Professional Documents
Culture Documents
No. 96-1224
DARLENE F. MORRISON,
Plaintiff, Appellee,
v.
Defendants, Appellants.
____________________
____________________
Before
____________________
David J. Kerman
_________________
with
whom
Robert Lewis
_____________
____________________
____________________
____________________
cross-appeals relate
arising from
sex
to actions heard in
of sexual harassment,
Darlene
Mills,
F.
Morrison
Inc. (the
against her
"Company"),
employer
and two
Carleton Woolen
of her
supervisors,
the
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
2000e et seq.
__ ___
VII of the
In Count
II,
she alleged
statutes
IV,
violation
of the
Morrison alleged
that defendants
discrimination on account of
Maine Human
Rights Act
federal
had subjected
her to
with Disabilities
12101 et seq.
__ ___
4, 1994.1
state and
October
same
____________________
1.
Judge
By consent
presided
of the parties,
over
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)
the
effective
date
discrimination (Count
occurring on or after
of the
1991
Civil
II) were
claims were
Rights
Act.
disability
discrimination
claim
(Count
IV)
was
See
___
The ADA
likewise
presented to the
sexual
jury.
harassment,
sex
discrimination
law claims
and
for
disability
1991
During the
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.
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
1991
damages.
in
The
jury
for
bench determination.
On
Count I, the
severe
prior
and pervasive
to
November
to create
21,
1991.
Maine
sexual
1991.
a hostile
work environment
Consequently,
it
ruled in
her
harassment claim
The court
state law.
for conduct
prior to
5 M.R.S.A.
November 21,
$10,000 under
no
incidents
1991.
discrimination before
against
Morrison under
however
after
of gender
in favor of
Title
VII.
November 21,
The court
determined,
November
21, 1991,
gender discrimination,
Maine Human
Morrison
had
been subjected
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
disagrees
respects."
with
the court
with
the
specifically noted
did not
intend
to
court's findings.
"The
jury's
in
conclusion
Court
certain
-4-
award
it would be
duplicative of the
plaintiff had
meaning of Maine
for defendants on
perceive her to be
specifically
work."
The court
"did not
life activity,
Company had
position of floorperson.
Defendants'
post-trial motions
for judgment
as a
were denied.
appeals, from
motions
the judgment
below.
cross-appeal from
Morrison
and the
has
since
rulings on the
II.
various
expressly waived
(gender discrimination).
cross-
her
under Count II
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
and was
awarded the
yarn preparation
department.
of 1984
In December
the position of
"temporary
floorperson"
on
the
preparation
department.
At
supervisor
department.
on
the
shift
in
the
yarn
in
the
yarn
preparation
floorperson position.
once
third
third shift
Prior to December
for leaving
A month later,
floorperson
position.
her transfer
Union to
As
shift supervisor,
completion of the
he had no
refuse
Riley approved
a position
to
temporary
However,
the most
senior
the
qualified
supervisor and
the floorperson
it.
Riley's superior,
He indicated that
the Company
-6-
been awarded
to reconsider taking
with her
Morrison
believed that
he was
concerned
In April 1987,
harassing employees
accusations
and
at the Company by
threatening
of Carleton
their
jobs.
The
Company
responded by
stating
that it
did not
condone shouting
by
not
following them."
Ultimately,
this
grievance was
resolved
Riley
In
opening
from men.
Morrison bid
Once again,
the job
February 1988,
Riley became
Days after
on the
permanent
Morrison that
the floorperson
bid, Riley told her that she was going to regret it, and that
The floorperson
of
is responsible for
bringing boxes
cones
of
yarn, weighing
weigh
beams.
them
and
storing them,
Changing a warp
and
for
beam, which
can
-7-
steps.
is removed from
its cradle
with a
March
of 1989.
During that
After changing
her hands.
When
went to wash
later, Riley
Riley
office.
took
Morrison
into
the
plant
manager's
room
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,
Riley
that the
told several
people in
-8-
Morrison's presence
able to
stay in such
a position
Moody patted
each
Morrison reported a
of yarn to
created the
problem herself.
He
you."
the Company
nurse, Lucille
Turner.
