195 F.3d 654 (D.C. Cir. 1999)
Cynthia D. Curry, Appelleev.District of Columbia, Appellant
No. 98-7121
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 1999Decided November 9, 1999

Appeal from the United States District Courtfor the District of Columbia(No. 97cv01088)[Copyrighted Material Omitted]
Donna M. Murasky, Assistant Corporation Counsel, argued the cause for the appellant.  Jo Anne Robinson, Interim  Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, were on brief.
Elizabeth Margaret Boyle argued the cause for the appellee.  Ted Justice Williams was on brief.
Before:  Wald, Henderson and Randolph, Circuit Judges.
Opinion for the court filed Per Curiam.


1
Circuit Judge Henderson filed a separate opinion.


2
Circuit Judge Wald filed a separate opinion.


3
Circuit Judge Randolph filed a separate opinion.

Per Curiam:

4
In accordance with the accompanying separate opinions, the district court's order denying the motion for  judgment as a matter of law is affirmed in part and reversed  in part and the district court's judgment on the verdict for  plaintiff is affirmed.

Karen LeCraft Henderson, Circuit Judge:

5
Cynthia D. Curry brought suit against her employer, appellant District of Columbia (District), claiming sexual harassment in violation of Title VII of the Civil Rights Act of 1964,  as amended, 42 U.S.C. §§ 2000e et seq. The source of the  alleged sexual harassment was a co-worker in the District's  Metropolitan Police Department (MPD).  Following trial in  the district court, a jury awarded Curry $100,000 in damages. The District filed a motion for judgment as a matter of law  or, in the alternative, for a new trial or remittitur.  Upon the  district court's denial of its motion, Curry v. District of  Columbia, 9 F. Supp. 2d 1 (D.D.C. 1998), the District appealed.  On appeal, the District challenges both the jury's finding  of liability and the award of damages.  As explained below, we affirm the district court's denial of post-trial relief in part  and reverse in part.  In addition, I would remand for further  proceedings as to damages.

I.

6
Curry joined the MPD as a uniformed officer in October  1986.  Six years later, she was transferred to the Domestic  Security Section of the MPD's Intelligence Unit where she  met Detective Condwell Freeman.  Curry and Freeman soon  began an intimate relationship which lasted about six months  and then "just ended" in April 1993.  Joint Appendix (JA)  111.


7
In July 1993 Curry was again transferred to a different  unit and did not return to the Intelligence Unit until the  following May.  Upon Curry's return, Freeman began a daily  routine of telling her sexual jokes and suggesting, while  grabbing his crotch, that she allow him to "slip her the  lizard."1  JA 112-13.  This conduct continued from mid-May  1994 until August 12, 1994, when Curry stopped speaking to  Freeman.


8
In early September 1994 Curry told Sergeant Jacob Major,  who was her (and Freeman's) direct supervisor, that Freeman  had been sexually harassing her.  Her report followed a  three-week period for which Major, who was on vacation  during that period, had appointed Freeman acting sergeant in  charge of the Unit.  Upon his return, Major admonished  Curry for submitting an untimely report.  Curry explained  that she had completed the work but waited for Major's  return before re-submitting the report because she wanted to  avoid Freeman.2  Major then referred Curry to the MPD  Labor Relations, EEO Office.  Adhering to the MPD's formal  complaint procedure, Major initially denied Curry's request  that he speak with Freeman about the problem.  Subsequently, however, Major asked Freeman about the allegations,  which Freeman denied, and advised Freeman that sexual  harassment would not be tolerated.  Major also alerted Lieutenant Cheryl Peacock, the MPD's EEO Officer, to Curry's  complaint.  Although Curry did not contact the EEO Office  until September 30, Peacock began to investigate the matter  immediately.  The investigation lasted over four months and  included interviews of Freeman and other co-workers.


9
On September 30, 1994 Curry filed a complaint with the  MPD's EEO Office.  Earlier that day, Freeman, while speaking loudly to a third party in earshot of Curry, had stated  repeatedly that he would sue anyone who made unsubstantiated allegations against him.  Curry at that time told Peacock  about Freeman's "lizard" remarks, including that they had  ceased.  She also reported the incident involving the redrafted reports when Freeman was acting sergeant and Freeman's  remarks she had overheard that morning.  Curry reported no  other form of harassment.  Shortly thereafter, she requested  and received a transfer to the Analytical Section of the  Intelligence Unit, which was on the same floor as the Domestic Security Section but in a different wing of the building.JA 497.  Roughly ten months later, during August 1995, the  MPD undertook a wholesale reorganization of its offices  which put Curry's and Freeman's offices in closer proximity.


