Gray v. Genlyte Group, Inc.

• Decision Date: 18 April 2002
• Docket Number: No. 01-1915.,01-1915.
• Citation: 289 F.3d 128
• Parties: Linda GRAY, Plaintiff, Appellant, v. GENLYTE GROUP, INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 128

289 F.3d 128

Linda GRAY, Plaintiff, Appellant, v. GENLYTE GROUP, INC., Defendant, Appellee.

No. 01-1915.

United States Court of Appeals, First Circuit.

Heard February 4, 2002.

Decided April 18, 2002.

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Mark D. Stern with whom Mark D. Stern, P.C. was on brief for appellant.

Brian H. Lamkin with whom Timothy P. Van Dyck, Edwards & Angell, LLP, Dorothy Pitt and Pitt, Fenton & Smith were on brief for appellee.

Before BOUDIN, Chief Judge, LYNCH, Circuit Judge, and GERTNER,^* U.S. District Judge.

BOUDIN, Chief Judge.

This appeal stems from Linda Gray's suit in the district court charging Genlyte Group with liability under Massachusetts law for sexual harassment. The jury returned a special verdict for Genlyte, finding that Gray had been subject to sexual harassment by a Genlyte employee but not through conduct sufficiently severe or pervasive to warrant liability. Gray now appeals, claiming errors in the instructions to the jury and in rulings on admissibility of evidence.

We begin with a brief synopsis of the evidence on both sides. In assessing sufficiency-of-the-evidence claims, we normally only consider the evidence in the light most favorable to the verdict. Rodowicz v. Mass. Mut. Life Ins. Co., 279 F.3d 36, 39 (1st Cir.2002). However, for most other kinds of questions (e.g., admissibility, the appropriateness of jury instructions, plain or harmless error), evidence offered by either side or both may be pertinent. See id.

Gray worked from 1980 to 1998 at Genlyte's Lightolier plant in Fall River, Massachusetts. In her subsequent trial, she claimed that she was harassed in 1981 by Jose Hermenegildo, another Genlyte employee, for a few weeks. In particular, Hermenegildo allegedly stared at Gray and made tongue gestures mimicking oral sex. Gray did not report this conduct to Genlyte. It ceased when her boyfriend — a co-worker at the factory — threatened Hermenegildo.

Fourteen years later, in 1995, the harassment resumed after her boyfriend moved to a different shift. According to Gray, Hermenegildo's harassment included statements (e.g., "Do you like to kiss?"); gestures (grabbing his crotch, sexual tongue gestures); and contact (touching her hair and — on one occasion — grabbing and shaking her while asking why she was avoiding him). Gray testified that in other instances Hermenegildo's conduct appeared threatening. He watched her in the parking lot before and after work, approached her at work, stared at her, and once followed her and her children home in his car.

At trial, Gray claimed that she had reported some or all of the harassment to her supervisor, Joe Pavao, and his supervisor, Bill Torrence, and nothing had been done. However, Torrence said that she had told him only that Hermenegildo was watching her and invited Torrence to observe him on a specific occasion; further, he said she later told him that she had taken care of the problem herself.

According to Gray, Hermenegildo's misbehavior diminished in 1996, but she began to fear him after learning in that year that he had beaten his wife. In 1997, Hermenegildo's earlier alleged misconduct resumed and in August 1997, Gray reported it to her supervisor and also provided a laundry list of his conduct in 1981 and 1995.

Gray testified that following her detailed complaint in August 1997, her supervisors took no significant action to investigate her claims or discipline Hermenegildo. Shortly after the meeting, Gray suffered a severe panic attack and was treated for continuing emotional distress. She did not return to work for the rest of 1997 but retained a lawyer who wrote to the company. The company took no action. Gray then filed a charge with the Massachusetts Commission Against Discrimination ("MCAD"). Mass. Gen. Laws (M.G.L.) ch. 151B § 5 (2000).

When Gray returned to work in January 1998, she said that Hermenegildo howled at her and followed her in the parking lot. In August 1998, Gray and other workers testified about Hermenegildo's misbehavior at a workers' compensation proceeding brought by Gray. In September 1998, Hermenegildo allegedly made an offensive tongue gesture at Gray and threatening gestures against another employee (Ray Tisdale) who testified at the August 1998 hearing.

