USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1224

DARLENE F. MORRISON,

Plaintiff, Appellee,

v.

CARLETON WOOLEN MILLS, INC. and MICHAEL RILEY,

Defendants, Appellants.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

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

_____________________

____________________

Before

Selya, Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________

and Boyle,* Senior District Judge.

_____________________

____________________

David J. Kerman
_________________

with

whom

Robert Lewis
_____________

and Jackson, Lew

_____________

Schnitzler & Krupman were on briefs for appellants.

____________________
Peter B. Bickerman with
__________________

whom Robert J. Stolt, Walter F. McKee

_______________ _______________

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

___________________

____________________

March 19, 1997

____________________

____________________

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

CAMPBELL, Senior Circuit Judge.

These appeals and

____________________

cross-appeals relate

arising from

sex

to actions heard in

federal and state claims

the district court

of sexual harassment,

discrimination, and disability discrimination brought by

Darlene

Mills,

F.

Morrison

Inc. (the

against her

"Company"),

Michael Riley and Lee Moody.

employer

and two

Carleton Woolen

of her

supervisors,

We affirm certain parts of

the

district court's judgment and reverse others.

I.

In

alleged

that she

defendants to

Human

Count

of

her

was subjected

amended

by

sexual harassment,

Rights Act,

5 M.R.S.A.

complaint, Morrison

Carleton and

the other

in violation of

the Maine

4551, and Title

Civil Rights Act of 1964, 42 U.S.C.

2000e et seq.
__ ___

VII of the

In Count

II,

she alleged

statutes

IV,

violation

of the

by reason of sex discrimination.

Morrison alleged

that defendants

discrimination on account of

Maine Human

Rights Act

federal

In Counts III and

had subjected

and the Americans

her to

with Disabilities

12101 et seq.
__ ___

Trial before a jury began

4, 1994.1

state and

disability, in violation of the

Act of 1990 (the "ADA"), 42 U.S.C.

October

same

in the district court on

The Title VII claims of sexual harassment

____________________

1.
Judge

By consent
presided

of the parties,
over

determined the various

the

jury

a United States
trial

non-jury issues.

(West 1993).

-2-

and

Magistrate
subsequently

28 U.S.C.

636(c)

(Count

I) and

sex (gender)

presented to the jury

based upon conduct

the

effective

date

discrimination (Count

but only insofar as these

occurring on or after

of the

1991

Civil

II) were

claims were

November 21, 1991,

Rights

Act.

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

________
__________________

disability

discrimination

claim

(Count

IV)

was

See
___

The ADA

likewise

presented to the

sexual

jury.

harassment,

However, the Maine

sex

discrimination

law claims

and

for

disability

discrimination, and the Title VII claims for pre-November 21,

1991

conduct did not go to the jury but rather were reserved

for later decision by the magistrate judge.

During the

jury trial, the court, upon defendants'

motion, dismissed as a matter of law all the claims (jury and

non-jury) against Moody and many of the claims against Riley,

to

wit, the

claims

for sexual

harassment (Count

I) after

November 21, 1991, for sex discrimination (Count II), and for

disability

discrimination (Counts

denied the

Company's motions

III and

to dismiss the

IV).

The court

claims against

itself.

On October 14, 1994,

the jury returned verdicts in

Morrison's

sexual

claim

favor on

her

harassment claim

(Count IV).

compensatory damages

Title VII

(Count

The jury

post-November 21,

I) and

awarded

her ADA

-3-

disability

Morrison $50,000

and $100,000 in punitive

1991

damages.

in

The

jury

found against Morrison, and in favor of the Company, on

her Title VII gender discrimination claim (Count II).

On April 10, 1995,

the court issued its Memorandum

of Decision deciding the non-jury claims that it had reserved

for

bench determination.

On

Count I, the

court found that

Morrison had been subjected to sexual harassment sufficiently

severe

prior

and pervasive

to

November

to create

21,

1991.

Morrison's favor, and against

Maine

sexual

1991.

a hostile

work environment

Consequently,

it

ruled in

the Company and Riley, on

her

law sexual harassment claim, and also on her Title VII

harassment claim

The court

state law.

for conduct

prior to

assessed a civil penalty for

5 M.R.S.A.

November 21,

$10,000 under

4613(2)(B)(7) (West Supp. 1996).

On Count II (gender discrimination) the court found

no

incidents

1991.

discrimination before

It, therefore, ruled

against

Morrison under

however

after

of gender

in favor of

Title

VII.

November 21,

the defendants and

The court

determined,

contrary to the jury's Title VII verdict

November

21, 1991,

gender discrimination,

Maine Human

Morrison

had

been subjected

finding the Company liable

Rights Act.2

The

that,

court declined,

to

under the

however, to

____________________

2.
that,

In making

in differing

suggest that
to conclude
simply

this finding,

the jury,

it

the jury lacked sufficient

contrary to the

disagrees

respects."

with

the court

with

the

specifically noted
did not

intend

to

evidence from which

court's findings.

"The

jury's

in

conclusion

Court
certain

-4-

award

her back pay, because

it would be

duplicative of the

jury's damages award.

Finally, as to Count III, the court determined that

plaintiff had

not been disabled within the

meaning of Maine

law, and hence

found against Morrison and

for defendants on

the Maine law disability claim.

In determining that Morrison

was not disabled, the

perceive her to be

specifically

court found that the Company

unable to perform a major

work."

The court

"did not

life activity,

noted that the

Company had

only perceived Morrison as incapable of performing the single

position of floorperson.

Defendants'

matter of law, for

post-trial motions

for judgment

new trial, and other relief

as a

were denied.

Plaintiff's own motion for new trial was also denied.

The Company and

appeals, from

motions

the judgment

below.

cross-appeal from

Morrison

Riley appeal, and Morrison

and the

has

since

rulings on the

II.

various

expressly waived

the jury's adverse verdict

(gender discrimination).

cross-

her

under Count II

The evidence at trial,

construed in the light most

favorable to Morrison, showed essentially the following.

On

Company to

August

work as a

23, 1983,

Morrison

"spinner" in the

was

hired by

the

spinning department.

Later that year, Morrison bid on and was awarded the position

-5-

of "sewer."

Months later,

position

"coner"

of

Morrison held

in

she bid on

the

this position

until January of 1987.

and was

awarded the

yarn preparation

department.

from approximately May

of 1984

All the positions held by Morrison up

to this time were traditionally filled by female employees.

In December

1986, Morrison bid on

the position of

"temporary

floorperson"

on

the

preparation

department.

At

this time, Riley

supervisor

department.

on

the

shift

in

the

yarn

in

the

yarn

was the shift

preparation

Riley was angry with Morrison for bidding on the

floorperson position.

once

third

third shift

Prior to December

1986, Morrison had

had an angry encounter with Riley when they both worked

on the second shift.

Riley had screamed at her

for leaving

her machine to go to the restroom.

A month later,

floorperson

position.

her transfer

Union to

As

shift supervisor,

to the position and

completion of the

he had no

Morrison was awarded the

refuse

Riley approved

certified her satisfactory

thirty-day probationary period.

discretion under the

a position

to

temporary

However,

Company's contract with

the most

senior

the

qualified

person who bid on it, which, in this case, was Morrison.