10
On January 23, 19953 the EEO Office issued a report on its  investigation of Curry's charges.  The report found probable cause to believe Freeman had verbally harassed Curry, that  is, probable cause "to sustain the allegations that sexual  harassment has occurred."4  JA 776.  Peacock, the investigating officer who authored the report, testified that "the workplace ... was filled with sexual jokes, sexual language."  JA  306.  Captain Alan Dreher, the head of the Intelligence Unit,  learned of the report and personally admonished Freeman  that sexual harassment would not be tolerated and, if it was  going on, it was to stop.  The EEO Office advised Curry by  letter that she could file a complaint with the District's  Department of Human Rights and Minority Business Development (DHR).5  The EEO Office's finding notwithstanding, the MPD's collective bargaining agreement and D.C. Code   1-617.1(b-1)(1) (1992)6 prohibited the MPD from taking  disciplinary action against an officer more than forty-five days  after the MPD became aware of the officer's improper conduct.  Peacock's investigation took more than forty-five days  to complete and the District took no formal disciplinary action  against Freeman.  In June 1996 Curry transferred to the  Court Intelligence Unit.


11
Although she made no mention of it until November 1995,  Curry also claimed Freeman regularly glared at her in a  harassing manner from the time his verbal harassment  ceased in August 1994 until her June 1996 transfer out of the  Unit.  She testified that Freeman "would look at [her] in a  way that made [her] most uncomfortable, as if he was undressing [her]."  JA 235.  Although Curry never invoked the  MPD's formal complaint procedure with regard to Freeman's  glaring, she did report it to supervisory personnel.  She first  complained on November 7, 1995, during a telephone conversation initiated by Lieutenant Emmogean Simpson-Jones of  the MPD's Labor Relations, EEO Office, who asked her how  things were going.  Although the record is unclear, apparently sometime between November 7 and December 14, 1995  Curry also requested that the MPD transfer Freeman.  On  December 14, 1995 the EEO Office issued a memorandum in  which the MPD's EEO Director Brenda Wilmore noted that  Curry complained she was "experiencing a 'hostile environment,' because [Freeman] constantly 'glare[d]' at [her]" and  that there was "no verbal communication" between the two.JA 760.  The memorandum concluded that "agency constraints" left the EEO Office unable to act on her request to transfer Freeman.7  The Director did offer to help Curry  transfer if she so desired.  At that time Lieutenant Alton  Bigelow, another EEO officer, advised Freeman of Curry's  report about his glaring and "warned him against acts of  intimidation."  JA 764.  Bigelow asked Freeman to agree to a  transfer, a request Freeman declined.8

II.

12
This court reviews de novo the trial court's denial of a  motion for judgment as a matter of law or, in the alternative,  for a new trial.  Swanks v. Washington Metro. Area Transit  Auth., 179 F.3d 929, 933 (D.C. Cir. 1999).  The jury verdict  stands "unless the evidence and all reasonable inferences that  can be drawn therefrom are so one-sided that reasonable men  and women could not disagree on the verdict."  Smith v.  Washington Sheraton Corp., 135 F.3d 779, 782 (D.C. Cir.  1998) (internal quotation marks omitted).  Nevertheless, evidence supporting the verdict must be "more than merely  colorable;  it must be significantly probative."  Id. (internal  quotation marks omitted).

A.

13
Title VII of the Civil Rights Act of 1964 makes it unlawful  for an employer "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."  42 U.S.C.  2000e-2(a)(1).A claim of sexual harassment is cognizable under this provision if the alleged harassment alters, either expressly or constructively, the terms or conditions of an individual's  employment.  See, e.g., Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67-68 (1986).  Courts describe an explicit  alteration as "quid pro quo" harassment and a constructive  alteration as "hostile work environment" harassment.  Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998).  To  be actionable, however, the latter must be severe or pervasive.  Id.;  Oncale v. Sundowner Offshore Servs., Inc., 118 S.  Ct. 998, 1002-03 (1998);  Harris v. Forklift Sys., Inc., 510 U.S.  17, 21 (1993).


