereafter in writing. The district

court denied the defendant's motions, and this appeal followed.

On appeal, the defendant presents essentially three issues

for review: (1) the plaintiff did not present sufficient evidence to

support her claims of sexual harassment, hostile work environment,

retaliation, and that the plaintiff had not proven that the defendant

was liable for the acts of its employees;2 (2) the district court erred

in denying the defendant's motion in limine to exclude evidence; and

(3) the district court improperly instructed the jury by misstating the

law. For the reasons stated below, we affirm the district court in all

respects.

I. Facts

We briefly describe the facts here, but discuss them in

greater detail where applicable and necessary for our discussion. The

plaintiff was hired as a corrections officer (“CO”) at the New

Hampshire State Prison in Concord, New Hampshire in January 1993. She

was qualified for the CO position and received positive evaluations in

January 1994 and 1995. In early 1995, the plaintiff became a “direct

supervision officer” (“DSO”) for the inmates housed in the Hancock Unit

(“H-Building”). In May of 1995, the plaintiff became the DSO of “B

2 The plaintiff had sued only the DOC; she had not sued any of
its employees individually.

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Pod.” Shortly thereafter, tensions developed between some of the other

employees and the plaintiff. Some of these tensions were expressed in

statements of a sexual nature directed at the plaintiff.

The plaintiff filed a complaint with the Discrimination

Review Committee (“DRC”) of the DOC on November 3, 1995 alleging sexual

harassment. She also filed a copy of her complaint with the New

Hampshire Human Rights Commission and the Equal Employment Opportunity

Commission. The plaintiff's suit in the district court followed. The

plaintiff alleged that, after she filed her administrative complaint,

the DOC and its employees retaliated against her.

II. Sufficiency of the Evidence

The defendant argues before us that the district court erred

when it denied the defendant's motion for summary judgment and motions

for judgment as a matter of law. The DOC claims that the plaintiff did

not provide sufficient evidence to prove the plaintiff's allegations.

Even assuming that the decision is reviewable on this appeal

- a matter on which we take no view - there is no point in discussing

the court's ruling on the summary judgment motion separately from our

treatment of the denial of the defendant's motions for judgment as a

matter of law. This is because we find that the evidence supports the

judge's denial of the motions for judgment as a matter of law3 and this

3 Federal Rule of Civil Procedure 50(a) governs motions for
judgment as a matter of law:

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amounts to an affirmance of the court's denial of the summary judgment

motion.

We review the court's denial of defendant's motions for

judgment as a matter of law de novo, but examine the evidence and

inferences therefrom in the light most favorable to the plaintiff. See

Foster-Miller, Inc. v. Babcock & Wilcox Canada, 210 F.3d 1, 7 (1st Cir.

2000). We may reverse only if a reasonable person could not have

reached the conclusion of the jury. See Negron-Rivera v. Rivera-

Claudio, 204 F.3d 287, 289-90 (1st Cir. 2000). In conducting our de

novo review, we “may not consider the credibility of witnesses, resolve

conflicts in testimony, or evaluate the weight of the evidence." Katz

v. City Metal Co., 87 F.3d 26, 28 (1st Cir. 1996) (internal quotation

marks omitted). The Supreme Court has stated that when “entertaining

a motion for judgment as a matter of law, the court should review all

of the evidence in the record. In doing so, however, the court must

draw all reasonable inferences in favor of the nonmoving party, and it

may not make credibility determinations or weigh the evidence.” Reeves

(1) If during a trial by jury a party has
been fully heard on an issue and there is no
legally sufficient evidentiary basis for a
reasonable jury to find for that party on that
issue, the court may determine the issue against
that party and may grant a motion for judgment as
a matter of law against that party with respect
to a claim or defense that cannot under the
controlling law be maintained or defeated without
a favorable finding on that issue.

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v. Sanderson Plumbing Prods., Inc., U.S. , 120 S. Ct. 2097, 2110

(2000).

Once a jury renders a verdict, a “heavy burden” is placed on

one who challenges it. See United States v. Scharon, 187 F.3d 17, 20

(1st Cir. 1999) (citations omitted). We stated that:

One who challenges the sufficiency of the
evidence bears a heavy burden: he must show that
no rational jury could have found him guilty
beyond a reasonable doubt. . . . We review the
sufficiency of the evidence as a whole, in a
light most favorable to the verdict, taking into
consideration all reasonable inferences. . . . We
resolve all credibility issues in favor of the
verdict. . . . The evidence may be entirely
circumstantial, and need not exclude every
hypothesis of innocence; that is, the factfinder
may decide among reasonable interpretations of
the evidence.

