IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ CORRECTED COPY No. 01-2732 _____________________ EILEEN CROWLEY, Plaintiff-Appellee, v. L.L. BEAN, INC., Defendant-Appellant. _____________________________________________________ On Appeal from the United States District Court for the District of Maine _____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLEE FOR AFFIRMANCE ______________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PHILIP B. SKLOVER Associate General Counsel SUSAN L.P. STARR Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 202/663-4727 TABLE OF CONTENTS Pages TABLE OF AUTHORITIES ii STATEMENT OF INTEREST 1 ISSUE PRESENTED 2 STATEMENT OF THE CASE 2 A. Nature of the Case and Course of Proceedings 2 B. Statement of Facts 3 C. Decisions Below 11 SUMMARY OF ARGUMENT 12 STANDARD OF REVIEW 15 ARGUMENT A COURT MAY CONSIDER EVENTS OCCURRING OUTSIDE THE LIMITATIONS PERIOD IN DETERMINING WHETHER AN EMPLOYER UNLAWFULLY DISCRIMINATED IN THE TERMS AND CONDITIONS OF EMPLOYMENT BY REQUIRING AN EMPLOYEE TO WORK IN A SEXUALLY HOSTILE WORK ENVIRONMENT DURING THE LIMITATIONS PERIOD 16 CONCLUSION 25 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _____________________ No. 01-2732 _____________________ EILEEN CROWLEY, Plaintiff-Appellee, v. L.L. BEAN, INC., Defendant-Appellant. _____________________________________________________ On Appeal from the United States District Court for the District of Maine _____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLEE FOR AFFIRMANCE ______________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the federal agency charged with the interpretation, administration, and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and other federal fair employment statutes. This appeal raises the question of whether the court may consider events that occurred more than 300 days before plaintiff filed a charge in determining whether the evidence is sufficient to support a finding that a charging party was subjected to a hostile work environment within the limitations period. In our view, the district court correctly ruled that the jury could consider events occurring outside the limitations period in determining whether a violation of Title VII occurred within the limitations period. To hold otherwise would frustrate enforcement of Title VII by effectively insulating some current discriminatory conduct from challenge under the statute. We therefore offer our views to the Court under authority provided by Fed. R. App. P. 29(c)(3). STATEMENT OF THE ISSUE<1> Whether a court may consider incidents occurring outside Title VII's limitation period in determining whether an employer violated Title VII by requiring an employee to work in a hostile environment based on her sex within the limitations period. STATEMENT OF THE CASE A. Nature of the Case This is an appeal from a final judgment based on a jury verdict finding that the defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and awarding compensatory damages. The plaintiff initiated this action by filing a complaint in June 2000. Appendix (“A.”) at 2, Docket Entry ("DE") 1. The complaint, as amended in September 2000, alleges that defendant violated Title VII by “fail[ing] to exercise reasonable care to prevent and promptly correct” a co-worker's “stalking” of the plaintiff, which “was based on her gender and constituted unwelcome sexual harassment.” A. at 31.<2> After a 7-day trial in June 2001, a jury found that defendant violated Title VII and awarded plaintiff $215,000 in compensatory damages. A. at 18-19, DE 96-97. On November 8, 2001, the district court denied the defendant's post-trial motion for judgment as a matter of law and entered judgment on the verdict. A. at 21, DE 115, 116. B. Statement of Facts Eileen Crowley began working at L.L. Bean in 1992 . Transcript ("Tr.") at 32. In 1996, after she was transferred to the company's warehouses, Crowley had a series of disturbing encounters with Paul Juhl, a co-worker with whom she had no relationship but knew only as a fellow warehouse employee. Tr. at 49-65. These incidents included the following: Juhl's massaging Crowley's foot despite her protests and telling her she had a "perfect woman's foot;" consistently parking near Crowley in Bean's parking lot and following her to her car when she was leaving work; giving her gifts which suggested that he was watching Crowley both on and off Bean's premises; giving her coins with messages of affection on them and, when she said she did not want them, throwing