14
An employer's liability for a hostile work environment  sexual harassment claim differs depending on who does the  harassing.  The harasser can be a supervisor or someone else  whose position in the workplace affords authority over the  target of the harassment such that the harasser is aided by  the "agency relation" in harassing the other employee.  Ellerth, 118 S. Ct. at 2269;  see Mikels v. City of Durham, 183  F.3d 323, 331-32 (4th Cir. 1999) ("The fundamental determinant of this form of vicarious liability is not, therefore, the  harasser's formal rank vis-a-vis that of the victim in the  particular employment hierarchy, ... but whether the particular conduct was aided by the agency relation.") (internal  quotation marks omitted).  The United States Supreme Court  recently clarified the employer liability standard for supervisory harassment of an employee in Ellerth and Faragher v.  City of Boca Raton, 524 U.S. 775 (1998).9  There the Supreme  Court further noted that circuit courts had not determined  employer liability for co-worker harassment in the same way.See Faragher, 524 U.S. at 799.  In Faragher the Court  further noted and declined to disturb the general agreement  among circuits that a negligence standard governs employer  liability for a co-worker's harassment.  Id. at 799-801.  Every  circuit that has addressed co-worker harassment in the "post-Faragher era" has distinguished the standard applicable to  co-worker harassment from that governing harassment by a  supervisor, applying to the former a variation of the negligence standard the circuit had applied pre-Faragher.10


15
While the reasonableness of an employer's response to  sexual harassment is at issue under both standards, the  plaintiff must clear a higher hurdle under the negligence  standard, where she bears the burden of establishing her  employer's negligence, than under the vicarious liability standard, where the burden shifts to the employer to prove its  own reasonableness and the plaintiff's negligence.  See Shaw v. Autozone, Inc., 180 F.3d 806, 812 n.2 (7th Cir. 1999) ("[T]he  reasonableness of the employer's actions in preventing and  responding to sexual harassment is relevant under both standards, the difference being who bears the burden of proof.").Indeed, in Faragher the Supreme Court reasoned that a  supervisor's harassment is both more detrimental (or threatens to be) to the terms and conditions of an individual's  employment and more difficult to stop or have stopped than  similar behavior by a co-worker.  See Faragher, 524 U.S. at  803.  Moreover, the employer has a greater opportunity to  guard against the misconduct of supervisors than that of  fellow employees, see id., and, inversely, an employee has a  greater opportunity to stop harassment by a co-worker in the  first instance.  See id. ("When a fellow employee harasses,  the victim can walk away or tell the offender where to go, but  it may be difficult to offer such responses to a supervisor....").


16
Our circuit has not articulated an employer liability standard for co-worker harassment since the Faragher and Ellerth decisions nor had it squarely done so before.11  Consistent with the approach of our sister circuits recognized in  Faragher, 524 U.S. at 799, we announce the following standard:12  An employer may be held liable for the harassment of  one employee by a fellow employee (a non-supervisor) if the  employer knew or should have known of the harassment and failed to implement prompt and appropriate corrective action.13


17
Curry's complaint specified two kinds of harassment for  which we must determine whether a reasonable jury could  find that the District knew or should have known of the  harassment and failed to implement prompt and appropriate  corrective action.14  The first occurred from May 1994 to mid-August 1994 and consisted of Freeman's blatantly sexual  remarks.  No supervisor ever heard them.  Neither Curry  nor anyone else made them known to a supervisor or EEO  official until after the conduct had ceased.  Although a reasonable jury could have found from the evidence that Curry's  workplace was filled with sexual banter, that fact alone cannot  support a finding that the District should have known of  Freeman's harassment of Curry, especially in the absence of  any similar problems or complaints.  The District had in  place a policy against harassment, it had made its policy  known and it had established an effective complaint procedure.  The District, therefore, was entitled to rely on its  employees to bring problems with their co-workers to its  attention.


18
Once Curry reported the harassment, the District responded quickly and reasonably.  Major advised EEO Officer  Peacock of Curry's complaint even before Curry lodged a  formal complaint and Peacock began her investigation immediately.  Major also admonished Freeman that, if he was  harassing Curry, he was to stop immediately.  The probable  cause finding four months later led to a similar warning by  Captain Dreher, the head of the Intelligence Unit.  Although  the District took no formal disciplinary action, the clear,  prompt admonitions were appropriate and, at least for this  conduct, effective.  Accordingly, we conclude that the evidence supporting the verdict as to Freeman's verbal harassment occurring between May and August 1994 was, at most,  "merely colorable," Smith, 135 F.3d at 782, and we therefore  reverse the district court's denial of the District's motion for  judgment as a matter of law to the extent it encompasses that  conduct.15