When Morrison told Fred DeVaudreuil, the department

supervisor and

the floorperson

it.

Riley's superior,

that she had

position, he asked her

He indicated that

the Company

-6-

been awarded

to reconsider taking

was not happy

with her

getting the job.

Morrison

believed that

he was

concerned

thatshewould beinjured andassured himthatshe wouldbe careful.

In April 1987,

seven female employees

filed a formal grievance against

harassing employees

accusations

and

Riley, charging that he was

at the Company by

threatening

of Carleton

their

yelling, making false

jobs.

The

Company

responded by

stating

that it

anyone, but that employees

did not

condone shouting

must recognize that they are

by

not

at liberty "to ignore management directives or to be tardy in

following them."

Ultimately,

informally, with Plant Manager

this

grievance was

resolved

Everett Owens advising

Riley

about the need to be more "low key."

In

opening

from men.

Morrison bid

for the position of floorperson

Once again,

the job

February 1988,

Riley became

was not for her,

Days after

on the

permanent

on the third shift.

very angry, telling

and that she was

Morrison was awarded

Morrison that

taking jobs away

the floorperson

bid, Riley told her that she was going to regret it, and that

sooner or later he was going to get her out of the job.

The floorperson

of

is responsible for

bringing boxes

yarn on bobbins to the machine operators, for taking full

cones

of

yarn, weighing

changing the warp

weigh

beams.

them

and

storing them,

Changing a warp

and

for

beam, which

can

up to 1,100 pounds when full of yarn, involves several

-7-

steps.

First, the warp

crow-bar type of tool.

is removed from

its cradle

with a

The warp then drops about two inches,

after which it must be rolled to where it can be picked up by

a hydraulic lift and moved into a storage area.

Morrison remained in the floorperson position until

March

of 1989.

During that

time various incidents occurred

that are relevant to the present action.

After changing

her hands.

When

a warp beam, Morrison

went to wash

she left the restroom moments

later, Riley

was waiting for her.

He accused her of being in the restroom

for a long time and threatened to write her up.

Riley

office.

took

Morrison

into

the

plant

manager's

He then told her that he was a big person within the

Company and that "any woman would be proud to have a man in a

position like this."

Several female employees

complained that the

room

was too hot because of the machinery.

They asked Riley if he

could open more of the ceiling vents.

Riley said he

thought

that they were just having "hot flashes", and walked away.

Riley threatened

drive

his

girlfriend

to fire

(and future

Morrison if she

wife)

and

did not

co-employee,

Juanita Courtney, to her house from work during her shift.

Riley

that the

told several

people in

other female floorperson,

-8-

Morrison's presence

Linda Paul, was

able to

stay in such

a position

because she and

Moody patted

each

other on the rearend.

Morrison reported a

problem with a box

Riley, who told her she was probably so dumb she

of yarn to

created the

problem herself.

Riley told Morrison that Courtney was pregnant.

said "you thought

I was too old, didn't

He

you", and "I showed

you."

In March 1989, Morrison

medical clerk for

the Company

months later, Morrison

accepted a position as the

nurse, Lucille

Turner.

decided that she wanted to

Two

return to

her former position.

In October 1989, Morrison bid on a temporary coner,

fixer and tender ("fixer") position.

telling Morrison

that she was

Riley flew into a rage,

"stepping out of

bounds" and

that "her place was in the kitchen."

Thereafter,

position.

Morrison

bid

on

permanent

Riley told her fellow workers that if she got

fixer

the

job, she would have to travel to a training seminar and share

motel room with Moody

voided her bid

in an

and another male

effort to stop

worker.

Morrison

speculation about

the

seminar, and returned to her floorperson position.

In

Rogers,

Riley

June 1990, a

first shift

floorperson, William

asked Morrison to swap shifts with him.

had moved to the

first shift, Morrison

Even though

agreed to the

-9-

switch.

Riley told Morrison that he "was not going to put up

with any bullshit on the first shift" and that he "had enough

bitches in

worker

the first shift."

Riley also called a

male co-

over to where he and Morrison were standing and began

patting him in

the rearend, and told her that she would have

to get used to such behavior in the first shift.

Riley and

Moody moved their desk

restroom, explaining that they wanted

the restroom so that

abusing

the

near the women's

to watch the usage

they could write female workers

privilege of

using the

regularly made comments about

restroom.

of

up for

Also, they

Morrison bending over boxes to

the point where she felt very uncomfortable having to do so.

Other incidents occurred between the spring of 1990

and the fall of 1991.

Riley handed

said was an

over

Morrison a

application for

piece of paper,

a fixer position.

She

which he

turned

the paper and discovered, to her annoyance, that it was

entitled "Application for a Piece of Ass."

Riley gave

depicted various

He called her

fold it, after

Morrison an ink-blot that, when folded,

sexual acts involving persons

a "dumb

broad" for being

and animals.

unable to

which he folded it for her.

properly

Morrison became

very upset and called Riley a "filthy pig."

Riley told Morrison that

things" to her

Moody wanted to do "funny

body, although Moody later denied ever making

-10-

such

comment.

On another

occasion,

Moody

approached

Morrison and told her that he would like to see her naked.

Moody handed Morrison a document entitled "Canadian

Condom

Marketing

Board", which

attempts at humor.

this,

Morrison

and he replied something

contained sexually-oriented

asked Moody why

to the effect

he was

doing

that he takes

his orders from the office.

Riley

asked Morrison if she knew what a man with a

ten-inch penis eats for breakfast.

When she did not respond,

he proceeded to tell her what he had eaten for breakfast.

Riley

Restroom Policy."

gave Morrison a

This

document, another crude

humor, informed employees that

stalls

for more

occur,

including

than

document entitled "Proposed

if they occupied the bathroom

three minutes,

the taking

attempt at

of

their

certain events

photographs in

would

the

stalls.

Riley regularly screamed and hollered at the

women

employees in

the yarn preparation department, but not at the

men.

of the women indicated that they might complain

about

If any

his behavior, he would tell them "pay-back's a bitch."

During this

occasions, to

period of time, Morrison

the office

personnel

manager,

behavior.

On

to

of Annette McGowan,

complain

about

went, on two

the Company's

Riley's

harassing

neither occasion was Morrison allowed to speak

-11-

with

McGowan.

McGowan's secretary

told Morrison

that she

would

not be allowed to see McGowan without her supervisor's

permission,

even

though

Morrison

informed

her

that

her

complaint was about Riley, her supervisor.

In May 1991, Morrison injured her shoulder at work.

She

kept

working,

tendinitis,

and told

but

was

to take

eventually

diagnosed

ibuprofen and

learn

with

to pace

herself.

In October 1991, Morrison

while

she was making her bed.

Regional

registered

appeared

Health

Center

Morrison went to the Belgrade

where

nurse-practitioner.

to have

disc problems.

a lower lumbar

Hill

injured her back at home

she

saw

Gretchen

Hill found

that

muscle strain

informed Turner, the

that Morrison would be absent for one week.

Hill,

Morrison

without any

Company's nurse,

Morrison

returned to see Hill

that time, the pain was

some stiffness.

