Perry v. Ethan Allen, Inc.
| Decision Date | 02 June 1997 |
| Docket Number | D,913,Nos. 912,s. 912 |
| Citation | 115 F.3d 143 |
| Parties | 74 Fair Empl.Prac.Cas. (BNA) 1292, 47 Fed. R. Evid. Serv. 188 Carlene J. PERRY, Plaintiff-Appellant-Cross-Appellee, v. ETHAN ALLEN, INC., Defendant-Appellee-Cross-Appellant. ockets 96-7545, 96-7639. |
| Court | U.S. Court of Appeals — Second Circuit |
Jean A. Kiewel, Brattleboro, Vermont (Kiewel & Harris, Brattleboro, Vermont, Bruce Hesselbach, Brattleboro, Vermont, on the brief), for Plaintiff-Appellant-Cross-Appellee.
Patricia M. Sabalis, Burlington, Vermont (Downs Rachlin & Martin, Burlington, Vermont, on the brief), for Defendant-Appellee-Cross-Appellant.
Before: NEWMAN, Chief Judge, KEARSE and FRIEDMAN, Circuit Judges *.
Plaintiff Carlene J. Perry appeals from so much of a final judgment entered in the United States District Court for the District of Vermont following a combined jury and bench trial before J. Garvan Murtha, Chief Judge, as dismissed her complaint against defendant Ethan Allen, Inc. ("Ethan Allen" or the "company"), alleging sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1994) ("Title VII"), and the Vermont Fair Employment Practices Act ("FEPA"), Vt.Stat.Ann. tit. 21, § 495 et seq. (1987 & Supp.1996). With respect to the FEPA claim, the jury found that although Perry had been subjected to sexual harassment through exposure to a hostile work environment, she did not prove that Ethan Allen failed to take appropriate corrective action. With respect to the Title VII claim, the district court found that Perry had proven neither that she was subjected to such harassment nor that the company failed to take appropriate corrective action. On appeal, Perry contends principally that the district court erred in excluding relevant evidence, erred in failing to instruct the jury on the theory of respondeat
superior, and made clearly erroneous findings of fact. Ethan Allen cross-appeals from a posttrial order denying its motion for attorneys' fees as sanctions. For the reasons that follow, we affirm.
From August 1987 through December 1990, Perry was employed at Ethan Allen's furniture manufacturing plant in Orleans, Vermont. She was on maternity leave from August until December 1988. In January 1991, Perry resigned, and in May 1991, she filed a charge of discrimination against the company with state authorities, alleging that beginning in June 1989 she had been sexually harassed by her male coworkers.
Eventually obtaining a right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC"), Perry commenced the present action in Vermont state court in December 1993 against Ethan Allen and three of the company's supervisors; the case was later removed to federal court. As amended, the complaint alleged sexual harassment, in violation of Title VII and the Vermont FEPA, breach of a covenant of good faith and fair dealing, and negligent and intentional infliction of emotional distress.
On motion by the defendants, the district court dismissed all of Perry's claims except the Title VII and FEPA claims for sexual harassment and the claim for intentional infliction of emotional distress. On motion by Perry, the court also dismissed the claims against the individual defendants, leaving Ethan Allen as the sole defendant.
Prior to trial, Ethan Allen moved to preclude Perry from introducing at trial any evidence concerning, inter alia, harassment of Perry that was not included in her EEOC charge, harassment experienced by Ethan Allen employees other than Perry, and harassment that occurred earlier than the start of the applicable statute-of-limitations periods. In a January 26, 1996 Ruling on Pre-Trial Motions ("In Limine Ruling"), the district court denied the motion to limit Perry's proof to incidents that occurred within the statute-of-limitations periods but granted the motion in most other respects.
The applicable limitations period for Perry's claims of sexual harassment, given the date on which Perry filed her EEOC charge, would normally not have permitted recovery for acts that occurred prior to July 1990. The district court, however, noted the possible application of the continuing-violation doctrine, given that Perry alleged in her EEOC charge that she had been harassed since June 1989. See In Limine Ruling at 3-4. The court concluded that in light of "the proximity of the harassment to her return to Ethan Allen after maternity leave" in December 1988, the court could not conclude that Perry's anticipated testimony with respect to events shortly after her return to work would be irrelevant. Id. at 3, 4. The court therefore denied Ethan Allen's motion to limit Perry's proof to the statute-of-limitations period. Instead, the court ruled that Perry would "be permitted to relate incidents of sexual harassment of which she has personal knowledge and which occurred after January 1989." Id. at 3.