Two
return to
telling Morrison
"stepping out of
bounds" and
Thereafter,
position.
Morrison
bid
on
permanent
fixer
the
in an
effort to stop
worker.
Morrison
speculation about
the
In
Rogers,
Riley
June 1990, a
first shift
floorperson, William
Even though
agreed to the
-9-
switch.
with any bullshit on the first shift" and that he "had enough
bitches in
worker
male co-
patting him in
Riley and
abusing
the
privilege of
using the
restroom.
of
up for
Also, they
Riley handed
said was an
over
Morrison a
application for
piece of paper,
a fixer position.
She
which he
turned
Riley gave
depicted various
He called her
a "dumb
and animals.
unable to
properly
Morrison became
things" to her
-10-
such
comment.
On another
occasion,
Moody
approached
Morrison and told her that he would like to see her naked.
Condom
Marketing
Board", which
attempts at humor.
this,
Morrison
contained sexually-oriented
to the effect
he was
doing
that he takes
Riley
Riley
Restroom Policy."
gave Morrison a
This
stalls
for more
occur,
including
than
three minutes,
the taking
attempt at
of
their
certain events
photographs in
would
the
stalls.
women
employees in
men.
about
If any
During this
occasions, to
the office
personnel
manager,
behavior.
On
to
of Annette McGowan,
complain
about
went, on two
the Company's
Riley's
harassing
-11-
with
McGowan.
McGowan's secretary
told Morrison
that she
would
permission,
even
though
Morrison
informed
her
that
her
She
kept
working,
tendinitis,
and told
but
was
to take
eventually
diagnosed
ibuprofen and
learn
with
to pace
herself.
while
Regional
registered
appeared
Health
Center
where
nurse-practitioner.
to have
disc problems.
a lower lumbar
Hill
she
saw
Gretchen
Hill found
that
muscle strain
Hill,
Morrison
without any
Company's nurse,
Morrison
some stiffness.
Hill
By
experiencing
Morrison to
Turner suggested
On November 8, 1991,
to
work slip
would
for full
activity.
Hill testified
that she
in a limited capacity
-12-
successfully return to
another
Hill wrote a
Following
new note on
light
duty work
from November 11
through November
22, and
Turner and
and informed
time.
McGowan then
the
option of bidding
into a
want
to lose
her floorperson
seniority
by bidding
into a
return
November
25,
1991,
she
her
went
to
punch in.
the
yarn
preparation
Morrison could
Go see nursie."
not find
and so, on
You're not
Morrison felt
"stupid."
Turner told
and
on layoff,
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-
On November 26,
1991, the
taking her
doctor
that
blood pressure,
nurse
and the
he reported to her
(and wrote in
he
After
he
viewed
the
floorperson
position,
"I
feel that
the
[Morrison] can do
most of
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
the
I understand
weigh in
and
watching
However,
can do.
is certainly
Over a
period of
Dr.
time,
I feel that
and
recommendation
on
disability.
My
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
-14-
disregarded
Morrison
because
physician or
capable
of
seen
the
trial, Morrison
was
had
was
their
not
floorperson position on
On
November
the position,
laid
as
permanent
worked
fixer.
fixer,
fixer status.
supervisors from
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
After a dispute
Morrison
Since
Moody.
shift,
over being
finally
she returned,
third
to work
Morrison has
under
Morrison
attained
different
testified that
as
they
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
Morrison
her.
those
She
who
spoke
performance.
to
was due to
her
Clark,
testified, however,
that, after
supervisors
Ernest
further
often
were
harassed
afterwards
of
by
criticized
The Company,
speak to
Morrison
for
her
job
substitute
employees
when
with
floorperson's job.
the
floorperson
was
less
experience
were
absent, even
asked
to
though
do
the
-15-
she saw
a petition,
expressing support
for
III.
from
verdicts,
as a matter of law.
jury
moving
party.
examines the
favorable
evidence adduced
to the
inferences in
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
novo.
____
de novo,
__ ____
of a
findings of
(1st Cir.
1996).
IV.
that
it is an "unlawful
1964 provides
-16-
his
compensation,
employment
U.S.C.
Act,
because
terms,
of
conditions
such
likewise,
discrimination
provides
for an
that
or
individual's
it
employer to
The
is
with respect to
privileges
. . . sex."
42
unlawful
employment
discriminate against
promotion,
compensation,
transfer,
of
terms,
an
hire, tenure,
conditions
or
privileges of
employment . . . ."
5 M.R.S.A.
4572(1)(A)
Employment
Opportunity
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.
for sexual
of a
specifying that
and other
verbal or
nature constitutes
to
implicitly
such
sexual
conduct
term
or
is
physical
harassment
made
condition
either
of
an
or rejection of such
____________________
3.
The Maine
surrounding
courts have
Title
VII for
relied on the
the
purpose
federal case
law
of construing
and
See
___
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
29 C.F.R.
VII
can
be
established
through evidence
guidelines, the
Supreme Court
of
an
abusive,
existence of
see also
_________
Harris v.
______
(1993) (relevant
include the
of the circumstances."
frequency
of the
Id.
___
at 69;
510 U.S.
17, 23
one is required,
discriminatory
conduct;
its
offensive utterance;
and whether it
unreasonably interferes
In Lipsett
_______
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.
proceeded
under Title IX
Act of 1964.
This
court,
harassment
however,
viewed
the
standards
IX to be
for
sexual
equivalent to those
-18-
to
be
actionable,
"it
must
pervasive
to . . . create an
See also
_________
"is
liable
upon a
finding
be
'sufficiently
severe
or
21.
of
hostile environment
sexual
if
an
that
institution
or
the
harassment's
official
. . . should
representing
have known,
of
knew,
occurrence,
Claimants
under
Title VII
were,
until recently,
limited to
the equitable
back
pay.
time,
authorized
discrimination
to
relief and
individuals alleging
seek
Title VII
remedies of injunctive
intentional unlawful
compensatory and
The 1991
the first
punitive
damages
a trial by jury.
upon
See 42
___
U.S.C.
Court held that the right to such damages and to a jury trial
date
Landgraf,
________
Pursuant
harassment
to Landgraf, Morrison's
________
-19-
21, 1991.
Insofar as the
Title
VII
date,
it
harassment claim
was
tried
to
the
sexual
harassment
Because
Title VII
was for
magistrate
judge,
to that
who
also
violated
the
damages were
conduct prior
Maine
Human
Rights
only recoverable
Act.
for post-
importance here.
During the
pre-November
21, 1991
period,
as
to
which the magistrate judge rather than the jury was the trier
of fact,
the court
Morrison
work
I that
environment'", quoting
or
Harris, 510
______
U.S. at
21.
The
environment
to be abusive.'
Id."
___
was found to have existed prior to November 21, 1991, and the
Company
was found
to have
known about
it, or
it was so pervasive.
should have
The Company's
____________________
"and could
5.
Carleton and
that there is no
Company,
nor
comparable
particular,
Riley point
appellate brief
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-
the department."
VII
We find
As
an
initial
matter,
we
turn
to
defendants'
of
hostile
1991
Section
in
support
of
2000e-5(e)(1) of
the
environment
claims.
that claimants
Rights
discriminatory act.
42 U.S.C.
Section 4613(2)(C) of
2000e-
complained of."
5 M.R.S.A.
Since Morrison
April
filed her
EEOC on
September 3,
sexual
federal
1993, the
harassment occurring
claim, and
claim, should
the
evidence.
after
June 27,
after September 3,
1991, for
1991, for
be considered in reviewing
We disagree.
only acts
The district
of
her
her state
the sufficiency of
-21-
of
years
prior to
September 3, 1991.
on recovery
November 21,
1991 and
continued beyond
F.2d
continued without
interruption from
through September
3, 1991.
It was,
back to the
1980's, and
912
we may do
the late
1980's onward
therefore, appropriate
likewise, in
evaluating
From
was ample
of 1991, there
behavior
by
Riley
and
others
directed
at
Morrison.
severe
abusive
at 22.
or
pervasive
that
it created
work
There
environment
harassment went
by
making
her
fearful
to
apply
for
certain
employment
being.
an entity,
shown
cannot be
held liable
because Morrison
has not
-22-
the period,
even though
available to
hostile
Company knew
environment existed
or should have
despite plaintiff's
female employees
Riley,
Plant
but
of Carleton
known that
In April
had filed a
the
failure to
1987, several
grievance against
harassing them.