Hill

one week later.

By

gone, although she was

experiencing

was considering allowing

Morrison to

return to work, so she called Turner again.

that Morrison should be kept out of work

Turner suggested

for two more weeks,

a suggestion that Hill accepted.

On November 8, 1991,

to

work slip

would

for full

Hill issued Morrison a return

activity.

Hill testified

have preferred Morrison to work

for a short period of time,

that she

in a limited capacity

but she felt that Morrison could

-12-

successfully return to

another

work without restriction.

conversation with Turner,

Hill wrote a

Following

new note on

November 13, 1991, which suggested that Morrison be placed on

light

duty work

from November 11

through November

22, and

then return to regular duty.

Turner and

McGowan met with Morrison

and informed

her that the Company had no light duty work available at

time.

McGowan then

offered Morrison the

the

option of bidding

into a

different position, or accepting a layoff slip, which

would entitle her to unemployment benefits.

want

to lose

her floorperson

seniority

Morrison did not

by bidding

into a

different position, so she accepted the layoff.

Morrison believed that she had medical clearance to

return

to regular duty after

November

25,

1991,

she

department and sought to

her

November 22, 1991,

went

to

punch in.

own timecard, and asked

the

yarn

preparation

Morrison could

Moody where she

Go see nursie."

not find

could find it.

Moody responded by saying, "Girlie, I don't know.

coming back to my department.

and so, on

You're not

Morrison felt

"stupid."

Turner told

and

Morrison that she remained

that she had no authority to

on layoff,

allow her to work.

Turner

advised

Morrison to

speak with

McGowan.

McGowan informed

Morrison that she did not have the authority to return her to

work absent medical clearance, and suggested that she see Dr.

-13-

Barron, the Company's physician.

On November 26,

next day, Morrison went to see Dr. Barron.

1991, the

The examination of Morrison consisted of the

taking her

doctor

that

blood pressure,

temperature and weight,

asking her how she felt.

nurse

and the

Dr. Barron advised Morrison

he would be going to view the floorperson position, but

he reported to her

(and wrote in

his office notes) that

he

saw no physical reason why she could not return to work.

After

he

viewed

the

floorperson

position,

Barron wrote the following notation:

"I

feel that

the

[Morrison] can do

most of

work without any problems.

when

it

came

removed, I
much for
back
warps
pounds

to

felt
a woman

problem.

them onto

that this

the

warp

was far

with tendinitis

too
and a

that these

the neighborhood

of 500

manipulation of

moving

a hydraulic lift

more than she

the

I understand

weigh in
and

watching

However,

can do.

is certainly

Over a

period of

Dr.

time,

I feel that

doing this job.

she would be crippled

With tendinitis and back

problems within a year she will be out of

work

and

recommendation

on

disability.

My

is that she not be put on

this type of job."

Dr. Barron did not speak to Morrison's treating

her

nurse-practitioner.

opinions

fulfilling

which

her

indicated

duties,

floorperson position.

still

Dr.

not permitted to

Barron

that

At the

they

time of

work in the

the basis of Dr. Barron's evaluation.

-14-

disregarded

Morrison

because

physician or

capable

of

seen

the

trial, Morrison

was

had

was

their

not

floorperson position on

On

November

after she decided to bid

the position,

laid

off for a few

as

permanent

worked

fixer.

fixer,

fixer status.

supervisors from

month she was

weeks, accepted a

temporary

primarily

Morrison returned

on a fixer position.

although after a

eventually returned as a

paid

23, 1992,

on

the

Riley and

She received

"bumped", was

creeler position, and

After a dispute

Morrison

Since

Moody.

shift,

over being

finally

she returned,

third

to work

Morrison has

under

Morrison

attained

different

testified that

she had no problems

as

they

with Riley and Moody after

stayed away

manager

from

told Morrison

her.

that

she returned

The Company's

she had

spoken

personnel

to the

people

Morrison would be working with and that they would not harass

her about her former complaints.

Morrison was to report back

any complaints she might have.

Morrison

her return, most of

her.

those

She

who

spoke

performance.

to

was due to

her

for doing so.

Clark,

testified, however,

that, after

her co-workers would no longer

felt that this

supervisors

Ernest

further

often

were

the fact that most

harassed

afterwards

of

by

Also, the third shift supervisor,

criticized

The Company,

speak to

Morrison

for

her

job

moreover, never asked Morrison to

substitute

employees

when

with

floorperson's job.

the

floorperson

was

less

experience

were

absent, even

And finally, Morrison

asked

to

though

do

the

became very upset

-15-

and angry when

she saw

a petition,

expressing support

for

Riley and Moody, being circulated among Carleton employees.

III.

Defendants appeal from

from

the adverse jury

verdicts,

the adverse findings of the district court and from the

denial of various motions including their motion for judgment

as a matter of law.

A federal district court may

not set aside a

jury

verdict and direct the entry of a contrary verdict, unless no

reasonable jury could have returned a

moving

party.

Jacques v. Clean-Up Group, Inc., 96 F.3d 506,

_______
____________________

509 (1st Cir. 1996).

examines the

favorable

In making this determination, the court

evidence adduced

to the

inferences in

verdict adverse to the

nonmoving

its favor.

at

trial in

party,

Id.
___

the light

drawing all

On appeal,

most

reasonable

we review

the

district court's

standards.

determination

applying the

same

Id.
___

Our review

fact is for clear

novo.
____

de novo,
__ ____

of a

district court's own

findings of

error only; we review its legal rulings de

__

Damon v. Sun Co., Inc., 87 F.3d 1467, 1483

_____
______________

(1st Cir.

1996).

IV.

A. Sexual Harassment (Count I)

______________________________

Title VII of the Civil Rights Act of

that

it is an "unlawful

1964 provides

employment practice for an employer

-16-

. . . to discriminate against any individual

his

compensation,

employment

U.S.C.

Act,

because

terms,

of

conditions

such

likewise,

discrimination

provides

for an

that

or

individual's

2000e-2(a)(1) (West 1994).

it

employer to

The

is

with respect to

privileges

. . . sex."

42

Maine Human Rights

unlawful

employment

discriminate against

employee on the basis

of sex "with respect to

promotion,

compensation,

transfer,

of

terms,

an

hire, tenure,

conditions

or

privileges of

employment . . . ."

5 M.R.S.A.

4572(1)(A)

Employment

Opportunity

(West Supp. 1996).3

In

Commission

sexual

1980,

("EEOC")

form

sex in violation

1604.11 (1996).

requests

when:

Equal

promulgated guidelines

harassment is

based on

conduct

the

(1)

explicitly

of Title

favors,

sexual

submission

or

of employment

VII.

discrimination

See
___

29 C.F.R.

Under Title VII, "unwelcome sexual advances,

for sexual

of a

specifying that

and other

verbal or

nature constitutes

to

implicitly

such

sexual

conduct

term

individual's employment; (2) submission

or

is

physical

harassment

made

condition

either

of

an

or rejection of such

____________________

3.

The Maine

surrounding

courts have

Title

VII for

applying the provisions of

relied on the
the

purpose

federal case

law

of construing

and

the Maine Human Rights Act.