them at her during work. Id. At an L.L. Bean party in December 1996, Juhl told Crowley that she was the perfect woman and identified the precise location of her house on a map. Tr. at 59-60. Crowley reported these incidents to management. Tr. at 55. Beginning in the fall of 1996 and continuing until he was fired in July 1998, Juhl frequently appeared in Crowley's work area even when he was scheduled to be elsewhere. Tr. at 442-44, 455-57, 468-70. In January and February 1997, Juhl and Crowley were both working the overnight shift in the same building. Tr. at 60. During this time Juhl continued to stalk Crowley, waiting for her several times in the dark outside the women's bathroom, getting into her car uninvited, giving her gifts, and tracking her down in the warehouse by using Bean's computer system. Tr. at 61- 68. Juhl also exhibited a violent temper when Crowley or others disagreed with him. Tr. at 49-50, 62, 93-94, 331, 405-06, 453-55, 460. These incidents were either observed by management employees or reported to management, including an incident in 1997 in which Juhl "smashed his hand through a wall." Tr. at 451-55, 556. On February 16, 1997, Juhl came to Crowley's house which is located in a isolated area. Juhl walked into the house without knocking, repeatedly tried to get Crowley, who was alone in the house at the time, to touch his clothing, grabbed her wrist in an effort to get her to go upstairs with him, and told her that he had been to her house before, describing what she had been wearing on those particular days. Tr. at 73-75. Eventually Juhl left, but soon thereafter Crowley saw him standing outside different windows of her house, peering in. Tr. at 75-77. Crowley hid in her bathtub until Juhl finally went away. Tr. at 77. Crowley reported this incident, as well as incidents at work, to two team leaders and told them that Juhl's stalking was frightening her.<3> Tr. at 62-63, 67-72. The team leaders forwarded Crowley's complaints to their supervisor, Tim Morong, who then met with Crowley and the team leaders. Tr. at 80. Morong testified that Crowley told him at the meeting that Juhl's behavior made her feel that she was being stalked. After listening to Crowley, Morong believed the situation was "more serious than originally explained" to him, and could be correctly described as sexual harassment. Tr. at 704-07. Morong testified that, based on what he learned at the meeting, he left a voice-mail message with Pat Bressette-Long, a human resources supervisor. Crowley testified that Bressette-Long called her at home in February 1997 shortly after the meeting and discussed Juhl's conduct with her. When Crowley asked if she should speak to someone higher up the chain of command about the matter, Bressette-Long instructed her not to do so but rather to continue reporting to her immediate superior. Tr. at 81-83. Nothing was done in response to Crowley's complaints about Juhl until late March 1997, when, after Crowley met with Bressette-Long and Morong, Juhl was assigned to work in a different area. Tr. at 112-14. However, notwithstanding Juhl's reassignment, he still frequently worked near Crowley even at times when he was performing tasks that were not supposed to be performed in the area where Crowley worked. Tr. at 112-17. In May 1997, Crowley met with Bressette-Long and Morong several more times, and at that time Crowley believed they were taking her complaints seriously. Tr. at 95-96; 564-65. However, Juhl was still being permitted to work in her building and incidents continued. Crowley immediately reported these new incidents to her team leader as instructed by Bressette-Long. Tr. at 94-99, 101-02. In July 1997, Crowley was moved from the overnight shift to the morning shift. Although Juhl remained on the overnight shift, he often lingered at the warehouse after his shift until Crowley arrived for work. After September 1997, when Crowley was moved to the afternoon shift, Juhl often came in early and followed Crowley around. Crowley reported this to her team leaders. Tr. at 103-06. After a few weeks on the morning shift, upon learning that she was going to be reassigned to the overnight shift, Crowley contacted Bean security officials and Robert Anderson, a team leader on the morning shift, to express her apprehension about working on the same shift as Juhl. Tr. at 110. Anderson told Crowley that he did not know that he was supposed to be keeping Crowley and Juhl apart. Tr. at 109, 529. He passed her complaint on to higher management and to the supervisor