United States Court of Appeals
For the First Circuit
No. 01-1915
LINDA GRAY,
Plaintiff, Appellant,
v.
GENLYTE GROUP, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
and Gertner,* U.S. District Judge.
Mark D. Stern with whom Mark D. Stern, P.C. was on brief for
appellant.
Brian H. Lamkin with whom Timothy P. Van Dyck, Edwards & Angell,
LLP, Dorothy Pitt and Pitt, Fenton & Smith were on brief for appellee.
*Of the District of Massachusetts, sitting by designation.
April 18, 2002
BOUDIN, Chief Judge. This appeal stems from Linda Gray's
suit in the district court charging Genlyte Group with liability under
Massachusetts law for sexual harassment. The jury returned a special
verdict for Genlyte, finding that Gray had been subject to sexual
harassment by a Genlyte employee but not through conduct sufficiently
severe or pervasive to warrant liability. Gray now appeals, claiming
errors in the instructions to the jury and in rulings on admissibility
of evidence.
We begin with a brief synopsis of the evidence on both sides.
In assessing sufficiency-of-the-evidence claims, we normally only
consider the evidence in the light most favorable to the verdict.
Rodowicz v. Mass. Mut. Life Ins. Co., 279 F.3d 36, 39 (1st Cir. 2002).
However, for most other kinds of questions ( e.g., admissibility, the
appropriateness of jury instructions, plain or harmless error),
evidence offered by either side or both may be pertinent. See id.
Gray worked from 1980 to 1998 at Genlyte's Lightolier plant
in Fall River, Massachusetts. In her subsequent trial, she claimed
that she was harassed in 1981 by Jose Hermenegildo, another Genlyte
employee, for a few weeks. In particular, Hermenegildo allegedly
stared at Gray and made tongue gestures mimicking oral sex. Gray did
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not report this conduct to Genlyte. It ceased when her boyfriend--a
co-worker at the factory--threatened Hermenegildo.
Fourteen years later, in 1995, the harassment resumed after
her boyfriend moved to a different shift. According to Gray,
Hermenegildo's harassment included statements ( e.g., "Do you like to
kiss?"); gestures (grabbing his crotch, sexual tongue gestures); and
contact (touching her hair and--on one occasion--grabbing and shaking
her while asking why she was avoiding him). Gray testified that in
other instances Hermenegildo's conduct appeared threatening. He
watched her in the parking lot before and after work, approached her at
work, stared at her, and once followed her and her children home in his
car.
At trial, Gray claimed that she had reported some or all of
the harassment to her supervisor, Joe Pavao, and his supervisor, Bill
Torrence, and nothing had been done. However, Torrence said that she
had told him only that Hermenegildo was watching her and invited
Torrence to observe him on a specific occasion; further, he said she
later told him that she had taken care of the problem herself.
According to Gray, Hermenegildo's misbehavior diminished in
1996, but she began to fear him after learning in that year that he had
beaten his wife. In 1997, Hermenegildo's earlier alleged misconduct
resumed and in August 1997, Gray reported it to her supervisor and also
provided a laundry list of his conduct in 1981 and 1995.
-3-
Gray testified that following her detailed complaint in
August 1997, her supervisors took no significant action to investigate
her claims or discipline Hermenegildo. Shortly after the meeting, Gray
suffered a severe panic attack and was treated for continuing emotional
distress. She did not return to work for the rest of 1997 but retained
a lawyer who wrote to the company. The company took no action. Gray
then filed a charge with the Massachusetts Commission Against
Discrimination ("MCAD"). Mass. Gen. Laws (M.G.L.) ch. 151B § 5 (2000).
When Gray returned to work in January 1998, she said that
Hermenegildo howled at her and followed her in the parking lot. In
August 1998, Gray and other workers testified about Hermenegildo's
misbehavior at a workers' compensation proceeding brought by Gray. In
September 1998, Hermenegildo allegedly made an offensive tongue gesture
at Gray and threatening gestures against another employee (Ray Tisdale)
who testified at the August 1998 hearing.
Gray testified that due to emotional distress, she had been
unable to work at the plant or elsewhere from September 1998 onward.