See
___

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

_____
__________________________
1992).

We, therefore,

considering
support

whether or

determinations

apply the
not the
under

same legal

evidence was
both

statutes.

-17-

the

state

standards in
sufficient to
and federal

conduct

is

used

affecting such

as

the

basis

an individual;

for

employment

decisions

or (3) such conduct has the

______________________

purpose or effect of unreasonably interfering with

an
_____________________________________________________________

individual's work performance or creating an intimidating,

_____________________________________________________________

hostile or offensive working environment."

___________________________________________

29 C.F.R.

1604.11(a) (1996) (emphasis added).

In Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57

_________________________
______

(1986), the Supreme Court confirmed that a violation of Title

VII

can

be

established

through evidence

hostile or offensive work environment.

guidelines, the

Supreme Court

of

an

abusive,

Quoting from the EEOC

stated that the

existence of

sexual harassment must be assessed "in light of the record as

a whole and the totality

see also
_________

Harris v.
______

(1993) (relevant

include the

of the circumstances."

Forklift Sys., Inc.,

____________________

factors, though no single

frequency

of the

Id.
___

at 69;

510 U.S.

17, 23

one is required,

discriminatory

conduct;

its

severity; whether it is threatening or humiliating, or a mere

offensive utterance;

and whether it

unreasonably interferes

with an employee's work performance).

In Lipsett
_______

v. University of Puerto Rico, 864 F.2d

__________________________

881, 897-98 (1st Cir. 1988) (quoting Meritor Savs. Bank, FSB,
_______________________

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

____________________

4.

We note that the

proceeded

plaintiff's claims in Lipsett actually

_______

under Title IX

of the Civil Rights

Act of 1964.

This

court,

harassment

however,

viewed

the

claims under Title

used under Title VII.

standards

IX to be

for

sexual

equivalent to those

See Lipsett, 864 F.2d at 899.

___ _______

-18-

to

be

actionable,

"it

must

pervasive

to . . . create an

See also
_________

Harris, 510 U.S. at

______

"is

liable

upon a

finding

be

'sufficiently

severe

or

abusive working environment.'"

21.

of

We said that an employer

hostile environment

sexual

harassment perpetrated by its

supervisors upon employees

if

an

that

institution

or

the

harassment's

official

. . . should

representing

have known,

of

knew,

occurrence,

unless that official can show that he or she took appropriate

steps to halt it."

Lipsett, 864 F.2d at 901.

_______

Claimants

under

Title VII

were,

until recently,

limited to

the equitable

back

The 1991 Civil Rights Act, which became effective

pay.

on November 21, 1991,

time,

authorized

discrimination

to

relief and

amended Title VII, and, for

individuals alleging

seek

against their employers.

Title VII

remedies of injunctive

intentional unlawful

compensatory and

The 1991

plaintiffs the right to

the first

punitive

damages

Act also conferred

a trial by jury.

upon

See 42
___

U.S.C.

1981a(b)-(c) (West 1994).

In Landgraf, the Supreme

________

Court held that the right to such damages and to a jury trial

did not apply to conduct that occurred prior to the effective

date

of the Act, i.e. prior to November 21, 1991.

Landgraf,
________

511 U.S. at 244-45.

Pursuant

harassment

to Landgraf, Morrison's
________

Title VII sexual

claim was tried to the jury only insofar as based

upon conduct on and after November

-19-

21, 1991.

Insofar as the

Title

VII

date,

it

harassment claim

was

tried

to

the

determined in its entirety

sexual

harassment

Because

Title VII

was for

magistrate

judge,

to that

who

also

Morrison's claim that the alleged

violated

the

damages were

November 21, 1991 sexual

conduct prior

Maine

Human

Rights

only recoverable

Act.

for post-

harassment, that date assumes great

importance here.

1. Before November 21, 1991

________________________

During the

pre-November

21, 1991

period,

as

to

which the magistrate judge rather than the jury was the trier

of fact,

the court

determined under Count

"was subjected to sexual

Morrison

harassment sufficiently 'severe

pervasive enough to create

work

I that

environment'", quoting

or

an objectively hostile or abusive

Harris, 510
______

U.S. at

21.

The

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

environment

to be abusive.'

Id."
___

This hostile environment

was found to have existed prior to November 21, 1991, and the

Company

was found

to have

known about it, because

known about

it, or

it was so pervasive.

should have

The Company's

plant manager and plant supervisor5 were found to have worked

in the same general

____________________

area as plaintiff and Riley,

"and could

5.

Carleton and

that there is no
Company,

nor

comparable
particular,

Riley point

appellate brief

such position as "plant supervisor"

was there

position.
we

out in their

uphold

any

testimony at

trial

Notwithstanding any
the

court's

finding

error

at the

about any
in

this

of knowledge.

Infra.
_____

-20-

not have missed the discriminatory

the department."

atmosphere that permeated

Based on these conclusions, the court found

against the Company and Riley on Morrison's claims of hostile

environment sexual harassment under Maine law and under Title

VII

for conduct occurring before November 21, 1991.

We find

ample record evidence to sustain these findings.

As

an

initial

matter,

we

turn

to

defendants'

contention that the federal and state statutes of limitations

do not allow us to look at any

conduct antedating the middle

of

hostile

1991

Section

in

support

of

2000e-5(e)(1) of

the

environment

Title VII provides

claims.

that claimants

must file a charge of discrimination with the EEOC within 300

days of the alleged

5(e)(1) (West 1994).

Rights

discriminatory act.

42 U.S.C.

Section 4613(2)(C) of

Act states that "[t]he action

2000e-

the Maine Human

shall be commenced not

more than two

years after the act of unlawful discrimination

complained of."

5 M.R.S.A.

Since Morrison

April

filed her

charge with the

EEOC on

23, 1992, and her complaint with the district court on

September 3,

sexual

federal

1993, the

appellants argue that

harassment occurring

claim, and

claim, should

the

4613(2)(C) (West 1989).

evidence.

after

June 27,

after September 3,

the hostile environment

1991, for

1991, for

be considered in reviewing

We disagree.

only acts

The district

of

her

her state

the sufficiency of

court found that

at Carleton had existed for a number

-21-

of

years

prior to

September 3, 1991.

on recovery

November 21,

1991 and

continued beyond

We have held that there is no prohibition

for earlier conduct if

the "systemic violation"

extends into the limitation period. See Jensen v. Frank,

___ ______
_____

F.2d

517, 523 (1st Cir. 1990).

Here, the systemic violation

continued without

interruption from

through September

3, 1991.

It was,

for the district court to look at

back to the

1980's, and

912

we may do

the late

1980's onward

therefore, appropriate

defendants' conduct dating

likewise, in

evaluating

Morrison's federal and state sexual harassment claims.

From

was ample

the late 1980s

into the fall

of 1991, there

evidence of crude, demeaning and sexually-oriented

behavior

by

Riley

and

others

directed

at

Morrison.

rational factfinder could conclude that the harassment was so

severe

abusive

at 22.

or

pervasive

that

it created

work

to Morrison because of her gender.

There

is, indeed, evidence that the

environment

Harris, 510 U.S.

