Gray v. Genlyte Group, Inc.

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.

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 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

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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.

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 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).

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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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