In March 1999, she filed a criminal charge against Hermenegildo based
on his September 1998 tongue gesture and, in April 2000, he was
convicted of a misdemeanor for, "with offensive and disorderly acts or
language[,] accost[ing] or annoy[ing]" Gray at her workplace. M.G.L.
ch. 272 § 53 (2000). In October 1999, she brought this diversity
action against Genlyte charging it with violation of M.G.L. ch. 151B,
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which inter alia forbids an employer from tolerating sexual harassment
in the workplace.
Genlyte's evidence at the subsequent trial did not directly
refute Gray's claims as to individual incidents--the company did not
call Hermenegildo to testify--but it did raise doubts about Gray's
claims on several fronts. On cross examination, Gray acknowledged that
she had not reported the 1981 incidents to the company that year and
she gave conflicting accounts of whether she had ever reported some of
the most serious subsequent conduct ( e.g., Hermenegildo grabbing his
crotch and making lewd remarks). And Torrence testified that Gray's
1995 complaint was far more limited in scope than she had claimed.
Genlyte also adduced testimony from Gray's own witnesses--a
treating social worker and a psychiatrist who testified as an expert
for Gray. Based on their testimony, Genlyte asserted that Gray had
suffered from emotional, psychological and social difficulties from her
childhood onward, that she had personality disorders, and that her
reactions to her treatment by Hermenegildo were more extreme than they
would otherwise have been.
Finally, Genlyte argued that most of Gray's charges against
Hermenegildo were uncorroborated by evidence from others at the plant.
Based on its own witness' testimony, the company said that its
supervisors had made reasonable and good faith efforts to investigate
such complaints as Gray had made to it, handicapped though they were by
-5-
her delays and omissions. On this basis, it argued that even if the
harassment alleged had all occurred, the company lacked sufficient
notice to make it liable.
For its deliberations, the jury was given a verdict form with
six special questions, of which only the first three were eventually
answered. The first three read as follows:
(1) Was plaintiff, Linda Gray, subjected to
sexual harassment, i.e. verbal or physical
conduct of a sexual nature?
(2) Was that conduct offensive and/or unwelcome
to plaintiff?
(3) Was that conduct sufficiently severe and/or
pervasive so as to alter the conditions of
plaintiff's employment by creating a work
environment that a reasonable person would find
intimidating, hostile, humiliating or sexually
offensive?
After seven hours of deliberation, the jury submitted the
following question:
We're not going to reach a verdict tonight, as we
are 'hung up' on Question 3. I would not
characterize us as deadlocked, but we do need
some more time to deliberate. The wording of
Question 3 has us a bit concerned. 'Sufficiently
severe' is fairly nebulous, and we are wondering
if we could have some clarification. Thank you
very much.
Both sides then submitted suggestions for supplemental jury
instructions and the district court met with counsel to discuss them.
After hearing objections by Gray's counsel who had proposed
numerous supplemental instructions, the district court delivered a
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single supplemental instruction, telling the jury that as to question
(3) it should consider the "totality" of the circumstances over the
period in question (including the frequency, severity, and/or
offensiveness of the conduct), whether it was physically threatening,
whether it would reasonably interfere with a reasonable woman's job
performance, and whether it would undermine her ability to succeed at
her job.
After further deliberation, the jury returned a verdict in
Genlyte's favor. It answered "yes" to questions (1) and (2) but "no"
to question (3). Based on the verdict form, a "no" answer to question
(3) ended the case in defendant's favor and spared the jury from having
to consider the company's knowledge of the harassment, the adequacy of
steps taken to prevent it and the amount of damages to be awarded.
This appeal followed.
On appeal, five of the eight claims of error advanced by Gray
concern the failure to give instructions or errors in the instructions
that were given. Such claims are reviewed de novo (e.g., failure to
give an instruction) or under an abuse of discretion standard ( e.g.,
court's choice of language). Wilson v. Mar. Overseas Corp., 150 F.3d
1, 10 & n.7 (1st Cir. 1998). However, casting a shadow over Gray's
claims is Genlyte's contention that none of the objections to the
instructions was adequately preserved, so they are reviewable only for
plain error. We agree with Genlyte.
-7-
Insofar as the initial instructions are concerned, none of
the errors or omissions now objected to was specifically identified by
Gray's counsel after the instructions and before the jury first
retired, even though the district judge warned that specific objections
would be necessary to preserve the objections; the only debatable case
is discussed below. As for the requested supplemental instructions,
the district court after giving its supplemental instruction asked for
objections. Gray's counsel responded, "Just simply the ones I have
already stated, your Honor." This is not enough.