______

harassment went

so far as to adversely affect Morrison's ability to function,

by

making

her

fearful

to

apply

opportunities and undermining her

for

certain

employment

mental and emotional well-

being.

Even so, the appellants

argue that the Company, as

an entity,

shown

cannot be

held liable

because Morrison

has not

that it knew, or should have known, of the harassment.

Morrison did not complain of harassment to the Company during

-22-

the period,

even though

file such complaints.

there were procedures

available to

This is a closer question, but we find

sufficient evidence to support

judge that the

hostile

Company knew

environment existed

the finding of the magistrate

or should have

despite plaintiff's

use official procedures to complain.

female employees

Riley,

Plant

but

of Carleton

alleging that he was

known that

In April

had filed a

the

failure to

1987, several

grievance against

harassing them.

At that time,

Manager Everett Owens told Riley to be more "low key",

never

took any

supervise him.

action

personnel.

Carleton

or

In the years before the trial

Union President Gwendolyn

concerning

to discipline

Riley's

In spite

supervisors

more closely

of this case,

Gatcomb brought several complaints

behavior

of these

to the

attention

complaints, Riley

were allowed

to

continue

of

Company

and other

with their

responsibilities

testified

that

and

their

she had

harassing

tried to

attention of Personnel Manager

unable

to

see her.

The

conduct.

bring

the matter

Morrison

to the

Annette McGowan, but had been

magistrate

judge found

that the

layout of the mill was such that higher management "could not

have missed the discriminatory

department."

supports

the

atmosphere that permeated the

We are satisfied that the evidence sufficiently

court's

above

finding,

justification to disturb it on appeal.

2. After November 21, 1991

_______________________

-23-

and

can

see

no

For us to

Morrison

the

on her Count

record

Act

environment

particular

the

evidence

of damages

to

to

sexual harassment claim,

of

conduct on

effective date of the

sufficient

have

created

as that term is used under Title VII.

511 U.S. at 244-45.

jury's award

I Title VII

must reveal

November 21, 1991

Rights

affirm the

or

after

1991 Civil

hostile

Landgraf,
________

Hostile environment sexual harassment is

species of

sex

discrimination.

The

EEOC's

regulations, as

advances,

noted,

requests for

describe it

as "[u]nwelcome

sexual favors,

and other

sexual

verbal or

physical conduct of a sexual nature . . . when . . . (3) such

conduct has the purpose or effect of unreasonably interfering

with

an

creating

an

intimidating, hostile, or offensive working environment."

29

C.F.R.

individual's

work

1604.11(a) (1996).

performance

or

The Supreme Court

speaks of a

"workplace . . . permeated with 'discriminatory intimidation,

ridicule and

insult' . . . that is

pervasive to

alter the

and

create an

'sufficiently severe

conditions of a

abusive working

or

person's employment

environment.'"

Harris, 510
______

U.S. at 21 (citations omitted).

In

the

present

case, the

jury

heard

extensive

evidence of the vulgar pre-November 21, 1991 incidents which,

as we have held, amply support the magistrate judge's finding

of hostile environment sexual harassment during that

time.

However, the jury's

task was to

earlier

determine Title VII

-24-

liabilities and damages

for the

1991

could take the

onward.

The jury

period from

November

21,

earlier conduct into

account

later

only to the extent

happened

for

it was legally

example,

to help

relevant to what

prove

the intent

behind an act committed after November 21, 1991, or the act's

likely effect on someone

Evid. 402, 403, 404(b),

like Morrison.

406, 412.

See, e.g.,
___ ____

Fed. R.

The earlier abuse is

no

substitute for proof of actual sexual harassment occurring in

the post-November

evidence

sufficient

21, 1991 period.

of sexually

Because we

cannot find

in this

later period

abusive conduct

to support the jury's Title VII award under Count

I, we are obliged to reverse that part of the verdict.

From

Morrison

was

October 19,

either on

1991

until

November 23,

medical

leave

or on

layoff

Carleton, hence she could not, during that period,

1992,

from

have been

subjected to workplace abuse,

at

Carleton have

while there.

be

interfered with

conduct

workplace

sexual

harassment

occurred

on

25, 1991, when Morrison went to Carleton seeking to

return to work.

her she had

Moody refused to let her

punch in, telling

first to get medical clearance.

away, Moody called Morrison

"nursie",

by abusive

The only incident during that period that might

construed as

November

been

nor could her work performance

raising the

made Moody's remark so

In turning her

"Girlie" and told her to

question whether

use of

offensive as to support a

-25-

go see

these terms

finding of

hostile environment

sexual harassment.

Moody's probable intent when

25,

1991 and

Morrison,

the reasonable

see Harris,
___ ______

he spoke as he did

effect of

510 U.S. at

at 67),

In order

the

on November

the phraseology

on

22 (citing

Meritor Sav.
____________

jury could

consider the

Bank, FSB,
__________

477 U.S.

evidence of

Moody's and others' prior

offensive conduct and

remarks in the period before November 21, 1991.

that history, the jury

to assess

In light

of

could reasonably construe Moody's use

of the

terms "Girlie" and "nursie" as demeaning, rather than

as merely light-hearted banter, and could also determine that

Morrison

had reason to be offended.

Moody's remark, made at

Morrison testified that

a time when "everybody was

lined up

getting ready to punch in", made her feel "stupid."

We are

unable to

conclude, however,

"Girlie-nursie" remark was, by

hold

the

sexual

time.

Company liable

harassment claim.

Her contact

of or

know

of

where a

Morrison under

her

Title VII

not working

at the

day with the Company's

There is no evidence

sanctioned Moody's

no case

itself, a sufficient basis to

Morrison was

on this one

environment was fleeting.

knew

to

that Moody's

the Company

particular phraseology.

single,

work

brief encounter

We

of this

mildly offensive sort, at

a time when the plaintiff

was not

actually working, and hence could not be affected in her work

performance and

conditions of

create a sexually hostile

employment, has been

workplace environment.

held to

See, e.g.,
___ ____

-26-

Harris, 510 U.S. at

______

21 (conduct must be severe

or pervasive

enough

to

create an

objectively

environment affecting employee's

hostile

or abusive

conditions of

employment);

Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 783

__________
_________________

1990) (single or isolated remarks

environment).

rational

(1st Cir.

do not establish a hostile

Even assuming this incident, when coupled with

the more serious pre-November

work

jury

to

21, 1991 incidents, might lead

conclude

that

the

earlier

abusive

environment would have remained the same through November 25,

1991, the fact that Morrison was not working at Carleton from

November 21, 1991 until November 23,

makes

damages

this conclusion

during this

1992

largely irrelevant

period.

Morrison

a year later

to her

claim for

could not

have been

injured by hostility at a workplace she did not attend.6

We realize that Morrison contends that she accepted

layoff status

this

only because

period to let

her return to

Morrison insists that the

health

concerns, was

against women

specifically

of the Company's

her floorperson position.

refusal, while supposedly based on

actually based

working as

refusal during

on the

floorpersons.

rejected Morrison's

Company's bias

The

jury, however,

II,

Title VII

sex

in compensatory

and

Count

____________________

6.