19
According to Curry, the second type of harassment began  when the first ended.  Thus, from mid-August 1994 until  her transfer in June 1996, Curry experienced sexual harassment in the form of Freeman's glaring at her.16  Nevertheless, Curry first brought this harassment to light on November 7, 1995 in response to a supervisor's inquiry.  Until  then, the District reasonably believed all problems between  Curry and Freeman had been resolved.  She never filed a  formal complaint regarding Freeman's glaring.  In response  to the complaint Curry did voice to Simpson-Jones over the  telephone, however, an EEO officer (Bigelow) simply told  Freeman about the complaint, warned him against the objectionable conduct (which he denied) and requested that he  voluntarily transfer.  EEO Director Wilmore then sent Curry a memorandum informing her the only available remedy  was her own transfer.  In view of this evidence, especially  the fact that Freeman by this point was a "repeat offender,"  see Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 676 (10th  Cir. 1998),17 we cannot say that "the evidence and all reasonable inferences that can be drawn therefrom are so onesided that reasonable men and women could not disagree"  on the adequacy of the District's response once it knew of  Freeman's glaring.  Smith, 135 F.3d at 782.  We therefore  affirm the district court's denial of the District's motion for judgment as a matter of law with regard to Freeman's  glaring.18

B.

20
The District challenges the district court's denial of its  post-trial motion requesting, in the alternative, remittitur of  the $100,000 damages award.  See 9 F. Supp. 2d at 4.  We  order remittitur only where, after a "detailed appraisal" of  the evidence bearing on damages, we find the award grossly  excessive.  See Grunenthal v. Long Island R.R. Co., 393 U.S.  156, 159 (1968).  An award is grossly excessive if "it is so inordinately large as obviously to exceed the maximum limit  of a reasonable range within which the jury may properly  operate."  Langevine v. District of Columbia, 106 F.3d 1018,  1024 (D.C. Cir. 1997) (quoting Williams v. Stewart Motor Co.,  494 F.2d 1074, 1085 (D.C. Cir. 1974)).  We allow remittitur,  however, "only if the reduction permits the highest amount  the jury tolerably could have awarded."  Langevine, 106 F.3d  at 1024 (quoting Carter v. District of Columbia, 795 F.2d 116,  135 n.13 (D.C. Cir. 1986)) (internal quotation marks omitted).


21
The jury's liability verdict itself reveals the district court's  legal error in denying a new trial on damages.  As the trial  court's order makes clear, the court and the jury considered  the harassment beginning in May 1994, which consisted of the  "lizard" remarks, as well as the glaring that began some  three months later.  With the District's liability limited to the  "glaring" harassment, Curry's damages must likewise be  limited:  she can recover only for the glaring that occurred  after she reported it on November 7, 1995 and continued until  her departure in June 1996.  At trial, however, the damages  evidence covered, as the district court emphasized, see  9 F. Supp. 2d at 4, a two year period as opposed to the eight  months for which the District can be held liable.  Moreover,  Curry's physical problems, including acne, nightmares, headaches, loss of appetite and accompanying weight loss, occurred sometime in 1994, nearly one full year, if not more,  before she reported the glaring.  The corroborating testimony of both Curry's sister and Curry's prayer partner, which  described a "dramatic change in [Curry's] appearance and  behavior," 9 F. Supp. 2d at 4, related to late 1994.19


22
Curry's damages evidence also included the testimony of  her pastor and her supervisor after she transferred to the  Court Intelligence Unit in June 1996.  Curry's pastor, Reverend Thomas J. Baltimore, testified that he had counseled her  for more than three years.  The two worked "through a number of crises" which, apart from the workplace harassment, included her father's death and "conflicts" with other  family members and fellow church members.  JA 477-78.Baltimore testified that he continued to counsel Curry, who  "worries [him] to death."  JA 477.  William E. Wagner, her  supervisor after she transferred, testified that Curry was  emotionally upset in July 1996, manifested by her difficulty in  concentrating and sitting still and by "paranoi[a] in her  work."20  JA 472.  Curry eventually told him that her problems related to the pending sexual harassment litigation. Curry also testified that she was reluctant to seek counseling  from a psychiatrist or psychologist because she feared it  would jeopardize her eligibility to obtain a higher level of  security clearance which she eventually attained.


23
In my view, the damages award exceeds "the maximum  limit of a reasonable range" of damages for Freeman's glaring harassment which occurred over a period of eight months  and caused Curry some degree of emotional upset.  Although  Freeman and Curry apparently had nearby offices during  that time, they no longer worked together.  Assuming the  glaring occurred every time Curry saw Freeman, her contact  with him was isolated, incidental to her law enforcement  duties and passing.  On these facts, I believe that an award of  $100,000 in damages is grossly excessive.  See, e.g., Hutchinson v. Stuckey, 952 F.2d 1418, 1422 (D.C. Cir. 1992) ($50,000  was excessive for permanent "significant injury" to finger);Johnson v. Parrish, 827 F.2d 988, 991 (4th Cir. 1987)  ($150,000 was excessive for partially disabling neck and arm  injury).