Gray testified that due to emotional distress, she had been unable to work at the plant or elsewhere from September 1998 onward. In March 1999, she filed a criminal charge against Hermenegildo based on his September 1998 tongue gesture and, in April 2000, he was convicted of a misdemeanor for, "with offensive and disorderly acts or language[,] accost[ing] or annoy[ing]" Gray at her workplace. M.G.L. ch. 272 § 53 (2000). In October 1999, she brought this diversity action against Genlyte charging it with violation of M.G.L. ch. 151B, which inter alia forbids an employer from tolerating sexual harassment in the workplace.

Genlyte's evidence at the subsequent trial did not directly refute Gray's claims as to individual incidents — the company did not call Hermenegildo to testify — but it did raise doubts about Gray's claims on several fronts. On cross examination, Gray acknowledged that she had not reported the 1981 incidents to the company that year and she gave conflicting accounts of whether she had ever reported some of the most serious subsequent conduct (e.g., Hermenegildo grabbing his crotch and making lewd remarks). And Torrence testified that Gray's 1995 complaint was far more limited in scope than she had claimed.

Genlyte also adduced testimony from Gray's own witnesses — a treating social worker and a psychiatrist who testified as an expert for Gray. Based on their testimony, Genlyte asserted that Gray had suffered from emotional, psychological and social difficulties from her childhood onward, that she had personality disorders, and that her reactions to her treatment by Hermenegildo were more extreme than they would otherwise have been.

Finally, Genlyte argued that most of Gray's charges against Hermenegildo were uncorroborated by evidence from others at the plant. Based on its own witness' testimony, the company said that its supervisors had made reasonable and good faith efforts to investigate such complaints as Gray had made to it, handicapped though they were by her delays and omissions. On this basis, it argued that even if the harassment alleged had all occurred, the company lacked sufficient notice to make it liable.

For its deliberations, the jury was given a verdict form with six special questions, of which only the first three were eventually answered. The first three read as follows:

(1) Was plaintiff, Linda Gray, subjected to sexual harassment, i.e. verbal or physical conduct of a sexual nature?

(2) Was that conduct offensive and/or unwelcome to plaintiff?

(3) Was that conduct sufficiently severe and/or pervasive so as to alter the conditions of plaintiff's employment by creating a work environment that a reasonable person would find intimidating, hostile, humiliating or sexually offensive?

After seven hours of deliberation, the jury submitted the following question:

We're not going to reach a verdict tonight, as we are "hung up" on Question 3. I would not characterize us as deadlocked, but we do need some more time to deliberate. The wording of Question 3 has us a bit concerned. "Sufficiently severe" is fairly nebulous, and we are wondering if we could have some clarification. Thank you very much.

Both sides then submitted suggestions for supplemental jury instructions and the district court met with counsel to discuss them.

After hearing objections by Gray's counsel who had proposed numerous supplemental instructions, the district court delivered a single supplemental instruction, telling the jury that as to question (3) it should consider the "totality" of the circumstances over the period in question (including the frequency, severity, and/or offensiveness of the conduct), whether it was physically threatening, whether it would reasonably interfere with a reasonable woman's job performance, and whether it would undermine her ability to succeed at her job.

After further deliberation, the jury returned a verdict in Genlyte's favor. It answered "yes" to questions (1) and (2) but "no" to question (3). Based on the verdict form, a "no" answer to question (3) ended the case in defendant's favor and spared the jury from having to consider the company's knowledge of the harassment, the adequacy of steps taken to prevent it and the amount of damages to be awarded. This appeal followed.

On appeal, five of the eight claims of error advanced by Gray concern the failure to give instructions or errors in the instructions that were given. Such claims are reviewed de novo (e.g., failure to give an instruction) or under an abuse of discretion standard (e.g., court's choice of language). Wilson v. Maritime Overseas Corp., 150 F.3d 1, 10 & n. 7 (1st Cir.1998). However, casting a shadow over Gray's claims is Genlyte's contention that none of the objections to the instructions was adequately preserved, so they are reviewable only for plain error. We agree with Genlyte.

Insofar as the initial instructions are concerned, none of the errors or omissions now objected to was specifically identified by Gray's counsel after the instructions and before the jury first retired, even though the district judge warned that specific objections would be necessary to preserve the objections; the only debatable case is discussed below. As for the requested supplemental instructions, the district court after giving its supplemental instruction asked for objections. Gray's counsel responded, "Just simply the ones I have already stated, your Honor." This is not enough.

The governing rule provides that a party cannot assign as error the giving of or failure to give an instruction "unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter...