Petition for Rehearing — Rico v. Monteagudo (No. 08-1454)

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Supreme ( o US.

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24 oO 081454 MAY 21 2009

No. 08- —_9FFICE OF THE CLERK

Jn the

Supreme Court of the United States

ASOCIACION DE EMPLEADOS DEL EstTapo

LIBRE ASOCIADO DE PUERTO RICo,

Petitioner,

Vv.

MICHELLE MONTEAGUDO,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the First Circuit

PETITION FOR WRIT OF CERTIORARI

Pepro E.. OrtTIz-ALVAREZ PAuLD. CLEMENT

J ORGE MARTINEZ-LUCIANO Counsel of Record

Law OFFICES OF PEDRO JEFFREY S. BUCHOLTZ

Ort1z-ALVAREz, PSC SARAH O. JORGENSEN

P.O. Box 9009 KinG & SPALDING LLP

SAN JUAN, PR 007382 1700 PENNSYLVANIA AVE., N.W.

WASHINGTON, D.C. 20006

(202) 737-0500

Attorneys for Petitioner

May 21, 2009

Becker Gallagher - Cincinnati, OH - Washington, D.C. ~- 800.890.5001

QUESTION PRESENTED

Whether an employer is vicariously lable

under Title VII for sexual harassment where the

employer has implemented a concededly adequate

anti-harassment policy with complaint procedure

pursuant to this Court’s decisions in Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and

Faragher v. City of Boca Raton, 524 U.S. 775 (1998),

and the plaintiff fails to take advantage of the policy

because of an unsupported subjective belief that it

would be futile or lead to retaliation.

CORPORATE DISCLOSURE STATEMENT

Petitioner Asociacion de Empleados_ del

Estado Libre Asociado de Puerto Rico is a private

non-profit entity composed of and owned by public

employees. There is no parent or publicly-held

company owning 10% or more of petitioner’s stock.

TABLE OF CONTENTS

Page

CPP EPIRA Tie BORA TY secssiccnictasdiosciapan ace

FUP PE LE BOP ON saissvccacsasionlvdeds caine ae eee 1

STATUTORY PROVISION INVOLVED................... l

BTR REIETE Siiiscictamusiebeouumocenunaaleee 2

REASONS FOR GRANTING THE WRIT............... 11

I. The Cireuits Are Divided On What

Constitutes A Reasonable Justification For

An Employee To Bypass A Valid Complaint

FP PIIID . . cossscestdie ee hide te ee 14

A. In Conflict With The Decision Below, Most

Circuits Require A Concrete, Objective

Basis to Believe A Complaint Will Be

Futile

B. In Conflict With The Decision Below, Most

Circuits Require A Concrete, Objective

Basis To Believe A Complaint Will Lead

TO ROR RIIO no sniss cdc cic ee 18

II.

TABLE OF CONTENTS

(continued)

Page

In Conflict With The Decision Below,

Other Circuits Do Not Excuse A Failure to

Report Even When The Plaintiff Suffers

Much More Severe Trauma. ..................sssesee ye

The First Circuit's Approach Vitiates The

Affirmative Defense That This Court Created

EM, BEPOTED GEG FT GRIOOE oii cs csscvessesececsasscncscaccseses 25

A. Reporting Should Be Presumptively

Required, And Failure ‘To Report Should

Be Excused Only For Objectively

SPURDIOVOIE TIOROOIEE noon coc ss css sce ssessscevescayexccass 26

. It Is Particularly Important For Plaintiffs

To Fulfill Their Duty To Report Where, As

Here, The Employer Has Fulfilled Its

Duty Of Instituting A Proper Policy ............. 30

. The First Circuits Acceptance’ of

Subjective, Unsupported Reasons’ For

Failing To Report Vitiates The Affirmative

BNI iol eha yas sents th dnenev isis nuctebesitie Veiga 31

II]. This Court's Guidance is Needed, And This

Came to Ati TGRI VEMICIC ..<ccccccccccccccncscrcevsscssonsess 34

Se UT NT se vuiscineiars pose sean rise siohaee ccs eeeedie eee 37

TABLE OF CONTENTS

(continued)

Page

APPENDIX

Court of Appeals Opinion (Jan. 26, 2009) ............... la

District Court Opinion (Aug. 2, 2007) ................... 26a

Court of Appeals Order Denying Rehearing (Feb.

DSN iss oxi fasbla cog hiacewessiaesisanceemene en cuias eee 33a

TABLE OF AUTHORITIES

Page

CASES

Adams v. O'Kelly Automotive, Inc.,

538 F.3d 926 (8th Cir. 2008)............. 12, 19, 27, 30

Albino Agosto v. Angel Martinez, Inc.,

2007 WL. 1828398 (P.R. June 4, 2007) 0.000.000.0000... 8

Amati v. U.S. Steel Corp.,

304 Fed. Appx. 131 (3d Cir. 2008)... ,33

Anderson v. Wintco, Inc.,

__ Fed. Appx. __, 2009 WL 449169 (10th Cir.

I ooo ong xss pee cessed elas encaaseeoin 15

Baldwin v. Blue Cross/Blue Shield of Alabama

480 F.3d 1287 (11th Cir.2007).......... 12; 37, 28, 32

Barrett v. Applied Radiant Energy Corp..,

240 F.3d 262 (4th Cir. 2001).....;.................. passim

Burlington Industries, Inc. v. Ellerth,

Fe EC MIIEE ps cvscncsniskecavacenivexcstseosnaskav’ passim

Cardenas v. Massey,

269 F.3d 251 (3d Cir. 2001) ............ccceccss 22, 23, 34

Vll

TABLE OF AUTHORITIES

(continued)

Page

Crawford v. Metropolitan Gov't of Nashville and

Davidson County,

BO Se Re RD oo Sc oka svcnidanikedecdsacseestars passim

Deters v. Rock-Tenn Co.,

245 Fed. Appx. 516 (6th Cir. 2007)............... 15, 16

Distasio v. Perkin Elmer Corp.,

BIT Fe BG Cae Ge. Te oa vivasanscpcoesccenscncavcnsaves 20

Doe v. Oberwets Dairy,

BGG FG TOG C7 CaP RO oc nsec vcccsneccccovcsconscscess 24

Faragher v. City of Boca Raton,

te Fe Sti acecssaco is eee passim

Hardage v. CBS Broadcasting, Inc.,

AST F.3d VETT COG Cit. BOOG) once oicscscscsiececssecesncce 36

Harper v. City of Jackson Municipal! School Dist,

149 Fed. Appx. 295 (5th Cir. 2005).............000000- 23

Holly D. v. Cal. Instit. of Tech.,

339 F.3d 1158 (9th Cir. 2003).......... Ooh Steeiee 14, 16

Vlll

TABLE OF AUTHORITIES

(continued)

Page

Johnson v. District of Columbia,

ee eee 00, CORP, ID vncicececcoccconccccccccccces 28

Kolstad v. American Dental Ass'n,

527 U.S. 526 (1999)............... 10

Leopold v. Baccarat, Inc.,

BOS FOE BGS Ce Cid, BOOP oicccsccccccccocceesscss: passim

Madray v. Publix Supermarkets, Inc.,

208 F.3d 1290 (11th Cir. 2000) .............0.0.2... 28. 36

McPherson v. City of Waukegan,

379 F.3d 430 (7th Cir. 2004)........................0cceee. 3]

Mota v. Univ. of Texas Houston Health Science

Center,

261 F.3d 512 (5th Cir. 2001)......................... 22.

Pinkerton v. Colorado Dept. of Trans.,

_ F.3d _, 2009 WL 1014589 (10th Cir. Apr.

SAR aR Sa Re arnt nh B. .O ine 13, 19,

Reed v. MBNA Mktg. Sys.,

333 F.3d 27 (1st Cir. 2003)

TABLE OF AUTHORITIES

(continued)

Page

Shaw v. Autozone,

180 F.3d 806 (7th Cir. 1999).. ova bO, BS. C4, BO

Terwilliger v. Greyhound Lines, /nc.,

882 F.2d 1033 (6th Cir. 1989).................ccceeeeeeee 29

Thornton v. Federal Express,

530 F.3d 451 (6th Cir. 2008) ............cccccccceeccceceees 19

Walton v. Johnson & Johnson Sves., lnc.,

SAT FS Fe ee le GE onc cesecceccss 13, 19, 24

Weger v. City of Ladue,

500 F.3d 710 (8th Cir. 2007)............. 14, 16, 19, 21

Wilhams v. Administrative Review Board,

376 F.3d 471 CBG Gib, BOOM) ........ccccccscccccsccccscees. 34

Wyatt v. Hunt Plywood Co.,

297 F.3d 405 (5th Cir. 2002).............c.c.cceccceeceeee: 18

STATUTES AND RULES

28 U.8S.C. 13a oo oa

28 US a cn ccccccccccssccccs 7

28 U.S.C

12 U.S.C

TABLE OF AUTHORITIES

(continued)

1367(a)

2POQOQVe:2(a)(1)

"iv. P. 50¢a)

The Asociacion de Empleadoc del Estado Libre

Asociado de Puerto Rico respectfully petitions for a

writ of certiorari to review the judgment of the U.S

Court of Appeals for the First Circuit

OPINIONS BELOW

The decision of the court of appeals is reported

at 554 F.3d 164 and is reproduced tn the Appendix

herein at la‘25a. The decision of the U.S. District

Court for the District of Puerto Rico is not officially

reported but is available at 2007 WL 2245944 and is

reproduced in the Appendix at 26a°32a.

JURISDICTION

The judgment of the court of appeals was

issued on January 26, 2009. Pet. App. la.

Petitioner's timely petition for rehearing and

rehearing en banc was denied on February 20, 2009.

Pet. App. 33a. This Court’s jurisdiction is invoked

under 28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. 2000e-2(a)(1), provides

(a) Employer practices

It shall be an unlawful employment

practice for an employer

(1) to fail or refuse to hire or to

discharge any individual, or otherwise

to discriminate against any individual

with respect to his compensation, terms,

conditions, or privileges of employment,

because of such individual's race, color,

religion, sex, or national origin.

STATEMENT

This case concerns the continuing vitality of

this Court’s decisions in Purlington Industries, Inc.

v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City

of Boca Raton, 524 U.S. 775 (1998). In those

decisions, this Court struck a balance between

imposing vicarious lability under Title VII and

providing incentives for employers to avoid that

liability by creating adequate internal = anti

harassment and complaint policies. The Court first

held that an employer is vicariously lable under

Title VII for a supervisors sexual harassment

creating a hostile work environment Where no

tangible employment action is taken, however, the

Court made clear that the employer has an

affirmative defense if it shows (1) that it “exercised

reasonable care to prevent and correct promptly any

sexually harassing — behavior, such as by

implementing an anti-harassment policy” with

complaint procedure; and (2) that the “plaintiff

employee unreasonably failed to take advantage of

any preventive or corrective opportunities provided

by the employer,” such as by unreasonably failing to

use such a complaint procedure. See Filerth, 524

U.S. at 765; Faragher, 524 U.S. at 807. The decision

below interprets the second prong of that analysis to

make the employee’s use of a valid complaint

procedure essentially voluntary, which has the effect

of fundamentally reworking the balance the Court

struck in Hi/lerth and Faragher.

In the present case, respondent alleged, and

the jury found, that she was sexually harassed for

several months by a supervisor who created a hostile

work environment. Petitioner had instituted an

anti-harassment policy and complaint procedure of

which respondent was aware. The jury found that

petitioner carried its burden under E£v//erth and

Faragher of exercising reasonable care to attempt to

prevent and correct sexual harassment by adopting

and disseminating this anti-harassment policy.

Respondent nonetheless did not report the

harassment to petitioner at any time during her

employment; instead, she resigned and then brought

this suit.

1. Respondent Michelle Monteagudo worked

in 1999 and 2000 as a temporary employee at

petitioner Asociacion de Empleados del Estado Libre

Asociado de Puerto Rico (““AEELA”). In October

2000, she became a permanent. secretary in the

Human Resources Department. At that time, she

was provided a copy of petitioners sexual

harassment policy, for which she signed a receipt.

Court of Appeals Appendix (“A”) 938-39. Respondent

acknowledged that she had a copy of the policy and

knew “what the procedures that needed to be

followed were.” A-974. Petitioner's policy stated:

An employee who feels he has been

sexually harassed at work in any way,

should present his complaint to the

Human Resources Department. If the

allezed harasser should be this person,

or anyone related or close to him, then

the complaint must be presented

directly to the Association’s Executive

Director.

A-156.

Respondent's immediate supervisor in the

Human Resources Department was Orlando Vargas,

the Director of Human Resources. Juan Francisco

Arce-Diaz (“Arce”), a payroll, fringe benefits, and

compensation manager for whom respondent had

worked as a temporary employee, also assigned her

work. Respondent testified that Arce began

harassing her in mid-2002. Arce would “stop by” her

work station at least once a day and “touch [her] on

the shoulder,” and she would “throw his hand

backwards so he’d leave [her] alone.” A-962-63. He

also invited her “constantly to go out together” with

other co-workers. A-961. In November 2002, after

several months of this behavior, respondent testified

that Arce “pulled [her] towards him to try to kiss

[her]” in the parking lot of a local bar and she

pushed him away. A°956-57.! The next work day,

“the attitude displayed towards [respondent] by Mr.