III.

24
For the foregoing reasons, the district court's denial of the  District's motion for judgment as a matter of law or, in the alternative, for a new trial or remittitur is affirmed in part,  that is, as it relates to the District's liability for the sexual  harassment Curry first reported in November 1995.  With  regard to the District's liability for harassment occurring  before that date, the district court's denial of the motion for  judgment as a matter of law is reversed.  I would remand the  damages award to the district court for further proceedings  consistent with this opinion.  See Hutchinson, 952 F.2d at  1423 n.5.



Notes:


1
 Curry understood from their earlier relationship that Freeman's  references to "lizard" and "zard" meant his penis.


2
 Freeman had ordered Curry to make corrections to the first  draft of the report.  Finding certain corrections had not been made,  Freeman demanded them again for the second draft.  Curry told  him she thought he was harassing her for rebuffing his sexual  overtures and that she intended to wait for Major's return before  re-submitting the report.


3
 The EEO Office's investigative report bears a January 23, 1996  date stamp.  JA 771.  As the parties and the record make clear, the  correct date of the report is January 23, 1995.  See Br. of Appellant  at 14;  Br. of Appellee at 3;  JA 798.


4
 The report responded to Curry's formal complaint of verbal  harassment.


5
 The MPD's EEO Office and the parties refer to the DHR as the  "Office of Human Rights" and the "OHR."  E.g., JA 798.  Its  proper name is as noted in the text.  JA 761.  Ultimately, on June  10, 1996 the DHR also found probable cause to believe that Freeman sexually harassed Curry.  JA 761.


6
 In 1995 section 1-617.1(b-1)(1) provided that "no corrective  adverse action shall be commenced pursuant to this section more  than 45 days ... after the date that the agency knew or should  have known of the act or occurrence allegedly constituting cause."It has since been repealed.  See D.C. Code  1-617.1 (1999).


7
 The memorandum uses the term "agency constraints" without  elaboration.  Although there was evidence that the term referred to  the forty-five day rule, JA 378, 380, apparently the MPD's collective  bargaining agreement prohibited an officer's involuntary transfer  for disciplinary reasons, the precise request Curry made regarding  the glaring.  See Br. of Appellant at 15;  JA 538.


8
 Curry testified that she also reported the glaring to Bigelow but  the record does not reflect when or how.  JA 285.


9
 The Supreme Court announced inter alia that the employer can  be held vicariously liable even if the employer did not know of the  harassment.  If no "tangible employment action" results from the  harassment, the employer may avoid liability by asserting a twopart affirmative defense.  See Ellerth, 524 U.S. at 764-65;  Faragher, 524 U.S. at 804-07.


10
 See Richardson v. New York State Dep't of Correctional Servs.,  180 F.3d 426, 441 (2d Cir. 1999) (discussing Faragher and then  concluding "[i]n contrast, if the harasser is the victim's co-worker,  the employer will be liable only if it is negligent, that is, if it either  provided no reasonable avenue for complaint or knew of the harassment and did nothing about it") (internal quotation marks omitted);Mikels, 183 F.3d at 332 (no vicarious liability for co-worker harassment);  Sharp v. City of Houston, 164 F.3d 923, 929 (5th Cir. 1999)  (imposing liability if employer "knew or should have known of the  harassment in question and failed to take prompt remedial action"  and noting standard "was not disturbed by Faragher or Burlington");  Hafford v. Seidner, 183 F.3d 506, 513 (6th Cir. 1999) (stating  "[e]mployer liability for co-worker harassment is based directly on  the employer's conduct" and employer is liable if it "knew or should  have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action");  Wilson v. Chrysler Corp., 172 F.3d 500, 508 (7th Cir. 1999) ("Liability for co-worker  harassment requires a showing of negligence ... [so] a plaintiff  must show that her employer failed to take reasonable steps to  discover and remedy the harassment.");  Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983, 987 (8th Cir. 1999) (noting distinction  between types of harassment and stating "[o]ur court has long  recognized that an employer may be directly liable ... if it knew or  should have known of the conduct and failed to take proper remedial action");  Burrell v. Star Nursery, Inc., 170 F.3d 951, 955 (9th  Cir. 1999) (employer liable only for what management knew or  should have known in co-worker harassment scenario);  Wilson v.  Tulsa Junior College, 164 F.3d 534, 541 n.4 (10th Cir. 1998) (noting  distinction between vicarious liability and negligence standard).