At that time,
never
took any
supervise him.
action
personnel.
Carleton
or
concerning
to discipline
Riley's
In spite
supervisors
more closely
of this case,
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
unable
to
see her.
The
conduct.
bring
the matter
Morrison
to the
magistrate
judge found
that the
layout of the mill was such that higher management "could not
department."
supports
the
court's
above
finding,
-23-
and
can
see
no
For us to
Morrison
the
on her Count
record
Act
environment
particular
the
evidence
of damages
to
to
of
conduct on
sufficient
have
created
jury's award
I Title VII
must reveal
Rights
affirm the
or
after
1991 Civil
hostile
Landgraf,
________
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
with
an
creating
an
29
C.F.R.
individual's
work
1604.11(a) (1996).
performance
or
speaks of a
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
______
In
the
present
case, the
jury
heard
extensive
time.
task was to
earlier
-24-
for the
1991
onward.
The jury
period from
November
21,
account
later
happened
for
it was legally
example,
to help
relevant to what
prove
the intent
like Morrison.
406, 412.
See, e.g.,
___ ____
Fed. R.
no
the post-November
evidence
sufficient
of sexually
Because we
cannot find
in this
later period
abusive conduct
From
Morrison
was
October 19,
either on
1991
until
November 23,
medical
leave
or on
layoff
1992,
from
have been
at
Carleton have
while there.
be
interfered with
conduct
workplace
sexual
harassment
occurred
on
return to work.
"nursie",
by abusive
construed as
November
been
raising the
In turning her
question whether
use of
offensive as to support a
-25-
go see
these terms
finding of
hostile environment
sexual harassment.
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
to assess
In light
of
of the
Morrison
lined up
We are
unable to
conclude, however,
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
There is no evidence
sanctioned Moody's
no case
Morrison was
on this one
knew
to
that Moody's
the Company
particular phraseology.
single,
work
brief encounter
We
of this
was not
performance and
conditions of
workplace environment.
held to
See, e.g.,
___ ____
-26-
or pervasive
enough
to
create an
objectively
hostile
or abusive
conditions of
employment);
environment).
rational
(1st Cir.
work
jury
to
conclude
that
the
earlier
abusive
1991, the fact that Morrison was not working at Carleton from
makes
damages
this conclusion
during this
1992
largely irrelevant
period.
Morrison
a year later
to her
claim for
could not
have been
layoff status
this
only because
period to let
her return to
health
concerns, was
against women
specifically
of the Company's
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
supposing
the
workplace
itself
was on layoff
present.
-27-
discrimination claim
premised on such a
II.
the jury,
contrary to
sex discrimination
claim
allow
Morrison to go
based
and
conclusive
discriminatory.
But
the
jury's
verdict
is
under Title
claim of
VII.
hostile environment
as we
the
Following the
November
the
over a year
November
the period
23, 1992
different,
during which
record covering
work on
period of
to work.
after Morrison's
provides scant
But
return to
support for
her
____________________
7.
The
jury's finding
against
Morrison
under Count
harassment
verdict
on
discriminated against
to
the floorperson
finding
that
position.
Cf.
__
I sexual
Morrison
II
was
to return
F.2d at
782-83.
8.
The
time of
floorperson
was
testified that a
fixer
paid
was paid
$8.54
$9.64 per
per hour.
that, at the
hour, while
Morrison
herself
-28-
new
supervisors.
position,
matter,
ridicule
her
no evidence
supervisors, or
subjected
her
to
any
offensive,
that, in
other
or
much less to
vulgar
that
intimidation,
U.S. at 21,
embarrassing
this new
person for
"discriminatory
sexually
remarks,
There is
conduct
or
floorperson
advised
under
her that
Riley.
employees
offensive
had been
and that
immediately
so
Company personnel.
The Company's
that
warned
she was
it
personnel manager
to treat
to report
could
be
her
anything
corrected.