However, stating that "the Federal Rules of Evidence provide limits on the admissibility of such evidence" and allow the exclusion of "testimony on incidents which are too remote in time or dissimilar" on the ground that they are "irrelevant or more prejudicial than probative," id. at 2, the court largely granted the remainder of Ethan Allen's motion, stating as follows:
By contrast, the Court will prohibit all witnesses and testimony regarding alleged incidents of sexual harassment occurring either before January 1989, or after January 1989 which either were not witnessed by the plaintiff or are not related to sexual harassment of the plaintiff while she was on the job. Such evidence is both irrelevant and more prejudicial than probative on this plaintiff's specific claims of sexual harassment.
In sum, Perry was not to be allowed to present any evidence with respect to sexual harassment at Ethan Allen prior to 1989. With respect to the period beginning in January 1989, she was to be allowed to testify to
her own sexual harassment experiences, but she was not to present evidence that other female Ethan Allen employees had been harassed unless she herself had witnessed the harassment and it was related to her.
A nine-day trial was held, with the FEPA sexual harassment claim and the claim of intentional infliction of emotional distress to be decided by the jury, and the Title VII claim to be decided by the court. Perry presented evidence of harassment she had experienced and of harassment of other women employees of Ethan Allen. The company presented evidence from some of those accused of harassing Perry and presented evidence of its general policies regarding sexual harassment and of its responses to Perry's complaint.
Perry testified, inter alia, that certain of her coworkers asked her to have sex, pulled at her bra strap, pulled at her pants, pawed her neck, rubbed up against her, and "grab[bed] at [her] chest." She said that whenever she passed in the vicinity of two of her coworkers, they would exchange suggestive catcalls such as, "Woo-hoo, go get her ass." Perry presented evidence from other women employees of the company that confirmed portions of her testimony as to what she had experienced. Perry testified that she complained of these incidents to Ethan Allen's management on December 12, 1990, telling mid-level supervisor Dale McCoy that she was being sexually harassed by Mark Fontaine, Carl Bowen, and Barry Austin; McCoy called Perry's immediate supervisor, Richard Geoffroy, to his office, and Perry described the harassment to them. Perry testified that in September or October 1990, she had also complained to Geoffroy, a low-level supervisor, that a coworker had slipped a coffee-can lid inside her blouse. In April or May of 1990, she had complained to plant superintendent Terry Curtis, telling him that some of her coworkers were accusing her of incompetence or of malingering.
Perry testified that coworker Bridget Moulton too had been sexually harassed by Austin, but that Moulton had not reported the incident to Ethan Allen management. Moulton herself testified that Austin had touched her once and that she had told him "to knock it off." Perry was also allowed to testify that she had seen coworker Lisa Willis "get harassed [at the Ethan Allen plant] because she ... went in and complained about sexual harassment on the floor." Perry testified that Willis had been treated "awful[ly]" after lodging her complaint, in that coworkers "refused to talk to her" and that "[t]he supervisor refused to associate with her." Perry was not allowed, however, to have Willis herself testify about her sexual harassment experiences. Indeed, when Willis testified that "[a]fter [Willis] turned Barry [Austin] in for hassling [her], everybody g[a]ve [her] the cold shoulder," the trial judge immediately instructed the jury to "ignore and not take into consideration any comments that Miss Willis stated on examination concerning any sexual harassment complaints by her." Nor was Perry allowed to have coworkers Sandra Dufour and Susan Martell testify about their experiences.
Some of the men Perry had accused of harassing her testified at trial. Austin admitted engaging in some of the conduct Perry described, but he characterized his actions as not unwelcome to her; others denied having engaged in the alleged conduct. Ethan Allen presented evidence that Perry's sexual harassment complaint on December 12, 1990, was the first such complaint she made to anyone above the lowest supervisory level. Perry's complaint to plant superintendent Terry Curtis in April or May of 1990, to the effect that some of her coworkers were accusing her of incompetence or of malingering, apparently did not mention harassment of a sexual nature.
Ethan Allen presented evidence that since at least 1985, it had an established policy forbidding sexual harassment; that the policy was set...
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