The governing rule provides that a party cannot assign as
error the giving of or failure to give an instruction "unless that
party objects thereto before the jury retires to consider its verdict,
stating distinctly the matter objected to and the grounds of the
objection." Fed. R. Civ. P. 51 (emphasis added). "Objection" means to
the instruction as given; thus, even if the initial request is made in
detail, the party who seeks but did not get the instruction must object
again after the instructions are given but before the jury retires for
deliberations. Smith v. Mass. Inst. Tech., 877 F.2d 1106, 1109 (1st
Cir. 1989). Further, it is not enough for counsel in renewing an
objection merely to refer back generically to objections made before
the charge.1
1See Davis v. Rennie, 264 F.3d 86, 100 (1st Cir. 2001);
Elliot v. S.D. Warren Co., 134 F.3d 1, 5-6 (1st Cir. 1998); see
also 9A Wright and Miller, Federal Practice and Procedure § 2553
-8-
This may seem harsh, but it accords with the language of Rule
51, which requires that the objection state "distinctly the matter
objected to and the grounds of the objection," Fed. R. Civ. P. 51, and
we are in any event bound by a long line of precedents. See note 1,
above. Further, in many instances, the judge will not know just what
it is in the instructions as given that has not satisfied counsel. It
is easier to have a flat rule than try to decide case by case when the
judge should have been warned more "distinctly" as to the concern,
although there will always remain some gray-area cases posing hard
questions. See Wilson, 150 F.3d at 7-8.
Despite the unqualified language of Rule 51, this court has
allowed appellate review for "plain error" despite the lack of a proper
objection, but plain error is "confined to the exceptional case."
Toscano v. Chandris, S.A., 934 F.2d 383, 385 (1st Cir. 1991) (internal
quotations omitted). We have followed the Supreme Court's general
formulation, first used in criminal cases, requiring the party claiming
plain error to demonstrate (1) that there was error, (2) that it was
plain, (3) that it likely altered the outcome, and (4) that it was
sufficiently fundamental to threaten the fairness or integrity or
at 411-415 (1995) (noting that although some courts will forgive
a failure to object after the instruction if the party's
position previously had been made clear to the trial judge, this
is "risky business" and counsel should renew all objections at
the close of the jury charge to properly preserve them).
-9-
public reputation of the judicial proceeding. United States v. Olano,
507 U.S. 725, 735-36 (1993).
Of the five omitted instructions, only two come close to
being error and neither is "plain" error. The most difficult one
concerns the relationship between sexual harassment and intimidation.
In a nutshell, Gray argues that the district court effectively told the
jury that it could not consider non-sexual conduct but only conduct
that was either explicitly sexual or had "sexual overtones" and that
this altered the outcome of the case by excluding merely threatening
conduct (e.g., following Gray home).
Section 151B, like Title VII, see 42 U.S.C. § 2000e-2 (1994),
prohibits discrimination based on "sex" regardless of whether it is
manifested by conduct that is sexual in character or is wholly non-
sexual but is motivated by gender. See e.g., Brockton v. MCAD, 386
N.E.2d 1240, 1241 (Mass. 1979) (denial of accrued sick leave benefits
for pregnancy-related disabilities); Thurber v. Jack Reilly's, Inc.,
521 F. Supp. 238, 240-41 (D. Mass. 1981), aff'd, 717 F.2d 633 (1983),
cert. denied, 466 U.S. 904 (1984) (failure to promote employee because
of her sex). Thus Gray could have charged Genlyte, among other faults,
with tolerating intimidation motivated by gender. But that is not what
happened.
The Massachusetts statute, unlike the federal statute,
provides explicitly that "[d]iscrimination on the basis of sex shall
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include, but not be limited to, sexual harassment" and in the same
provision states that the term "sexual harassment" shall mean:
sexual advances, requests for sexual favors and
other verbal or physical conduct of a sexual
nature when (a) submission to or rejection of
such advances, requests or conduct is made either
explicitly or implicitly a term or condition of
employment or as a basis for employment
decisions; (b) such advances, requests or conduct
have the purpose or effect of unreasonably
interfering with an individual's work performance
by creating an intimidating, hostile, humiliating
or sexually offensive work environment.
M.G.L. ch. 151B § 1(18).
Gray's complaint did cite section 151B's discrimination
provision at the outset but the rest of the complaint phrased the
claim, and did so repeatedly, in terms of "sexual harassment." In
other words, Gray narrowed her claim to "sexual harassment" as defined
by Massachusetts law. The Massachusetts definition addresses itself to
"sexual" advances and requests and to verbal or physical conduct "of a
sexual nature." Accordingly there is a literal-language basis for
instructing the jury that, in cases where the charge is sexual
harassment, all of the conduct used to prove sexual harassment must
have some connection to sex.
Still, acts of intimidation could comprise part of a pattern
of sexual harassment, even though standing alone such acts might have
no sexual connotation. Consider a male employee who made a series of
explicit sexual advances to a female co-worker and then, when rebuffed,
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lurked outside the victim's home. Massachusetts precedent appears to
support this common-sense view, see Dahms v. Cognex Corp., 2000 WL
33170952, 12 Mass. L. Rptr. 486 (Mass. Super. 2000) ("Conduct which is
not specifically sexual in nature may nevertheless be evidence of . .
. hostile work environment sexual harassment.").
In its original instructions to the jury, the district court
came close to tracking the statute--and then went a bit beyond in
Gray's favor:
[Sexual harassment] is any conduct of a sexual
nature, and it is actionable if it's sufficiently
pervasive in the place where it takes place or in
the context of wherever it does take place. It
can consist of sexual remarks, of ridicule, of
intimidation, but it has to have sexual
overtones.
In explaining just how severe the harassment had to be in order to
create a hostile work environment, the district court used somewhat
similar language, "[D]ecide whether the totality of [Hermenegildo's]
conduct was so severe, so pervasive that a reasonable woman would find
the work environment to be hostile, humiliating, or intimidating as a
result of that conduct."
In this case, some of Hermenegildo's conduct was overtly
sexual (remarks, the tongue gestures, crotch grabbing) while other acts
(in our view) were implicitly so in the context of the explicit
conduct: staring at Gray, waiting for her in the parking lot,
appearing at her work station, following her home. The jury may well
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have taken the district court's reference to "intimidation . . .
[having] sexual overtones" to encompass this latter conduct; but
perhaps it thought that conduct could count only if in isolation it had
"sexual overtones." No one can be sure.
As to the proper reading of Massachusetts law, our own view
is that the SJC would construe the statute in accordance with Dahms so
we think that in the future the jury should be told (where pertinent)
that acts of intimidation may be part of "sexual harassment" based on
context alone. Still, it is impossible to describe the district
court's own "overtones" charge as plain error since it tracks (or is
more favorable than) the statute taken literally and there is little
direct Massachusetts precedent. And, since the jury may well have
understood the instruction given to encompass all of Hermenegildo's
reprehensible conduct, it is even harder to say that the ambiguity
likely altered the result. Olano, 507 U.S. at 734.
Gray's brief makes four other objections to the instructions
which are also respectable but in our view less powerful. We start
with the one on which Gray places greatest stress. Gray says that she
asked that the supplemental instruction tell the jury to consider the
plight of a reasonable woman "in Gray's position," that the district
court failed to include the quoted language, and that consequently the
supplemental instruction misled the jury into believing that it should
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consider the experience of women at the plant as a whole rather than
Gray's own experience.
The problem arises primarily because the supplemental
instruction (which we reprint in full in an attachment) told the jury
inter alia that the severity issue "boils down to this":
Would the mythical reasonable woman that
we talked about yesterday, that I described to
you yesterday, neither overly sensitive nor
overly hardened, would that mythical reasonable
woman find the work environment at Lightolier, as
it has been described to you in the course of the
trial, hostile, humiliating, or intimidating as
a result of the sexual harassment that you found
had occurred? [emphasis added].
This, coupled with the absence of language focusing the jury on Gray's
own experience, could--if taken in isolation--easily have misled the
jury into thinking that the severity issue turned on the experience of
the average woman in the plant. In fact, there was a limited amount of
evidence at trial about the experience of other women.