Riley and Moody, stayed away from her, and never harassed her
certain incidents
that
which,
to
according
occurred during
her,
gave
rise
this later
to
period,
hostile
work
environment at Carleton.
Morrison
whom
testified that
when she
most of
returned to work
the
people with
in November 23,
1992, ostensibly
____________________
she
had
briefly worked
shortly after
returned
status.
as
her return
a creeler,
Morrison and
as a
fixer.
when she
and
There
was
was "bumped",
ultimately
a period
laid off,
restored to
fixer
-29-
or permanent;
because discouraged by
that
management from
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
according to Morrison,
excessive work.
Ernest Clark,
for flaws in her work, and would often blame her for mistakes
that
that,
for
some
period, she
time after
she
had
completed a
training
of regular pay,
for her work as a fixer, and that, despite her seniority, she
ranking jobs
that
she saw
within the
Company.
Lastly,
petition expressing
with higher-
Morrison claimed
support for
Riley and
management's conduct
sexual"
in
order
to
establish
sexually
hostile
work
environment based
many different
within
the
harassment.
on gender discrimination.
forms of
definition
We accept that
of
hostile
be included
environment
sexual
1994) (employee
can show
that there
-30-
is a sexually
hostile
work
environment
misconduct.").
"without
However, the
proving
(D.C.
Cir. 1985).
overbearing or
along
or
so as to be a recognizable
Merely
fellow employees
sexual
gender
sexual
1138
blatant
because a
supervisor
is
to get
discriminatory
nature
are
implicated.
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
a gender-based
reprimanded
hostile
environment
sexual
53
hostile environment by
her in
front
of other
employees, grilled
her
and
shown
that
was skating on
Supervisor
as a
Clark's
thin ice.").
harshness
woman, or because
It was not
was
he regarded
on
the
A connection between
established.
based
was not
-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
that
then.
at
Morrison
If
was
being
the
Company
punish Morrison
for her
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
sexual
is simply
based harassment.
evidence
by
contending
that the
more
recent,
non-sexual
related
effective
that
in
misconduct that
occurred at
Carleton prior
to the
Morrison urges
a continuation of
____________________
9.
an employer to discriminate
because of his
or her having
against
opposed another
unlawful
U.S.C.
83
F.3d
535
(1st
-32-
42
v. First
_____
Cir.
1996)
at the
Company before
November
21, 1991.
This point
merit relative
to
workplace so as
to be exposed to a
character
different
for
to
hostile environment.
As
and
at the
transform
the
later
conduct
into
time
the
hostile
environment
sexual harassment.
Morrison, by
then, was
To
establish that
subjected to
she
was entitled
to
damages for
during this
frame fitting
cognizable definition of
environment
into a
harassment.
liable for
If this
that time
abusive work
conduct which
being
the Company
would
be held
it would
not have
known
In light
factfinder could
conclude that
sexually hostile
Morrison was
subjected to a
-33-
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
in
against
however,
held
that
Morrison
had
in her
favor
sufficient
court's
under
Maine
evidence
state law
in
ruling
sex
law.
the
established
We
find
that
record below
to
there
is
support
the
we affirm
its
was
and, accordingly,
The district
not
permitted
November
25,
to
court first
return
1991
"because of
likely be
to her
floorperson
Lucille
position
Turner's,
on
Annette
would men."
injury
temporary
evidence
was
shows
that
and
not
Turner
especially
convinced
serious.
Hill
to
The
extend
Morrison's layoff,
Morrison should
____________________
10.
As
with
discriminated
November
the
because
I,
the
of
issue
gender
of
whether
against
Carleton
Morrison
after
the jury.
noted.
Count
The
The magistrate
same
facts for
discrimination
November 21,
purposes
claim,
1991
finding
based on
the
law sex
gender discrimination
Company's refusal
-34-
Maine
after
to
let
not be allowed to
When
talked
on the job."
extensively
with
condition, he refused to
Turner about
Morrison's
physical
perform her
fit to
that she be
The district
court stated
that
it was
satisfied
that "a man presenting the same medical history and clearance
so."
The record
Williams, testified
that the
that they
have, respectively, a
five
them to
worked as a floorperson
foot
Norman
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
to perform.