Id.

Title VII of the Civil Rights Act of 1964 makes it “an

unlawful employment practice for an employer . . . to discriminate

against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual's

race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-

2(a)(1). The Supreme Court has stated that,

this language is not limited to 'economic' or
'tangible' discrimination. The phrase 'terms,
conditions, or privileges of employment' evinces
a congressional intent to strike at the entire
spectrum of disparate treatment of men and women
in employment, which includes requiring people to

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 work in a discriminatorily hostile or abusive
environment.

Harris v. Forklift Sys., 510 U.S. 17, 21 (1993) (some internal

quotation marks omitted); see also Meritor Sav. Bank v. Vinson, 477

U.S. 57, 64 (1986); Los Angeles Dep't of Water and Power v. Manhart,

435 U.S. 702, 707 n.13 (1978).

“When the workplace is permeated with discriminatory

intimidation, ridicule, and insult that is sufficiently severe or

pervasive to alter the conditions of the victim's employment and create

an abusive working environment, Title VII is violated.” Oncale v.

Sundowner Offshore Servs., 523 U.S. 75, 78 (1998) (internal quotation

marks omitted) (quoting Harris, 510 U.S. at 21). The Supreme Court

directs us to “determine whether an environment is sufficiently hostile

or abusive by looking at all the circumstances, including the frequency

of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether

it unreasonably interferes with an employee's work performance.”

Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998) (internal

quotation marks omitted); Harris, 510 U.S. at 23.

After careful review of the entire record, we hold that the

facts adduced were sufficient for the jury verdict. We review the

evidence on sexual harassment and a hostile work environment.

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 The plaintiff pointed to numerous comments made by other

employees either to or about her which were “sufficiently severe or

pervasive to alter the conditions of [her] employment and create an

abusive working environment.” Oncale, 523 U.S. at 78. The record

reflects that Officer Colby (a male employee at the DOC who held the

same position as the plaintiff) wanted to “keep an eye” on the

plaintiff because he believed she was having a sexual affair with

inmate York. Officer Colby told other employees: “I think she's in

there blowing him and screwing him.”4 Officer Colby referred to the

plaintiff as “Mrs. York.” Inmates also referred to the plaintiff as

“Mrs. York” because of the conversations they either heard or had with

other prison employees.

The plaintiff also evinced that sexual conversations and

jokes were common at the DOC. The male employees graphically spoke of

their evenings at clubs and bars, read pornographic magazines at work,

discussed the size of mens' penises and stared at women's breasts. Two

male employees openly discussed their experiences with Prozac and how

it affected their sex lives. A sergeant stated: “Oh, yeah, it will go

up but it won't go down.” A corporal explained that he had trouble

getting an erection, and said to the plaintiff: “Sherri, I'd have to

tip you upside down and dunk you like a tea bag.” Plaintiff alleged

that another employee said to her: “Gee, [the corporal] owed me a blow

4 There is no evidence in the record to support this statement.

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job for today, but seeing as though he's not here, you want to take

care of that for me?” The plaintiff testified that the “disgusting

comments,” conversations and treatment of her were “continuing,”

“consistent” and occurred “everyday.”

There was also evidence that the plaintiff was subjected to

disparate treatment because she was a woman. For example, the

plaintiff was told by her supervisor not to enter the supply room with

an inmate because she was a woman and something could happen to her.

The supply room was frequently used by employees as a place where

prison guards could speak privately with inmates. The supervisor

claimed that he feared that the plaintiff would be hurt because she is

“a very pretty lady and we work in a hostile situation.” The record

reflects, however, that male guards had been hurt when they accompanied

an inmate into a supply room, yet no male guard was given the same

warning as the plaintiff and no male employee was prohibited from

accompanying an inmate into the supply room.

Another example of disparate treatment was when an employee

of DOC asked the inmates living on the plaintiff's pod how they felt

about a woman running their pod. The male employees of the DOC often

commented that they would not allow their wives to work in the prison,

and told the plaintiff that if she were their wife, they would not want

her working there. Nothing like that was said to any male employee.

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 It must also be noted that the DOC's own internal

investigation found that “the work environment became intimidating and

hostile for [the plaintiff] caused by inappropriate behavior by fellow

workers and unprofessionalism of supervisors.” The investigators

further found that “the sexual remarks and innuendos that were made

concerning [the plaintiff] and an inmate[] made this a sexual

harassment case.” The investigation concluded that “the fact that the

chain of command broke down . . . the perceived favoritism of [the

plaintiff] by fellow officers and the sexual remarks and innuendos

made, created an intimidating and hostile work environment.”

The plaintiff provided more than sufficient evidence to

support a claim for hostile work environment. The evidence

demonstrates that her workplace was “permeated with discriminatory

intimidation, ridicule and insult that [was] sufficiently severe or

pervasive to alter the conditions of [her] employment and create an

abusive working environment.” Oncale, 523 U.S. at 78; Harris, 510 U.S.

at 21 (internal citations and quotation marks omitted).

We have stated that “[o]verriding a jury verdict is warranted

only if the evidence 'is so one-sided that the movant is plainly

entitled to judgment, for reasonable minds could not differ as to the

outcome. '” Colasanto v. Life Ins. Co. of N. Am., 100 F.3d 203, 208

(1st Cir. 1996) (quoting Gibson v. City of Cranston, 37 F.3d 731, 735

(1st Cir. 1994)). No such evidence exists in this case and we affirm

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the district court's denial of the defendant's motions for judgment as

a matter of law on this ground.

We also hold that there is ample evidence in the record to

support the plaintiff's claim of employer liability. Proving employer

liability depends in the first instance upon whether the alleged

harassment is caused by a co-employee of the victim or a supervisor.

If the harassment is caused by a co-employee, the employer is liable if

it “knew or should have known of the charged sexual harassment and

failed to implement prompt and appropriate corrective action.”

Blanketship v. Parke Care Ctrs., Inc., 123 F.3d 868, 872 (6th Cir.

1997) (internal quotation marks omitted). If the offender is a

supervisor, the employer is liable unless it proves the affirmative

defense “that the employer exercised reasonable care to prevent and

correct promptly any sexually harassing behavior, and . . . that the

plaintiff employee unreasonably failed to take advantage of any

preventive or corrective opportunities provided by the employer or to

avoid harm otherwise.” Faragher, 524 U.S. at 807. Review of the

record reveals ample evidence for the jury to find the DOC liable for

the conduct of its employees—both supervisors and co-employees. The

plaintiff showed that the DOC was aware of the charged sexual

harassment because the plaintiff complained to her supervisors and

subsequently filed a complaint with the Discrimination Review Committee

of the DOC. The plaintiff presented evidence from which it could be

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found that the DOC did not handle the internal investigation properly

or timely, and that the DOC allowed the conduct and comments to

continue. Therefore, it was appropriate for the district court to deny

the defendant's motion for judgment as a matter of law and allow the

jury to determine that the DOC was liable for the conduct of

plaintiff's co-employees.

The evidence in the record also supports the claim that the

DOC was liable for the conduct of its supervisors because it shows that

the DOC failed to prove that it “exercised reasonable care to prevent

and correct promptly any sexually harassing behavior.” Faragher, 524

U.S. at 778. In addition, the plaintiff “[took] advantage of any

preventative or corrective opportunities provided by the employer,”

id., by filing her complaint with the DOC's internal investigatory

committee. The record contains evidence from which the jury could have

concluded that the DOC did not handle the internal investigation

properly or timely, and that the DOC allowed the conduct and comments

to continue.

The DOC further argues that the plaintiff failed to establish

a prima facie case of retaliation. To establish a prima facie case of

retaliation, a plaintiff must prove that “(1) [s]he engaged in

protected conduct under Title VII; (2) [s]he suffered an adverse

employment action; and (3) the adverse action is casually connected to

the protected activity.” Hernandez-Torres v. Intercontinental Trading,

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Inc., 158 F.3d 43, 47 (1st Cir. 1998). Review of the record indicates

that the plaintiff did establish a prima facie case of retaliation.

The evidence adduced by the plaintiff was as follows: The

plaintiff engaged in protected activity by filing her internal and EEOC

complaints. See Hernandez-Torres, 158 F.3d at 47. The plaintiff

presented ample evidence for a jury to find that she suffered adverse

employment actions subsequent to the filing of her complaint. Adverse

employment actions include “demotions, disadvantageous transfers or

assignments, refusals to promote, unwarranted negative job evaluations,

and toleration of harassment by other employees.” Id. The plaintiff

introduced evidence that other employees continued to harass her after

she filed her complaint; that she was transferred out of her unit

without her consent and not reassigned, but left to find another unit;

and ultimately constructively discharged. There was sufficient

evidence for a jury to find that the plaintiff suffered adverse

employment action because she filed a complaint.