on the overnight shift in an e-mail and stated that someone should follow up. Tr. at 531-33. No one did, however, and the incidents continued to occur. Tr. at 533-36. In January and February 1998, Juhl gave Crowley another gift by forcing it into her hand, continued to follow Crowley, stare at her and block her way in aisles. Tr. at 111-14. Crowley reported these incidents to David Baker and Steve McCourt, her team leaders. Tr. at 114-15. McCourt reassured her that Bean was taking her complaints seriously. He brought her to his office where Crowley saw on his computer a listing of incidents between Crowley and Juhl. Tr. at 115-17. This file later disappeared from Bean's computer system. Tr. at 363-64. Crowley testified that she did not file a lawsuit at that point, even though she believed Juhl's behavior constituted sexual harassment, because, after seeing the computer log and receiving assurances from Bean's management personnel, she continued to have "total faith" that Bean would eliminate the abusive environment. Tr. at 116-17, 532. In March and April 1998, after Juhl and most of the other employees on the overnight shift were moved to the morning shift, Juhl repeatedly showed up in Crowley's building even though he was assigned elsewhere. Tr. at 118-23. On some days after Crowley complained Juhl was sent back to his assigned location, but he continued to show up near Crowley blocking her from doing her work. Tr. at 119-25. When Crowley complained to Peter Farley, her new team leader, he joked about her complaints and called Juhl Crowley's "little stalker." Tr. at 123-24. Later, when Crowley asked Juhl to move when he was physically blocking her from doing her work, Juhl laughed and said that it would "cost her." Tr. at 125. In June 1998, a member of management reported Juhl's continual shadowing of Crowley to three team leaders, John Andretta, Steve McCourt and David Baker, and indicated that he feared for Crowley's safety. Tr. at 460-61. No action was taken. Tr. at 376. Lee Foss, the Bean human resources official in charge of interpreting and enforcing the company's harassment policies, testified that, at this point, the company had no reason to investigate whether Juhl was stalking Crowley for two reasons: 1) because she failed to state she was being "sexually harassed" and, unless those words were used, the company would not investigate a complaint; and 2) the actions complained of were not explicitly sexual in nature and therefore cannot be described as sexual harassment. Tr. at 374-78, 382, 385-88.<4> This testimony was corroborated by Rebecca Batchelder, a human resources supervisor in charge of enforcing the company's sexual harassment policies. Tr. at 501, 503 On June 23, 1998, team leader Leo Davis witnessed Juhl blocking Crowley's path so that she was unable to do her work. Davis spoke with Juhl in front of Crowley and both men began to laugh. Tr. at 129-30. Davis then looked at Crowley, smiled and walked away. Tr. at 130. Crowley testified that this incident convinced her that Bean would not investigate as they had promised and that no action would be taken. Tr. at 135-36. Juhl confronted Crowley again later that day in front of a management official and two employees all of whom reported the incident. Tr. at 130-33. After these reports, Davis told Crowley that Bean was opening a new investigation. Tr. at 390. On June 30, Juhl was issued a written warning stating that he created a hostile work environment by following and attempting to get in close proximity to Crowley. Tr. at 504-06. The only action ordered by Rebecca Batchelder, the human resources official who issued the warning was to again reiterate the directive originally issued in the spring of 1997 that Juhl and Crowley were to be kept in separate buildings. Tr. at 507. Batchelder testified that she never checked to see if such a directive had already been issued nor did she conduct any follow-up. Tr. at 505. Notwithstanding the written warning, Juhl continued to follow Crowley at work. Tr. at 139, 142, 479-80. When Crowley reported this to Farley, her team leader, he took no action and said that his supervisor was aware of Juhl's proximity to Crowley. Tr. at 138, 491-93. When asked why he was heard encouraging Juhl to remain in Crowley's building, he stated that he forgot the two were supposed to be kept separated. Tr. at 341-42. On July 7, after Farley once again let Juhl stay in Crowley's building in violation of the company's written warning issued one week earlier, Crowley went to the