Crowley v. L.L. Bean, Inc.

United States Court of Appeals
For the First Circuit

No. 01-2732
EILEEN CROWLEY,

Plaintiff, Appellee,

v.

L.L. BEAN, INC.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Selya, Circuit Judge,

Gibson* and Greenberg,** Senior Circuit Judges.

Peter J. Brann with whom Daniel A. Nuzzi, Kevin J. Beal and
Brann & Isaacson were on brief for appellant.
Rebecca S.K. Webber with whom Linnell, Choate & Webber were on
brief for appellee.
Julie L. Gantz with whom Nicholas M. Inzeo, Acting Deputy
General Counsel, Philip B. Sklover, Associate General Counsel,
Vincent J. Blackwood, Assistant General Counsel, and Susan L.P.
Starr were on brief for amicus curiae Equal Employment Opportunity
Commission.

September 19, 2002

___________
*Of the Eighth Circuit, sitting by designation.
**Of the Third Circuit, sitting by designation.
 GREENBERG, Circuit Judge. This matter comes on before

this court on defendant-appellant L.L. Bean's appeal from the

district court's order entered November 8, 2001, denying its motion

for judgment as a matter of law or, in the alternative, for a new

trial. For the reasons stated herein, we affirm the order of the

district court and uphold the jury verdict in favor of plaintiff-

appellee Eileen Crowley.

I. BACKGROUND

We briefly describe the facts at the outset, but discuss

them in greater detail where applicable and essential to explain
our determinations. Since 1992, Crowley has worked for L.L. Bean,

a major catalog retailer based in Freeport, Maine, specializing in
outdoor apparel and merchandise. In 1996, she began working as an
"order picker operator" in L.L. Bean's warehouses and in this

capacity drove 22,000-pound forklift-like machines called
transtackers that collect merchandise for packing and shifting.
Crowley claims that from 1996 until July 1998, her co-worker, Paul

Juhl, stalked and harassed her.
Evidence at trial supported a conclusion that during the
period involved, Juhl engaged in disturbing and sometimes peculiar

behavior around Crowley, including grabbing her foot and massaging
it against her will at an L.L. Bean pool party, continually
following her at work even when they were not scheduled to work in

the same warehouse, physically blocking her path and thereby
forcing her to squeeze by him, giving her gifts designed to let her

know that he was watching her, dancing in the aisles near her,

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waiting in the dark for her to come upon him, following her home,

and even breaking into her house. Crowley reported most of these

incidents to her team leaders or supervisors, but she claims that
L.L. Bean did not take timely effective action to protect her from

Juhl and therefore maintained a hostile work environment. L.L.

Bean finally terminated Juhl's employment, but did so only after
Crowley obtained a permanent court protection order against Juhl in

July 1998.

On December 21, 1998, Crowley filed a complaint with the

Equal Employment Opportunity Commission ("EEOC") and the Maine

Human Rights Commission, claiming that L.L. Bean had engaged in sex

discrimination and retaliation in violation of Title VII of the

Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.,

and the Maine Human Rights Act, Me. Rev. Stat. Ann. tit. 5, § 4572

(West 2002). After the EEOC issued a right-to-sue letter and the

Maine Human Rights Commission determined that L.L. Bean had not
engaged in either sex discrimination or retaliation, Crowley filed

her complaint in the district court on June 22, 2000, asserting

that L.L. Bean had engaged in sex discrimination in violation of

Title VII and the Maine Human Rights Act predicated on her

assertion that she had been subjected to a hostile work

environment.

The jury trial began on June 5, 2001, and concluded on

June 11, 2001.1 L.L. Bean moved for judgment as a matter of law

1
L.L. Bean unsuccessfully moved for summary judgment before the
trial. See Crowley v. L.L. Bean, Inc., 143 F. Supp. 2d 38 (D.

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pursuant to Fed. R. Civ. P. 50 at the conclusion of Crowley's case-

in-chief and renewed the motion after both parties rested. Before

submitting the case to the jury, the court partially granted the
motion but only as to Crowley's claim for punitive damages under

the Maine Human Rights Act.

After one day of deliberations, the jury returned its
verdict on June 13, 2001, finding that L.L. Bean had violated Title

VII by sexually discriminating against Crowley through acts

occurring on or after February 24, 1998. The February 24, 1998

date was critical because Crowley filed her EEOC claim 300 days

after that date and she was required to file the charge within the

300-day period for it to be timely.2 The jury also found that the

unlawful discrimination was the result of a systemic violation, but
not of a serial violation. The jury found, however, that L.L. Bean

had not violated the Maine Human Rights Act by sexually

discriminating against Crowley through acts occurring on or after
June 22, 1998. The June 22, 1998 date was applicable because the

Maine Human Rights Act has a two-year statute of limitations, and

Crowley initiated this action on June 22, 2000. See Me. Rev. Stat.

Ann. tit. 5, § 4613(2)(C) (West 2002). Finally, the jury awarded

Me. 2001).
2
The 300-day period was applicable because Maine has an entity
with the authority to grant or seek relief with respect to an
alleged unlawful employment practice. See National R.R.
Passenger Corp. v. Morgan, --- U.S. ---, 122 S. Ct. 2061, 2070
(2002).

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Crowley $215,000 in compensatory damages, but denied her any

punitive damages.

On June 26, 2001, L.L. Bean filed a renewed motion for
judgment as a matter of law or, in the alternative, for a new trial

pursuant to Fed. R. Civ. P. 50 and 59. On November 8, 2001, the

district court denied the motion and entered an amended final
judgment. On December 3, 2001, L.L. Bean filed a notice of appeal.

II. JURISDICTION AND STANDARD OF REVIEW

A. Jurisdiction

The district court had jurisdiction pursuant to 28 U.S.C.

§§ 1331, 1343, and 1367, and we have jurisdiction over this appeal

pursuant to 28 U.S.C. § 1291.
B. Standard of Review

To the extent that L.L. Bean appeals from the district

court's denial of its motion for judgment as a matter of law, our
review of the district court's ruling is plenary, and we must apply

the same standard that the district court applied in considering
the motion. See Mangla v. Brown Univ., 135 F.3d 80, 82 (1st Cir.

1998). Accordingly, we must "view the evidence in the light most

favorable to [Crowley], drawing all reasonable inferences in [her]

favor." McMillan v. Mass. Soc'y for the Prevention of Cruelty to

Animals, 140 F.3d 288, 299 (1st Cir. 1998) (internal quotation

marks omitted). Moreover, we must "resolve all credibility issues

in favor of the verdict." United States v. Scharon, 187 F.3d 17,

21 (1st Cir. 1999).

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 Our review, however, "is weighted toward preservation of

the jury verdict," for "we must affirm unless the evidence was so

strongly and overwhelmingly inconsistent with the verdicts that no
reasonable jury could have returned them." Rodowicz v. Mass. Mut.

Life Ins. Co., 279 F.3d 36, 41-42 (1st Cir. 2002) (internal

quotation marks and brackets omitted); see also White v. N.H. Dep't

of Corr., 221 F.3d 254, 259 (1st Cir. 2000) ("Once a jury returns

a verdict, a 'heavy burden' is placed on one who challenges it.").

Indeed, we should "not set aside a jury verdict as a matter of law

unless there was only one conclusion the jury could have reached,"

McMillan, 140 F.3d at 299, and that result was contrary to the

verdict, see White, 221 F.3d at 259 ("We may reverse only if a

reasonable person could not have reached the conclusion of the
jury.").

L.L. Bean argues that in the event that we do not grant

it judgment as a matter of law, we should grant it a new trial
based on juror bias, erroneous evidentiary rulings, and improper

jury instructions. L.L. Bean's motion for a new trial in the

district court predicated on juror bias was "committed to the

discretion of [the] district court." McDonough Power Equip., Inc.

v. Greenwood, 464 U.S. 548, 556, 104 S. Ct. 845, 850 (1984).