Obviously, an

punitive damages
offensive

remark.

award

of $150,000

would be patently excessive

Even

supposing

remained potentially abusive

would

the

for one mildly

workplace

itself

during Morrison's absence, this

be irrelevant while she

was on layoff

present.

-27-

status and not

discrimination claim

premised on such a

the Company on Count

II.

the jury,

theory, finding for

The magistrate judge,

later upheld Morrison's

contrary to

sex discrimination

claim

under Maine law, holding that the Company's refusal to

_______________

allow

Morrison to go

based

and

conclusive

back to her floorperson

discriminatory.

But

the

position was gender-

jury's

verdict

is

on the part of the Count II claim seeking damages

under Title

claim of

VII.

The jury found for Morrison on her Count I

hostile environment

sexual harassment, but,

as we

discuss here, there was insufficient evidence of abuse during

the

post-November 21, 1991 period for us to affirm the award

of damages under that theory.7

Following the

she did not work at the

November

the

over a year

November

the period

23, 1992

hostile environment claim.

different,

during which

Company (from October 19, 1991 until

23, 1992), Morrison finally returned

record covering

work on

period of

to work.

after Morrison's

provides scant

But

return to

support for

her

When she returned, she accepted a

somewhat higher-paying position8, and reported to

____________________

7.

The

jury's finding

against

Morrison

under Count

refutes any argument that

the jury based its Count

harassment

verdict

on

discriminated against
to

the floorperson

finding

that

position.

Cf.
__

I sexual

Morrison

when denied the opportunity

Chamberlin, 915
__________

II

was

to return
F.2d at

782-83.

8.

The

time of

Company's personnel manager testified

trial, a

floorperson

was

testified that a

fixer
paid

was paid
$8.54

$9.64 per

per hour.

that, at the
hour, while

Morrison

herself

similar pay difference existed in 1989 when

-28-

new

supervisors.

position,

matter,

ridicule

her

no evidence

supervisors, or

subjected

her

to

any

offensive,

that, in

other

or

much less to

vulgar

or other sex-based conduct or

that

intimidation,

U.S. at 21,

embarrassing

this new

person for

"discriminatory

and insult", Harris, 510

______

sexually

remarks,

There is

conduct

or

remarks, such as had

occurred prior to November 21, 1991 when she was working as a

floorperson

advised

under

her that

Riley.

employees

fairly and equitably,

offensive

had been

and that

immediately

so

Morrison did not thereafter

Company personnel.

The Company's

that

warned

she was

it

personnel manager

to treat

to report

could

be

her

anything

corrected.

complain of sexual harassment to

Morrison conceded that

her old nemeses,

Riley and Moody, stayed away from her, and never harassed her

after she returned to work.

certain incidents

that

which,

to

according

Morrison, nonetheless, points to

occurred during

her,

gave

rise

this later

to

period,

hostile

work

environment at Carleton.

Morrison

whom

testified that

she had worked

when she

most of

for years would no

returned to work

the

people with

longer speak to her

in November 23,

1992, ostensibly

____________________

she

had

briefly worked

shortly after
returned
status.

as

her return
a creeler,

Morrison and

her fixer pay

as a

fixer.

when she
and

There

was

was "bumped",

ultimately

a period
laid off,

restored to

fixer

the Company thereafter skirmished over

scale, whether it was temporary

eventually she got the permanent rating.

-29-

or permanent;

because discouraged by

that

management from

did were reprimanded

Morrison felt

cooperate

with

that some

her,

by their

of her

thereby

doing so.

The

few

supervisors afterwards.

co-workers would

making

her

job

no longer

much

more

difficult, and that one of her new supervisors, Ernest Clark,

would occasionally assign her

according to Morrison,

excessive work.

Ernest Clark,

would also follow her around and look

for flaws in her work, and would often blame her for mistakes

that

were not of her own doing.

that,

for

some

period, she

time after

she

Morrison further complained

had

completed a

received temporary pay, instead

training

of regular pay,

for her work as a fixer, and that, despite her seniority, she

never was asked to

ranking jobs

that

she saw

fill in for those employees

within the

Company.

Lastly,

petition expressing

Moody circulating throughout the

with higher-

Morrison claimed

support for

Riley and

Company, an event that, she

says, led her to seek professional counselling.

Morrison argues that she does not need to show that

management's conduct

sexual"

in

order

during this later period was "expressly

to

establish

sexually

hostile

work

environment based

many different

within

the

harassment.

on gender discrimination.

forms of

definition

We accept that

offensive behavior may

of

hostile

be included

environment

sexual

See Spain v. Gallegos, 26 F.3d 439, 447 (3d Cir.

___ _____
________

1994) (employee

can show

that there

-30-

is a sexually

hostile

work

environment

misconduct.").

"without

However, the

proving

form of sex discrimination.

(D.C.

Cir. 1985).

overbearing or

along

or

so as to be a recognizable

McKinney v. Dole, 765 F.2d 1129,

________
____

Merely

fellow employees

with, does not suffice

sexual

gender

sexual

overtones of such behavior must

be, at the very least, sex-based,

1138

blatant

because a

supervisor

unsociable and hard

is

to get

unless underlying motives of a

discriminatory

nature

are

implicated.

Spain, 26 F.3d at 449.

_____

The

Morrison

post-November

occurred over

explicit misconduct

position.

a year

by the

The later

23,

1992

conduct

after the

alleged

earlier sexually-

other supervisors in

conduct, as

said,

by

was not

her former

the kind

associated

with

harassment.

claim

for

See, e.g., Gross

___ ____ _____

F.3d 1531, 1546

a gender-based

reprimanded

hostile

environment

sexual

v. Burggraf Constr. Co.,

_____________________

53

(10th Cir. 1995) (employee did not establish

hostile environment by

her in

front

of other

showing that employer

employees, grilled

her

about some plans to bring discrimination charges against him,

and

shown

told her "she

that

was skating on

Supervisor

annoyance with her

as a

Clark's

thin ice.").

harshness

woman, or because

fixer position as off limits for women.

It was not

was

he regarded

The record contains no

on

the

A connection between

Morrison's gender and the incidents she complains of

established.

based

was not

evidence that Morrison

-31-

complained to the

Company that

this

time to further

knew

or

subjected

should

to

deliberately

have

sexual

sought to

she was

being subjected

sexual harassment or

believed

harassment

isolate or

earlier complaints of harassment,

that

then.

at

that the Company

Morrison

If

was

being

the

Company

punish Morrison

for her

by telling other employees

not

to speak

to her,

such conduct

for

unlawful

retaliation,

claim

harassment.9

The evidence

insufficient to

might have

but

supported a

not

for

presented by Morrison

establish a post-November

hostile work environment created

sexual

is simply

21, 1991 sexually

by severe or pervasive sex-

based harassment.

Morrison seeks to overcome

evidence

by

contending

that the

the deficiencies in the

more

recent,

non-sexual

incidents could be linked to the pattern of vulgar, sexually-

related

effective

that

in

misconduct that

occurred at

Carleton prior

date of the 1991 Civil Rights Act.

to the

Morrison urges

the later incidents could be evaluated by the jury, not

isolation, but rather as

a continuation of

what she and

____________________

9.