police and obtained a temporary order of protection against Juhl. Tr. at 144-47. Bean suspended Juhl with pay pending a court hearing on the protection order. Tr. at 507-08. On July 17, the court issued a permanent order of protection and, one week later, Bean terminated Juhl. Tr. at 508-09, 511-12. Crowley filed a charge of discrimination with the EEOC and the Maine Human Rights Commission on December 21, 1998. A. at 84. C. District Court Decisions During trial, the district court ruled that Crowley would be permitted to present evidence of sexual harassment that occurred more than 300 days before she filed her charge. Tr. at 48-49. The jury was asked initially to decide separately whether Bean had violated Title VII and the MHRA within the statutes' respective charge-filing periods, 300 days for Title VII and six months for the MHRA. The jury was instructed that pre-limitations-period conduct could be considered only as background evidence to assist the jury in determining whether unlawful conduct occurred within the limitations period. Tr. at 924-25. If it found a violation within the limitations period, the jury was then asked to decide whether it was a continuing violation. The jury was told that it could award damages for pre-limitations-period conduct only if it found a continuing violation. Tr. at 48-49, 924-25. The jury found that Bean violated Title VII "by acts occurring on or after February 24, 1998," i.e., 300 days before she filed her charge. Bean Addendum (“Add.” at 90). However, the jury found that Bean did not violate the MHRA "by acts occurring on or after June 23, 1998," six months before she filed her charge. Add. at 91. The jury found that the Title VII violation was a "systemic" continuing violation, but not a "serial" continuing violation. Add. at 90. The jury awarded compensatory damages in the amount of $215,000, but did not award punitive damages. Add. 91, 93-94. The district court denied Bean's motion for judgment as a matter of law, concluding that there was sufficient evidence to support the jury's verdict. Add. at 95-96. SUMMARY OF ARGUMENT The evidence in this case is sufficient to support the jury's finding that L.L. Bean violated Title VII by subjecting Eileen Crowley to a hostile work environment. Bean's principal argument on appeal is that the district court should have granted its motion for judgment as a matter of law on Crowley's Title VII claim because the incidents of harassment during the limitations period when viewed alone, are insufficient to constitute a hostile work environment. Bean's contention that the court was required to ignore events occurring outside the limitations period in determining whether Crowley established that unlawful sexual harassment occurred within the limitations period is wrong as a matter of law and reflects a fundamental misunderstanding of the nature of a hostile environment harassment claim under Title VII. The Supreme Court has made clear that time-barred discriminatory acts may be considered by a fact-finder as background evidence with respect to timely claims. Accordingly, even if Bean is correct that Crowley may not recover in this case for injuries suffered more than 300 days before she filed her charge, the court may consider earlier events in determining whether she was subjected to a hostile work environment inside the statutory period. Bean's approach of focusing the inquiry exclusively on incidents of harassment within the limitations period misapprehends the nature of an employer's liability in a case such as this. An employer is liable under Title VII for hostile environment sexual harassment because such harassment subjects the victim to discriminatory terms and conditions of employment by requiring her to work in a hostile environment based on sex. Accordingly, the proper inquiry in this case is whether Crowley was forced to work under discriminatory conditions of employment within the limitations period, not whether Juhl's conduct during that period, viewed in isolation, is sufficiently severe or pervasive to constitute a hostile work environment. In light of Juhl's prior menacing conduct, including an invasion of Crowley's home, a reasonable jury could find that Bean subjected her to discriminatory working conditions by requiring her to continue to work in an environment where Juhl could appear at any moment and continue stalking her. Indeed, under the circumstances of this case, where Bean utterly failed to address Crowley's complaints about Juhl, a jury could find that Crowley