Therefore, "[i]n reviewing the district court's denial of

appellant['s] request for a new trial, we . . . consider only

whether the district court abused its discretion." Dall v. Coffin,

970 F.2d 964, 969 (1st Cir. 1992).

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 We review L.L. Bean's challenge of the district court's

rulings to exclude or admit testimony primarily on an abuse-of-

discretion basis. See Cummings v. Standard Register Co., 265 F.3d
56, 62 (1st Cir. 2001); see also United States v. Sposito, 106 F.3d

1042, 1046 (1st Cir. 1997) ("The proper interpretation of the

Federal Rules of Evidence is a question of law and is reviewed de

novo, but the application of [a rule] . . . is reviewed under an

abuse-of-discretion standard.") (citations omitted); United States

v. Paulino, 13 F.3d 20, 25 (1st Cir. 1994) ("The court of appeals

reviews a trial judge's admission of evidence over a hearsay

objection only for abuse of discretion."); Alexis v. McDonald's

Rests. of Mass., Inc., 67 F.3d 341, 347 (1st Cir. 1995) ("Rulings

on the admissibility of lay opinion testimony are reviewed only for
manifest abuse of discretion.") (internal quotation marks omitted).

Thus, we should reverse the district court's ruling "if we

determine that the judge 'committed a meaningful error in
judgment.'" Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161

F.3d 77, 83 (1st Cir. 1998) (quoting Anderson v. Cryovac, Inc., 862

F.2d 910, 923 (1st Cir. 1988)).

Finally, we review de novo L.L. Bean's contention that

the district court erroneously instructed the jury on the law

relating to systemic violations. See Romano v. U-Haul Int'l, 233

F.3d 655, 665 (1st Cir. 2000), cert. denied, 122 S. Ct. 41 (2001).

"[T]he giving of [a jury] instruction is reversible error only if

it (1) was misleading, unduly complicating, or incorrect as a

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matter of law, and (2) adversely affected the objecting party's

substantial rights." Rodowicz, 279 F.3d at 42.

III. DISCUSSION

A. Judgment as a Matter of Law

L.L. Bean challenges the jury verdict as to both
Crowley's hostile work environment claim and her systemic sex

discrimination claim. It contends that Crowley failed to present

sufficient evidence to support either of the jury's findings.

Crowley argues, however, that L.L. Bean has not met its demanding

burden of demonstrating that no reasonable jury, presented with the

evidence adduced at trial, could have found L.L. Bean liable for

maintaining a hostile work environment and committing a systemic
violation.

1. Hostile Work Environment Claim

Title VII of the Civil Rights Act of 1964 provides, in
relevant part, that "[i]t shall be 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 "'[t]he 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 work in a

discriminatorily hostile or abusive environment." Harris v.

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Forklift Sys., 510 U.S. 17, 21, 114 S. Ct. 367, 370 (1993) (some

internal quotation marks omitted) (quoting Meritor Sav. Bank, FSB

v. Vinson, 477 U.S. 57, 64, 106 S. Ct. 2399, 2404 (1986)). "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, 118 S. Ct. 998, 1001

(1998) (internal quotation marks omitted) (quoting Harris, 510 U.S.

at 21, 114 S. Ct. at 370).

To prove a claim of hostile work environment sexual

harassment, a plaintiff must establish:

(1) that she (or he) is a member of a
protected class; (2) that she was subjected to
unwelcome sexual harassment; (3) that the
harassment was based upon sex; (4) that the
harassment was sufficiently severe or
pervasive so as to alter the conditions of
plaintiff's employment and create an abusive
work environment; (5) that sexually
objectionable conduct was both objectively and
subjectively offensive, such that a reasonable
person would find it hostile or abusive and
the victim in fact did perceive it to be so;
and (6) that some basis for employer liability
has been established.

O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001).

L.L. Bean asserts that Crowley presented insufficient evidence at

trial to satisfy three elements of her hostile work environment

claim -- namely, that Crowley perceived Juhl's behavior as

"subjectively abusive," that Juhl's conduct was "severe and

pervasive," and that L.L. Bean knew or should have known about

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Juhl's alleged harassment, but failed to take prompt or appropriate

action to remedy the situation. Br. of Appellant at 18-31.

Before addressing the specifics of each claim, however,
it is important to point out that L.L. Bean predicates its

argument on two critical suppositions: (1) Title VII's

administrative filing requirements precluded the jury from
considering allegations of harassment that occurred before February

24, 1998; and (2) the jury's verdict on the state law claim

established that Crowley was not harassed after June 22, 1998.

Thus, L.L. Bean effectively seeks to cabin Crowley's claim to the

end that it is based only on events occurring during a four-month

period. L.L. Bean then argues that the "handful of incidents" that

occurred during that four-month period between February 24, 1998,
and June 22, 1998, are insufficient to support the jury's verdict.

Br. of Appellant at 6.

The Supreme Court's recent decision in National Railroad

Passenger Corp. v. Morgan, --- U.S. ---, 122 S. Ct. 2061 (2002),

severely undermines L.L. Bean's argument. In Morgan, the Court

held that "consideration of the entire scope of a hostile work

environment claim, including behavior alleged outside the statutory

time period, is permissible for the purposes of assessing

liability, so long as any act contributing to that hostile

environment takes place within the statutory time period." Id. at

---, 122 S. Ct. at 2068. The Court explained that a "hostile work

environment claim is comprised of a series of separate acts that

collectively constitute one 'unlawful employment practice.'" Id. at

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---, 122 S. Ct. at 2074. Thus, "[p]rovided that an act

contributing to the claim occurs within the filing period, the

entire time period of the hostile environment may be considered by
the court for the purposes of determining liability." Id.

Therefore, in the wake of Morgan, the jury not only could

consider Juhl's conduct prior to February 24, 1998, as "relevant
background evidence," United Air Lines, Inc. v. Evans, 431 U.S.

553, 558, 97 S. Ct. 1885, 1889 (1977), but also could hold L.L.

Bean liable for the alleged acts of harassment that fell outside

the 300-day period for filing an EEOC charge of sexual

discrimination provided that it found that there was an act

contributing to the hostile environment within the 300-day filing

period.3 Notwithstanding the thrust of L.L. Bean's argument that
Crowley's allegations of harassment included only "a few brief

encounters" between her and Juhl that were "scarcely threatening,"

Br. of Appellant at 24, 31, Crowley offered evidence at trial
establishing that Juhl's harassment began in the fall of 1996 and

continued into July 1998, and thus L.L. Bean's argument is flawed.

Consequently, we must review all such evidence offered at trial

when determining whether the jury verdict is supported by the

evidence.

As we have indicated, L.L. Bean also asserts that we must

disregard any evidence of sexual harassment on or after June 22,

1998, because the jury found that it had not violated the Maine

3
The parties agree that the 300-day filing period was
applicable here with regard to the Title VII claim.

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Human Rights Act by sexually discriminating against her by acts

occurring on or after that date. Although this evidence appears to

be of limited significance inasmuch as Crowley alleges only a few
incidents of alleged harassment by Juhl after June 22, 1998, L.L.

Bean is wrong on this point, too. In basing its argument on the

portion of the jury's verdict that L.L. Bean had not sexually
discriminated against Crowley on or after June 22, 1998, L.L. Bean

assumes that the jury concluded that the hostile work environment

ceased to exist on June 22, 1998.

But the jury's determination that L.L. Bean was not

liable for maintaining a hostile work environment under the state

statute based solely on incidents that occurred on or after June 22

does not mean that the jury was -- and, therefore, this court is --
precluded from considering any evidence relating to Juhl's post-

June 22 conduct when determining L.L. Bean's liability under Title

VII. As Crowley argues in her brief, "[t]he fact that the number
of incidents from June 23 forward do not constitute a violation of

state law by themselves has no logical connection to whether those

incidents can be considered, together with earlier incidents, under

federal law." Br. of Appellee at 17.