Nevertheless, we think it highly unlikely that, in the
context of the trial as a whole, the jury misunderstood. First, the
great bulk of harassment evidence at trial concerned harassment of
Gray. Second, in a pre-charge instruction on the third day of trial,
the district court told the jury that the key question as to severity
was whether the harassment was "hostile or intimidating or humiliating
to an objectively reasonable person in the plaintiff's position"--the
very words Gray says were required. Third, the closing arguments of
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opposing counsel both focused on the harassment of Gray--not the
experience of other women. Finally, the three special questions
answered by the jury, reprinted above, focused directly on the
harassment to which "Linda Gray" had been subject.2
In sum, the supplemental instruction might well be error if
taken alone; but in the context of the trial it is doubtful that the
jury was misled. In all events, we are confident that the instruction
in context does not meet a critical requirement for plain error,
namely, that its correction would likely have altered the result. We
add that the very ease with which any confusion could have been
resolved, and the certainty that the district court failed to
appreciate the inference created by the abstract wording of the
instruction, underscores the need for counsel to make a distinct
objection after the instructions.
Next, Gray argues that Massachusetts case law makes clear
that sexual harassment can be based not only on the impact of
individual acts taken separately but also on the "cumulative effect" of
such acts over a period of time. E.g., Cuddyer v. Stop & Shop
Supermarket Co., 750 N.E.2d 928, 937 (Mass. 2001). In both the
2
The first question asked: "Was plaintiff, Linda Gray,
subject to sexual harassment, i.e., verbal or physical conduct
of a sexual nature?" Questions (2) and (3) inquired whether
"that conduct" was offensive or unwelcome to plaintiff and
whether "that conduct" was sufficiently severe or pervasive to
violate the standard described by the court.
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original charge and the supplemental charge, the district court asked
the jury to consider "the totality of the circumstances over the period
of time in question" including its frequency, severity and
offensiveness.
We will assume that "totality" might in some situations have
a different and less favorable nuance for a plaintiff than
"cumulative", although this might be debated and vary from case to
case. But while Gray did request the word "accumulated" in her
original instruction request and "cumulative" in her supplemental
request, in neither case did she specifically call the court's
attention to the discrepancy after the charge, which is a perfect
illustration of why Rule 51 demands specificity. If there was error,
it was neither plain nor prejudicial under Olano.
Next, when the jury returned after its initial deliberation
and asked the court to give it further guidance, Gray's counsel asked
for an instruction telling the jury that "[c]onduct is sufficiently
severe and pervasive if it" met any one of the following rubrics; there
then followed a list of eight characterizations, each (with one
exception) matched by a citation to a Massachusetts case or MCAD
ruling. Two examples suffice: "If it would alter a reasonable woman's
work environment" and "If it went beyond the boundaries of typical
workplace horseplay."
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The district court declined to give this instruction.
Instead, the trial judge told the jury to consider whether the
reasonable woman would "find the work environment hostile, intimidating
or humiliating, as a result of the sexual harassment conduct that had
occurred"; and the court then continued, mentioning two of the eight
factors that Gray's supplemental instructions had mentioned and
describing them as matters to consider rather than as independent bases
for liability:
Now, in making that judgment, consider the
totality of the circumstances over the period of
time in question, that is, 95, '7 and '8,
including the frequency of the conduct, its
severity and/or offensiveness, whether it is
physically threatening, whether it would
unreasonably interfere with a reasonable woman's
job performance or whether it would undermine her
ability to succeed at her job.
The district court in explaining its refusal to give the
supplemental instruction in the form sought by Gray said that the list
of slightly different formulations would be more confusing than
helpful; and on appeal Genlyte accuses Gray of "nit picking" in
pursuing its objection. We do not agree that Gray's request is a minor
quibble: instead, we think the requested instruction was flatly wrong
and would reject this claim of error even if it had been properly
preserved by a post-instruction specific objection, which it was not.
The idea of extracting from state-law cases or MCAD decisions
a string of individual sentences and elevating them to independent
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bases for liability has an obvious potential for mischief. Certainly,
the full complement of conduct alleged in this case obviously "would
alter a reasonable woman's work environment" (or so a jury might find)
but that would be true also of much milder misconduct that would not be
sufficiently severe and pervasive. Similarly, misconduct could go
"beyond the boundaries of typical workplace horseplay" but not amount
to sexual harassment.