was subjected to a hostile work environment even on days when she had no encounter with Juhl because she was forced to work in constant apprehension that he would appear. Bean's argument that it cannot be held liable because it took action on two specific occasions when Crowley complained to “management” officials about specific acts suffers from the same failure to consider the big picture. By focusing exclusively on Crowley's complaints about specific incidents, Bean ignores the undisputed evidence that numerous management officials were aware of Juhl's constant stalking of Crowley over the course of a year and one-half. Because, as Bean acknowledges, an employer may be held liable for co-worker harassment where it knew or should have known of the harassment and failed to effectively respond, and because that is what happened in this case, the finding of liability is fully supported by the record. STANDARD OF REVIEW In reviewing an order denying judgment as a matter of law this Court applies the same standard as the district court applies in considering the motion. See Mangla v. Brown Univ., 135 F.3d 80, 82 (1st Cir. 1998). Under that standard this Court "must sustain the district court's denial of a Rule 50(b) motion for judgment as a matter of law, ‘unless the evidence, together with all reasonable inferences in favor of the verdict, could lead a reasonable person to only one conclusion, namely, that the moving party was entitled to judgment.'" Lama v. Borras, 16 F.3d 472, 477 (1st Cir. 1994) (citing PH Group Ltd. v. Birch, 985 F.2d 649, 653 (1st Cir. 1993)). Even if this Court would have drawn a different conclusion from the evidence, the only inquiry is whether a reasonable jury could have found in the plaintiff's favor. White v. N.H. Dep't of Corrections, 221 F.3d 254, 259 (1st Cir. 2000). All credibility issues must be resolved in favor of the non-moving party. United States v. Scharon, 187 F.3d 17, 20 (1st Cir. 1999) (citations omitted). ARGUMENT A COURT MAY CONSIDER EVENTS OCCURRING OUTSIDE THE LIMITATIONS PERIOD IN DETERMINING WHETHER AN EMPLOYER UNLAWFULLY DISCRIMINATED IN THE TERMS AND CONDITIONS OF EMPLOYMENT BY REQUIRING AN EMPLOYEE TO WORK IN A SEXUALLY HOSTILE WORK ENVIRONMENT DURING THE LIMITATIONS PERIOD. Bean's principal argument on appeal is that the district court should have granted its motion for judgment as a matter of law on Crowley's Title VII claim because the “handful of incidents described by Crowley between February 24, 1998 [300 days before Crowley's charge was filed] and June 23, 1998 [after which, according to Bean, the jury found that no actionable harassment occurred], do not constitute a hostile work environment.” Bean Br. at 17; see also id. at 12 (“jury found the sex discrimination had stopped” on June 23, 1998). Bean then proceeds to analyze in a vacuum the evidence relating to Crowley's confrontations with Juhl during that period without any consideration of the context in which they arose. Id. at 20-31. In Bean's view, Crowley's claim of sexual harassment is supported only by evidence that “Juhl gave her a book, came to the wrong building on three occasions, operated his machine in her vicinity a few times (and told her once ‘it will cost you' when she asked him to move), and came out of a tunnel dancing on one occasion.” Id. at 20. Bean concludes that “[t]hese allegations are so trivial, so isolated, and so far from the paradigmatic case of sexual harassment that judgment as a matter of law [was] clearly appropriate.” Id. at 20-21 (internal quotation and citation omitted). Bean's contention that the court was required to ignore events occurring outside the limitations period in determining whether Crowley established that unlawful sexual harassment occurred within the limitations period is wrong as a matter of law and reflects a fundamental misunderstanding of the nature of a hostile environment sexual harassment claim under Title VII. Even if Bean is correct that the harassment which occurred outside the limitations period is not actionable<5>, that does not mean that evidence regarding the harassment may not be considered in deciding whether there is a violation within the charge filing period. It is axiomatic that evidence of time-barred discriminatory acts may be “relevant background evidence” with respect to timely claims. United Airlines v. Evans, 431 U.S. 553, 558 (1977). See also Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396, 400 n.9 (1st Cir. 1990) (a finding of a continuing violation is not “necessary for