Moreover, L.L. Bean draws too many conclusions from the

jury's verdict. For instance, the jury may have found for L.L.

Bean on the state law claim because it concluded that Crowley had

not satisfied the employer liability element of the hostile work

environment claim (perhaps because it decided that L.L. Bean

finally took appropriate remedial measures to end the hostile work

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environment on or after June 22, 1998), not because the jury

believed that Crowley failed to prove that Juhl's conduct on or

after June 22, 1998, was "severe or pervasive." In other words,
the jury may have believed that Crowley was subject to a hostile

work environment on or after June 22, 1998, but that L.L. Bean

nevertheless should not be held liable for Juhl's conduct on or
after that date. Because we have no way of knowing the jury's

reason for rendering its verdict on the state law claim, L.L.

Bean's argument that we cannot consider evidence relating to events

on or after June 22, 1998, must fail. Therefore, we will consider

all of the evidence offered at trial regarding Juhl's harassment

from the fall of 1996 through July of 1998 in determining whether

the evidence supports the jury's verdict that L.L. Bean maintained
a hostile work environment.

a. Subjectively Abusive

L.L. Bean first argues that the jury's verdict should be
overturned because Crowley did not offer any evidence demonstrating

that Juhl's conduct was "subjectively abusive." It asserts that
"[s]ince Crowley did not believe that Juhl was sexually harassing

her until June 23, 1998, . . . Crowley did not subjectively believe

that she was being subjected to a hostile work environment during

the statutory period." Br. of Appellant at 19 (citations to the

record omitted). L.L. Bean seizes on the June 23, 1998 date

because Crowley testified that until that date, she thought the

team leaders adequately were taking care of the Juhl situation and

therefore she had no complaints regarding what L.L. Bean was doing.

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 We reject this argument, as L.L. Bean misapprehends what

Crowley was required to "subjectively perceive." As Crowley points

out in her brief, although the victim must subjectively perceive
the harasser's conduct to be "hostile or abusive," the victim need

not subjectively believe that the conduct met the legal definition

of unlawful sexual harassment. See Br. of Appellee at 14. At
trial, Crowley testified that she was frightened and feared for her

safety because Juhl was stalking her. See Tr. 94, 109 (she was

"scared"); 93 (she "was scared to death"); 123, 127, 131 (she was

"shaking"); 127 (she "was breaking down"); 130 (she "felt real

shaky inside"); 146 (she was "[r]eally upset"); 135 (she "felt like

[she] was going to get hurt"). Furthermore, Crowley offered into

evidence a copy of L.L. Bean's written warning to Juhl, in which it
informed Juhl that he has "created a hostile environment in which

[Crowley] felt physically threatened." App. 99.

Therefore, although Crowley may not have realized until
June 1998 that Juhl's conduct actually constituted sexual

harassment, she did present evidence establishing that she earlier

considered Juhl's behavior threatening and hostile. Consequently,

contrary to L.L. Bean's assertion, Crowley presented sufficient

evidence for a rational jury to find that she perceived Juhl's

conduct to be "hostile or abusive."

b. Severe or Pervasive

L.L. Bean next argues that Crowley's "eight encounters"

with Juhl during the four-month period were not objectively "severe

and pervasive" enough to create a hostile work environment,

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insisting that Crowley's allegations "'are so trivial, so isolated,

and so far from the paradigmatic case of sexual harassment' that

judgment as a matter of law is 'clearly appropriate.'" Br. of
Appellant at 20-21 (quoting Hartsell v. Duplex Prod., Inc., 123

F.3d 766, 773 (4th Cir. 1997)). L.L. Bean contends that Crowley's

hostile work environment claim is supported merely by
evidence that Juhl gave her a book, came to
the wrong building where she was working on
three occasions, operated his machine in her
vicinity on occasion (and told her once 'it
will cost you' when she asked him to move),
and came out of a tunnel dancing on one
occasion.

Reply Br. of Appellant at 9. As we explained above, Morgan fatally

undermines this argument, for Crowley's allegations do not merely

include eight incidents, but involve alleged acts of harassment and
stalking that spanned nearly one and a half years. Accordingly, we

will review evidence relating to all of Crowley's allegations --

not just those of acts that occurred between February 24, 1998, and
June 22, 1998 -- to determine whether Juhl's conduct was

sufficiently "severe or pervasive" to constitute actionable

harassment.

Crowley presented the following evidence to support her

hostile work environment claim. In 1996, at an L.L. Bean pool

party, Juhl grabbed her foot and massaged it against her will. He

told her that she was the "perfect woman" and that she had "perfect

women's feet." Juhl also gave Crowley gifts intended to let her

know that he was watching her both at and outside of work. He even

followed her home one evening by turning off his headlights and

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pursuing her car in the dark. At an L.L. Bean party in December

1996, he again stated that Crowley was the perfect woman and

pinpointed the exact location of her house on a map, letting her
know that he knew exactly where she lived. Crowley reported these

incidents to her team leader, David Baker.

In January 1997, Juhl followed Crowley at work and
bothered her, sometimes lurking in the dark outside the women's

bathroom while he waited for her to emerge. He often parked next

to her car in the parking lot and followed her to her car when she

was leaving work. He also used L.L. Bean's hand-held computer

units to track Crowley's movement within the warehouse. Juhl

frequently blocked her in the aisles and forced her to squeeze by

him. Crowley reported all of these incidents to her supervisor,
Tim Marong, who remarked that Juhl was stalking her.

On February 16, 1997, Juhl broke into Crowley's home

while she was there. He tried to get her to touch his clothing,
and he grabbed her wrists in an attempt to bring her upstairs with

him. He not only told her that he wanted to date her, but admitted

that he had been at her house previously and described what outfits

she had been wearing on those occasions. Crowley explained that

she had a boyfriend, but Juhl responded, "but he's never here."

After he finally left, Crowley saw him outside peering in different

windows of her house. She hid in the bathroom until he left.

As she had done previously, Crowley reported this

incident to her supervisors. She told her team leaders, her

supervisor Tim Marong, and L.L. Bean's Human Resources personnel

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that she believed she was being stalked. Indeed, Marong testified

that he thought that Juhl's conduct could have constituted sexual

harassment. Marong contacted Pat Bressette-Long, a Human Resources
supervisor, who met with Crowley several weeks later. Crowley

informed Bressette-Long not only about Juhl's uninvited entry into

her home, but also about his intimidating behavior at work. When
Crowley asked whether she should notify the plant manager, Frank

Johnson, about Juhl's conduct, Bressette-Long advised her not to

break the chain of command, but to continue reporting her

complaints to her immediate supervisor. One month after Crowley

met with Bressette-Long, Juhl was reassigned to a separate work

area.

From March 1997 until the summer of 1997, Juhl continued
to work near Crowley, even when he was scheduled to work elsewhere.

He also continued his familiar conduct of blocking her in the

aisles with his transtacker and dancing near her. She reported
Juhl's disturbing and sometimes bizarre behavior to her team leader

and Human Resources, which assured her that Juhl would be scheduled

to work in a different warehouse. Despite these assurances,

however, in May 1997, L.L. Bean permitted Juhl to volunteer to work

shifts in her warehouse.

During the summer of 1997, Juhl's conduct did not change,

as he kept trying to be near Crowley. He not only continued to

corner her and make her ask him to move out of the way, but also

began hiding in dark areas of the warehouse where Crowley would

come upon him. Crowley notified her team leader, Leo Davis, about

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Juhl's conduct, but he did nothing, even though he promised to

investigate the matter. Meanwhile, Juhl's behavior continued

unabated. In July 1997, he appeared unexpectedly in her work area
15 or more times, lingered around the time clock at the end of

Crowley's shift, and stood close to her on numerous occasions.