The real vice of the requested instruction is that it takes
out of the context of surrounding facts and legal discussion phrases
that were almost certainly not intended as free-standing tests of
liability. Admittedly, a couple of the other examples in Gray's
laundry list come closer to stating defensible tests, but the district
court was not required to pare down a laundry list to the least
objectionable quotations. See Febres v. Challenger Caribbean Corp.,
214 F.3d 57, 63-64 (1st Cir. 2000). And, of course, even if the list
were pristine, the district judge would have been under no obligation
to use those particular words. United States v. Destefano, 59 F.3d 1,
2-3 (1st Cir. 1995).
Finally, so far as instructions are concerned, Gray complains
that the district court failed to correct a misstatement of law by
Genlyte's counsel made in closing argument. Genlyte's counsel said the
following in the course of closing argument:
[T]he biggest hurdle she's got to get over is
convincing you that a reasonable woman working
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out in that Lightolier plant at the time would
have felt that the conduct that she told us about
was sufficient--was sufficiently severe and
pervasive as to create a sexual hostile working
environment.
Obviously, the phrase "that she told us about" ("us" meaning
Genlyte) was inaccurate. If Genlyte had not known and had no reason to
know that one non-supervisory employee was harassing another, it would
not be responsible, cf. College-Town Div. of Interco, Inc. v. MCAD, 508
N.E.2d 587, 591-93 (Mass. 1987); Meritor Savings Bank v. Vinson, 477
U.S. 57, 72 (1986).3 However, at trial Gray was not limited to proving
only episodes about which she had specifically complained to her
employer.4 Of course, Genlyte was entitled to argue, as it did, that
the failure to report episodes cast doubt on Gray's credibility, but
the quoted statement of defense counsel went too far, as Genlyte's
brief more or less concedes.
3
Under section 151B an employer is, however, liable for
harassing conduct by its supervisors even if that conduct was
not reported. College-Town, 508 N.E.2d at 592-94; see also
Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)(under
Title VII an employer is vicariously liable for discriminating
conduct by a supervisor subject to an affirmative defense).
4
Once Genlyte was on notice and failed to act, it could
easily become responsible for later harassment not specifically
reported to it. See College-Town, 508 N.E.2d at 593. And in
some situations pre-notice harassment might be relevant to the
severity/pervasiveness issue even though not itself a basis for
damages. See Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62-63
(2d Cir. 1998). Cf. Cuddyer, 750 N.E.2d at 541-42 (harassment
not timely reported to MCAD can be considered as evidence of
hostile work environment even though not a basis for damages).
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The problem is that Gray's counsel did not complain about the
statement after the closing arguments or in connection with the initial
instructions. Instead, after the instructions were given, Gray's
counsel listed various specific objections and then ended by saying:
"There was a misstatement of the law by the opposing counsel." The
district judge said that she thought she had been even-handed and then
went on to another topic. Gray's counsel could have but failed to
identify the misstatement, and the district judge probably never knew
what counsel was complaining about.
When the jury came back requesting further instructions on
the severity issue, Gray's counsel for the first time did ask the court
to instruct the jury that it should consider not only the actions for
which Gray had made a timely and adequate complaint but "all actions
she suffered." Before the supplemental instruction was given, Gray's
counsel sought to elaborate on this point, but the colloquy bogged down
in a misunderstanding as to whether Gray was complaining about what
Genlyte's counsel had said or claiming that the affirmative
instructions by the court were mistaken. In any event, the judge gave
no further instruction on this issue and, as already noted, Gray's
counsel failed to object after the supplemental instruction with the
precision needed to preserve the point.
The question remains whether the failure to correct the
misstatement of Genlyte's counsel was plain error. The difficulty for
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Gray is that the district court's own instructions, including its
reference to "totality of the circumstances," left the jury free to
consider episodes that were not specifically reported.5 Thus, it is
virtually impossible to find that the district court's failure to
correct a four-word qualifying phrase, used in a single sentence of
defense counsel's lengthy closing argument, was likely to have altered
the outcome of the case. This is alone enough under Olano to derail
the claim of error.