determining what evidence is admissible at trial”). Applying this principle to a claim of sexual harassment, it is clear that a jury may consider incidents occurring outside the limitations period in deciding whether a plaintiff was subjected to a hostile work environment within the limitations period. As the Eighth Circuit has observed, “An incident within the limitations period need not satisfy the definition of sexual harassment under Title VII when viewed in isolation. Rather the jury must be capable of perceiving the incident as ‘discriminatory' in light of all the prior incidents of sexual harassment.” Van Steenburgh v. Rival Co., 171 F.3d 1155, 1159 (8th Cir. 2001). When Crowley's encounters with Juhl after February 24, 1998, are viewed in the context of the long campaign of menacing behavior toward Crowley that preceded them, there is more than sufficient evidence to support a finding that she was subjected to a hostile work environment after February 24. Indeed, Bean does not argue to the contrary. Instead it simply ignores everything that happened before February 24, 1998, in arguing that Crowley did not establish her claim.<6> Bean's approach of focusing the inquiry exclusively on Juhl's conduct within the limitations period misapprehends the nature of an employer's liability in a case such as this. An employer is liable under Title VII for hostile environment sexual harassment because by permitting such harassment the employer subjects the victim to discriminatory terms and conditions of employment by requiring her to work in a hostile environment based on sex. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 19 (1993) (sexual harassment violates Title VII where, based on the totality of the circumstances, harassment alters the conditions of plaintiff's employment based on sex). Accordingly, the proper inquiry is whether Crowley was forced to work under discriminatory conditions of employment after February 24, not whether Juhl's conduct during that period, viewed in isolation, is sufficiently severe or pervasive to constitute a hostile work environment.<7> As this Court has recognized, in assessing the affect of sexual harassment on an employee's working conditions, the cumulative effect of the harassment must be considered. O'Rourke v. City of Providence, 235 F.3d 713, 727 (1st Cir. 2001) (“By its nature, a hostile work environment often means that there are a series of events which mount over time to create such a poisonous atmosphere as to violate the law”). See also Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1108 (9th Cir.1998) (actions that might seem to be “an innocuous occurrence in some circumstances may, in the context of a pattern of discriminatory harassment, take on an altogether different character, causing a worker to feel demeaned, humiliated, or intimidated on account of her gender”). Cf. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 59-60 (1986) (courts must consider the totality of circumstances in each case because, failure to do so "rob[s] the incidents of their cumulative effect"). Rather than attempt an analysis of all of the evidence pertaining to the conditions under which Crowley was required to work after February 24, 1998, Bean confines itself to a mechanical recitation of Crowley's encounters with Juhl during that period without any consideration of the historical context in which they occurred. This fails to meaningfully capture the true impact of Juhl's behavior on Crowley's working conditions. Cf. Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81-82 (1998) (“[t]he real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a single recitation of the words used or the physical acts performed”). Furthermore, Bean's approach loses sight of the fact that its liability under Title VII is based not directly on the harassing conduct of Crowley's co-employee, but on the discriminatory working conditions created by that conduct combined with the company's failure to address it effectively. In particular, by focusing only on the specific incidents which occurred after February 24, Bean fails to capture the residual and cumulative effect that Juhl's campaign of harassment had on Crowley's working conditions even on days when she did not encounter him. See Draper, 147 F.3d at 1108 n.1 (9th Cir.1998) (“a hostile work environment is ambient and persistent, and [] it continues to exist between overt manifestations."); Hansel v. Public Service Co. of Colorado, 778 F.Supp. 1126, 1134 (D. Col. 1991) (“In a hostile