Vargas and Mr. Arce” was “changed completely

around.” A-963-64. Respondent testified that she

was given additional work and that when she

complained to Vargas about the work, “he slammed

the desk very hard and told me that if I filed a

' Respondent testified that Vargas and a co-worker named

Marilyn Del Valle Cruz witnessed the incident in the parking

lot They both testified that they never witnessed any

Inappropriate conduct. A-1034, 910

complaint, the next day I would be dismissed.” A-

967. Respondent did not mention the alleged

harassment. in the parking lot (or any other

harassment) in this complaint to Vargas.

The only witness besides respondent to testify

to an incident of possible harassment was a fellow

employee named Jose Francisco Figueroa-Cana

(“Figueroa”). Figueroa testified that one time he saw

Arce “place[] his hand on her... waist... fin] an

undesirable action.” Court of Appeals Supplemental

Appendix (“SA”) 10. Respondent told him “that was

something that normally took place ... that [Arce]

would always try to seek a way so he could touch

her.” SA-12.

Figueroa also advised respondent on _ the

procedures that she could follow to report Arce’s

alleged harassment. SA-15. Figueroa testified that

“the] told her to go through the channels as to the

policies that AEELA refers to.” SA-15. He later

testified, however, that “[he}] would tell her that [he]

didn’t know what [he] could recommend to her

because of the type of person we were dealing with.”

SA-18. And he said the matter was “extremely

difficult and quite delicate” because it involved

Vargas and Arce. SA-19. Figueroa was a union

delegate, but he did not alert the union to

respondent's allegations of harassment for a variety

of reasons: he did not represent her department, “for

me it was extremely difficult to bring forth

something like this dealing with who we dealt with,”

the union was “very weak,” and the union president

would not be helpful. SA-19-22. Notwithstanding

Figueroa’s equivocal advice to respondent, he

testified that he had filed his own complaint with

Vargas relating to sexual harassment, and that

petitioner had responded promptly and effectively.

SA-23-28.

2. It is undisputed that respondent never told

anyone in petitioners management that she was

sexually harassed. Petitioner’s policy offered two

options to report the alleged harassment: the Human

Resources Department or petitioners Executive

Director (Pablo Crespo-Claudio (“Crespo”)).

Respondent testified that she did not report Arce’s

harassment to Vargas, the director of Human

Resources, because Vargas and Arce were friends

and had been out together at the bar where Arce

allegedly tried to kiss respondent in the parking lot.

With respect to Executive Director Crespo,

respondent conceded that she had no reason to doubt

his integrity. A-978. And respondent conceded that

she had no knowledge of any past failure by Crespo

to respond adequately to a harassment complaint.

Indeed, respondent did not suggest that she had any

reason to believe that, whether the complaint was

made to the Human Resources Department or

directly to the Executive Director, petitioner ever

had failed to respond adequately to a harassment

complaint.

Nonetheless, respondent testified that she did

not report the harassment to Crespo because she

believed the managers were all friends and would

stick together rather than help a junior employee

like her:

¢ Nor did respondent report the alleged harassment to Vargas:

supervisor, Blanca Medina de Grau, even though respondent

“had no problems with her,” A-1000, and Medina was not a

friend of Arce's

Because the person I needed _ to

complain with were all friends. Either

it be the executive director or the

human resources director, they’re all

friends amongst themselves. We're

talking about some managerials versus

an employee who virtually had started

working a few days before.

A-976; cf A-1003 (respondent’s counsel stating that

respondent’s “sole reason” for believing Medina

would protect Vargas and Arce was that all three

“were managerials’).

3. A week or two after the alleged incident in

the parking lot, on December 5, 2002, respondent

submitted a letter of resignation to Executive

Director Crespo. Respondent's resignation letter did

not report the alleged harassment. Far from it: the

letter stated that respondent was “very yrateful for

the opportunity that you gave me to work for

[petitioner], getting to know and fraternizing with

other colleagues and of belonging to such an

excellent team.” A-154. At trial, respondent claimed

that a friend drafted the letter. She testified that

the letter was false but that she signed it because “if

[ were to need something from the Association later,

[ wanted the doors to be open.” A-988.

4. A year after resigning, on December 23,

2003, respondent filed suit against petitioner in the

U.S. District Court for the District of Puerto Rico,

alleging sexual harassment under Title VII and the

laws of Puerto Rico. The district court had subject-

matter jurisdiction pursuant to 28 U.S.C. 1331 and

1367(a). At the end of respondent’s case, and again

at. the close of all the evidence, petitioner moved for

judgment as a matter of law under Fed. R. Civ. P.

50(a) on the ground that it had established the

Kulerth-Faragher affirmative defense. The district

court denied the motions and submitted the

affirmative defense to the jury.

The jury found that respondent was subjected

to sexual harassment in violation of Title VII and

Puerto Rico’s analogous laws. The jury found for

petitioner on the first prong of the k//erth-Faragher

defense, but for respondent on the second prong. A-

601. The jury awarded compensatory damages of

$333,000 and punitive damages of $300,000. The

court then apportioned $1 of the compensatory

damages to the Title VIJ claim and $332,999 to the

claim under Puerto Rico law, because the latter

provides for doubling compensatory damages. The

resulting award was $965,999 not including interest.

A-621. Petitioner renewed its motion for judgment

as a matter of law as to the second prong of E/lerth

and Faragher, but the district court denied the

motion. Pet. App. 26a-32a.!

5. The First Circuit affirmed. Since the

“parties agreeld] that the sexual harassment policy

AKELA had in place was sufficient for it to meet the

first prong of the defense,” the only issue was

whether respondent's “reasons for failing to report

Arce’'s conduct to her superiors was [srcl

unreasonable.” Pet. App. 12a-13a. The court stated

that under circuit precedent, “|t]here is no bright

line rule as to when a failure to file a complaint

3 The Puerto Rico Supreme Court subsequently imported the

Ellerth-Faragher framework into local law. See A/bino Agosto

v. Angel Martinez, Inc., 2007 WL 1828398, *8 & n.4(P.R. June

4, 2007)

becomes unreasonable.” Pet. App. at 12a (quoting

Reed v. MBNA, 333 F.3d 27, 35 (1st Cir. 2003)). ‘The

court concluded that respondent was

“understandably reluctant to report Arce’s behavior

to Vargas because of the closeness of Vargas’s

relationship with Arce.” Pet. App. 13a.

The court below found “more difficult” the

question whether respondent’s failure to report Arce

to Crespo on the basis of their alleged friendship was

unreasonable. Pet. App. 13a. The court of appeals

noted that the “only evidence that [respondent]

proffers for this friendship are conversations she

overheard by Vargas and Arce and the fact that

Crespo testified that he may have gone out with Arce

for drinks.” Pet. App. 13a. Nonetheless, the court

cited other factors that it believed the jury could

have taken into account, including Figueroa’s advice

to respondent that “the matter was ‘extremely

difficult and quite delicate’ given the _ people

involved,” and the fact that “witnesses to the alleged

harassment failed to report the sexual harassment

as well.” Pet. App. 13a. Although respondent had

not testified that her age had anything to do with

her decision not to make a complaint, the court

below stated that respondent's “relative youth

compared to Arce” also supported the reasonableness

of her failure to report. Pet. App. 13a.

Moreover, although there was no evidence

that petitioner ever had responded improperly or

ineffectively to a harassment complaint, the First

Circuit held that that did not matter. “Unlike other

circuits,” it explained, “we have not required .

evidence demonstrating ‘that the employer has

ignored or resisted similar complaints or has taken

adverse action against employees in response to such

complaints.” Pet. App. 18a (quoting Leopold v.

Baccarat, Inc., 239 F.3d 243, 246 (2d Cir. 2001)).4

Nor did the court below point to any other objective

basis to believe that a complaint would have been

futile or provoked retaliation. Instead, the court

simply invoked its prior caselaw stating that “juries

are supposed to be good at detecting false claims and

at evaluating reasonable behavior in human

situations,” Pet. App. 13a, and concluded that

“(wlhile Monteagudo’s evidence is not overwhelming,

we believe that a reasonable jury could conclude that

her failure to report was based on ‘more than

ordinary fear or embarrassment’ and was therefore

reasonable.” Pet. App. 14a.°

' The court below noted this disagreement with other circuits

in rejecting petitioner's challenge to the exclusion of evidence

that petitioner had successfully taken corrective measures in

cases where its antis-harassment policy had been used. Pet

App. l8a. The First Circuit not only held that respondent need

not point to past instances where petitioner's policy had failed,

but also found it irrelevant that petitioner's policy in fact had

succeeded in other cases. The court's holding that it could be

reasonable for respondent to forgo reporting without regard to

the actual efficacy of petitioner's policy underscores the court’:

acceptance of purely subjective and unsupported reasons for

not reporting

The finding that petitioner fulfilled its duty under the first

prong of Lilerth-Faragher to act reasonably to prevent and

correct harassment cannot be reconciled with the finding

necessary to permit punitive damages, e., that petitioner

acted “with malicious or reckless indifference” to respondent's

rights and did not make “good-faith efforts to comply with Title

Vil.” Kolstad v. American Dental Ass'n, 527 U.S. 526, 545-46

(1999). The court below held that petitioner had waived any

challenge to the punitive damages and declined to set aside the

award on plain-error review. Pet. App. 2la‘25a

6. On February 20, 2009, the First Circuit

denied petitioners petition for rehearing. or

rehearing en banc. Pet. App.33a.

REASONS FOR GRANTING THE WRIT

The decision below effectively eviscerates the

careful balance this Court struck in Zi/erth and

Faragher and creates a clear circuit conflict on

whether generalized fears of retaliation or futility

without any objective support excuse a would-be

plaintiff from the duty to report sexual harassment

pursuant to an employer's adequate anti‘ harassment

policy. Several courts of appeals have held, using

various formulations that all conflict with the

decision below, that a plaintiff must have concrete.

objective reasons for not reporting

The Second Circuit requires proof that “the

employer has ignored or resisted similar complaints

or has taken adverse action against employees in

response to such complaints.” Leopold v. Baccarat,

Inc., 239 F.3d 243, 246 (2001). While acknowledging

that holding, the First Circuit expressly rejected it

(going so far as to uphold the exclusion of evidence of

past responsiveness). Pet. App. 18a. There is clearly

no such objective evidence in this case

The Fourth Circuit has held that an employe:

cannot assume that a complaint will be futile

“merely because members of the management team

happen to be tnends.” S#arrett v. Applied Radiant

Energy Corp., 240 F.3d 262, 268 (4th Cir. 2001). The

court below, in contrast, held that respondent could

forgo reporting because the person to whom the

report should have been made (Executive Director

Crespo) may have socialized on occasion with the

harasser along with other employees. Sce Pet. App.

13a.

The Eighth Circuit has held that fear of

retaliation is not “generally a proper excuse for

failing to report,” because “[nlormally bringing a

retaliation claim, rather than failing to report sexual]

harassment, is the appropriate response to the

possibility of retaliation.” Adams v. OReilly

Automotive, Inc., 538 F.3d 926, 933 (8th Cir. 2008).

The court below, in contrast, in the absence of any

objective basis to believe that retaliation was likely,

accepted respondent’s generalized, subjective fear of

retaliation as a justification for failing to report.

The Eleventh Circuit has held that reporting

is required except “in extreme cases.” Baldwin v.

Blue Cross/Blue Shield of Alabama, 480 F.3d 1287,

1306 (Lith Cir. 2007). The court below, in contrast,

held that reporting was not required in what is at

most a typical case, with no facts that remotely can

be termed “extreme.”

In all these respects, the decision below

conflicts with decisions of other circuits. Moreover,

although the Third and Fifth Circuits have not

addressed the issue as explicitly as the First Circuit,

those courts appear to be aligned with the court

below in adopting a decidedly more permissive

attitude in allowing employees who bypass valid

complaint procedures to prevail despite this Court's

holding in E/lerth and Faragher

The net effect of the decision below 1s to

eviscerate the careful balance that this Court struck

in Hilerth and Faragher. The availability of an

affirmative defense was critical to the Courts

recognition of vicarious liability and to providing

employers with the proper incentives to establish

antit-harassment and complaint procedures. But

those incentives will be diminished if the affirmative

defense can be vitiated based on the thin showing

accepted by the court below. Enforcement of the

affirmative defense is important not merely to

employer-defendants, but more fur;\damentally to the

Court’s carefully-crafted scheme to further Title

VII's goal “to promote conciliation rather than

litigation.” ///erth, 524 U.S. at 764. It is “at odds

with the statutory policy” to impose vicarious

liability on employers without giving employers

“credit” for making “reasonable efforts to discharge

their duty” by implementing anti-harassment

policies. Faragher, 524 U.S. at 806.

When this Court imposed the reasonable’

reporting duty, the Court understood that “the

victim may well be reluctant to accept the risks of

blowing the whistle on a superior.” /d. at 803. But

because “the cooperation of the victims” 1s necessary

to expose and eliminate sexual harassment, Wa/ton

v. Johnson & Johnson Sves., Inc., 347 F.3d 1272,

1290 (11th Cir. 2003), and because it would be

contrary to Congress’ intent to impose automatic

vicarious liability on employers, the Court required

plaintiffs to act reasonably to report harassment

despite the obvious reasons why many will be

reluctant to do so. Most courts of appeals have

recognized that excusing a failure to report based on

nothing more than “subjective, ungrounded fears”

would “completely undermine” the ///lerth-Faragher

framework, Pinkerton v. Colorado Dept. of Trans.,

F.3d, 2009 WL 1014589, *8 (10th Cir. Apr. 16,

2009), and accordingly have insisted on concrete,

objective reasons before a failure to report is

excused. This Court should review and correct the

First Circuit's contrary holding to restore uniformity

and to vindicate the careful balance that the Court

struck in L//erth and Faragher.

J. The Circuits Are Divided On What Constitutes A

Reasonable Justification For An Employee To

Bypass A Valid Complaint Procedure

A. In Conflict With The Decision Below, Most

Circuits Require A Concrete, Objective Basis

to Believe A Complaint Will Be Futile

l Although their formulations of this rule

have varied, a majority of the circuits require that

there be concrete evidence of futility beyond the

victim's mere unsupported belief, to excuse a failure

to follow the employer's complaint procedure. As the

decision below acknowledges, the Second Circuit

requires a showing that reporting has proved futile

(or worse) in the past. Pet. App. 18a; Leopold \

Baccarat, Inc, 239 F.3d 243, 246 (2d Cir. 2001)

(plaintiff must demonstrate “that the employer ha

ignored or resisted similar complaints or has taken

adverse action against employees in response to such

complaints’)

The Fighth and Ninth Circuits similarly have

rejected efforts to bypass valid procedures absent

actual evidence of futility Sec Weger v. Citv of

Ladue, 500 F.3d 710, 725 (8th Cir. 2007)

(unsupported behef in futility insufficient to excuss

failure to report), Holly Dv. Cal Instit. of Tech.. 339

F.3d 1158, 1179 n.24 (9th Cir. 2003) (same). The

Sixth and Tenth Circuits have reached similar

holdings in unpublished opimions. See Anderson v.

Wintco, Inc., _ Fed. Appx. __, 2009 WL 449169, *4

(10th Cir. Feb. 24, 2009); Desens v. Rock-Tenn Co.,

245 Fed. Appx. 516, 525-26 (6th Cir. 2007).

In short, the majority rule, as articulated by

the Fourth Circuit, is that “laJn employee's

subjective belicf in the futility of reporting a

harasser's behavior is not a reasonable basis for

failing to take advantage of any preventive or

corrective opportunities provided by the employer.”

Barrett, 240 F.3d at 268. The decision below, in

contrast, expressly holds that objective evidence of

actual futility is not required (and it is clear that no

such objective evidence exists in this case). By

approving respondent’s unsupported subjective belief

in futility as a valid reason to forgo reporting, the

First Circuit has departed sharply from the majority

of the courts of appeals

2. More specifically, other courts have held

that alleged friendship between managers is not a

sufficient basis to assume that reporting will be

futile. If it were, the H//erth-Faragher framework

would essentially be unavailable whenever a

supervisor contributed to the alleged harassment. In

Barrett, the Fourth Circuit explained that excusing

reporting because of management friendships would

vitiate the affirmative defense

We cannot accept the argument that

reporting sexual harassment is

rendered futile merely because

members of the management team

happen to be friends. Crediting this

view would impose an impermuiussibl

burden on any company, especia

small businesses [Plaintiff] claim

that these friendships should reheve a:

employee of her reporting obligation and

effectively impose automatic lability o1

the employer Automatic lability

however, 1s precisely what the Suprem

Court sought to avoid tn fashioning tl

Faragher/Ellerth athirmative detenss

240 F.3d at 268. The Sixth and Eighth C

likewise have held that frendship betwer

managers is common and does not, as a matter

law, excuse a failure to report. See Deters, 245 ked

Appx. at 525 (that managers are friend

insufficient reason not to complain); Weger, 500

at 724-25 (plaintiffs belief that they would n

receive fair investigation becauss rf lose

relationship” between harasser and investigator |

“insufficient”); see also Holly D., 339 F.3d at 1179

n.24 (allegation of “faculty bias’ does not “support a

reasonable belief that Caltech was so biased that

resort to its procedures would have been futil

This case does not involve any allegation of a

close, personal relationship, but only a degr

‘friendship” that 1s to be expected of management

all but the largest enterprises. While the cour

below relied primarily on respondent's testimon

that Crespo and Arce were friends, Pet. App. 13

there was no evidence that Crespo and Arce wer

close friends, or relatives, or otherwise had such a

close personal relationship that respondent could

presume that Crespo would protect Arce in violation

of petitioner’s written policy (and of the law). To the

contrary, the evidence of Crespo’s “friendship” with

Arce consisted solely of the assertion that Crespo

may have gone out for drinks on occasion with Arce,

as Crespo also did with others in the office. See A-

800 (“Have you ever gone out for drinks with Mr.

Arce? [Crespo:] Maybe so. I don’t specifically recall

that I have, but I might have done so.”). This shows

- at most -- a run-of the-mill collegial relationship,

and is patently insufficient to excuse a failure to

report under the law of most circuits.

The court also suggested that Figueroa’s

advice that the matter was “extremely difficult and

quite delicate” bolsters respondent’s assumption of

futility. Pet. App. 14a. But again, this conflicts with

the law of other circuits. Vague notions that

managers stick together and of friendship among

managers do not become transformed into objective

evidence of futility by being described by a co-

worker. What Figueroa pointedly did not say was

that he knew of any complaints that had been futile

or had resulted in retaliation. And he did not tell

respondent that making a report would be futile or

advise her not to make a report. To the contrary, he

first testified that he told her to follow petitioner’s

procedures, and then equivocated that he did not

know what to recommend. See SA-15, 18. Even if a

co-worker’s advice could substitute for evidence of

actual futility in some circumstances (for example,

where a co-worker erroneously tells the plaintiff that

past complaints have been futile and the plaintiff

forgoes reporting because she reasonably and

sincerely believes that erroneous advice), Figueroa’s

equivocal advice did not come close to justifying

respondent’s assumption that reporting would be

futile.®

B. In Conflict With The Decision Below, Most

Circuits Require A Concrete, Objective Basis

To Believe A Complaint Will Lead To

Retaliation

1. A majority of the circuits hold that a

generalized, unsupported fear of retaliation does not,

as a matter of law, excuse a failure to report sexual

harassment. As with an excuse based on futility, an

excuse based on fear of retaliation must be founded

on objective evidence, not subjective fears or

skepticism. As the Eleventh Circuit has explained,

6 The court below also stated that the jury could: consider “the

fact that witnesses to the alleged harassment failed to report

the sexual harassment as well.” Pet. App. 14a. But the court

did not explain how the alleged failure of Vargas and Del Valle

to report the alleged parking lot incident bears upon

respondent's reasonableness in failing to report to Executive

Director Crespo, and it does not. First, whether other

employees failed to report as required by petitioner's anti-

harassment policy is beside the point, for the reasonable

reporting duty imposed by this Court rests on the would-be

plaintiff. Second, that Vargas (who allegedly was complicit in

Arce’s harassment) failed to report it cannot excuse

respondent’s failure to follow the other specific avenue provided

by the policy -- 1e., reporting the harassment to Crespo, who

was not alleged to be in any way complicit in it and whose

integrity respondent had no reason to question. See supra at 6;

see also Wyatt v..Hunt Plywood Co., 297 F.3d 405, 413 (5th Cir.

2002) (where supervisor to whom employee initially reported

later joined in harassment, employee’s “reasonable (not to

mention obvious) course of action would have been to report

[original harasser’s} and [supervisor's] conduct to one of those

individuals with authority higher than [supervisor’s!”).

“subjective fears of reprisal may exist in every case,

but those fears, standing alone, do not excuse an

employee's failure to report a supervisor’s

harassment.” Wa/ton, 347 F.3d at 1291. Similarly,

the Eighth Circuit has admonished that “[w]e do not

believe that a fear of retaliation is generally a proper

excuse for failing to report sexual harassment.”

Adams, 538 F.3d at 932; see also Weger, 500 F.3d at

725 (fear of retaliation must be “truly credible”).

Other circuits likewise have emphasized that a

certain degree of concern over the potential for

retahation is inherent in the employer complaint

process’ that the Court sanctioned, SO

undifferentiated and unsupported subjective fears

“do not alleviate the employee’s duty under EHi/erth

to alert the employer to the allegedly hostile

environment.” Thornton v. Federal Express, 530

F.3d 451, 457 (6th Cir. 2008) (internal quotation

omitted); accord Shaw v. Autozone, 180 F.3d 806,

813 (7th Cir. 1999); Pinkerton, 2009 WL 1014589,

*Q- ‘

The Fourth Circuit’s decision in Barrett

illustrates the majority rule requiring concrete,

objective evidence that retaliation is likely before a

failure to report is excused. The plaintiff there

claimed that she feared retaliation because the

company president and the harasser were “good

friends.” 240 F.3d at 267-68. But because there was

no evidence that the company had “ever taken any

adverse tangible employment action against

complaining employees,” the court held that the

plaintiffs fear was merely “lal generalized fear of

retaliation” that could not excuse her failure to

report. /d.

Similarly, in the decision that the court below

expressly rejected, the Second Circuit held that

evidence of actual retaliation against prior

complainants was required:

A credible fear [of retaliation] must be

based on more than the employee’s

subjective belief. Evidence must be

produced to the effect that the employer

has ignored or_ resisted similar

complaints or has taken adverse actions

against employees in response to such

complainis.

Leopold, 239 F.3d at 246.7

2. a. In conflict with these decisions, the

First Circuit expressly acknowledged that it does not

require concrete evidence to support an alleged fear

of retaliation (or belief in futility):

Unlike other circuits, we have not

required that in order to overcome the

second prong of the Faragher-Ellerth

affirmative defense, plaintiffs must

produce evidence demonstrating “that

the employer has ignored or resisted

similar complaints or has taken adverse

action against employees in response to

such complaints.” See, e.g., Leopold v.

Baccarat, Inc, 239 F.3d 243, 246 (2d

Cir. 2001).

* Cf Distasio v. Perkin Elmer Corp., 157 F.3d.55, 59, 64-65 (2d

Cir. 1998) (failure to report later harassment excused where

plaintiff initially reported co-worker's harassment to supervisor

and supervisor told her she was “crazy” and would lose her job

if she complained).

Pet. App. 18a. Indeed, the First Circuit not only

explicitly rejected the Second Circuit’s holding in

Leopold, but went so far as to uphold the exclusion of

evidence concerning an instance in which the

internal complaint procedures’ had _ proven

successful. Pet. App. 18a. Accordingly, while in the

Second Circuit evidence of past futility or retaliation

is required, in the First Circuit evidence of success is

not even relevant.

In approving a failure to report based on

unsupported, subjective fear of retaliation, the

decision below built on the foundation that the First

Circuit had laid in Reed v. MBNA Mrkg. Sys., Inc.,

333 F.3d 27 (2003). Reed noted that other courts

had “focused on whether the employee had concrete

reason to apprehend that complaint would be useless

or result in affirmative harm to the complainant.” /d.

at 35°36. But Reed did not adopt this standard.

Instead of giving legal content to this Court’s

“reasonableness” requirement, Heed stated that

“juries are supposed to be good at... evaluating

reasonable behavier in human situations,” and

reversed summary judgment for the employer. /d. at

37. Indeed, Reed acknowledged that its holding

“creates a loophole for false and overstated claims of

threat by one hoping to reach a sympathetic jury.”

8 Before the decision below, some courts had quoted other

language in Heed in support of a standard similar to the

majority rule requiring concrete, objective evidence. See, e.g.,

Weger, 500 F.3d at 725. Reed suggested, for example, that

"unless patently futile, concerns as to whether the complaint

mechanism will fail can be tested by trying it out...” 333 F.3d

at 36. Despite this language, Reeds reversal of summary

judgment for the employer meant that the plaintiff was nof

b. The Third and Fifth Circuits appear to

align with the First Circuit in declining to require

objective evidence that a report of harassment would

lead to retahation. While these circuits have not

addressed the issue as explicitly as the First Circuit,

any requirement of an objective basis for a failure to

report is conspicuous by its absence from their

decisions, despite the substantial body of caselaw

from other circuits adopting such a rule.

In Cardenas v. Massey, 269 F.3d 251, 267 (3d

Cir. 2001), the Third Circuit held that whether an

employee acted reasonably was a question for the

jury where the employee waited four years to file a

formal complaint “for fear of aggravating the

situation or branding himself a_ troublemaker.”

There is no indication that the employer had

rctaliated against any prior complainants or of any

other objective basis for the employee’s fear that

making a report would lead to adverse consequences.