During the fall and early winter of 1997, Crowley saw
Juhl so often in her work area that she assumed that they were

working the same shift. She later learned that Juhl actually was

working the wrong shift with management's knowledge. Co-workers

also noticed Juhl's conduct, prompting one witness to remark,

"Wherever she was, he was." In fact, one L.L. Bean witness

testified that he believed Juhl was sexually attracted to Crowley,

explaining that "it was kind of obvious the way he handled
himself."

In January 1998, Crowley briefly was assigned to work an

8:00 a.m.-4:30 p.m. shift and therefore maintained little contact
with Juhl. This respite was short-lived, however, for L.L. Bean

soon placed her back on the third shift with Juhl. She notified

her supervisor, Bob Anderson, that she was scared and asked for a

parking space closer to the building so that she would not be alone

with Juhl. Anderson stated that he was aware of her problems with

Juhl, but that he had to put her back on Juhl's shift for business

reasons.

In February 1998, Juhl's contact with Crowley

intensified. He gave her a book on holistic cancer therapy after

her friend's mother died of cancer. Crowley maintains that Juhl

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could have known about the death of her friend's mother only by

following Crowley. Crowley told her team leaders about the

incident and reported that he had grabbed her hands when he tried
to give her the book. Juhl also drove his transtacker up and down

the aisle, shadowing her movements in the adjacent aisle, and used

his transtacker to block her in aisles. Crowley reported these
incidents to her team leaders, David Baker and Steve McCourt, who

assured her that L.L. Bean was taking her concerns seriously.

In March 1998, L.L. Bean consolidated the first and third

shifts of its distributions operation and consequently transferred

Juhl to the morning shift. Despite being assigned to a different

building, Juhl showed up at Crowley's building on March 30 and 31,

and April 1, 1998. As one co-worker testified, Juhl "would
constantly show up in the wrong building" during March and April

1998, and "was constantly following her all the time, he never

stopped."
In April 1998, Juhl continued showing up in Crowley's

work area, following her, and physically obstructing her from doing

her work. One time, he danced in the aisle in front of her.

Another time, he prevented her from passing, and when she asked him

to let her by, he responded that it would "cost her." When Crowley

reported these incidents to her new team leader, Peter Farley, he

joked about Juhl's conduct and referred to him as her "little

stalker."

From April until June 1998, Crowley's interaction with

Juhl was limited, as the two worked on different shifts. Juhl

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nevertheless loitered around the time clock and the warehouse

entrance, waiting for Crowley to come and go. On June 22, 1998,

Juhl was returned to Crowley's shift. Shortly thereafter, Juhl
lapsed back into his familiar pattern of behavior, blocking her in

the aisles, making her beg him to move, and forcing her to squeeze

by him.
On June 23, 1998, a team leader, Leo Davis, witnessed

Juhl blocking Crowley, but did nothing. Instead, Davis laughed

with Juhl in front of Crowley and then looked at her, smiled, and

left. Furthermore, Ken Libby, a fellow employee, warned supervisor

Anderson that Crowley would end up dead if someone did not do

something to stop Juhl. In addition, Bennett Schlaack, a trainer,

advised three team leaders -- John Andretta, Steve McCourt, and
David Baker -- that Juhl was shadowing Crowley and that he was

concerned for her safety. L.L. Bean, however, took no action.

Frustrated with L.L. Bean's ineffectiveness in protecting her from
Juhl, Crowley went to the police a few days after Davis saw Juhl

block Crowley.

In the meantime, Leo Davis was assigned to investigate a

confrontation between Crowley and Juhl that occurred on the same

day that Davis witnessed Juhl blocking Crowley. Aside from Davis,

two other employees witnessed the incident and reported the matter

to management. Crowley explained to Davis that Juhl's conduct was

longstanding, but Davis indicated to her that L.L. Bean "had to

protect Paul's rights." During the course of Davis's

investigation, Crowley was restricted to the dock area, while Juhl

-20-
enjoyed full access to the warehouse. Notwithstanding Crowley's

complaints, management made no effort to keep Juhl away from

Crowley.
On June 30, 1998, L.L. Bean issued a written warning to

Juhl, stating that he had "created a hostile work environment in

which [Crowley] felt physically threatened" and that his
"threatening, intimidating behavior will not be tolerated." The

warning indicated that Juhl "must take action to avoid further

contact with Eileen Crowley." The Human Resources official who

issued the warning, Rebecca Batchelder, testified that she did not

know that L.L. Bean already had issued a directive in the spring of

1997 requiring that Juhl and Crowley work in separate buildings.

During Davis's investigation when Crowley and Juhl were
separated at work and even after Juhl received his written warning

instructing him to stay away from Crowley, Juhl continued following

Crowley around at work. Sometime after June 24, 1998, Crowley
again complained to her team leader, Peter Farley, that Juhl was

violating the standing order that he and Crowley be kept separated,

but Farley took no action other than to suggest that Crowley have

her boyfriend give Juhl a "blanket party." On July 7, 1998, after

Farley again allowed Juhl and Crowley to work in the same area,

Crowley returned to the police department and obtained a temporary

protection order against Juhl. The police served Juhl with the

order at work on the same day.

Thereafter, L.L. Bean placed Juhl on paid leave pending

the court hearing on Crowley's request for a protection order. On

-21-
July 17, 1998, Crowley obtained a permanent court protection order

against Juhl. On July 24, 1998, L.L. Bean terminated Juhl's

employment.
As is quite evident, Crowley presented evidence relating

to more than just eight innocuous encounters between her and Juhl.

In fact, she provided ample evidence to establish that Juhl engaged
in a longstanding pattern of hostile and intimidating behavior

towards her that spanned over one and a half years. To prevail on

this appeal, L.L. Bean must demonstrate that no reasonable person

could have reached the conclusion of the jury, even after viewing

all of the evidence in the light most favorable to the verdict.

Based on the evidence adduced at trial, it cannot be said that a

reasonable person could not have concluded that Juhl's conduct
towards Crowley was "severe or pervasive." Indeed, as the EEOC

wrote in its amicus brief, "by focusing only on the specific

incidents which occurred after February 24, Bean fails to capture
the residual and cumulative effect that Juhl's campaign of

harassment had on Crowley's working conditions even on days when

she did not encounter him." Amicus Br. of EEOC at 21.

Consequently, Crowley presented sufficient evidence at trial to

satisfy this element of her hostile work environment claim.

c. Employer Liability

L.L. Bean finally argues with respect to the hostile work

environment claim that Crowley failed to offer sufficient evidence

to establish employer liability. Although this appears to be L.L.

Bean's best argument to the extent that it challenges the

-22-
sufficiency of the evidence to support the verdict, it nevertheless

is unable to meet the onerous burden of proving that a reasonable

person could not have concluded that, after it learned of Juhl's
behavior, it failed to take appropriate steps to stop Juhl's

harassment and stalking of Crowley.

A plaintiff must satisfy different standards for
establishing employer liability in a hostile work environment case

depending on whether the harasser is a supervisor or co-employee of

the victim. In this case, it is beyond dispute that Juhl and

Crowley were co-employees. To establish employer liability for a

non-supervisory co-employee, a plaintiff must demonstrate that the

employer "'knew or should have known of the charged sexual

harassment and failed to implement prompt and appropriate action.'"
White, 221 F.3d at 261 (quoting Blankenship v. Parke Care Ctrs.,

Inc., 123 F.3d 868, 872 (6th Cir. 1997)). L.L. Bean maintains that

Crowley did not present sufficient evidence to satisfy either
prong.

i. Whether L.L. Bean Knew or Should Have Known

The evidence offered at trial, if viewed in the light

most favorable to Crowley, clearly supports a jury finding that

L.L. Bean knew or should have known that Juhl was harassing and

stalking Crowley. L.L. Bean bases its misguided argument to the

contrary on its restricted temporal view of the evidence, but as we

explained above, the statute of limitations did not preclude the

jury -- and therefore does not preclude us -- from considering

evidence relating to harassment before February 24, 1998, and the

-23-
jury verdict on the state law claim does not preclude us from

considering evidence relating to harassment on or after June 22,

1998. Therefore, we must consider all of the evidence, from 1996
until July 1998, to determine whether it was sufficient to support

a jury finding that L.L. Bean knew about Juhl's conduct.

Crowley presented ample evidence that she reported Juhl's
behavior to her team leaders, supervisors, and Human Resources.

Crowley began notifying her supervisors of Juhl's disturbing

behavior in 1996, when she informed her team leader, David Baker,

that Juhl was harassing and following her both on and off L.L.

Bean's premises. In January 1997, she told her team leader, John

Andretta, and her supervisor, Tim Marong, that Juhl was bothering

her at work, tracking her movements with the hand-held computers,
waiting for her in the dark outside the women's bathroom, blocking

her in the aisles with his transtacker, and forcing her to squeeze

by him. After Juhl broke into her home in February 1997, she
reported the incident to team leaders Andretta and Steve McCourt,

supervisor Marong, and Human Resources.

In the spring of 1997, Crowley advised her new team

leader, Baker, that Juhl was continuing to show up in her building

and block her in the aisles. In April and May 1997, after Crowley

twice told Human Resources about Juhl's stalking behavior, Human

Resources assured her Juhl would be scheduled for work in a

different warehouse.

In the summer of 1997, Crowley notified her team leader,

Leo Davis, that Juhl always was trying to be near her and that he

-24-
hid in the dark, waiting for her to come upon him. In September

1997, she told her team leader, Keith Menard, that Juhl was showing

up repeatedly in her work area, even though he was working a
different shift.

In January 1998, after being put back on the first shift

with Juhl, Crowley informed her supervisor, Bob Anderson, that she
was scared of Juhl and had concerns about working on the same shift

with him. In February 1998, Crowley reported to her team leaders,

Baker and McCourt, that Juhl was shadowing her movements in his

transtacker. During L.L. Bean's shift consolidation in March 1998,

Crowley complained to Baker that Juhl had come to the wrong

building three days in a row.

In April 1998, Crowley told her new team leader, Peter
Farley, that Juhl was physically blocking her from doing her work,

but Farley laughed about Juhl's behavior and referred to him as her

"little stalker." In late June 1998, Crowley again complained to
Farley that Juhl was violating the standing directive that he and

Crowley be kept separated at work, but Farley did nothing to remedy

the situation. In July 1998, after Juhl was issued a written

warning requiring him to stay away from Crowley but before L.L.

Bean placed him on unpaid leave, Farley allowed Juhl to work in

Crowley's vicinity despite her previous complaints.

In addition to Crowley's repeated complaints to her team

leaders and supervisors about Juhl's conduct, Crowley's co-workers

also reported Juhl's behavior and expressed their concerns for her

safety. See, e.g., Sims v. Health Midwest Physicians Servs. Corp.,

-25-
196 F.3d 915, 921 (8th Cir. 1999) ("Notification of sexual

harassment to an employer need not come solely from the victim of

the harassment for knowledge to be imputed to the employer."). For
instance, Ken Libby, a fellow employee, warned supervisor Anderson

that Crowley would end up dead if someone did not do something to

stop Juhl. Another fellow employee, Alan Coffin, alerted Anderson
to Juhl's odd practice of dancing near Crowley. In addition,

Bennett Schlaack, a trainer, advised three team leaders --

Andretta, McCourt, and Baker -- that Juhl was shadowing Crowley and

that he was concerned for her safety.

Furthermore, Crowley presented evidence that L.L. Bean

managers, team leaders, and supervisors were aware of Juhl's

conduct and that at times they even characterized it as harassment.
For example, after Juhl broke into Crowley's home in February 1997,

Crowley spoke with both her supervisor, Tim Marong, and a Human

Resources supervisor, Pat Bressette-Long. Marong's memo notes that
Crowley "felt that Paul was stalking her," and Bressette-Long's

hand-written notes state that "Eileen Crowley feels like she is

being stalked." The Security Department investigated a complaint

Crowley advanced in May 1997 and described her grievance as a

"sexual harassment complaint" in a document distributed to

"management" -- specifically, to manager Tim Parker. After Crowley

asked her supervisor, Bob Anderson, to put her back on the first

shift in January 1998 because she was concerned about Juhl,

Anderson sent an email to other management personnel stating that

everyone was fully aware of the situation between Crowley and Juhl.

-26-
Crowley's team leader, John Andretta, testified at trial that "it

was obvious everybody knew of the Juhl/Eileen situation and how he

was following her around, always being where she was." Finally,
the written warning to Juhl on June 30, 1998, indicated that he had

"created a hostile work environment in which [Crowley] felt

physically threatened" and that his "threatening, intimidating
behavior will not be tolerated."

At bottom, L.L. Bean's contention that Crowley did not

properly notify management of her complaints because she

"bypass[ed] the reporting requirements under L.L. Bean's harassment

policies," Br. of Appellant at 28, is without merit, for Crowley

and her co-workers repeatedly alerted team leaders and supervisors

about Juhl's conduct. L.L. Bean representatives admitted that the
proper procedure for an employee to report a claim of harassment

was to notify his or her team leader. Once a team leader received

a complaint from an employee, it was the team leader's duty to
report the complaint up the chain of command to his or her

supervisor. Therefore, by maintaining a policy that permitted

workers to report sexual harassment claims to team leaders, L.L.

Bean provided these team leaders with actual authority to receive

notice of sexual harassment complaints on behalf of the company,

and their knowledge was imputed to it. See, e.g., Sims, 196 F.3d

at 920 (stating that "employer liability could attach if

information of the harassment had come to the attention of someone

who is reasonably believed to have a duty to pass on the

information"). As such, Crowley provided sufficient evidence for

-27-
a reasonable jury to find that L.L. Bean knew or should have known

about Juhl's harassment.

ii. Whether L.L. Bean Took Prompt and Appropriate
Action

L.L. Bean contends that the evidence offered at trial did
not support a jury finding that it failed to take prompt and

appropriate remedial action after receiving Crowley's complaints.

In fact, it asserts that "[w]hen Crowley conveyed her concerns

previously to a supervisor or a human resources representative,

L.L. Bean took immediate action." Br. of Appellant at 28. L.L.

Bean argues:

Ultimately, Crowley's argument boils down to a
claim that L.L. Bean is strictly liable for
any encounter between Crowley and Juhl because
its prior warnings to Juhl to stay away from
Crowley and not to bother her, and its prior
actions in separating them, were not 100
percent effective in preventing Crowley and
Juhl from ever crossing paths again. Suffice
it to say, this is not the law.

Id. at 31.

To be sure, reasonable jurors might have agreed with L.L.

Bean's argument that, although its remedial actions were not 100%

effective, it did take prompt and appropriate action and therefore

should not be liable for Juhl's unlawful conduct. There is some

force to its argument that inasmuch as Crowley actually conceded in

her testimony that she was pleased with L.L. Bean's responses to

her complaints prior to June 23, 1998,4 it should escape liability.

4
At trial, the following exchange occurred:

Attorney. And so until June 23, 1998, you

-28-
See Br. of Appellant at 28. Having said that, however, we do not

review the jury's findings de novo, but instead must uphold the

jury verdict unless no reasonable person could have reached its
conclusion.

The jury obviously concluded that L.L. Bean did not take

prompt and appropriate action to protect Crowley from Juhl, and
this conclusion was not unreasonable. Aside from suspending and

eventually terminating Juhl after Crowley obtained a permanent

court protection order against him, the only significant remedial

action L.L. Bean ever took to protect Crowley from Juhl was to

schedule Crowley and Juhl in different buildings or on different

shifts. For instance, after Juhl broke into Crowley's home in

February 1997, Human Resources ordered that Juhl and Crowley be
kept separated. Then, after disregarding numerous complaints by

Crowley over the ensuing year and a half, L.L. Bean finally issued

a written warning to Juhl in June 1998 for "creat[ing] a hostile

thought the team leaders were doing
enough to take care of the
situation with Mr. Juhl; is that
fair to say?

Crowley: Yes.

Attorney: And so you did not have complaints
with what L.L. Bean was doing up
until June 23, 1998?

Crowley: Yes.

Tr. 198.

-29-
work environment in which [Crowley] felt physically threatened" and

ordered him to "take action to avoid further contact with Eileen

Crowley." In short, L.L. Bean adopted the same remedial action in
June 1998 as it had in February 1997, even though (1) the earlier

action had proven ineffective, (2) Crowley repeatedly had

complained to her team leaders and supervisors that Juhl wantonly
ignored the directive, (3) supervisors often failed to abide by the

policy and permitted Juhl and Crowley to work together, and (4) the

cumulative effect of Juhl's conduct over the year-and-a-half period

only had exacerbated the hostile work environment in which Crowley

was forced to work.

Consequently, although L.L. Bean may have made a good

faith effort to implement an effective remedial measure in February
1997, it could not turn a blind eye towards the measure's

ineffectiveness over the following 18 months, only to reinstitute

the same inadequate remedial measure in response to its finding
that Juhl had subjected Crowley to a hostile work environment.

Thus, based on L.L. Bean's pattern of indifference towards

Crowley's complaints about Juhl between February 1997 and June

1998, it cannot be said that a reasonable jury could not find that

L.L. Bean failed to take prompt and appropriate action to protect

Crowley from Juhl.

Furthermore, notwithstanding L.L. Bean's assertion that

it "took immediate action" in response to each of Crowley's

complaints, Crowley offered ample testimony supporting her position

that L.L. Bean ignored many complaints she and her co-workers

-30-
submitted concerning Juhl's behavior. Rather than reiterate each

instance in which L.L. Bean failed to respond to Crowley's

complaints, we simply will direct the parties to our summary of the
evidence above. See supra Part III.A.1.b. There, one will see

that L.L. Bean did not respond to Crowley's complaints to Human

Resources in May 1997, to Leo Davis in the summer of 1997, to Bob
Anderson in January 1998, to David Baker and Steve McCourt in

February 1998, to Peter Farley in April 1998, to Leo Davis again in

June 1998, and to Peter Farley again in June 1998.

In the end, we believe that a determination of whether

L.L. Bean should be liable for Juhl's conduct by reason of its

failure to take prompt and appropriate action to protect Crowley

from Juhl raised a question that the jury might have resolved
either way. As already noted, however, our task is not to

determine whether we agree with the jury's verdict, but to

determine whether a reasonable person could have arrived at its
conclusion. In light of the heavy burden placed on L.L. Bean to

overturn the verdict based on sufficiency of the evidence grounds,

we conclude that Crowley presented sufficient evidence for a

reasonable person to conclude that L.L. Bean failed to take prompt

and appropriate action to put an end to Juhl's stalking of Crowley.

Therefore, we will not upset the verdict based on L.L. Bean's

argument that the evidence was insufficient to support it, and

thus, we will not reverse the order of the district court denying

L.L. Bean judgment as a matter of law on this basis.

-31-
 2. Systemic Violation Claim

L.L. Bean next challenges the jury's finding that it

committed a systemic violation. It argues that Crowley failed to
present evidence that it maintained a "discriminatory policy or

practice." It also contends that its alleged failure to recognize

that Juhl was stalking and sexually harassing Crowley is not
sufficient to hold it liable for a systemic violation. See Br. of

Appellant at 40.

As already explained, Title VII required Crowley to file

her charge of employment discrimination with the EEOC within 300

days of the alleged sexual harassment. See 42 U.S.C. § 2000e-

5(e)(1). The continuing violation doctrine, however, "creates an

equitable exception to the 300-day limitation when the unlawful
behavior is deemed ongoing." Provencher v. CVS Pharmacy, Div. of

Melville Corp., 145 F.3d 5, 14 (1st Cir. 1998). Traditionally we

have recognized that "[c]ontinuing violations may be serial or
systemic" and have distinguished between such violations. Id.

"Systemic violations occur where an employer maintains a

discriminatory policy, responsible for multiple discriminatory acts

that fall outside the limitations period." Rivera-Rodriguez v.

Frito Lay Snacks Caribbean, 265 F.3d 15, 21 (1st Cir. 2001) (citing

Pilgrim v. Trustees of Tufts College, 118 F.3d 864, 869 (1st Cir.

1997)). On the other hand, there is a serial violation "where the

plaintiff experiences a number of discriminatory acts arising from

the same discriminatory animus." Id. at 22. In this case, the

district court in recognition of the case law at the time of the

-32-
trial instructed the jury on the distinction between continuing and

systemic violations. The jury then found that L.L. Bean had

committed a systemic violation, but not a serial violation.
Crowley submits that the jury's verdict is supporatable

because L.L. Bean's sexual harassment policy is fundamentally

flawed insofar as it prohibits only sexually offensive behavior,
not nonsexual conduct motivated by gender bias. Crowley contends

that L.L. Bean's sexual harassment policy "by definition fails to

address a wide range of illegal harassment that is directed at a

victim because of gender but that does not fall within the

stereotypical scenario of pin-ups, breast-grabbing, and lewd

comments." Br. of Appellee at 32. Consequently, according to

Crowley's theory, L.L. Bean committed a systemic continuing
violation by maintaining a sexual harassment policy that led its

managers and supervisors to identify Juhl's stalking and harassment

of Crowley as non-sexual conduct that did not warrant investigation
or remediation.

Clearly there is factual support for Crowley's argument

inasmuch as L.L. Bean's sexual harassment policy focuses primarily

on sex-related conduct, rather than on nonsexual -- yet

inappropriate -- behavior motivated by gender. Indeed, L.L. Bean's

employee guide provides, in relevant part:

Generally speaking, sexual harassment is
defined as conduct or behavior that is
intimidating, hostile, offensive and/or
interferes with an employee's work
performance. It includes conduct that creates
a hostile work environment.

-33-
 Some examples of harassing behaviors include,
but are not limited to:

• Offensive sexual flirtations
• Verbal or physical abuse of a sexual
nature
• Sexually suggestive gestures
Advances or propositions
• The display of sexually suggestive
objects, pictures, or written
materials
• Lewd nicknames
• Sexual practical jokes or horseplay

App. 111-12. Furthermore, a Human Resources manager testified that

L.L. Bean's sexual harassment policy related to "sexual acts"

rather than nonsexual conduct motivated by gender and that L.L.
Bean's policy did not prohibit an employee from stalking a person
because of his or her gender.

Nevertheless, it does not appear that L.L. Bean itself
maintained a "discriminatory policy or practice," Megwinoff v.

Banco Bilbao Vizcaya, 233 F.3d 73, 77 (1st Cir. 2000), but simply

developed and implemented an anti-sexual harassment policy that
does not adequately protect its employees from all forms of
actionable sexual harassment. L.L. Bean's failure, therefore, is
distinguishable from traditional discriminatory polices and
practices such as refusing to hire women or paying women less than

men. Moreover, L.L. Bean's ineffective sexual discrimination

policy does not discriminate against a certain class of

individuals, such as women or minorities, but rather treats all

employees equally inasmuch as it provides every employee the same

inadequate protection. Crowley has cited no case that supports her

theory that maintaining a substandard sexual harassment policy

-34-
constitutes a "discriminatory policy or practice," and we were

unable to find any caselaw supporting this novel theory. In the

circumstances, we are satisfied that based on the evidence
presented at trial, the jury's conclusion that L.L. Bean committed

a systemic violation is problematic.