Turning from jury instructions to rulings on evidence, Gray
says that the district court erred in three instances by excluding
relevant testimony. Not all rulings on evidence are reviewed solely
for abuse of discretion; an evidence ruling could present a pure legal
issue requiring us to construe a Federal Rule of Evidence. Olsen v.
Correiro, 189 F.3d 52, 58 (1st Cir. 1999). But all three rulings here
are judgment calls, balancing considerations of relevance and
prejudice, where deference to the district court's on-the-spot judgment
is substantial. Fitzgerald v. Expressway Sewerage Constr., Inc., 177
F.3d 71, 75 (1st Cir. 1999); Conway v. Electro Switch Corp., 825 F.2d
593, 597 (1st Cir. 1987). We turn to those claims.
5
The district court did say that conduct that occurred
before the company was on notice could not be included in
calculating damages, but Gray makes no objection to this
proposition which is addressed to causation. College-Town, 508
N.E.2d at 591-93; cf. Cuddyer, 750 N.E.2d at 541-42. In fact,
Gray essentially requested this instruction in her original
proposed jury instructions.
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First, Gray claims that she should have been able to testify
that in 1996, a co-worker told her that Hermenegildo had physically
assaulted his wife so seriously that his wife had required emergency
medical treatment. Gray's theory was that, true or false, this report
greatly enhanced her own fear of Hermenegildo and explained why her
emotional reactions to the later acts of alleged harassment were so
severe. The district court did allow Gray to testify that she was told
something by the coworker that greatly enhanced her fear of
Hermenegildo, but the court forbad a reference to the physical assault
as unduly prejudicial. Fed. R. Evid. 403.
The district court was perfectly entitled to be concerned
that a specific reference to the report of an assault would be
considered for its truth and would improperly prejudice the jury. The
compromise reached by the district court was a perfect example of a
reasonable call that is not an abuse of discretion. As it happens,
Gray's counsel in closing argument did refer specifically to the
physical assault, although the company's counsel objected and the
judge--without telling the jury to disregard the remark-- told Gray's
counsel to move on in his closing argument.
Second, Gray claims that she should have been permitted to
offer evidence of Hermenegildo's April 2000 misdemeanor conviction for
"accosting" Gray. Massachusetts law defines the offense to include the
use of "offensive and disorderly acts or language [to] accost or annoy
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persons of the opposite sex . . . ." M.G.L. ch. 272 § 53. The act was
the tongue gesture that Hermenegildo had made at Gray in September
1998, after Gray testified at her August 1998 worker's compensation
hearing. Gray argued that she was entitled to offer the conviction to
refute the company's position that Hermenegildo's behavior was no more
than childish or adolescent behavior and was not sexual harassment.
The district court was well within its discretion to exclude
the evidence of the fact of conviction. See Gil de Rebollo v. Miami
Heat Ass'ns, Inc., 137 F.3d 56, 64 (1st Cir. 1998). The criminal
conviction was certainly "relevant" in the sense that it reflected
social judgment, both in the statute and the conviction, that
Hermenegildo's conduct was criminally blameworthy, and this would
rationally have some bearing on whether the conduct was also
sufficiently serious to constitute severe harassment. The conviction
would also have served to counter the "childishness" label offered by
the defense.
Nevertheless, there is an obvious potential for confusion and
unfair prejudice, Fed. R. Civ. P. 403, since the sexual harassment
standard and the accosting statute involve two different tests and,
taken literally, the accosting statute would embrace conduct so mild
("offensive and disorderly acts or language [,] accost[ing] or
annoy[ing]" the victim) that it is easy to imagine violations of the
statute that would not constitute serious harassment. Gil de Rebollo
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makes clear that judgments under Rule 403 are primarily the province of
trial judges in particular, and that admission of evidence of this kind
is likely to depend on a discretionary judgment. 137 F.3d at 64.
Third, Gray asserts that the district court erred in
excluding the testimony of her co-worker, Ray Tisdale, concerning
Hermenegildo's September 1998 conduct following Gray's worker's
compensation hearing. He would have testified (1) that in response to
Tisdale's testimony against Hermenegildo, the latter harassed Tisdale
by making a punching motion with his fist and "giving him the finger";
(2) that he (Tisdale) filed a complaint and Hermenegildo in some degree
admitted misbehavior; and (3) that despite these facts, the company did
nothing about Tisdale's complaint. Gray argued that Hermenegildo's
acts themselves intimidated her and that the company's failure to act
reinforced her view that the environment in which she worked was
unprotected.
