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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Rehearing
- **Published:** January 1, 2008

## Text

Supreme ( o US.

—_
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.

C.

iV

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)

23

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

3

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

4

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

6

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

8

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)

9

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

10

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

1]

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

12

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

13

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,

14

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

16

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

17

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

18

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!”).

19

“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.

20

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).

21

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.”
Id

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

22

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.

23

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).

24
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

Or
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

26

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).

27

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

25

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

OG

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”)

30

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

31

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.

32

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

33

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.

34

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”).

35

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

36

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.

37

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

la

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.

2a

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

3a

[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

4a

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

9

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, |

6a

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

Ta

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

8a

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

9a

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

we

[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
ve

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0563%3A1. Public record. Not legal advice.