We need not resolve the point definitively, however, for
we are satisfied that the jury's possible error in concluding that

there was a systemic violation was harmless in the wake of the

Supreme Court's decision in Morgan. Under the rule of that case it

is no longer necessary for a jury to determine whether a violation

is systemic or serial when considering the timeliness of a hostile

work environment claim. The Court in Morgan explained that a

"hostile work environment claim is comprised of a series of
separate acts that collectively constitute one 'unlawful employment

practice.'" Morgan, --- U.S. at ---, 122 S. Ct. at 2074. Based on

that premise, the Court held that "consideration of the entire
scope of a hostile work environment claim, including behavior

alleged outside the statutory time period, is permissible for the
purposes of assessing liability, so long as any act contributing to

that hostile environment takes place within the statutory period."

Id. at ---, 122 S. Ct. at 2068. See also id. at 2074 ("Provided

that an act contributing to the claim occurs within the filing

period, the entire time period of the hostile environment may be

considered by the court for the purposes of determining

liability.").

-35-
 Inasmuch as under Morgan the entire period during which

a victim is subjected to a hostile work environment now constitutes

one "unlawful employment practice," Morgan supplants our
jurisprudence on the continuing violation doctrine in hostile work

environment claims, making it no longer necessary to distinguish

between systemic and serial violations. And because the hostile
work environment created by Juhl extended into the statutory period

-- i.e., after February 24, 1998 -- Crowley satisfied the standard

Morgan set forth and therefore was able to pursue her hostile work

environment claim based partially on events that occurred outside

the limitations period.5

B. New Trial

L.L. Bean argues that in the event we do not grant it
judgment as a matter of law, in the alternative we should reverse

the district court's order denying it a new trial. L.L. Bean's

bases for a new trial include juror bias, erroneous evidentiary
rulings, and improper jury instructions. We reject L.L. Bean's

request for a new trial, as none of its arguments has merit.

5
We note that the Supreme Court of New Jersey recently followed
Morgan in construing the New Jersey Law Against Discrimination to
resolve a statute of limitations question in a hostile
environment continuing violation case without mentioning the
distinction between systemic and serial violations, thus
implicitly holding that the distinction does not matter when
resolving the limitations question. See Shepherd v. Hunterdon
Developmental Ctr., 803 A.2d 611, 623 (N.J. 2002). We make
explicit under Title VII what the New Jersey court held
implicitly under the similar New Jersey law.

-36-
 1. Juror Bias

L.L. Bean argues that it is entitled to a new trial

because one of the jurors neglected to disclose her "possible bias"
during voir dire by failing to reveal that she is a lawyer

affiliated with the New England Research Institute who not only

represented a female plaintiff in a sex discrimination suit in
federal court, but also investigates and researches legal topics

relating to women's health and quality of life issues. Crowley

responds that L.L. Bean's charges of "possible bias" are purely

speculative and that it has not even tried to demonstrate that the

juror's background would have affected the outcome of the trial.

To secure a new trial based on a juror's inaccurate

answers during voir dire, "a party must first demonstrate that a

juror failed to answer honestly a material question on voir dire,

and then further show that a correct response would have provided

a valid basis for cause." McDonough Power Equip., 464 U.S. at 556,
104 S. Ct. at 850. When seeking a new trial based on non-

disclosure of information by a juror during voir dire, however, a

party "must do more than raise a speculative allegation that the

juror's possible bias may have influenced the outcome of the

trial." Dall, 970 F.2d at 969.

L.L. Bean sets forth the following facts and assertions

to support its argument that the juror failed to disclose her

"possible bias." Following the trial, the juror wrote a letter to

the trial judge asking permission to speak with Crowley's attorney,

explaining that she "found the case to be most interesting, in

-37-
particular because of my training as a psychologist and my interest

as a research scientist." After the judge shared the letter with

the parties, L.L. Bean discovered that the juror (1) worked for the
New England Research Institute; (2) investigated and researched

women's issues, including topics on women's health as well as child

custody in battered-women cases; and (3) as a "family lawyer,"
represented a woman in a federal sexual discrimination case.6

On the basis of the foregoing information, L.L. Bean

contends that the juror was dishonest when she failed to disclose

her background after the judge asked the prospective jurors during

voir dire whether they knew "of any reason whatever, whether I have

asked you about it or not why you would have a concern about your

ability to serve as a fair and impartial juror if you are selected
in this case." Br. of Appellant at 42 (quoting Tr. of Voir Dire at

24). L.L. Bean insists that if the juror had disclosed her

"research interest in this case" as well as her professional
experience as an attorney in a sex discrimination case, it would

have successfully challenged her for cause. Id. at 44.

We reject L.L. Bean's argument for several reasons.

First, notwithstanding its assertions to the contrary, it has not

6
We are surprised that L.L. Bean was in the dark about the
juror's background until she wrote her letter. In this regard,
we point out that in its brief it cites three Maine Supreme
Judicial Court cases in which it indicated that she "acted as a
family lawyer [representing] women in contested family disputes."
Br. of Appellant at 43. All three cases resulted in published
opinions in which her name appeared as an attorney. Moreover,
the federal sex discrimination case produced a Westlaw opinion in
which her name appears as an attorney.

-38-
demonstrated that the juror was dishonest in response to the

court's question. Although L.L. Bean may believe that the juror's

background and experience would make her biased, it does not follow
that she believed that she could not be a fair and impartial juror

because of her experiences.

Second, L.L. Bean bases its charge of possible bias on
its assumption that the juror is biased against all men and all

employers because she researched women's issues and served as an

attorney some years ago in a sexual discrimination suit. We agree

with the district court in its assessment that "[t]he suggestion

that an interest in women's issues naturally correlates to a

dislike for men and employers is" unfounded.

Third, L.L. Bean only speculates as to whether the juror
actually is biased, for it has not "demonstrate[d] actual prejudice

or bias," Dall, 970 F.2d at 969, but only has alleged "possible

bias." Br. of Appellant at 41. As we have stated previously, the
"'burden of proof must be sustained not as a matter of speculation,

but as a demonstrable reality.'" Dall, 970 F.2d at 969 (quoting

United States v. Vargas, 606 F.2d 341, 344 (1st Cir. 1979)).

Therefore, because L.L. Bean has not met the standard for obtaining

a new trial based on actual juror bias, we will affirm the district

court's dismissal of its motion for new trial based on this ground.

2. Evidentiary Rulings

L.L. Bean contends that the district court made several

erroneous evidentiary rulings that entitle it to a new trial. The

district court, however, did not make an error of law or abuse its

-39-
discretion in any of these rulings, and therefore, we reject L.L.

Bean's request for new trial based on these grounds.

a. Team Leader Hearsay

L.L. Bean asserts that the district court erred when it

allowed Crowley to introduce hearsay testimony that her team

leader, Peter Farley, jokingly referred to Juhl as Crowley's
"little stalker" after she reported an incident of harassment by

Juhl in April 1998. L.L. Bean contends that the court improperly

allowed the statement as an admission by a party-opponent under

Fed. R. Evid. 801(d)(2), arguing that team leaders are not

authorized to speak on its behalf, and therefore, "their statements

cannot be considered within the scope of their agency as an

employee of L.L. Bean." Br. of Appellant at 46.
L.L. Bean's argument fails for two reasons. First, the

court did not allow Crowley to introduce the statement as an

admission by a party-opponent under Fed. R. Evid. 801(d)(2).
Rather, the court concluded that the statement did not constitute

hearsay under Fed. R. Evid. 801(c) because it was not offered to

prove the truth of the matter asserted. In other words, Crowley

did not offer Farley's comments that Juhl is her "little stalker"

to prove that Juhl is actually a stalker; she offered the statement

to show that L.L. Bean management was aware of Juhl's behavior.