Genlyte moved to bar evidence of the episode as bearing
solely on Hermenegildo's propensity for violence and sexually offensive
conduct--which is a rational but forbidden inference. See Fed. R.
Evid. 404(a). Gray's most plausible counters--to show other uses of
the evidence, see Fed. R. Evid. 404(b)--were that the company's failure
to respond confirmed its indifference to complaints and that
Hermenegildo's quasi-admissions to the company ( e.g., that his alleged
threatening gesture to Tisdale was only scratching his nose) were so
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incredible as to undermine the company's reasonable belief in any of
Hermenegildo's denials.
At trial, the district court without further discussion
excluded testimony from Tisdale but later allowed in a company
memorandum, setting forth Tisdale's allegations and Hermenegildo's
unpersuasive response, for the limited purpose of showing that the
company had received this information. In closing, Gray's counsel
relied on this episode and asserted as a matter of fact that the
company had ignored the Tisdale complaint and Hermenegildo's response
to it. Thus, despite the court's rulings, Gray got in the gist of the
evidence.
Even if the evidence had been excluded in full, we would not
reverse the district judge. It was principally, and powerfully,
relevant as propensity evidence--which was the forbidden use. But,
involving conduct directed at a different party, it was only of limited
relevance as to whether the company failed to respond to Gray's
complaints or unduly credited other denials by Hermenegildo. Given its
limited relevance and the potential for misuse as propensity evidence,
exclusion was a call within the district court's discretion. United
States v. Gonsalves, 668 F.2d 73, 75 (1st Cir. 1982).
This exhausts Gray's claims of error, but something more must
be said. If Gray's version of events were taken at face value, it
would be hard to understand the jury's finding that severe sexual
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harassment had not been proved. The jury was entitled to discount
Gray's testimony; credibility is preeminently a jury matter and Gray's
credibility was attacked. Yet, on a cold (and incompletely
transcribed) record, we still think the outcome on question (3)
surprising, even allowing for what seems to have been a skillful
defense.
Genlyte may have no further legal obligation to Gray, but it
ought carefully to ponder its moral obligation to assist her recovery
and reemployment. Even if various of Hermenegildo's acts were unknown
to the company or some did not occur at all, Gray was manifestly
mistreated by Hermenegildo on the job and suffered badly as a result.
If an employer's sense of humanity is limited to what the law demands,
it will find to its regret that the law will demand more and more.
The judgment is affirmed. Each side shall bear its own costs
on this appeal.
It is so ordered.
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ATTACHMENT - SUPPLEMENTAL INSTRUCTION
Members of the jury, you left me yesterday with a question,
as follows:
"We are not" -- "We're not going to reach a verdict tonight,
as we are 'hung up' on Question 3. I would not characterize us as
deadlocked, but we do need some more time to deliberate.
"The wording of Question 3 has us a bit concerned.
'Sufficiently severe' is fairly nebulous, and we are wondering if we
could have some clarification.
"Thank you very much."
Well, you're right, it is nebulous. And here is what I hope
will clarify the situation for you.
The question, Question 3 really boils down to this:
Would the mythical reasonable woman that we talked about
yesterday, that I described to you yesterday, neither overly sensitive
nor overly hardened, would that mythical reasonable woman find the work
environment at Lightolier, as it has been described to you in the
course of the trial, hostile, humiliating, or intimidating as a result
of the sexual harassment that you found had occurred?
You have now found it occurred, because you have clearly
answered yes to Questions 1 and 2.
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So, it boils down to that: Would a reasonable woman find the
work environment hostile, intimidating, or humiliating, as a result of
the sexual harassment conduct that had occurred?
Now, in making that judgment, consider the totality of the
circumstances over the period of time in question, that is, '95, '7 and
'8, including the frequency of the conduct, its severity and/or
offensiveness, whether it is physically threatening, whether it would
unreasonably interfere with a reasonable woman's job performance, or
whether it would undermine her ability to succeed at her job.
Now, note that frequency and severity sort of go together,
that is, fewer truly gross incidents may be sufficient, as may be a
whole string more less [sic] offensive ones. In the end, it is your
judgment in balancing the totality of what occurred.
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