III. Motion In Limine

Prior to trial, the defendant moved in limine “to limit the

evidence and testimony . . . to the issues raised by Plaintiff's

internal sexual harassment complaint of November 3, 1995 and her claims

of subsequent retaliation.” The defendant argued that “allowing

testimony concerning issues of which Plaintiff did not complain would

not be relevant.”

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 The evidence in question was first brought up during the

plaintiff's deposition. She claimed there were acts of sexual

harassment which took place prior to the filing of the plaintiff's

administrative complaint. The evidence included allegations that

Corporal Brochu read pornography in the office; that Brochu, Hart and

Bell used foul language and/or made sexual jokes or comments in her

presence that she found offensive; and allegations about various other

employees who were not specifically named in her administrative

complaint.

The district court, ruling from the bench, denied the motion.

The defendant argues that it was “an abuse of discretion to allow this

evidence as [plaintiff] failed to exhaust administrative remedies

regarding these allegations and there could be no relevance as the acts

were not the subject of her complaint.”

We review the district court's denial of the motion in limine

for abuse of discretion. See JOM, Inc. v. Adell Plastics, Inc., 193

F.3d 47, 50 (1st Cir. 1999); see also United States v. Lozada-Rivera,

177 F.3d 98, 103 (1st Cir. 1999).

The district court determined that though the evidence in

question was not specifically articulated in the administrative

complaint, it was relevant to the claims set forth therein. The court

denied the motion and instructed the defendant that it could later

argue to the jury that “those matters should not be considered because

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[the DOC was not] negligent in failing to stop them because [the DOC]

didn't know about them because the plaintiff never brought them to

[its] attention and the jury will have to find out whether there was

negligence or not.”

We hold that the evidence is relevant. “'Relevant evidence'

means evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” Fed. R. Civ.

P. 401. The deposition evidence was directly related to the

plaintiff's claim that she worked in a sexually hostile environment.

The defendant also contends that the district court abused

its discretion when it denied the motion in limine to exclude evidence

because the plaintiff “failed to exhaust administrative remedies

regarding [those] allegations.” The plaintiff argues that we need not

consider this exhaustion argument because the defendant waived it when

it failed to articulate it to the district court. Our reading of the

record does not convince us that the defendant waived this contention;

we therefore decide it on the merits.

We have held that the administrative charge “affords formal

notice to the employer and prospective defendant of the charges that

have been made against it,” Powers v. Grinnell Corp., 915 F.2d 34, 37

(1st Cir. 1990) (internal citations and quotation marks omitted), and

“[t]he scope of the civil complaint is accordingly limited to the

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charge filed with the EEOC and the investigation which can reasonably

be expected to grow out of that charge.” Id.; see also Lattimore v.

Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996). We have also stated

that

[a]n administrative charge is not a blueprint for
the litigation to follow. . . . [and] the exact
wording of the charge of discrimination need not
presage with literary exactitude the judicial
pleadings which may follow. . . . Rather, the
critical question is whether the claims set forth
in the civil complaint come within the scope of
the EEOC investigation which can reasonably be
expected to grow out of the charge of
discrimination.

Powers, 915 F.2d at 38 (internal citations and quotation marks

omitted).

Here, the plaintiff filed her administrative complaint with

the New Hampshire Human Rights Commission and the EEOC, claiming that

she was discriminated against on the basis of her gender, subjected to

a hostile work environment and retaliated against after reporting the

alleged sexual harassment. In her administrative complaint, the

plaintiff gives ten examples of the alleged discrimination in a

“partial list” (emphasis added), consisting of almost two pages.

Though the administrative complaint does not spell out all of the

specific comments made by various employees, it was sufficient to

describe the essential nature of the charge and to lead to a reasonable

investigation thereof. As such, the evidence that the defendant wished

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to exclude fell within the scope of the administrative complaint and

the plaintiff was entitled to bring it before the district court. See

Powers, 915 F.2d at 38. The district court did not abuse its

discretion when it denied the DOC's motion in limine and allowed the

evidence to be introduced at trial.

IV. Jury Instruction

The DOC argues that “the jury instruction regarding

retaliation was inadequate and is likely to have misled or confused the

jury regarding the applicable law.” It contends that the court erred

when it “refused” to “instruct the jury that the plaintiff was required

to prove that the [defendant's] given reasons [for discharging the

plaintiff] were a pretext and that the real reason was retaliatory

intent.” The DOC claims that the jury instruction, as charged,

violates the precepts of the burden-shifting scheme, articulated by the

Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973), and

constitutes reversible error.