11
 In Vinson v. Taylor, 753 F.2d 141 (D.C. Cir. 1985), the court  distinguished, in a footnote, a case involving harassment by a  supervisor from those involving harassment by co-workers "who  differ radically from supervisors in the scheme of vicarious liability."  753 F.2d at 147 n.45.  And in a supervisor harassment case,  Gary v. Long, 59 F.3d 1391 (D.C. Cir. 1995), we noted without  comment the parties' recognition that the negligence standard  applies in certain circumstances.  59 F.3d at 1397.


12
 Both parties get the standard wrong, to wit:  Curry asserts that  the employer liability standard for supervisory harassment applies,  Br. of Appellee at 10-14, and the District proposes a modified  supervisory harassment standard for co-worker harassment, Br. of  Appellant at 28-31.


13
 The district court's jury charge used a negligence standard:"Plaintiff must prove that management level employees knew or  should have known of the alleged sexual harassment ... and failed  to take immediate and appropriate corrective action."  JA 742-43.Delay inherent in personnel actions, however, particularly in large  organizations, does not necessarily render an otherwise reasonable  response inadequate.  See Waymire v. Harris County, 86 F.3d 424,  429 (5th Cir. 1996) ("[I]n analyzing the promptness of response it is  important to keep in mind the entity's lines of command [and]  organization format.") (internal quotation marks omitted);  see also  Dhyne, 184 F.3d at 988 ("An employer must be allowed some time  to gauge the credibility of the complainant and the seriousness of  the situation if we are to observe the Supreme Court's caution that  Title VII is not 'a general civility code for the American workplace.' ") (quoting Oncale, 118 S. Ct. at 1002).


14
 Given the differences in Freeman's behavior (explicitly sexual  verbal harassment at first and silent "glaring" subsequently) and,  more important, the manner in which Curry handled each (Curry  applied self-help to the verbal harassment and reported it after it  had ceased while she waited more than one year before complaining  about the glaring), we believe each kind of harassment, and the  District's responses thereto, should be analyzed separately.  Cf.  Sabree v. United Bhd. of Carpenters and Joiners Local No. 33, 921  F.2d 396, 401-02 (1st Cir. 1990) (no continuing violation because  plaintiff "believed, at every turn, he was being discriminated  against" but failed to file timely claim for earlier incidents);  Rush v.  Scott Specialty Gases, Inc., 113 F.3d 476, 483 (3d Cir. 1997)  (continuing violation where harassment intensified after plaintiff  filed EEOC charge);  see generally West v. Philadelphia Elec. Co.,  45 F.3d 744, 755-56 (3d Cir. 1995) (in determining continuing  violation vel non, court considered similarity, continuity and frequency of offensive conduct and whether harassment caused discrete event triggering duty to assert rights);  Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983) (setting forth three  factors for determining if plaintiff alleges continuing violation:  (1)  subject matter;  (2) frequency;  and (3) degree of permanence which,  inter alia, may trigger plaintiff's duty to assert rights).


15
 Judge Wald is "puzzled" by this statement (Op. of Wald, J. at  1) and is "unclear what exactly the panel is reversing, and why."(Id. at 1.)  The jury verdict necessarily determined the District's  liability for the verbal sexual harassment.  The district court then  denied the District's motion for judgment as a matter of law and, to  the extent its denial reaffirmed the District's liability for the verbal  sexual harassment, we reverse that denial--in short the District is  not liable to the plaintiff for the verbal sexual harassment because it  had no notice of the conduct until after the conduct had ceased.  Its  response once it learned of the conduct was appropriate as a matter  of law.  The District is liable, however, for the subsequent nonverbal harassment, and we therefore partially affirm the district court's  denial of the District's post trial motion, because we cannot conclude as a matter of law that the District's response was appropriate once it learned of the nonverbal harassment.