Title VII of the Civil Rights Act of 1964 has a separate

statutory provision, not at issue here, making it an unlawful

employment practice for
an individual

an employer to discriminate

because of his

or her having

against

opposed another

unlawful

practice or made a charge under the subchapter.

U.S.C.

2000e-3(a) (West 1994);

Step Designs, Ltd.,

____________________

83

F.3d

see also Fennell

___ ____ _______
526,

535

(1st

(outlining the elements of a retaliation claim).

-32-

42

v. First
_____

Cir.

1996)

other employees encountered

at the

Company before

November

21, 1991.

This point

might have arguable

Moody's "Girlie-nursie" remark on

merit relative

to

November 25, 1991, were it

not for the isolated nature of this incident, occurring as it

did when Morrison was

workplace so as

on continuous leave, hence not

to be exposed to a

to the events after

character

different

for

to

hostile environment.

As

her return to work on November 23, 1992,

the pre-November 21, 1991

and

at the

harassment was too remote in

transform

the

later

conduct

into

time

the

kind of behavior needed to support a damages claim

hostile

environment

sexual harassment.

Morrison, by

then, was

To

working in a new position

establish that

subjected to

she

with other supervisors.

was entitled

to

damages for

hostile environment discrimination

during this

later period, she had

to show some conduct within

frame fitting

cognizable definition of

environment

into a

harassment.

liable for

If this

that time

abusive work

were not so,

conduct which

being

the Company

would

be held

it would

not have

known

was either improper or a source of potential liability

under the "hostile environment" theory at issue.

In light

of the foregoing, we hold

that there was

insufficient evidence from which a rational

factfinder could

conclude that

sexually hostile

Morrison was

subjected to a

work environment at Carleton after November 21, 1991.

-33-

B. Gender Discrimination (Count II)

________________________________

In

Company's

there

Count

favor on

were

no

Morrison prior to
_____

II,

the

district court

Morrison's

incidents

of

federal claim,

sex

ruled

the

finding that

discrimination

November 21, 1991.10

in

against

The district court,

however,

held

that

Morrison

had

discrimination after November 21,

in her

favor

sufficient

court's

under

Maine

evidence

state law

in

ruling

sex

1991, and entered judgment

law.

the

established

We

find

that

record below

to

there

is

support

the

we affirm

its

found that Morrison

was

and, accordingly,

judgment in this respect.

The district

not

permitted

November

25,

to

court first

return

1991

"because of

McGowan's, and Dr. Barron's

likely be

to her

floorperson

Lucille

position

Turner's,

on

Annette

perception that women would more

severely injured in the

floorperson position than

would men."

The record permits the inference that Morrison's

injury

temporary

evidence

was

shows

that

and

not

Turner

especially

convinced

serious.

Hill

to

The

extend

Morrison's layoff,

and later suggested that

Morrison should

____________________

10.

As

with

discriminated
November

the

because

I,

the

of

issue

gender

of

whether

against

Carleton

Morrison

after

21, 1991 in violation of Title VII was presented to

the jury.
noted.

Count

The

jury found against Morrison on that claim, as

The magistrate

same

facts for

discrimination
November 21,

purposes

claim,
1991

judge subsequently found otherwise on

of Morrison's

finding

based on

the

law sex

gender discrimination
Company's refusal

Morrison continue in the floorperson position.

-34-

Maine

after
to

let

not be allowed to

return to the floorperson position.

When

Morrison was given the choice of either accepting a layoff or

leaving the floorperson position,

should have seen this

not want [her]

talked

coming because . . . [the Company] did

on the job."

extensively

with

condition, he refused to

Finally, even though Dr. Barron

Turner about

Morrison's

physical

consult with her treating physician

or her nurse-practitioner, both

perform her

McGowan told her that "she

of whom felt she was

floorperson duties, in recommending

fit to

that she be

kept out of the job.

The district

court stated

that

it was

satisfied

that "a man presenting the same medical history and clearance

to return to work would have been immediately permitted to do

so."

The record

below gives credence to this

two long-time Carleton

Williams, testified

employees, William Rogers and

that the

their physically-demanding jobs,

that they

have, respectively, a

ruptured cervical disc.

five

them to

despite the fact

chronic back problem

Moreover, Leland Rice, who,

worked as a floorperson

foot

Norman

Company has permitted

remain in

time,

statement, as

three inches

at Carleton, and

tall and

weighs

and a

at one

who is only

no more

than 140

pounds, testified that he did not find any aspect of the job,

including

the removal of the warp beam, to be very difficult

to perform.

Carleton

It

could

seized upon

be found,

Morrison's

therefore,

relatively

that,

minor

while

medical

-35-

problems

to exclude

her from

allowed other male employees,

the floorperson

position, it

with more serious ailments and

less physical abilities, to continue working for the Company.

It

evidence

is

true,

suggesting

considerations

to

be

that

had motivated

sure,

that

legitimate

the Company's

there

was also

health-based

decision.

But

this

is the

court.

kind of

finding that

gender.

The court

"was

Morrison was

out by

the trial

motivating

decision."

Cumpiano v.
________

Rico, 902 F.2d 148, 155

____

we affirm.

of

factor

that Morrison's

in the

Finding

that, on remand, the

back pay

of her

adverse

Banco Santander Puerto

_______________________

(1st Cir. 1990).

We also hold

the issue

rejected because

was entitled to conclude

a substantial

employment

reopen

best sorted

There was sufficient evidence to support a reasonable

trier's

sex

matter

given

no error,

court should

our vacation

of

the

damages awards under Counts I and IV.

C. Disability Discrimination (Count IV)

____________________________________

In

Count

IV,

the

jury

returned

verdict

in

Morrison's favor on her

was

When

this claim

submitted to the jury, the court correctly told the jury

that Morrison

occurring

the Act.

July

federal ADA claim.

could recover only

on or after July

for violations of

26, 1992, the

the Act

effective date of

Because the record reveals no evidence of any post-

26, 1992

violations,

we are

verdict.

-36-

obliged to

overturn the

Ever

since the

1992, the courts have

retroactive.

Miller
______

ADA became

effective on

July 26,

consistently held that the Act

v. CBC Cos., 908 F.

_________

is not

Supp. 1054,

1062

(D.N.H. 1995) ("there is little doubt the First Circuit would

decline to

extend the continuing violation

[plaintiff]

to

conduct.").

As a

there must

recover

for

the

result, to uphold

be evidence

theory to permit

defendants'

pre-ADA

a claim under the

that the claimant

ADA,

was discriminated

against because of a disability on or after July 26, 1992.

Morrison's discrimination claim, however,

on Carleton's rejection of

1991, to be

her request, made in the

allowed to continue in

is based

fall of

the floorperson position

that

she had previously held.

her from the position

to

was effectively made, and communicated

her, in November 1991, eight

effective date.

her

union,

February

appears

stated

alleged

not

The Company's decision to bar

While

in

to

to

Morrison grieved the decision through

proceedings

of 1992,

and

strenuously

while the

have continued

be

arbitrated,

pursued

through

grievance process

into 1993,

when the

its subject

unfair practice in the

pointed to

months before the statute's

was

fall of 1991.

additional incidents that

itself

matter was

the

Company's

Morrison has

took place

on or

after July 26, 1992, which constituted separate violations of

the ADA during the later period.