And rather than follow the Fourth and Seventh

Circuits’ decisions in Barrett, 240 F.3d at 267-68,

and Shaw, 180 F.3d at 813, respectively, by

requiring objective evidence, the Third Circuit

focused on the employee’s subjective belief.9

Similarly, in Mota v. Univ. of Texas Houston

Health Science Center, 261 F.3d 512, 526 (5th Cir.

required to test out the complaint mechanism or to present any

objective support for her belief in futility or retaliation. /d. at

37. In any event, the decision below has resolved any

ambiguity in Aeed, and it now is plain that the First Circuit

does not require the concrete, objective evidence required by

most circuits.

9 Cardenas involved national-origin harassment, but the court

expressly adopted the Faragher/Ellerth framework in that

analogous context. See 269 F.3d at 261 n.6.

2001), the Fifth Circuit held that a nine-month delay

in reporting harassment was reasonable where the

supervisor threatened retaliation and the plaintiff

“may have believed [the complaint process] was

“ineffectual, given [the supervisor’s] influence at the

University.” As in Cardenas, there is no indication

in Mota that the employee’s fear of retaliation was

objectively supported, and the court focused instead

on the employee’s subjective belief.!°

C. In Conflict With The Decision Below, Other

Circuits Do Not Excuse A Failure to Report

Even When The Plaintiff Suffers Much More

Severe Trauma

The decision below also creates a circuit split

on the question whether a failure to report sexual

harassment can be excused because the plaintiff is

young or has been traumatized by the harassment.

The decision below holds that respondent’s

failure to report was reasonable in part because

respondent may have been more traumatized by it

given the “significant age differential” between

respondent and Arce. Pet. App. 14a. In Reed, the

First Circuit had held that trauma could be a

i Some unpublished decisions arguably vary in their

application of Cardenas and Mota, but as unpublished decisions

they do not purport to change the law of the circuit. See, e.g,

Amat v. U.S. Steel Corp., 304 Fed. Appx. 131, 134 (3d Cir.

2008) (four-month delay in reporting unreasonable); //arper v.

City of Jackson Municipal School Dist., 149 Fed. Appx. 295, 302

(5th Cir. 2005) (“reasons for not complaining about harassment.

should be substantial and based upon objective evidence”)

(quotation omitted).

reasonable justification for failing to report where

the plaintiff was a minor and had been sexually

assaulted. See 333 I°.3d at 37. By extending Reed

to hold that respondent’s “relative youth compared to

Arce bears at least some relevance” even though

respondent was not a minor (she was 22 and Arce

45) and did not suffer the kind of trauma associated

with sexual assault, the decision below demonstrates

the extent of the conflict among the circuits. Pet.

App. 14a.

As to trauma, in contrast to the decision

below, the Eleventh Circuit has rejected trauma as

an excuse for failing to make a timely report despite

the plaintiffs allegations that she was _ raped

repeatedly and intimidated by being shown a gun.

See Walton, 347 F.3d at 1290-91 & n.17. The court

acknowledged that “severe harassment such as that

which is alleged to have occurred here can be

particularly traumatic,” but it held that such trauma

was insufficient as a matter of law to excuse the

plaintiffs three-month delay in reporting. Jd. at

1290. Without embracing this decision as correct, it

does underscore the chasm between the approaches

of the Eleventh and First Circuits.

As to age, there is similar tension between the

decision below and a decision of the Seventh Circuit

on the relevance of the plaintiff's “relative youth.” In

Doe v. Oberweis Dairy, 456 F.3d 704, 713 (7th Cir.

2006), the Seventh Circuit held that, in assessing

whether sexual conduct constituted unwelcome

harassment, courts should look to whether the

plaintiff was below the local age of consent. That

bright-line approach to the relevance of age makes

sense. But the decision below -- by injecting age as a

yA’

mitigating factor in the case of someone well above

the age of consent ~-- distracts attention from

objective evidence that could justify a failure to use

valid and available complaint mechanisms.!!

II. The First Circuit’s Approach Vitiates The

Affirmative Defense That This Court Created In

Ellerth and Faragher

As most circuits have recognized, subjective

fears of retaliation or futility concerning the

employer's internal complaint procedure can exist in

every case. After all, in every case it is the employer

that is allegedly responsible, at least at some

remove, for the harassment, and the employer is

certainly in a position to retaliate in that it will be

overseeing the complaint procedure. If such fears,

without more, rendered it “reasonable” not to report

harassment, the affirmative defense that this Court

created would be essentially useless -- not only in

protecting employers from the automatic liability

that this Court held improper, but more

fundamentally in achieving the Court’s goal of

furthering Title VII’s “primary objective” of

“avoidling] harm.” Faragher, 524 U.S. at 806. To be

sure, the Court’s “reasonableness” standard does not

invariably require every victim to report harassment

no matter what the circumstances. But by holding

1! Respondent did not testify that she failed to report because

of youthful naivete or any alleged trauma. Any such suggestion

would be contrary to respondent’s testumony that she omitted

any reference to the alleged harassment in her resignation

letter because she wanted to keep her options open with

petitioner. See supra at 7

that a failure to report can be excused based on

nothing more than the subjective, unsupported

reasons offered by respondent, the First Circuit has

vitiated the affirmative defense and the careful

balance struck by this Court in EFillerth and

Faragher.

A. Reporting Should Be Presumptively Required,

And Failure To Report Should Be Excused

Only For Objectively Supported Reasons

This Court fashioned the affirmative defense

in order to avoid imposing automatic lability on

employers -- which it held that Title VII could not

support -- and because the affirmative defense would

further Title VII’s “basic policies of encouraging

forethought by employers and saving action by

objecting employees.” Faragher, 524 U.S. at 807;

Ellerth, 524 U.S. at 764. The Court also noted, that

in crafting this scheme, it intended to provide an

“incentive” or “credit” to employers who make

reasonable efforts to discharge their duty. Faragher,

524 U.S. at 806. “To the extent limiting employer

lability could encourage employees to report

harassing conduct before it becomes severe or

pervasive, it would also serve Title VII’s deterrent

purposes.” FEillerth, 524 U.S. at 764. This Court

recently reaffirmed that F//erth and Faragher are

intended to create “a strong inducement” for

employers to implement anti-harassment policies “as

a way to break the circuit of imputed hability.”

Crawford v. Metropolitan Govt of Nashville and

Davidson County, 129 S. Ct. 846, 852 (2009).

Because the obligations of the employer and

employee function together to help prevent, discover,

and remedy sexual harassment, enforcement of the

employee's obligation to report sexual harassment is

critical to the effective functioning of the entire

scheme: “The genius of the Faragher-E//erth plan is

that the corresponding duties it places on employers

and employees are designed to stop. sexual

harassment before it reaches the severe or pervasive

stage ... But that design works only if employees

report harassment promptly.” Ba/dwin, 480 F.3d at

1307. Just as it is important to provide robust

protections against retaliation so employees are not

deterred from reporting harassment, See Crawford,

129 S. Ct. at 852, it is equally important to ensure

that employees have meaningful incentives to report

harassment and are not lightly excused from

utilizing valid employer procedures.

To give effect to the Kilerth-Faragher scheme,

many circuits apply a strong presumption that a

plaintiff must report harassment promptly

(assuming that the employer has instituted an anti-

harassment policy with complaint procedure). The

Eleventh Circuit, for example, has held that the

employee has the “obligationl) . . . to take full

advantage of the employer’s preventative measures’

and that only “in extreme cases” could an employce’s

“reasons for not reporting harassment” be “good

enough.” Saldwin, 480 F.3d at 1306. The Eighth

Circuit has stated that failure to complain “will

normally suffice to satisfy the employer’s burden

under the second [prong].” Adams, 538 F.3d at 932

(emphasis added). And the Second Circuit has

expressed the inquiry in terms of a burdencshifting

presumption:

[(O]lnce an employer has satisfied its

initial burden of demonstrating that an

employee has completely failed to avail

herself of the complaint procedure, the

burden of production shifts to the

employee to come forward with one or

more reasons why the employee did not

make use of the procedures. The

employer may rely upon the absence or

inadequacy of such a justification in

carrying its ultimate burden of

persuasion.

Leopold, 239 F.3d at 246.

Faragher and Ellerth did not specify

particular circumstances that would or would not

excuse a plaintiffs failure to report harassment. But

several circuits have recognized that to excuse such

a failure on the basis of speculative, unsupported

reasons would eviscerate the affirmative defense

that this Court took pains to fashion. As these

courts have recognized, because “the problem of

workplace discrimination . . . cannot be [corrected]

without the cooperation of the victims,’ Madray v.

Publix Supermarkets, Inc., 208 F.3d 1290, 1302

(11th Cir. 2000) (citation omitted), plaintiffs should

be excused from their obligation to report sexual

harassment only for reasons that are objectively

supported and that transcend the run of the mill.!*

12 [In the analogous context of exhaustion of union grievance

procedures, it is well-settled that objective evidence is required

before exhaustion is excused on grounds of futility. See, e.g.

Johnson v. District of Columbia, 552 F.3d 806, 813 (D.C. Cir

In particular, as the Eleventh Circuit has

explained, subjective fears of retaliation may exist in

every case, but this Court surely understood as much

and did not go to the trouble of creating the

affirmative defense intending that it be routinely

defeated by unsupported speculation:

Kvery employee could say .. . that she

did not report the harassment earlier

for fear of losing her job or damaging

her career prospects. ... [T]he Supreme

Court undoubtedly realized as much

when it designed the Faragher-Ellerth

defense, but it nonetheless decided to

require an employee to make the choice

in favor of ending harassment if she

wanted to impose vicarious lability on

her employer. .. Were it otherwise, the

Faragher-Ellerth defense would be

largely optional with plaintiffs, and it

would be~- essentially useless’ in

furthering the important public policy of

preventing sexual harassment.

Baldwin, 480 F.3d at 1307; accord Pinkerton, 2009

WL 1014589, *8 (excusing plaintiffs failure to report

based on “subjective, ungrounded fears” would

“completely undermine” Faragher Ellerth

framework). The Fourth Circuit similarly has

explained that accepting “a speculative ‘fear of

2008) (requiring “a clear and positive showing of futility”)

(quotation omitted): Terwilliger v. Greyhound Lines, Inc., 882

F.2d 1033, 1039 (6th Cir. 1989) (same; “It}hat [plaintiff]

subjectively may have thought such procedures were futile is

insufficient”)

retaliation’ excuse for remaining silent would

undermine the primary objective of Title VII and

could result in more, not less, sexual harassment

going undetected.” Barrett, 240 F.3d at 267

Insisting on concrete, objective evidence does not

mean assuming that retalation never occurs, but

rather that “[nJormally bringing a retaliation claim

rather than failing to report sexual harassment, is

the appropriate response to the _ possibility of

retaliation.” Adams, 538 F.3d at 932-33 (citations

omitted).

B. It Is Particularly Important For Plaintiffs To

Fulfill Their Duty To Report Where, As Here,

The Employer Has Fulfilled Its Duty Of

Instituting A Proper Policy

This Court made clear that the duties of the

employer and employee are complementary,

operating together to achieve Title VII's goals. See

Faragher, 524 U.S. at 764-65; Ellerth, 524 U.S. at

807. Where the employer has done its part, it is

especially important for the employee to report

harassment. That is true not only because the

affirmative defense was designed to avoid automatic

employer lability, but also because employers often

will have no ability to “avoid{) harm” (Faragher, 524

U.S. at 806) caused by sexual harassment if the

victim does not report it.

Moreover, the two prongs of the affirmative

defense are related. Where an employer has put in

place an adequate anti-harassment policy with

complaint procedure, there should be less reason for

the employee to believe that complaining will be

futile or lead to retaliation. The employer's

fulfillment of its duty under the first prong thus

heightens the employee’s duty under the second

prong: the more reasonably an employer has

behaved in implementing an anti-harassment policy,

the less reasonable it is for an employee to fail to

take advantage of that policy. Cf McPherson v. City

of Waukegan, 379 F.3d 430, 442 (7th Cir. 2004)

(“Since [plaintiff] does not dispute that the

[employer] acted reasonably [under the first prong],

the burden was on [plaintiff] to avail herself of these

policies and procedures that she well knew were

available to her.”) (emphasis in original).

C. The First Circuit’s Acceptance of Subjective,

Unsupported Reasons For Failing To Report

Vitiates The Affirmative Defense

Even before the decision below, the First

Circuit had acknowledged that its interpretation of

Ellerth and Faragher “creates a loophole for false

and overstated claims of threat by one hoping to

reach a sympathetic jury.” Feed, 333 F.3d at 37.

The decision below expands’ that loophole,

essentially vitiates the careful balance struck by the

Court in Ellerth and Faragher, and makes it crystal

clear that the court below is in conflict with the

circuits that have read L£i/erth and Faragher to

require that a plaintiff report sexual harassment

absent a concrete, objective reason to forgo reporting.

Those circuits have recognized that for the

affirmative defense to play the important role for

which this Court created it, the plaintiffs duty to

report must be enforced, at least in ordinary cases.

The First Circuit, in contrast, has held that run-of-

the-mill office camaraderie among managers entitles

an employee to assume that reporting will be futile

or provoke retaliation, even where there is no history

of either and the employee concedes that she has no

basis to question the integrity of the person to whom

the report is supposed to be made.