environment, an individual feels constantly threatened even in the absence of constant harassment. Thus, in looking at the frequency of the harassment, the focus should not be a mechanical calculation. Rather, in light of Meritor Savings Bank, the court should review the pattern and frequency of the harassment and determine whether a reasonable person would feel that the environment was hostile throughout the period that formed the basis of plaintiff's claim.). There was evidence in this case that Crowley worked in constant apprehension that Juhl would appear. At times he would hide in the dark, suddenly appear, and engage in bizarre and violent behavior. See, e.g., Tr. at 44-47, 60-61, 65-67, 71-72, 92-94. Furthermore, there was abundant evidence that, notwithstanding repeated complaints about Juhl's conduct, Bean failed to take effective measures to stop it. Based on this evidence, the jury could reasonably find that Crowley was required to work under discriminatory conditions every day that Bean failed to take steps to stop Juhl's abusive conduct, even on days when Crowley did not encounter Juhl, because she was forced to work in constant dread that she would be confronted by him. Bean takes a similarly restricted view of the evidence in arguing that it could not be held liable for Juhl's harassment because it took action on two occasions when Crowley complained to Bean's “management” officials. According to Bean, Crowley's failure to report the other objectionable incidents to the correct official is fatal to her claim. Bean Br. at 28-30. Once again Bean focuses narrowly on specific encounters between Juhl and Crowley and ignores the big picture. Furthermore, Bean confines its discussion to complaints of harassment by Crowley, and ignores the undisputed evidence that numerous other employees reported Juhl's harassment to Bean's management. As Bean acknowledges, an employer may be held liable for a hostile work environment caused by co-worker sexual harassment where it “knew or should have known” of the harassment and failed to take effective measures to stop it. See Bean Br. at 27 (citing McKenzie v. Illinois Dep't of Transp., 92 F.3d 473, 480 (7th Cir. 1996)). See also White, 221 F.3d at 261 (employer is liable for harassment “caused by a co-employee, . . . if it ‘knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action'”) (citation omitted). Numerous management officials at Bean acknowledged at trial that they were aware of Juhl's ongoing harassment of Crowley. See, e.g., Tr. at 704-05 (February 1997, supervisor Morong believing the situation was “serious” and possibly “sexual harassment”); 564-65 (May 1997, human resources supervisor Bressette-Long was aware of harassment interfering with Crowley's ability to work); 531-36 (January 1998, supervisor Robert Anderson relayed Crowley's at-work complaints to management, suggesting follow-up by higher levels of management but that follow-up never occurred). Bean does not deny that its management was aware of the ongoing pattern of harassment of Crowley. It simply ignores the fact and focuses instead entirely on complaints by Crowley herself. Liability is imposed, however, based on what an employer knew, regardless of the source. To suggest, as Bean does, that an employer with actual knowledge of ongoing harassment, can escape liability merely because it learned of the harassment from employees other than the victim defies common sense. Once management was aware of sexual harassment complaints, Bean had a duty to take effective measures to eliminate the harassing environment.<8> CONCLUSION For the foregoing reasons, the judgment of the district court should be affirmed. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ________________________ SUSAN L.P. STARR Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 202/663-4727 June 5, 2002 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in F.R.A.P. 32(a)(7)(B). This brief contains 5,564 words. See Fed. R. App. P. 29(d). The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced type for text and 14-point type for footnotes, both in Times New Roman. See Fed. R. App. P. 32(a)(5). _________________________ Susan L.P. Starr, Esq. June 5, 2002 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been sent via first class mail, postage prepaid, to the following counsel of record: COUNSEL FOR DEFENDANT-APPELLANT L.L. BEAN, INC. Peter J. Brann, Esq. Daniel A. Nuzzi, Esq. Kevin J. Beal, Esq. BRANN & ISAACSON 184 Main Street, P.O. Box 3070 Lewiston, ME 04243-3070 COUNSEL FOR PLAINTIFF-APPELLEE EILEEN CROWLEY Rebecca S.K. Webber, Esq. LINNELL, CHOATE & WEBBER, L.L.P. 83 Pleasant Street, P.O. Box 190 Auburn, ME 04212-0190 _________________________ Susan L.P. Starr, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 June 5, 2002 1 The company also raises issues relating to jury selection and evidentiary rulings of the district court. The Commission takes no position on those issues. 