The standard of review for preserved challenges to jury

instructions is well-settled:

The standard of review is ironclad: The trial
court's refusal to give a particular instruction
constitutes reversible error only if the
requested instruction was (1) correct as a matter
of substantive law, (2) not substantially
incorporated into the charge as rendered, and (3)
integral to an important point in the case.

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United States v. DeStefano, 59 F.3d 1, 2 (1995) (internal quotation

marks omitted).

The district court instructed the jury regarding the

retaliation claim as follows:

To prove a retaliation claim under Title
VII the plaintiff must prove by a preponderance
of the evidence that:

(1) plaintiff filed a sexual harassment
complaint with her employer,

(2) after the plaintiff filed her sexual
harassment complaint she was subjected to an
adverse employment action by her employer, and

(3) that the employer took the adverse
employment action because she had filed a sexual
harassment complaint.

Adverse employment actions may include
actions by the employer amounting to a
constructive discharge, the preparation of an
unwarranted negative employment evaluation, an
unwarranted disadvantageous transfer, or
toleration of harassment by employees.

Plaintiff does not have to prove that her
sexual harassment claim has merit in order to
prove her retaliation claim.

The defendant requested a more explicit explanation of the McDonnell

Douglas burden-shifting scheme. The DOC argues that, in addition to

the charge given, the jury should have been instructed explicitly as to

the shifting burdens and upon which party's shoulders they fell.

Specifically, the DOC objects to the absence of language in the

district court's instruction pertaining to the plaintiff's burden to

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show that the reason for termination proffered by the DOC was

pretextual.5

We need not recount the intricacies of the McDonnell Douglas

test here. The essence of McDonnell Douglas is a tripartite regimen.

The plaintiff must first prove the prima facie case for retaliatory

discharge. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S.

248, 253 (1981). Thereafter, the defendant must rebut the presumption

created by the prima facie case by producing a legitimate

nondiscriminatory reason for the employer's action. See McDonnell

Douglas, 411 U.S. at 802. Once the defendant meets this burden, "the

trier of fact proceeds to the ultimate question: whether plaintiff has

proved that the defendant intentionally discriminated against [the

plaintiff]” on the basis of the plaintiff's protected characteristic or

action. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993). The

plaintiff must "be given a full and fair opportunity to demonstrate by

competent evidence that the presumptively valid reasons for his

rejection were in fact a cover-up for a . . . discriminatory decision."

McDonnell Douglas, 411 U.S. at 805.

The district court's jury instruction admittedly does not

follow the exact regimen of McDonnell Douglas. It need not do so,

5 The plaintiff argues that the DOC did not properly object to
this portion of the charge, and therefore, it was not properly
preserved for our consideration. Our reading of the transcript,
however, reveals otherwise and we will consider the argument on the
merits.

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however, to be sufficient. See Loeb v. Textron, Inc., 600 F.2d 1003,

1016 (1st Cir. 1979) (“McDonnell Douglas was not written as a

prospective jury charge; to read its technical aspects to a jury . . .

will add little to a juror's understanding of the case.”). What is

important is that the instructions “identify the important factual

issues,” id., for the jury to resolve.

The chief complaint of the defendant here is that the jury

was not told that it had to find pretext, and that the burden of

showing pretext lay with the plaintiff. While we agree that this is an

“important factual issue,” we think that it was sufficiently presented

to the jury. As we stated in Loeb: “The central issue, which the court

must put directly to the jury, is whether or not plaintiff was

discharged 'because of [protected conduct]'” Id. at 1017. Undoubtedly,

the court put this issue to the jury. The court's instruction made

clear to the jury that, in order to find for the plaintiff, it had to

find “that the employer took the adverse employment action because she

had filed a sexual harassment complaint.” (emphasis added). This

substantially incorporated into the charge exactly what the defendant

wished.

We refuse to impose upon district courts a rigidly formalist

view of McDonnell Douglas' requirements. As we stated in Loeb, “The

Supreme Court has made it abundantly clear that McDonnell Douglas was

intended to be neither 'rigid, mechanized, or ritualistic' nor the

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exclusive method for proving a claim of discrimination.” Loeb, 600

F.2d at 1017 (internal citation omitted). To adopt the defendants'

view would be to impose just such a “rigid, mechanized, [and]

ritualistic” requirement on the district courts.

V. Conclusion

For the reasons set forth above, we affirm the district

court. Costs awarded to appellee.

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