If the view of the court below prevails, the

affirmative defense will be “largely optional with

plaintiffs, and . . . essentially useless in furthering

the important public policy of preventing sexual

harassment.” Ba/dwin, 480 F.3d at 1307. Petitioner

put in place a concededly adequate anti-harassment

policy: petitioner was deprived of the opportunity to

remedy the harassment of respondent because

respondent chose for unsupported, subjective

reasons not to report it; and petitioner nonetheless

owes a very large judgment. An affirmative defense

that is so easily evaded does not properly incentivize

employers to put in place effective antis-harassment

policies. Cf Crawford, 1295S. Ct. at 852.

Nor does undermining the affirmative defense

hurt employers alone. To the contrary, the Court

fashioned the affirmative defense precisely because

it recognized that all would benefit if the law

encouraged “saving action” to prevent and stop

sexual harassment, as opposed to litigation after it is

too late. See Karagher, 524 U.S. at 807. All would

agree that reporting sexual harassment may be

difficult and unpleasant, see, e.g., Shaw, 180 F.3d at

813, but that is why the Court created the

affirmative defense in order to give victims the

incentive to report and allow employers acting in

good faith to address problems before they become

intractable. That is also why this Court in Crawford

ensured that retaliation will not be excused based on

technicalities. But neither should participation in

valid complaint procedures be excused based on

subjective fears. In neither case should the law

encourage “prudent employees ... to keep quiet

about Title VII offenses.” Crawford, 129 S. Ct. at

852.

Virtually all plaintiffs will be able to allege

generalized concerns with futility or retaliation

when it comes to reporting harassment by a

supervisor to their employer. Moreover, it hardly

can be exceptional for an anti-harassment policy to

instruct that reports be made, as here, to someone in

management, and it hardly is exceptional for the

alleged harasser to be a supervisor rather than a

low-level employee. Accordingly, if a victim could

simply assume without evidence, as here, that

management will stick together, then reports would

be rare indeed. For these reasons, the decision

below essentially vitiates the Court’s work in ///erth

and Faragher. Apart from the need to resolve the

circuit conflict, the Court should grant certiorari to

ensure that the lower courts do not deprive its

handiwork of meaning and effect. In order for the

Ellerth-Faragher framework to accomplish its

purpose, employees must be presumptively required

to take advantage of reasonable employer policies,

and reasons for failing to do so must. be objectively

supported and specific.

III. This Court’s Guidance Is Needed, And This Case

Is An Ideal Vehicle

A. Certiorari is warranted because the proper

application of the Sillerth-Faragher affirmative

defense is important both as a practical and policy

matter. From a practical perspective, the issue is

very frequently litigated. Employment

discrimination cases represent more than 5% of all

federal cases filed -- 13,375 cases in 2007 alone.}8

And the courts of appeals frequently address the

Ellerth-Faragher defense: a Westlaw search for

“(Ellerth Faragher) and ‘affirmative defense”

returns 362 results for the courts of appeals.

Moreover, the affirmative defense has been extended

into contexts other than sexual harassment. See,

e.g., Williams v. Administrative Review Board, 376

F.3d 471, 478 (5th Cir. 2004) (holding that E//erth-

Faragher is the appropriate standard for Energy

Reorganization Act hostile-environment claim based

on retaliation for whistleblowing, and noting that

numerous other circuits have applied SZvV/lerth-

Faragher to racial harassment cases (citing cases

from the 4th, 6th, 7th, 8th, and 10th circuits));

Cardenas, 269 F.3d at 261 n.6 (extending Lilerth-

Faragher to national-origin harassment). And from

a policy perspective, the goal that the Court sought

to achieve in creating the defense -- preventing and

stopping harassment -- remains vitally important,

and undermining the defense imperils that goal.

Title VII’s “primary objective” remains “not to

'’ See AOUSC Table 4.4 (U.S. District Courts: civil cases filed,

by nature of suit) (2000-2007) (“Civil Rights: Employment”).

provide redress but to avoid harm.” VFaragher, 524

U.S. at 805.

B. This Court adopted the reasonableness

standard for the duties of employers and employees

at a high level of generality, even while recognizing

that clarity and predictability are important. See

Faragher, 524 U.S. at 805. It is understandable that

this Court announced the rule in general terms in

the first instance. Now, however, the lower courts

have been applying and refining the affirmative

defense for 11 years in dozens, if not hundreds, of

cases, and an explicit, acknowledged split has

developed. This Court emphasized in Faragher itself

the importance of avoiding “disparate” results and

the resulting “temptation to litigate.” 524 U.S. at

805. This Court has reaffirmed the importance of

the Hilerth-Faragher framework, see Crawford, 129

S. Ct. at 852, but the Court has not provided

substantive guidance about how that framework

should be applied. The decision below highlights the

need for this Court’s intervention to provide clarity

for the application of the affirmative defense that the

Court crafted.

C. This case presents an ideal vehicle to

consider the question presented and to clarify the

proper interpretation of El/lerth and Faragher. A

significant advantage of this case is that it cleanly

presents the question of the proper standard for the

second prong of the affirmative defense, because

petitioner concededly satisfied the first prong.

Moreover, the factual record is clear and

straightforward in important respects. First, it is

undisputed that respondent failed to report the

alleged harassment in any manner at any time

during her employment, rather than (as in some of

the reported cases) merely delaying a report or

making a report in an ambiguous or ineffective

manner.!4 Second, it is undisputed that there was

no history of reports pursuant to petitioner’s policy

proving futile or provoking retaliation.!5 Third, the

record is devoid of any other objective basis for

respondent to believe that reporting Arce’s

harassment to Executive Director Crespo would be

futile or lead to retaliation.

In short, this case is an ideal vehicle for the

Court to ensure the effective functioning of the

Ellerth-Faragher framework by _ clarifying’ the

contours of an employee’s “reasonable” obligation to

report sexual harassment pursuant to an adequate

anti-harassment policy. The Court should grant

certiorari and hold that failing to report sexual

harassment based on nothing more than a

generalized fear of retaliation or belief in futility,

without objective support, is unreasonable.

14 See, e.g., Hardage v. CBS Broadcasting, Inc., 427 F.3d 1177,

1188 (9th Cir. 2005) (“when Hardage finally made his

complaint he specifically asked the company not to investigate

it”); Madray, 208 F.3d at 1302. Respondent’s complete failure

to report is “precisely the manner” in which “a victim of sexual

harassment should not act in order to win recovery under

|[Ellerth-Faraghen.” Shaw, 180 F.3d at 813 (emphasis in

original).

'5 To the contrary, the only evidence admitted on the policy's

application in other cases was Figueroa’s testimony that he had

used the complaint process and petitioner had responded

promptly and effectively. SA-23-28.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

PAUL D. CLEMENT

Counsel of Record

JEFFREY S. BUCHOLTZ

SARAH O. JORGENSEN

KING & SPALDING LLP

1700 Pennsylvania Ave., NW

Washington, DC 20006

202-737-0500

PEDRO E. ORTIZ’ ALVAREZ

JORGE MARTINEZ-LUCIANO

LAW OFFICES OF PEDRO

ORTIZ-ALVAREZ, PSC

P.O. Box 9009

San Juan, PR 00732

787-841-7575

Attorneys for Petitioner

Asociacion de Empleados del

Estado Libre Asociado de

Puerto Rico

MAy 2009

APPENDIX

United States Court of Appeals

For the First Circuit

No. 07-2341

MICHELLE MONTEAGUDO,

Plaintiff, Appellee,

Vv.

ASOCIACION DE EMPLEADOS DEL ESTADO

LIBRE ASOCIADO DE PUERTO RICO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF PUERTO RICO

(Hon. Gustavo A. Gelpi, U.S. District Judge]

Before

Torruella, Baldock,* and Howard,

Circuit Judges.

Jorge Martinez-Luciano, with whom Carmen

Edith Torres Rodriguez and Law Offices of Pedro

Ortiz-Alvarez, PSC, were on brief for appellant.

Juan Rafael Gonzalez-Munoz, with whom

Gonzalez Munoz Law _ Offices, P.S.C., Maria _E.

Margarida-Franco, Margarida Franco Law_ Office,

and Carlos M. Vergne Law Offices, were on brief for

appellee.

January 26, 2009

* Of the Tenth Circuit, sitting by designation.

TORRUELLA, Circuit Judge. Michelle

Monteagudo brought suit alleging = sexual

harassment claims under federal and Puerto Rico

law against her former employer, Asociacion de

Empleados del Estado Libre Asociado de Puerto Rico

(“AEELA”),! in the United States District Court for

the District of Puerto Rico. On June 1, 2007, a jury

found that Monteagudo was subjected to sexual

harassment in violation of Title VII of the Civil

Rights Act and Puerto Rico Laws 17, 69, and 100,

and awarded her compensatory and _ punitive

damages. AEKELA moved for judgment as a matter

of law on the Faragher-Ellerth affirmative defense

pursuant to Federal Rule of Civil Procedure 50 and

also moved for a new trial and remittitur of the

damages award pursuant to Federal Rule of Civil

Procedure 59. AEELA appeals the district court's

denial of both these motions as well as certain

evidentiary and discovery rulings made during trial.

After careful consideration, we affirm.

I. Background

A. Monteagudo's Experience at AEELA

Monteagudo started working at AEKELA in

1999 as a secretary in the Human Resources

department. At that time, she was a non-permanent

employee, substituting for the permanent secretary

who was out on maternity leave. Monteagudo was

supervised by Juan Francisco Arce-Diaz (“Arce”), a

payroll, fringe benefits, and compensation manager

for AEELA. At trial, Monteagudo testified that

during her time as a substitute, Arce “would look at

|! AKELA is a non-profit savings and loans organization

[her] as if he was appraising [her].” However, she

“didn't give it much importance” because she did not

view Arce's conduct to be that serious.

Monteagudo testified that Arce's conduct

continued until Arce's permanent secretary returned

from maternity leave, at which point Monteagudo

stopped working in the Human _ Resources

department. On October 2, 2000, after stints in

AEELA's legal collections and legal affairs divisions,

Monteagudo returned to the Human _ Resources

department as a permanent employee. Once there,

Monteagudo claimed that Arce engaged in

inappropriate conduct towards her. For example,

she remarked that Arce would come to her work

station at least once a day where “he would stop and

touch [her] on the shoulder.” Monteagudo stated

that she resisted Arce’s advances by “throwling] his

hand backwards so he’d leave [her] alone.” She also

complained that Arce would “invitle] [her] constantly

to go out together” with co-workers on double dates.

Monteagudo testified to the unpleasantness

she felt as a result of Arce’s conduct: “How can | fecl

except bad? They were treating me like a picce of

meat. I wouldn't like to go to work ...I didn't like

to go into the office, because I knew what I would be

involved and engaged in every day there.”

On one such day, José Francisco Figueroa:

Cana (“Figueroa”), a messenger for AKELA since

1996, witnessed Arce “placling] his hand on

[Monteagudo's] hip” in "an undesirable action.”

When he discussed this incident with Monteagudo,

she told him that “that was something that normally

took place... that [Arce] would always try to seek a

way so he could touch her.” Figueroa testified that

he was uncertain about what recourse Monteagudo

should take because this was a matter that was

“extremely difficult and quite delicate” given the

people involved. [ven though Figueroa was a union

delegate, he decided against bringing the matter up

to the union president because “it was extremely

difficult to bring forth something like this dealing

with who we dealt with,” the union was a “very weak

institution within AKELA,” and because the union

president had a “friendly relationship” with Orlando

Vargas-Lépez (“Vargas”), AEELA's Director of

Human Resources and Labor Relations.

Monteagudo, perhaps partly as a result of her

conversation with Figueroa, did not report Arce's

conduct to her superiors as required by AEELA's

sexual harassment policy.2. This policy was in effect

and distributed to Monteagudo while she was a

permanent employee. At trial, Monteagudo

explained that she did not report the sexual

harassment “[blecause the person I needed to

complain with were all friends.” She added: “Either

it be the executive director or the human resources

2 Two provisions of AKEIA's sexual harassment policy are

relevant to this appeal. Section 3.2 of the policy states: "An

employee who feels he has been sexually harassed at work in

any way, should present his complaint to the Human Resources

Department. If the alleged harasser should be this person, or

anyone related or close to him, then the complaint must be

presented directly to the Association's Executive Director.”

Section 3.3 of the policy states: "It is the responsibility of any

employee who witnesses a sexual harassment act, or if any

other employee has complained of being a victim of sexual

harassment, to immediately inform the appropriate official."

director, they're all friends amongst themselves.

We're talking about some managerials [sic] versus

an employee who virtually had started working a

few days before.” She claimed that the Executive

Director, Pablo Crespo-Claudio (“Crespo”), was

friends with Vargas and Arce “[blecause of

conversations held by Orlando Vargas and Francisco

Arce themselves,” noting that “I tend to understand

that if some people go out together to drink liquor,

they're friends who go out to be together.” Crespo

admitted in his testimony that he may have gone out.

for drinks with Vargas and Arce.

Monteagudo testified that Arce's

inappropriate behavior towards her continued for

several months leading up to an incident during a

group outing to a local bar, where in the parking lot,

Arce “pulled {her] towards him to try to kiss [her].”