-37-

The regulations promulgated pursuant to the ADA add

nothing to

Morrison's

claim.

disability

discrimination with

These

regulations

respect

to "

prohibit

. . . layoff,

termination, right to return from layoff, and rehiring."

___________________________

C.F.R.

1630.4(b)

(1996) (emphasis

added).

29

However, the

denial

complete

of any right Morrison

had to return

well before July 26, 1992.

from layoff was

Morrison was denied the

floorperson

position in the fall of 1991 after she sought to

return from

medical leave.

By

then

Morrison had

already

accepted a layoff slip in lieu of bidding on another job, and

remained on layoff until November 23, 1992, when she accepted

the "fixer" position

us

with the Company.

find a continuing violation,

restoring her to her old

a continuous

chain of

26, 1992 deadline.

As

we

said

incumbent upon

in

Morrison would have

based on a

theory that not

floorperson position formed part of

misconduct extending beyond

the July

But the Company's inaction is not enough.

a somewhat

analogous

[her] to allege facts

situation,

"'it was

giving some indication

that

the

later

. . . violations.'"

refusals

were

Velazquez v.
_________

themselves

separate

Chardon, 736 F.2d 831, 833

_______

(1st Cir. 1984) (quoting Goldman v. Sears, Roebuck & Co., 607
_______
____________________

F.2d 1014, 1018 (1st Cir. 1979)).

As

discriminatory

occurred

after

Morrison

does

conduct

forming a

July

26,

1992,

-38-

not

demonstrate

basis

we

need

of

her ADA

not

decide

that

claim

the

Company's

because

further

her

definitional

contention that

purported

Morrison's

disability

requirements of the Act.

did

claim failed

not

meet

the

There may be merit to

this and related substantive contentions, but we do not reach

them

because

Morrison's

asserted

violation

of

the

ADA

occurred prior to July 26, 1992.

D. Riley's Individual Liability

____________________________

In footnotes in

whether

Riley

can

their briefs, the parties

be held

liable

under

Count

contest

I in

his

individual capacity for violations of Title VII and the Maine

Human

Rights Act.

We

deal separately with

the federal and

the state aspects of this issue.

1. Individual Liability under Title VII

____________________________________

Title VII defines "employer",

"a

person engaged in an industry

fifteen

person."

or

more employees

42

controversy over

U.S.C.

affecting commerce who has

. . . and

2000e(b)

whether this

in relevant part, as

any agent

(West

language

1994).

allows a

of

such a

There

is

corporate

supervisor, such as Riley, to be sued as the "agent of such a

person."

v.

Several circuits have held "No."

Seiler Corp., 66 F.3d

____________

1295, 1313-17 (2d

See, e.g., Tomka

___ ____ _____

Cir. 1995); but

___

see id. at 1318-24 (Judge Parker's dissenting opinion).

___ ___

The

question has no very obvious answer.

We decline to answer it here.

The district court's

ruling that Riley was liable under Title VII for pre-November

-39-

21,

1991 sexual harassment (Count I) has little or no actual

impact on Riley that we can discern.

Riley were or can be held

November

Neither the Company nor

answerable in damages for the pre-

21, 1991 conduct, and

it is not

apparent that any

other available type of federal relief can be applied against

Riley notwithstanding

the court's

liable under Title VII.

absence

of

developed

reasoned disposition

determination that

he is

In such circumstances, and given the

argument

by

the

parties and

of

of this question by the court below, we

are not inclined to seize this

opportunity to create circuit

precedent on this relatively complex issue.

2. Individual Liability under the Maine Human Rights Act

_____________________________________________________

In

finding

Riley

liable,

employer, under

Maine state law for

Count

court

I,

Authority

Act.

the

imposed

together

with

his

sexual harassment under

$10,000

civil

penalty.

for the penalty is found in the Maine Human Rights

5 M.R.S.A.

4613(2)(B)(7) (West Supp. 1996).

Riley's

liability for

that penalty

with the Company's.

therefore, is not

is apparently joint

The state

and several

law judgment against

merely academic, as was the

Riley,

adverse Title

VII finding, supra.

_____

Still, we

are disinclined to rule at

whether or not Maine law

this time on

allows individual liability.

While

arguably the different language of the Maine law more clearly

allows individual liability

than does Title VII, there is no

-40-

relevant state court precedent.

Maine

as

has

construed

the

liability, relying on the

way.

21

law

federal district court in

disallowing
___________

federal precedent that trends that

Quiron v. L.N. Violette Co. Inc., 897 F.

______
______________________

(D.

Me.

individual

issues

1995).

individual

Appellants'

Supp. 18, 20-

objection

to

allowing

recovery here was not set out in the statement of

in their

brief, and

consists of

one sentence

in a

footnote, together with a citation to Quiron and a subsequent

______

case.

We have said

that a party owes this court

"developed

argumentation."

390, 393 (1st

United States
______________

Cir. 1995);

176, 182 (3d Cir. 1993)

citation,

not

enough).

v. Caraballo-Cruz,
______________

cf. Kost v.
__ ____

52 F.3d

Kozakiewicz, 1
___________

F.3d

(casual mention in footnote, without

See Wright,
___

Miller,

Cooper

Gressman, Federal Practice and Procedure, Vol. 16,

________________________________

n.1 (West 1977 & Supp. 1996).

not

have occasion

concedes that

motions.

to discuss

defendants

Riley is

employer

the issue,

raised it

in one

3974,

itself did

although appellee

of their

represented by the same attorneys

Company and, for all

his

The district court

that appears, may never be

to share

personally

in

the

and

trial

as the

required by

payment of

the

$10,000 penalty.

Under

these

circumstances,

we

think

the

most

satisfactory

way

individual judgment

with

to

handle

the issue

against Riley

instructions that,

if either

is

to

under Count I

party wishes,

vacate

the

and remand

the court

-41-

shall reopen, and expressly

rule upon, the issue

of whether

the Maine Human Rights Act provides for individual liability.

In

so doing, the court

may, in its

discretion, certify the

question to the Supreme Judicial Court of Maine.

This course

will

dispositive

ensure

either a

ruling by Maine's

reasoned

highest court.

decision

It will

or a

also enable

parties and the court to drop the matter if, as the

casual treatment suggests, it is of no

the

parties'

practical interest to

them.

The legal questions

both

Title VII and

Precisely

of individual liability

the Maine statute

because this is so, we

under

are significant ones.

do not wish to decide them

in the fragmented, undeveloped setting in which they appear.

V.

We affirm the district

court's rulings on Counts I

and

II, except

Count I.

we vacate

the finding

against

Riley under

We reverse the jury's verdicts on Counts I and IV.

We vacate the court's amended judgment and remand for further

proceedings,

and

for

inconsistent

with this

the

entry

opinion.

court shall reopen

the question

available form of

relief that may

of a

new

judgment,

Upon remand

of back pay

not

the district

and any

other

now be appropriate

under

the affirmed claims given our reversal of the jury's verdicts

under Counts

I and

IV.

The parties shall

costs of appeal.

-42-

bear their

own

It is so ordered.

-43-