Second, even if the district court had admitted the

statement as an admission by a party-opponent under Fed. R. Evid.

801(d)(2), we doubt that the court would have erred. Although L.L.

Bean now maintains that team leaders are not supervisors and are

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not responsible for hiring, firing, or disciplining employees, L.L.

Bean admitted at trial that team leaders are, in fact, supervisors.

For instance, Human Resources manager Pat Bressette-Long testified
that team leaders were part of L.L. Bean's "leadership." Moreover,

L.L. Bean's job descriptions state that team leaders are

responsible for communicating and enforcing company policies,
maintaining employee records, making recommendations on hiring,

delivering disciplinary actions to employees, and handling

personnel issues.

b. Inadmissible Lay Opinions

L.L. Bean next argues that the district court improperly

allowed Crowley's witnesses to offer lay opinions by characterizing

Juhl's conduct toward Crowley as "stalking." L.L. Bean describes
these comments as a "drive-by character assassination." Br. of

Appellant at 49.

But Crowley's witnesses were not the only ones to use the
term "stalking." Human Resources manager Pat Bressette-Long and

supervisor David Simmons used the term "stalked" in their notes

from their meeting with Crowley after Juhl broke into her home.

Moreover, even L.L. Bean's attorneys used the term "stalked" at

trial, at one point asking Bressette-Long whether supervisor Tim

Marong ever mentioned "whether or not it was his conclusion that

Ms. Crowley was being stalked or that is what [Crowley] had said to

him." And in response, Bressette-Long stated that Crowley had, in

fact, told Marong that she was being stalked. In the

circumstances, we reject L.L. Bean's argument on this point.

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 c. Non-Workplace Conduct

L.L. Bean argues that the district court abused its

discretion in denying its motion in limine to exclude evidence of
Juhl's non-workplace conduct, such as Crowley's encounters with him

at a bar and at the L.L. Bean Christmas party in 1996, his

following her home one night in 1996, and his breaking into her
home in February 1997.7 See Br. of Appellant at 51. L.L. Bean

failed, however, to make a timely objection at trial to evidence

relating to Juhl's non-workplace conduct. L.L. Bean only objected

to "time-barred" evidence and actually stated to the district court

that the jury "may take into consideration conduct that occurred

off premises in determining whether the conduct at work was hostile

environment." Thus, L.L. Bean invited the ruling of which it now
complains.

Assuming arguendo that L.L. Bean had preserved its

objection, the district court would not have erred in allowing
evidence relating to non-workplace conduct. L.L. Bean opines that

it cannot prevent and therefore should not be liable for an

employee's off-site behavior. Consequently, L.L. Bean believes

that any evidence of non-workplace conduct and interactions is

irrelevant and should be precluded. Courts, however, do permit

7
L.L. Bean also submits that the district court erred when it
denied its motion to exclude evidence relating to Juhl's conduct
prior to February 24, 1998. See Br. of Appellant at 51. As
discussed repeatedly throughout this opinion, however, the jury
was permitted to consider this evidence and hold L.L. Bean liable
for maintaining a hostile work environment prior to February 24,
1998, as long as the hostile work environment extended into the
statutory period.

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evidence of non-workplace conduct to help determine the severity

and pervasiveness of the hostility in the workplace as well as to

establish that the conduct was motivated by gender. For example,
in O'Rourke, we affirmed a verdict in favor of a sexual harassment

victim who had offered evidence that she had received crank phone

calls at home. See O'Rourke, 235 F.3d at 724. In this case,
Juhl's intimidating behavior and hostile interactions with Crowley

outside of work help explain why she was so frightened of Juhl and

why his constant presence around her at work created a hostile work

environment.

d. L.L Bean's Investigation

L.L. Bean contends that the district court improperly

excluded as hearsay certain documents relating to its investigation
of a confrontation between Crowley and Juhl on June 23, 1998. L.L.

Bean asserts that a report prepared by team leader Leo Davis

"paints a very different picture [of Juhl] than the caricature
presented by Crowley," and the court's exclusion of the report of

the investigation "significantly hamstrung [L.L. Bean] in

presenting its defense." Br. of Appellant at 53.

Aside from explaining how critical it believes that this

report was to its defense, L.L. Bean does not indicate the reasons

why the district court's exclusion of the documents was improper or

the basis for admitting the documents. L.L. Bean mentions in its

brief that Davis interviewed witnesses to the confrontation as well

as Juhl and Crowley. If that is the case, L.L. Bean would have to

overcome a double hearsay problem for the evidence to be

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admissible. See United States v. Reilly, 33 F.3d 1396, 1410 (3d

Cir. 1994). L.L. Bean does not, however, attempt to find

exceptions to address the multiple layers of hearsay. Moreover,
L.L. Bean does not explain why the information in the report could

not have been elicited through direct testimony rather than through

the hearsay document. Overall, we are satisfied that L.L. Bean has
not demonstrated on appeal that the district court abused its

discretion in disallowing the documents.

3. Jury Instructions

L.L. Bean's last rationale for requesting a new trial is

to claim that the district court provided flawed jury instructions.

See Br. of Appellant at 55-60. It argues that the court gave

erroneous instructions on the elements of a systemic violation by
failing to make clear that Crowley had to prove that it maintained

a discriminatory policy or practice relating to hiring, training,

promotions, firing, and compensation.
Even if these jury instructions were flawed legally as

L.L. Bean contends, we conclude that the error was harmless in

light of the Supreme Court's decision in Morgan. As we already

explained above, Morgan eliminates the need for juries to determine

whether there was a systemic or serial violation in order to invoke

the continuing violations doctrine and thus to allow consideration

of discriminatory acts that fell outside the limitations period.

The Court explained in Morgan that "[p]rovided that an act

contributing to the claim occurs within the filing period, the

entire time period of the hostile environment may be considered by

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the court for the purposes of determining liability." Morgan, ---

U.S. at ---, 122 S. Ct. at 2074. Moreover, the asserted error

would not have contributed to the jury's finding that the violation
was ongoing.

Finally, L.L. Bean argues that the district court erred

by refusing to instruct the jury that it must determine whether a
hostile work environment existed based on Juhl's behavior at work,

not his non-workplace conduct. See Br. of Appellant at 56. As

with L.L. Bean's challenge to the court's evidentiary ruling

allowing evidence of Juhl's non-workplace conduct, Crowley

maintains that L.L. Bean actually waived its objection by telling

the district court that the jury could "take into consideration

conduct that occurred off premises in determining whether the
conduct at work was hostile environment."

Whether or not L.L. Bean waived its objection, it is

inconceivable to us that the jury could have found L.L. Bean liable
for maintaining a hostile work environment by disregarding the

overwhelming amount of evidence of Juhl's harassment on L.L. Bean's

premises and instead basing its verdict on the comparatively few

incidents involving Juhl's non-workplace conduct. As such, we

conclude that even if it would have been advisable to charge the

jury as L.L. Bean had requested, the district court's refusal to

do so did not affect L.L. Bean's "substantial rights" and therefore

amounts to nothing more than harmless error under Fed. R. Civ. P.

61. Cigna Ins. Co. v. Oy Saunatec, Ltd., 241 F.3d 1, 8 (1st Cir.

2001).

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 IV. CONCLUSION

For the foregoing reasons, we affirm the order of the

district court denying L.L. Bean's motion for a judgment as a
matter of law or, in the alternative, a new trial and uphold the

jury verdict in favor of Eileen Crowley.

Affirmed.

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