Monteagudo pushed him away that evening, but

testified that when she returned to work the

following Monday after the incident “the attitude

displayed towards [her] by Mr. Vargas and Mr. Arce”

was “different” and that the additional work given to

her was excessive. Also, when she complained to

Vargas that she was performing two _ positions

simultaneously, in addition to assisting colleagues

from other divisions, Vargas “slammed the desk very

hard and told [her] that if [she] filed a complaint, the

next day [she] would be dismissed.”

At trial, Monteagudo described her work

conditions as intolerable due to the fact that her

superiors did not permit “anyone at all to stop over

to talk to [her], even to just say good morning.”

lurther, she explained the emotional toll AEELA's

actions took on her: “[E]very evening I'd be crying, |

would leave work crying, because there was a

constant scolding for everything, everything I did

was wrong. Everything.” Thus, Monteagudo stated

that she was left with no choice but to resign,

resulting in what the jury later found to be a

constructive discharge: “Obviously, if somebody is

putting so much pressure on you and threatening to

kick you out if you complain before the union,

obviously that person doesn't want to have you there

anymore. And that's why I resigned.”

B. AEELA's Motions

At the end of Monteagudo's presentation of

her argument, AKELA orally moved for judgment as

a matter of law under Rule 50 stating the following:

“At this time we want to move for judgment as a

matter of law, not on the merits of the case, which

are obviously subject to credibility issues for the

jury, but on the subject of [the] affirmative defense

limited by the Supreme Court in the case of Ellerth

and Faragher regarding vicarious liability by an

employer.” AEELA noted that its motion was based

on this “single discrete issue.” ‘The district court

denied AEELA's motion. At the close of all evidence

and before the case went to the jury, AEELA

renewed its motion under “the Faragher issue”

stating that “[plretty much in our case in chief,

nothing further was added, as far as factually

towards this defense. It would be the same

arguments of law and fact, but we need to raise it to

preserve it.” The district court again denied

AEELA's motion.

On June 1, 2007, the jury found Monteagudo

was subjected to sexual harassment in violation of

Title VII and Puerto Rico Laws 17, 69, and 100,3 and

awarded her compensatory and punitive damages.‘

On June 15, 2007, AEELA again filed a motion for

3 Law 17 prohibits sexual harassment in employment. 29 P.R.

Laws Ann. § 155. Law 69 prohibits employment discrimination

on account of gender. 29 P.R. Laws Ann. § 1321. Law 100 is

analogous to Title VII and prohibits discrimination on the basis

of age, race, color, sex, social or national origin, social condition,

political affiliation, political or religious ideology. 29 P.R. Laws

Ann. § 146.

4 The jury found by a preponderance of evidence that (1)

“[Monteagudo] was constructively discharged from her

employment at AEELA specifically as a consequence of sexual

harassment; (2) “AEELA approved an anti-sexual harassment

policy which provided the procedure for employees to channel

their claims and that the policy was disseminated among the

employees’; (3) Monteagudo was not unreasonable in her

“faillure] to use the procedure provided in the anti-sexual

harassment policy in effect at AEELA; and that (4) “she was

subjected to a sexually hostile work environment in violation of

Puerto Rico law.”

The jury also found that the amount of compensatory

damages that "Monteagudo suffered as a proximate result of

the sexually hostile work environment to which she was

subjected by AEELA" totaled $333,000 and that Monteagudo

should be awarded $300,000 in punitive damages

On the same day, the district court entered an order

modifying the judgment because the jury did not apportion the

compensatory damage award between the Puerto Rico and

federal Title VII claims. Accordingly, the district court ruled

that it “allocates $1 of the compensatory damages to the Title

VIi claim and the remaining $332,999.00 to the Commonwealth

claims” and “[pJursuant to the damages provisions of Puerto

Rico Laws 17, 69, and 100, the court will double the

compensatory damages under the Commonwealth claims.” As

a result, Monteagudo's total award was $965,999

judgment as a matter of law on the basis that

Monteagudo was not subjected to a “severe or

pervasive” hostile work environment and_ that

AEELA met the burden of proof required in the

Faragher-Ellerth defense. AEELA argued that no

reasonable jury could find that Monteagudo's failure

to use the procedures specified by AEELA's sexual

harassment policy was reasonable. AEELA also

moved for a new trial and for remittitur of the

damages award.

The district court denied AEELA's motion for

judgment as a matter of law, noting first that

AEELA did not object to the court's instruction on

the Faragher-Ellerth defense. The district court

then offered the following reasons for its denial of

AEELA's motion:

At trial, Plaintiff testified that her

supervisor, Arce, sexually harassed

her by repeatedly touching her on the

shoulders, asking her out, and one

occasion trying to kiss her. She also

testified that Vargas, Decfendant's

Human Resources Director, was aware

of Arce's unlawful behavior and was

an active participant in_ the

harassment. Vargas, on another

occasion, had threatened to fire

Plaintiff if she complained about

excessive workload. Finally, Plaintiff

testified that Pablo Crespo,

Defendant's Executive Director, was

friends with Arce and _ Vargas.

Plaintiff's testimony was bolstered by

Figueroa Cana, another of Defendant's

employee [sic], who said during trial

that he had told Plaintiff that she did

not have aé_=ereal opportunity of

obtaining relief because of the high

ranking officers involved in_ the

harassment and cover up. [n light of

the above, the court cannot conclude

that no reasonable jury could have

found that Plaintiff acted reasonably

when she failed to follow Defendant's

anti-sexual harassment policy.

In a separate order, the district court denied

AEELA's motion for a new trial on damages noting

that “the verdict of $965,999.00 1s in part the result

of Puerto Rico Laws 17, 69, and 100, which double

the plaintiffs compensation.” AEELA appeals the

district court's ruling on these two motions as well as

certain discovery and evidentiary rulings at trial.

II. Discussion

C. AEELA's Motion for Judgment as a Matter

of Law

1. Standard of Review

Our review of a denial of a motion for

judgment as a matter of law under Fed. R. Civ. P. 50

is de novo, “viewing the evidence in the light most

favorable to the nonmoving party.” Marcano Rivera

v. Turabo Med. Ctr. P’ship, 415 F.3d 162, 167 (1st

Cir. 2005) (quoting Tapalian v. Tusino, 377 F.3d 1, 5

(1st Cir. 2004)). We note that “[a] party seeking to

overturn a jury verdict faces an uphill battle,” id.,

and that our “review is. weighted toward

preservation of the jury verdict... .” Crowe v.

Bolduc, 334 F.3d 124, 134 (1st Cir. 2003). “Courts

10a

may only grant a judgment contravening a jury's

determination when the evidence points so strongly

and overwhelmingly in favor of the moving party

that no reasonable jury could have returned a

verdict adverse to that party.” Marcano Rivera, 415

F.3d at 167 (quoting Rivera Castillo v. Autokirey,

Inc., 379 F.3d 4, 9 (1st Cir. 2004)).

Here, although AEELA makes several claims

on appeal of the denial of its Rule 50 motion,® we

consider preserved only its claim regarding the

Faragher-Ellerth affirmative defense. As we

recently reasoned:

A motion under Fed. R. Civ. P. 50(a)

must “specify the judgment sought

and the law and facts that entitle the

movant to the judgment." Fed. R. Civ.

P. 50(a)(2). The motion "must be

sufficiently specific so as to apprise

the district court of the grounds relied

on in support of the motion.” Zachar

v. Lee, 363 F.3d 70, 73 (Ist Cir. 2004)

(citing Correa v. Hosp. San Francisco,

69 F.3d 1184, 1196 (1st Cir. 1995)).

Such a motion “preserves for review

only those grounds specified at the

time, and no others.” Id. (quoting

Correa, 69 F.3d at 1196)... But, “lal]s

the name implies, a renewed motion

for judgment as a matter of law under

Fed. R. Civ. P. 50(b) is bounded by the

5 Although raised in an inartful manner on appeal, we consider

infra AEELA's challenges to the district court's rulings on

certain evidentiary and discovery issues at trial.

lla

movant's earlier Rule 50(a) motion.”

Correa, 69 F.3d at 1196. “The movant

cannot use such a motion as a vehicle

to introduce a legal theory not

distinctly articulated in its

close-of-evidence motion for a directed

verdict.” Id.

Parker v. Gerrish, 547 F.3d 1, 12 (1st Cir. 2008).

AEELA stated that it wished to preserve only one

issue in its Rule 50(a) motion; thus, the only issue

that we consider pursuant to its renewed motion is

whether AEELA is entitled to the Faragher-Ellerth

defense.

2. AEELA's Affirmative Defense

We have explained the Faragher-Ellerth

defense as following:

Under Title VII, an employer is

subject to vicarious liability for sexual

harassment by an employee's

supervisor which does not constitute a

tangible employment action. But the

employer may prevail if it

demonstrates a two-part affirmative

defense: that its own actions to

prevent and correct harassment were

reasonable and that the employee's

actions in seeking to avoid harm were

not reasonable.

Chaloult v. Interstate Brands Corp., 540 F.3d 64, 66

(Ist Cir. 2008) (citing Faragher v. City of Boca

12a

Raton, 524 U.S. 775, 807 (1998); Burlington Indus.,

Inc. v. Ellerth, 524 U.S. 742, 765 (1998)).6

The parties agree that the sexual harassment

policy AEELA had in place was sufficient for it to

meet the first prong of the defense. See Arrieta-

Colén v. Wal-Mart P.R., Inc., 434 F.3d 75, 86 (1st

Cir. 2006) ("As to the first element of the defense,

proof of an anti-harassment policy with a complaint

procedure available to employees, while not

necessarily dispositive, is relevant."); Marrero v.

Goya of Puerto Rico, Inc., 304 F.3d 7, 21 (1st Cir.

2002) ("{T]he availability of the affirmative defense

often will turn on whether the employer had

established and disseminated an anti-discrimination

policy, complete with a known complaint

procedure."). Thus, Monteagudo concedes "that the

only matter for consideration under the [Faragher:

Ellerth] defense is the second prong of the defense."

Regarding the second prong, in Reed v. MBNA

Marketing Systems, Inc., we remarked that while

"[t]here is no bright-line rule as to when a failure to

file a complaint becomes unreasonable ... more than

ordinary fear or embarrassment is needed." 333

F.3d 27, 35 (st Cir. 2003). As set forth above,

AEELA's sexual harassment policy states that an

employee who is a victim of sexual harassment

should first present her complaint to the Human

6 In the motion for judgment as a matter of law below there

was some dispute among the parties as to whether a

constructive discharge constitutes a "tangible employment

action" for the purposes of the Faragher-Ellerth defense.

However, the district court did not address this issue in its

opinion and Monteagudo does not raise this issue here

l3a

Resources department, unless the alleged harasser is

within or close to someone within the department. If

this is the case, as it is here given our facts, the

employee is required to report the sexual

harassment to AEELA's Executive Director. Thus,

we must determine whether a jury could conclude

that Monteagudo's reasons for failing to report Arce's

conduct to her superiors was unreasonable.

From our review of the record, Monteagudo

presented several reasons for not reporting the

sexual harassment to Vargas. Vargas admitted that

he was friends with Arce. Monteagudo also testified

that Vargas and Arce would often go out drinking

together. Monteagudo was thus understandably

reluctant to report Arce's behavior to Vargas because

of the closeness of Vargas's relationship with Arce.

The more difficult question, however, is

whether Monteagudo's failure to report Arce's

conduct to Crespo was unreasonable on the basis of

Crespo's alleged friendship with Arce and Vargas.

The only evidence that Monteagudo proffers for this

friendship are conversations she overheard by

Vargas and Arce and the fact that Crespo testified

that he may have gone out with Arce for drinks.

Admittedly, Monteagudo did not establish Crespo's

relationship with Arce as clearly as she established

Vargas's relationship with Arce; however, as we

acknowledged in Reed, "juries are supposed to be

good at detecting false claims and at evaluating

reasonable behavior in human situations." Id, at 37.

Further, other factors that the jury could have

taken into account in deciding that it was reasonable

for Monteagudo not to report to her superiors

l4a

included Figueroa's advice to her that the matter

was "extremely difficult and quite delicate" given the

people involved, and the fact that witnesses to the

alleged harassment failed to report the sexual

harassment as well.? In addition, there was a

significant age differential between Monteagudo, 22,

and Arce, 45, when the harassment occurred.

Although Monteagudo was not a minor as was the

plaintiff in Reed, her relative youth compared to

Arce bears at least some relevance. See id. (noting

that a jury could consider the trauma inflicted by a

supervisor who was more than double the age of a

seventeen year old whom the supervisor was alleged

to have assaulted). While Monteagudo's evidence is

not overwhelming, we believe that a reasonable jury

could conclude that her failure to report was based

on "more than ordinary fear or embarrassment" and

was therefore reasonable.®

* Monteagudo testified that Vargas and her colleague, Marilyn

Del Valle-Cruz ("Del Valle"), were aware of the sexual

harassment. Although Vargas and Del Valle deny knowledge

of the sexual harassment, the jury was entitled to beheve

Monteagudo's version given the facts surrounding the case.