16
 Although the District, in its post-trial motion below, disputed  the hostile work environment finding based on Freeman's glaring  JA 808, it does not raise the issue on appeal.  If it had, this appeal  might have been disposed of at an earlier analytical stage, namely,  in determining whether the conduct is sufficiently severe to create a  hostile work environment.  "Discriminatory conduct results in a  hostile work environment when it is so severe or pervasive that it  create[s] a work environment abusive to employees because of their  race, gender, religion, or national origin, thus offending Title VII's  broad rule of workplace equality."  Park v. Howard Univ., 71 F.3d  904, 906 (D.C. Cir. 1995) (quoting Harris, 510 U.S. at 22) (internal  quotation marks omitted).  In determining if the plaintiff satisfies  this requirement, the court must consider all of the circumstances,  including "the frequency of the discriminatory conduct;  its severity;whether it is physically threatening or humiliating, or a mere  offensive utterance;  and whether it unreasonably interferes with an  employee's work performance."  Harris, 510 U.S. at 23.  Other  courts have held that a co-worker's staring, even when accompanied  by physical touching, is not conduct severe enough to alter the  terms and conditions of an individual's employment.  See generally  Adusumilli v. City of Chicago, 164 F.3d 353, 357 (7th Cir. 1998)  (teasing plaintiff, police department employee, that waving at squad  cars makes her look like prostitute, comments to her about bananas,  rubber bands and low-neck tops, staring and attempts to make eye contact and four isolated incidents in which co-worker briefly  touched plaintiff's arm, fingers or buttocks fall within the "safe  harbor for employers");  Shepherd v. Comptroller of Pub. Accounts,  168 F.3d 871, 874 (5th Cir. 1999) (stares and arm touching were not  severe where none was physically threatening or likely to undermine reasonable plaintiff's workplace competence).


17
 "The employer is, of course, obliged to respond to any repeat  conduct;  and whether the next employer response is reasonable  may very well depend upon whether the employer progressively  stiffens its discipline, or vainly hopes that no response, or the same  response as before, will be effective."  144 F.3d at 676;  see also  Carter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir. 1999) ("Factors  in assessing the reasonableness of remedial measures may include  the amount of time that elapsed between the notice and remedial  action, the options available to the employer, possibly including  employee training sessions, transferring the harassers, written  warnings, reprimands in personnel files, or termination, and whether or not the measures ended the harassment.") (citations omitted)  (emphasis added).


18
 In addition to challenging liability, the District appeals the trial  court's admission into evidence of portions of the DHR probable  cause report.  Curry disputes that the District preserved its objection below, Br. of Appellee at 16, and the record is unclear on the  issue.  Compare Reply Br. at 18 and JA 6-32 with JA 149-56, 37177.  Assuming arguendo the District properly objected below, its  objection was based on Rule 403, Federal Rules of Civil Procedure,  and we believe the district court's reasons are sufficient for us to  conclude that it did not abuse its discretion in admitting the  evidence.  See 9 F. Supp. 2d at 3-4.
The District also challenges the district court's failure to charge  the jury that an employee who at one time has a consensual  intimate relationship with a co-worker is obliged to tell the coworker that advances are no longer welcome.  Whether familiarity  of a sexual nature is "unwelcome" is a question of fact.  See  Meritor, 477 U.S. at 68 ("[T]he question whether particular conduct  was indeed unwelcome ... turns largely on credibility determinations committed to the trier of fact, ... [and t]he correct inquiry is  whether respondent by her conduct indicated that the alleged  sexual advances were unwelcome....").  Here, the district court  properly presented to the jury Curry's and Freeman's past history  as a factor for it to consider in determining harassment vel non.JA 743 ("The Defendant contends that Detective Curry had engaged in welcome sexual conduct with Detective Freeman and  therefore, she had a burden to inform the District when the conduct  became unwelcome, which she failed to do.").  The lapse of time  between the end of their relationship and the alleged harassment,  coupled with Freeman's persistence in spite of Curry's unresponsiveness, are sufficient to support a finding of harassment.


19
 Although her sister testified that Curry's acne was "just now  starting to clear," JA 426, Curry testified only to physical problems  that developed "when [the harassment] first started occurring."  JA  170.


20
 Wagner described Curry's paranoia as follows:  "She would do  something and immediately bring it to me for approval to see if it  was done properly.  Overly to the point where I spent a lot of time  just overlooking her work that she did because she would keep  bringing it to me."  JA 472.


Wald, Circuit Judge:

25
The Supreme Court recently defined  negligence by an employer in the Title VII context:  "An  employer is negligent with respect to sexual harassment if it  knew or should have known about the conduct and failed to  stop it."  Burlington Indus. v. Ellerth, 524 U.S. 742, 759  (1998).  There is ample evidence in this record to support the  jury's verdict that the District of Columbia was negligent in  not stopping the sexual harassment of Det. Cynthia Curry by  Det. Condwell Freeman, and that because of its negligence  Curry suffered $100,000 worth of damages.