2 The complaint also alleges that the same conduct violated the Maine Human Rights Act, 5 M.R.S.A. § 4572 (“MHRA”). A. at 32. 3 Machine operators such as Crowley are directed to report any problems or concerns directly to one of their team leaders . Tr. at 332, 357, 338-39, The team leaders had supervisory responsibility over the operators on their team. Tr. at 330-32, 343-44, 356-58. Immediately above them in the hierarchy were team leader supervisors and above them was the manager of distribution. Tr. at 83-84; 357-58, 528. 4 Lee Foss attempted at trial to recant her deposition testimony in which she repeatedly stated that an employee must use the phrase "sexual harassment" for an investigation to ensue. Tr. at 744-45. When confronted with the inconsistency between her trial testimony and her deposition testimony, Foss could offer no explanation. Tr. at 752-55. 5 The earlier harassment may not be actionable if, as Bean argues, the lower court erred in concluding that this was a continuing violation, or if the Supreme Court decides in National Railroad Passenger Corp. v. Morgan, No. 00-1614 (S. Ct.) (argued January 9, 2002) that the doctrine of continuing violation does not permit a plaintiff to recover for discrimination occurring outside the limitations period. 6 Bean also argues that incidents occurring after June 22, 1998, may not be considered because the jury found no violation of the MHRA after June 22, 1998. Bean implies that this finding necessarily means that the jury found that no sex discrimination occurred after June 22. It is not clear how the jury reconciled a finding in favor of the defendant on the state law claim and a finding of continuing sexual harassment under Title VII. However, Bean's suggestion that the same jury that found that Crowley was subject to a hostile work environment on June 21, believed that there was no actionable harassment in the period from June 22 and July 7 when Juhl was finally suspended, is implausible at best, particularly in light of evidence that Juhl's harassment intensified in the two weeks prior to his suspension. Accordingly, Bean is wrong to argue that the events occurring after June 22 may not be considered in determining whether a Title VII violation occurred. 7 Bean incorrectly states that Crowley was required to establish that the harassment was “severe and pervasive” enough to establish a hostile work environment. Bean Br. at 18, 19 (emphasis added). The Supreme Court has made clear that sexual harassment violates Title VII when it is “so ‘severe or pervasive" as to " 'alter the conditions of [the victim's] employment and create an abusive working environment.'" Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1999) (emphasis added) (citations omitted). In determining the effect of sexual harassment on working conditions, severity and pervasiveness are in an inverse ratio - the more pervasive the conduct, the less severe it need be to be actionable. See Wilson v. Southern Nat'l Bank of North Carolina, Inc., 900 F. Supp. 803, 809 (W.D.N.C. 1995). 8 Bean also argues that the evidence does not support the jury's finding that the harassment of Crowley constituted a continuing violation. The question whether Crowley established a continuing violation goes to her entitlement to relief for harassment occurring outside the limitations period. See, e.g., Sabree, 921 F.2d at 401 (the focus under the continuing violation theory is “whether the acts outside of the limitations period may be relied upon in awarding a remedy”). As discussed above, even if the earlier harassment is time-barred, evidence of that harassment may support the finding of liability for harassment within the limitations period. Since Bean's appeal challenges only the finding of liability, and not the amount of damages, this Court need not address whether there was a continuing violation in this case. Moreover, the Supreme Court is presently considering in Morgan the question whether and under what circumstances a finding of a continuing violation permits a plaintiff to obtain relief for discrimination outside the charge-filing period.