Carleton
It
could
seized upon
be found,
Morrison's
therefore,
relatively
that,
minor
while
medical
-35-
problems
to exclude
her from
the floorperson
position, it
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.
________
we affirm.
of
factor
that Morrison's
in the
Finding
back pay
of her
adverse
We also hold
the issue
rejected because
a substantial
employment
reopen
best sorted
trier's
sex
matter
given
no error,
court should
our vacation
of
the
In
Count
IV,
the
jury
returned
verdict
in
was
When
this claim
that Morrison
occurring
the Act.
July
on or after July
for violations of
the Act
effective date of
26, 1992
violations,
we are
verdict.
-36-
obliged to
overturn the
Ever
since the
retroactive.
Miller
______
ADA became
effective on
July 26,
is not
Supp. 1054,
1062
decline to
[plaintiff]
to
conduct.").
As a
there must
recover
for
the
result, to uphold
be evidence
theory to permit
defendants'
pre-ADA
ADA,
was discriminated
on Carleton's rejection of
1991, to be
allowed to continue in
is based
fall of
that
to
effective date.
her
union,
February
appears
stated
alleged
not
While
in
to
to
proceedings
of 1992,
and
strenuously
while the
have continued
be
arbitrated,
pursued
through
grievance process
into 1993,
when the
its subject
pointed to
was
fall of 1991.
itself
matter was
the
Company's
Morrison has
took place
on or
-37-
nothing to
Morrison's
claim.
disability
discrimination with
These
regulations
respect
to "
prohibit
. . . layoff,
C.F.R.
1630.4(b)
(1996) (emphasis
added).
29
However, the
denial
complete
had to return
floorperson
return from
medical leave.
By
then
Morrison had
already
us
a continuous
chain of
As
we
said
incumbent upon
in
based on a
the July
a somewhat
analogous
situation,
"'it was
that
the
later
. . . violations.'"
refusals
were
Velazquez v.
_________
themselves
separate
(1st Cir. 1984) (quoting Goldman v. Sears, Roebuck & Co., 607
_______
____________________
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
did
claim failed
not
meet
the
them
because
Morrison's
asserted
violation
of
the
ADA
In footnotes in
whether
Riley
can
be held
liable
under
Count
contest
I in
his
Human
Rights Act.
We
"a
fifteen
person."
or
more employees
42
controversy over
U.S.C.
. . . and
2000e(b)
whether this
in relevant part, as
any agent
(West
language
1994).
allows a
of
such a
There
is
corporate
person."
v.
The
ruling that Riley was liable under Title VII for pre-November
-39-
21,
November
it is not
Riley notwithstanding
the court's
absence
of
developed
reasoned disposition
determination that
he is
argument
by
the
parties and
of
In
finding
Riley
liable,
employer, under
Count
court
I,
Authority
Act.
the
imposed
together
with
his
$10,000
civil
penalty.
5 M.R.S.A.
Riley's
liability for
that penalty
therefore, is not
is apparently joint
The state
and several
Riley,
adverse Title
Still, we
this time on
While
-40-
Maine
as
has
construed
the
way.
21
law
disallowing
___________
(D.
Me.
individual
issues
1995).
individual
Appellants'
objection
to
allowing
in their
brief, and
consists of
one sentence
in a
case.
We have said
"developed
argumentation."
United States
______________
Cir. 1995);
citation,
not
enough).
v. Caraballo-Cruz,
______________
cf. Kost v.
__ ____
52 F.3d
Kozakiewicz, 1
___________
F.3d
See Wright,
___
Miller,
Cooper
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
his
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-
of whether
In
may, in its
This course
will
dispositive
ensure
either a
ruling by Maine's
reasoned
highest court.
decision
It will
or a
also enable
the
parties'
practical interest to
them.
both
Precisely
of individual liability
under
V.
and
II, except
Count I.
we vacate
the finding
against
Riley under
proceedings,
and
for
inconsistent
with this
the
entry
opinion.
the question
available form of
of a
new
judgment,
Upon remand
of back pay
not
the district
and any
other
now be appropriate
under
under Counts
I and
IV.
costs of appeal.
-42-
bear their
own
It is so ordered.
-43-