8 AEELA also maintains that a jury could not reasonably

conclude that Monteagudo's failure to file a complaint with her

union pursuant to the collective bargaining agreement was

reasonable. We disagree. Monteagudo was advised by

Figueroa, a union delegate, that filing a complaint would be

futile because the matter involved people that made it

"extremely difficult and quite delicate"; that the union was

weak; and that the union president was friendly with Vargas.

Furthermore, Monteagudo stated that the union’ was

unresponsive to a prior complaint she had filed on an unrelated

matter.

l5a

D. AEELA's Evidentiary Claim

1. Standard of Review

We review a trial court's decision to admit or

exclude evidence for abuse of discretion. McDonough

v. City of Quincy, 452 F.3d 8, 19 (1st Cir. 2006). "A

district court has broad discretion to make relevancy

determinations ...." Richards v. Relentless, Inc.,

341 F.3d 35, 49 (1st Cir. 2003). Erroneous

evidentiary rulings are harmless “if it is highly

probable that the error did not affect the outcome of

the case." McDonough, 452 F.3d at 19-20.

2. The Challenged Testimony

AEELA argues that the district court erred in

disallowing testimony from Blanca Medina,

AEELA's Director of Administrative and Legal

We note here AEELA's claim that Monteagudo did not

produce a copy of this prior complaint during discovery, even

though AEELA had requested it. AEELA contends that the

district court erred by disallowing AEELA to pursue a line of

questioning "directed towards discrediting Monteagudo's

testimony about supposedly having filed the grievance at

issue." Further, AEELA asserts that the district court erred by

stating that AKELA had not previously moved to compel the

document. We agree with the district court that this was a

discovery issue that AEELA should have addressed earlier

either by way of a motion to compel or a request for sanctions

under Fed. R. Civ. P. 37(c). However, even if we were to decide

otherwise, any error would be harmless as the jury could have

concluded that Monteagudo was reasonable in her decision not

to file a complaint with the union based on the other reasons

articulated above. In any event, we are hard pressed to sce

how AEKELA was disadvantaged as the district court allowed

AEELA to ask Monteagudo a series of questions about the

document and its whereabouts for purposes of impeachment.

16a

Affairs, regarding whether AEELA had successfully

employed a corrective measure in 2005 pursuant to

the sexual harassment policy. Monteagudo had

objected to this testimony, stating that Medina's

testimony on this issue was not "pertinent at this

time." Upon Monteagudo's objection, the parties

approached the bench and a colloquy ensued

between the parties and the district court.? This

9 The transcript of the bench conference reads as follows:

The Court: I think I should instruct the jury ~

she already gave that answer. | should instruct

the jury that the fact that in 2005 corrective

measures were taken is not evidence of what

happened in this case.

Mr. Mariinez-Luciano [AEELA's counsel}: The

reason why I'm asking about this is because

part of plaintiffs theory as stated today in

opening statements . .. [is] that the proceedings

in AKELA are not worth following, that they're

not effective.

Mr. Gonzalez-Munoz [Monteagudo's counsel]:

No. What I said during opening statement was

that it was not followed in Michelle's case, and

limited myself to this case. It’s not that

[AEELA's harassment policy] is ineffective. In

this case it was not followed. That's what I said

in opening statements.

Mr. Martinez-Luciano: It's not a theory you're

going to pursue in closing arguments?

Mr. Gonzalez-Munoz: No, no. I'm here for

Michelle's case.

The Court: I'm not going to strike the

testimony at this time. Careful with the

question. Whatever she stated in 2005 is not

l7a

exchange resulted in the apparent agreement by

AEELA to the following instruction given to the jury

immediately after the bench conference:

The witness stated that in 2005,

certain procedures were followed in

another case. We're not going to go

into that line of questioning. And so

that what she was saying, we're not

going to continue further, but let me

instruct the jury that the fact that

certain procedures may have been

followed in 2005, they're not

conclusive, they're not probative of

whatever may have happened in 2002.

So in that effect, in that regard, you're

not to consider that statement as

probative one way or the other of what

may have happened in 2002.

From this exchange, it is not clear whether

AEELA preserved its opposition to the court's

evidentiary ruling because AEELA consented to the

court's decision to give a jury instruction.!?

Assuming that AEELA has preserved the issue for

probative of what may have happened or not

happened in 2002.

Mr. Martinez-Luciano: Okay.

10 ~6At closing argument Monteagudo's counsel stated that

AEELA's sexual harassment policy “had been _ proven

defective." Upon AEELA's objection, the court directed

Monteagudo's counsel to correct himself by explaining to the

jury that any argument regarding the application of the policy's

effectiveness pertains to Monteagudo only.

l8a

appeal, however, the district court did not err by

excluding the testimony on relevance grounds.

Unlike other circuits, we have not required that in

order to overcome the second prong of the Faragher-

Ellerth affirmative defense, plaintiffs must produce

evidence demonstrating "that the employer has

ignored or resisted similar complaints or has taken

adverse action against employees in response to such

complaints." See, e.g., Leopold v. Baccarat, Inc., 239

F.3d 243, 246 (2d Cir. 2001). Here, since

Monteagudo limited her argument to the application

of AKELA's policy to her case, the district court was

within its discretion to exclude as not relevant

AEELA's attempt to show that it had taken

corrective measures pursuant to the policy in 2005.

E. AEELA's Motion for New Trial and

Remittitur of Damages

1. Standard of Review

AEELA also appeals the district court's denial

of its motion for new trial or remittitur under Fed. R.

Civ. P. 59. "A district court should only grant such

motions if the outcome is against the clear weight of

the evidence such that upholding the verdict will

result in a miscarriage of justice."" Marcano Rivera,

415 F.3d at 171 (quoting Johnson v. Spencer Press of

Me., Inc., 364 F.3d 368, 375 (1st Cir. 2004)). We

review for abuse of discretion. Id.

2. Damages

a. Compensatory Damages

[A] party seeking remittitur bears a heavy

burden of showing that an award is_ grossly

excessive, inordinate, shocking to the conscience of

19a

the court, or so high that it would be a denial of

justice to permit it to stand." Id. at 173 (alteration

in original) (quoting Currier v. United Techs. Corp.,

393 F.3d 246, 256 (ist Cir. 2004)). "[T]he Supreme

Court of Puerto Rico has indicated that it 'will not

intervene in the decision on the estimation of

damages issued by the lower courts, unless the

amounts granted are ridiculously low or

exaggeratedly high.” Id. at 172 (quoting Nieves

Cruz v. Universidad de Puerto Rico, 151 P.R. Dec.

150 (2000) (certified translation)). Thus, "Puerto

Rico's ‘exaggeratedly high' standard echoes the

federal 'grossly excessive’ standard." Id. We stress

that "only infrequently -- and then, for compelling

reasons ~~ will we, from the vantage point of an algid

appellate record, override the jury's judgment as to

the appropriate amount of non-economic damages to

which a plaintiff is entitled." Casillas-Diaz v. Palau,

463 F.3d 77, 82-83 (1st Cir. 2006).

Here, the jury awarded Monteagudo $333,000

in compensatory damages without apportioning the

award between the Puerto Rico and the Title VII

claims. The jury also awarded Monteagudo $300,000

in punitive damages under Title VII. Upon

Monteagudo's motion, the district court issued an

order allocating $1 of the compensatory damages

award to the Title VII claims and the remaining

$332,999 to the claims under Puerto Rico laws 17,

69, and 100.!! The district court then doubled the

‘) "In this circuit, punitive damages may not be awarded under

Title VII without the award of at least nominal compensatory

damages." Rodriguez-Torres v. Caribbean Form Mfr., Inc., 399

F.3d 52, 65 (ist Cir. 2005)

20a

amount awarded pursuant to the Puerto Rico claims

as required by Puerto Rico law, resulting in a total

award amount of $965,999. See P.R. Laws Ann. tit.

29, § 155j(1); P.R. Laws Ann. tit. 29, § 146(a)(1); P.R.

Laws Ann. tit. 29, § 1341(a)(1).

With respect to compensatory damages, we

hold that the jury's award here of $333,000 was

neither "grossly excessive" to "shock the conscience"

of this court, nor was it "exaggeratedly high."

Admittedly the jury was generous in awarding this

amount; however, the district court did not abuse its

discretion in deciding that the award was

proportionate to harm suffered by Monteagudo. As

we expressed above, as a result of the sexual

harassment she endured for several months,

Monteagudo felt "like a piece of meat" and wept

every evening. After her constructive discharge, she

testified that she suffered from depression and an

inability to sleep. We note that a "verdict approved

by both the jurors and the trial judge will be pared

‘only if it is shown to exceed any rational appraisal

or estimate of the damages that could be based upon

the evidence before the jury." Casillas-Diaz, 463

F.3d at 83 (quoting Dopp v. Pritzker, 38 F.3d 1239,

1249 (1st Cir. 1994)). Given our facts and the highly

deferential standard we must apply, this is not such

a case. Moreover, the jury award here is

commensurate with non-economic compensatory

damage awards we have upheld in other Title VII

and employment discrimination contexts. '?

12 See McDonough, 452 F.3d at 22 (upholding $300,000

compensatory damages award where “bulk of the award" was

for emotional distress in the form of humiliation, damage to

reputation, and strained family relations); Valentin-Almeyda v.

2la

b. Punitive Damages

We review a preserved challenge to a punitive

damages award de novo. Acevedo-Garcia v. Monroig,

351 F.3d 547, 566 (1st Cir. 2003). Where a challenge

to a punitive damages award is not preserved, as is

the case here, we review for plain error. Rodriguez:

Torres, 399 F.3d at 64; Chestnut v. City of Lowell,

Municipality of Aguadilla, 447 F.3d 85, 103 (ist Cir. 2006)

(upholding compensatory damages award of $705,000 on the

basis of harassment and threat of reprisals where plaintiff

suffered cmotional damages and mental anguish such as

insomnia, anxiety, guilt, and depression as well as serious

economic damages); Rodriguez-Torres, 399 F.3d at 64

{upholding on plain error review emotional distress damages of

$250,000 in case involving claims under Title VII, Law 69, and

Law 100 where Plaintiff “experienced financial difficulties, her

marriage suffered, she entered a deep depression which lasted

‘for quite some time,' and, because of the depression, she had

difficulty finding subsequent employment"); Che v. Mass. Bay

Transp. Auth., 342 F.3d 31, 36-37 (ist Cir. 2003) (upholding

$125,000 compensatory damages award for emotional distress

including stress and anxiety disorders and irritable bowel

syndrome); Kerr-Selegas v. American Airlines, Inc., 69 F.3d

1205, 1214 (ist Cir. 1995) (upholding $300,000 compensatory

damage award on Title VII retaliation claim before doubling of

award under Puerto Rico law); see also Muniz-Olivari v. Stiefel

Labs., Inc., 496 F.3d 29, 40-41 (Ist Cir. 2007) (analogizing to

Title VII law and holding that pain and suffering damages of

$100,000 to husband and wife each was not excessive); cf. Soto-

Lebrén v. Fed. Express Corp., 538 F.3d 45, 70 (1st Cir. 2008)

(holding that $1,800,000 emotional damages award on libel

claim was excessive in part because "there is an identifiable

legal error that is at the heart of the jury's inflated award");

Koster v. Trans World Airlines, 181 F.3d 24, 35-36 (st Cir.

1999) (holding emotional damage award of $716,000 as

excessive and reducing it to $250,000 where employer's conduct

resulted in Plaintiff having trouble sleeping, anxiety, and

family suffering).

22a

305 F.3d 18, 20 (ist Cir. 2002). AEELA can prevail

on plain error review if it demonstrates that:

(1) an error was committed; (2) the

error was plain (i.e.[,] obvious and

clear under current law); (3) the error

was. prejudicial (ie.[|] affected

substantial rights); and (4) review is

needed to prevent a miscarriage of

justice, meaning that the error

seriously impaired the fairness,

integrity, or public reputation § of

judicial proceedings.

Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 36 (st

Cir. 2006) Gnternal quotation marks omitted).

Here, we disagree with AEELA's claim that it

properly preserved its challenge to the punitive

damages award by filing a timely motion under Rule

59(a). In its new trial and remittitur motion,

AEELA did not provide any developed

argumentation as to why Monteagudo should not be

entitled to punitive damages. Further, AEELA did

not cite any cases for its proposition that punitive

damages are unwarranted. "[T]heories not raised

squarely in the district court cannot be surfaced for

the first time on appeal." McCoy v. Mass. Inst. of

Tech., 950 F.2d 13, 22 (Ist Cir. 1991). "This

prophylactic rule requires litigants to spell out their

legal theories face-up and squarely in the trial court;

if a claim is 'merely insinuated' rather than ‘actually

articulated,’ that claim ordinarily is deemed

unpreserved for purposes of appellate review."

Iverson v. City of Boston, 452 F.3d 94, 102 (1st Cir.

2006) (quoting McCoy, 950 F.2d at 22); see also In re

23a

Olympic Mills Corp., 477 F.3d 1, 17 (1st Cir. 2007)

(holding a claim against damages award waived

because "as presented to the district court ... the

argument was fatally undeveloped, comprising only

four sentences, a citation to a district court opinion,

and no analysis whatsoever").

Applying the plain error standard, then, we

must first decide whether the district court

committed an error. "Title VII authorizes punitive

damages when a plaintiff demonstrates that the

defendant engaged in intentional discrimination

‘with malice or reckless indifference to the federally

protected rights of an aggrieved individual."

Rodriguez-Torres, 399 F.3d at 64 (quoting 42 U.S.C.

1981a(b){1)). In Kolstad v. American Dental Ass'n.,

527 U.S. 526 (1999), the Supreme Court set forth a

framework for determining the appropriateness of

punitive damages. Following Kolstad, once a

plaintiff has shown that "the employer acted with

malicious or reckless indifference to the plaintiff's

federally protected rights," "she then must establish

a basis for imputing liability to the employer."

Rodriguez-Torres, 399 F.3d at 64. We have stated

that "the plaintiff may meet this burden by showing

that the employee who discriminated against her

was a managerial agent acting within the scope of

his employment." Id. "lE]ven if the plaintiff makes

these showings, the employer still may avoid

punitive hability by showing that it engaged in good

faith efforts to implement an anti-discrimination

policy." Id. "Demonstrating good faith compliance is

an affirmative defense, and the burden of proof

therefore rests with the employer." Id.

24a

Here, a reasonable jury could conclude that

Arce was acting in a managerial capacity when

engaging in the acts of sexual harassment. Also, as

a supervisor, Arce should have been aware that his

actions were against AKELA's sexual harassment

policy and federal law. A closer question is whether

AEELA was entitled to its affirmative defense of

good faith compliance, especially in view of the jury's

finding that AEELA had satisfied the first prong of

its Faragher-Ellerth defense. The question before us

then is whether the fact that AKELA had a sexual

harassment policy in place that was disseminated to

its employees was sufficient to show “good faith

compliance”.in order to avoid punitive damages.

We have stated that while "a_ written

non-discrimination policy is one indication of an

employer's efforts to comply with Title VII. ... a

written statement, without more, is insufficient to

insulate an employer from punitive damages

lability." Romano v. U-Haul Int'l, 233 F.3d 655, 670

(Ist Cir. 2000). From our review of the record,

AEELA has not provided sufficient proof that it had

in place an "active mechanism for renewing

employees' awareness of the policies through either

specific education programs or periodic

re-dissemination or revision of their written

materials";!3 "testimony by appellants’ witnesses

that indicated that supervisors were trained to

prevent discrimination from occurring;" or "examples

13 Notably, Monteagudo testified that she had never been

offered a seminar on sexual harassment and that she was

unaware if any sexual harassment seminars had been given to

her supervisors.

25a

in which their aiuti-discrimination policies were

successfully followed."!4 Id. (providing a non-

exhaustive list of ways an employer could

demonstrate good faith compliance). While having

all of these factors is not necessary to qualify for the

defense, see id., ARFELA has not provided sufficient

evidence that it fulfilled any of these factors. Thus,

the district court did not commit plain error in

upholding the punitive damages award and denying

a new trial on damages.

III. Conclusion

For the foregoing reasons, the district court

judgment is affirmed.

Affirmed.

14 We acknowledge that AKELA was rebuffed by the district

court in its attempt to show how its policy was successfully

implemented in 2005. However, as we noted in assessing

AKELA's evidentiary claim above, this evidence was not

proffered to show that AEELA should not have been liable for

punitive damages. Rather, AEELA attempted to introduce

Medina's testimony in order to bolster its Faragher-Ellerth

defense. This was evidence which the district court was within

its discretion to exclude. Even if the district court had

considered the 2005 corrective measure AEELA had employed

pursuant to its policy, the district court still did not commit

plain error in upholding the punitive damages award. This is

because AEELA failed to provide sufficient evidence of other

indicators of good faith comphance and because the 2005

corrective measure occurred three years after the sexual

harassment in this case. See id.

26a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

Michelle Monteagudo,

Plaintiff,

Civil No. 03-2357 (GAG)

¥.

Asociacion de Empleados del Estado

Libre Asociado de Puerto Rico,

Defendant.

OPINION AND ORDER

This is an action for hostile work environment

sexual harassment. The matter is before the court on

Defendant’s motion for judgment as a matter of law.

In this motion, Defendant asks the court to set aside

the jury verdict in Plaintiffs favor and enter

judgment in Defendant’s favor on the ground that it

met the burden of proof required under the

Faragher/Ellerth dcefense.! After reviewing the

pleadings and pertinent law, the court DENIES

1 Defendant also argues that no reasonable jury could have

found that Plaintiff was subjected to a severe and pervasive

hostile work environment. Because Defendant did not raise this

issue in its requests for judgment as a matter of law during

trial under Rule 50(a), the court finds that Defendant waived

this sufficiency of the evidence challenge. See Casillas-Diaz v.

Palau, 463 F.3d 77, 81 (1st Cir. 2006) (noting that “a party

cannot use a Rule 50(b) motion as an instrument for

introducing a neoteric legal theory - one not distinctly

articulated in his end-of-the-evidence motion for judgment as a

matter of law - into the case”).

27a

Defendant’s motion for judgment as a matter of law

(Docket No. 125).

I. Relevant Factual and Procedural Background

On December 22, 2003, Plaintiff filed this

action, alleging that she was subjected to quid pro

quo and = hostile work environment _ sexual

harassment and retaliation in violation of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq., and Puerto Rico Laws 17, 69, 100, and 115. See

Docket No. 1. On March 31, 2006, the court

dismissed Plaintiffs guid pro quo sexual harassment

claim under Title VII and her retaliation claims

under Title VII and Puerto Rico Law 115. See Docket

No. 61.

Trial began on May 29, 1007. See Docket No.

107. On two different occasions, at the end of the

Plaintiffs case and before the case was submitted to

the jury, Defendant requested the entry of judgment

as a matter of law on the Faragher/Ellerth defense.

The court denied both requests. See Docket No. 109.

On June 1, 2007, the jury found that Plaintiff was

subjected to sexual harassment in violation of Title

Vil and Puerto Rico Laws 17, 69, and 100, and

awarded Plaintiff money for compensatory and

punitive damages. See Docket No. 114. On the same

date, the court entered judgment accordingly. See

Docket. No. 118.

On June 15, 2007, Defendant filed a motion

for judgment as a matter of law. See Docket No. 125.

Plaintiff opposed Defendant’s motion on June 25,

2007. See Docket No. 130. On June 26, 2007,

Defendant replied to Plaintiffs opposition. See

28a

Docket No. 131. Plaintiff filed a sur-reply on June

27, 2007. See Docket No. 134.

II. Standard of Review

The court’s review of a renewed motion for

judgment as a matter of law is very limited. A

motion for judgment as a matter of law under Rule

50(b) of the Federal Rules of Civil Procedure may be

granted only when there is no legally sufficient

evidentiary basis for a reasonable jury to find for the

non-moving party. See Richards v. Relentless, Inc.,

342 F.3d 35, 41 (Ist Cir. 2003); Guilloty Perez _v.

Pierluisi, 339 F.3d 43, 50 (1st Cir. 2003). “A party

seeking to overturn a jury verdict faces an uphill

battle.” See Marcano Rivera v. Turabo Med. Ctr.

P’ship, 415 F.3d 162, 168 (1st Cir. 2005). “Courts

may only grant a judgment contravening a jury’s

determination when the evidence points so strongly

and overwhelmingly in favor of the moving party

that no reasonable jury could have returned a

verdict adverse to that party.” Id. (quoting Rivera

Castillo v. Autokirey, Inc., 370 F.3d 4, 9 (1st Cir.

2004)). See also Acevedo-Garcia v. Monroig, 351 F.3d

547, 565 (1st Cir. 2003); Keisling v. SER-Jobs for

Progress, Inc., 19 F.3d 755, 759-60 (1st Cir. 1994).

A motion for judgment as a matter of law may

only may granted if “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 part lis] entitled to

judgment.” PH Group Ltd. V. Birch, 985 F.2d 649,

653 (1st Cir. 1993). In evaluating the evidence,

however, the court “may not assess the credibility of

witnesses, evaluate the weight of the evidence or

29a

resolve conflicts in testimony, but must view all facts

and reasonable inferences therefrom in the light

most favorable to the nonmovant.” Davet _v.

Maccarone, 973 F.2d 22, 28 (1st Cir. 1992).

III. Legal Analysis

Defendant has moved for judgment as a

matter of law on the ground that it met the burden

of proof required under the Faragher/Ellerth

defense. In the Faragher/Ellerth decisions, the

Supreme Court devised a special framework for

imposing vicarious liability on employers in cases

involving harassment by supervisors. Reed v. MBNA

Marketing Systems, Inc., 333 F.3d 27, 32 (1st Cir.

2003). The Court wrote identically in both opinions:

An employer is subject to vicarious

hability to a victimized employee for

an actionable hostile environment

created by a_ supervisor’ with

immediate (or successively higher)

authority over the employee. When no

tangible employment action is taken, a

defending employer may raise an

affirmative defense to liability or

damages, subject to proof by a

preponderance of the evidence, see

Fed. Rule. Civ. Proc. 8(c). The defense

comprises two necessary elements: (a)

that the employer exercised

reasonable care to prevent and correct

promptly any sexually harassing

behavior, and (b) that the plaintiff

employee unreasonably failed to take

advantage of any _ preventive. or

30a

corrective opportunities provided by

the employer or to avoid harm

otherwise. While proof that an

employer had promulgated an

antiharassment policy with complaint

procedure is not necessary in every

instance as a matter of law, the need

for a stated policy suitable to the

employment circumstances may

appropriately be addressed in any case

when litigating the first element of the

defense. And while proof that an

employee failed to fulfill the

corresponding obligation of reasonable

care to avoid harm is not limited to

showing an unreasonable failure to

use any complaint procedure provided

by the employer, a demonstration of

such failure will normally suffice to

satisfy the employer's burden under

the second element of the defense. No

affirmative defense is available,

however, when the _— supervisor's

harassment culminates in a tangible

employment action, such as discharge,

demotion, or undesirable

reassignment.

Faragher v. City of Boca Raton, 524 U.S. 807, 808

(1998); Burlington Indus. v. Ellerth, 524 U.S. 764,

756 (1998).

At the close of the evidence in this case, the

court instructed the jury on the Faragher/Ellerth

defense. See Docket No. 111. Defendant did not

object to this instruction. After deliberating for half a

3la

day, the jury found that Defendant approved an

anti‘sexual harassment policy which was

disseminated among the employees, but did not find

that Plaintiff unreasonably failed to use the

procedures provided in the policy. See Docket No.

114. In this motion for judgment as a matter of law,

Defendant claims that no reasonable jury could have

found that Plaintiff acted reasonably when she failed

to follow Defendant’s anti-sexual harassment policy.

The court disagrees.

Defendant's anti-sexual harassment policy

provides that an employee who feels that she was

the victim of sexual harassment should first attempt

to discuss the matter with the Human Resources

Director. If the Director is the person involved or has

some relationship with the harasser, then the

employee should discuss the matter with the

Executive Director. At trial, Plaintiff testified that

her supervisor, Arce, sexually harassed her by

repeatedly touching her on the shoulders, asking her

out, and on one occasion trying to kiss her. She also

testified that Vargas, Defendant's Human Resources

Director, was aware of Arce’s unlawful behavior and

was an active participant in the harassment. Vargas,

on another occasion, had threatened to fire Plaintiff

if she complained about excessive workload. Finally,

Plaintiff testified that Pablo Crespo, Defendant’s

Executive Director, was friends with Arce and

Vargas. Plaintiffs testimony was bolstered by

Figueroa Cana, another of Defendant's employee,

who said during trial that he had told Plaintiff that

she did not have a real opportunity of obtaining

relief because of the high ranking officers involved in

the harassment and cover up. In light of the above,

32a

the court cannot conclude that no reasonable jury

could have found that Plaintiff acted reasonably

when she failed to follow Defendant's anti-sexual

harassment policy.

IV. Conclusion

For the foregoing reasons, Defendant's motion

for judgment as a matter of law (Docket No. 125) is

hereby DENIED.

SO ORDERED.

In San Juan, Puerto Rico this 2nd day of

August 2007.

S/Gustavo A. Gelpi

GUSTAVO A. GELPI

United States District

Judge

33a

United States Court of Appeals

For the First Circuit

No. 07-2341

MICHELLE MONTEAGUDO

Plaintiff - Appellee

ASOCIACION DE EMPLEADOS DEL ESTADO

LIBRE ASOCIADO DE PUERTO RICO

Defendant - Appellant

Before

Lynch, Chief Judge,

Torruella, Baldock,* Boudin,

Lipez, and Howard,

Circuit Judges.

ORDER OF COURT

Entered: February 20, 2009

The petition for rehearing having been denied

by the panel of judges who decided the case, and the

petition for rehearing en banc having been

submitted to the active judges of this court and a

majority of the judges not having voted that the case

be heard en banc, it is ordered that the petition for

rehearing and the petition for rehearing en banc be

denied.

sy the Court

/s/ Richard Cushing Donovan, Clerk

*Of the Tenth Circuit, sitting by designation

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