26
At the outset, I agree with my colleagues that no finding of  liability could be sustained against the District based solely  on its conduct in the period May-August 1994, since there is  not sufficient evidence on this record that the District was on  notice of Freeman's harassing behavior until Curry's complaint in September 1994.1 I am somewhat puzzled, however,  by my colleagues' statement that "we ... reverse the district  court's denial of the District's motion for judgment as a  matter of law to the extent it encompasses that conduct."Henderson Op. at 11.  The district court was quite clear in its  denial of the District's motion for judgment as a matter of law  (j.m.l.) that "[t]here was sufficient evidence introduced at trial  that would support a finding of continued harassment after  the time Defendant claims it had notice."  Curry v. District  of Columbia, 9 F. Supp. 2d 1, 3 (D.D.C. 1998) (emphasis  added).  Since there is no reason to believe the district  court's order was based on faulty analysis, I am unclear what  exactly my colleagues are reversing, and why.


27
It appears that my colleagues, the district court, and I all  agree that the District can be found liable for harassment  which occurred after it had notice.  See Henderson Op. at 910, 11-12 n.15.  The only question before us then is whether  the damages the jury awarded Curry are "beyond all reason  or so great as to shock the conscience.  Courts may not set  aside a jury verdict merely deemed to be generous;  rather,  the verdict must be so unreasonably high as to result in a  miscarriage of justice."  Langevine v. District of Columbia,  106 F.3d 1018, 1024 (D.C. Cir. 1997) (internal quotation marks  and citation omitted).  In my view, the jury's award of  $100,000 to a police officer who suffered years of harassment  does not remotely qualify as a miscarriage of justice, whether  Curry can recover for damages incurred before November 7,  1995, as I would find, or only for damages incurred after that  date, as my colleagues find.


28
"[T]he jury's verdict will withstand challenge unless the  evidence and all reasonable inferences that can be drawn  therefrom are so one-sided that reasonable men and women  could not disagree on the verdict."  Swanks v. WMATA, 179  F.3d 929, 933 (D.C. Cir. 1999) (quotation marks omitted).  I  believe on the evidence in the record a reasonable jury could  have found the following facts.


29
Curry was harassed continually from May 1994 until she  transferred out of her unit in June 1996.  At first, the  harassment took the form of daily requests for sexual favors,  which Curry testified she told Freeman were not appreciated.2  After Curry brought this verbal harassment to her  supervisor's attention, he went to Freeman and asked him "to  stop whatever you are doing to Cindy."  J.A. at 786.  Freeman then threatened to sue Curry if she pursued a harassment complaint, and said he would "take [her] home and [her]  automobile."  J.A. at 779.  Freeman stopped making his daily  requests for sex, but instead began to harass her by glaring


30
at her in an intimidating way and by staring at her as if he  were mentally undressing her.3  After a month or two of this behavior, Curry sought a transfer out of her office to avoid  Freeman.


31
The Metropolitan Police Department investigated Curry's  complaint and concluded that there was probable cause that  Freeman was verbally harassing Curry.  However, the Department was unable to take any action against Freeman  because its investigation took roughly four months, and then D.C. law prohibited disciplining an MPD employee more than  45 working days after the Department had notice of the cause  for discipline.  MPD could not even transfer Freeman to  another unit without his consent, which he declined to give. Freeman's supervisor testified that he did not learn the results of the Department's investigation of Freeman until  trial, and expressed his view that "[i]t would gain the Department nothing for me to know" that the investigation had  found probable cause that Freeman was harassing Curry. J.A. at 537.  Similarly, a year later, when Curry complained  about the constant glaring she was experiencing, the MPD  told her that it was unable to do anything to help her.4Meanwhile, Curry was ostracized as a result of the complaints  she filed.


32
Given this record evidence, I cannot credit my colleague's  confident assertion that the District "had established an  effective complaint procedure."  Henderson Op. at 11.  The  record shows that the only results of Curry's two complaints  made a year apart were requests that Freeman stop harassing Curry (which did not stop the harassment), an investigation which substantiated Curry's allegations (but whose results were never shared with Freeman's supervisor), and the  ostracism of Curry.5


33
This meager response is not, in my view, consistent with  what courts have required of a reasonable employer under  Title VII.  "Title VII requires more than a mere request to  refrain from discriminatory conduct."  Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991).  Where evidence of harassment  exists, an employer cannot avoid liability by simply making  known a general policy against harassment.  See Jackson v.  Quanex Corp., 191 F.3d 647, 665 (6th  Cir. Sept. 9, 1999);  Adler v. Wal-Mart Stores, Inc., 144 F.3d  664, 676 (10th Cir. 1998) ("Courts have explained that simply  indicating to a perpetrator the existence of a policy against  harassment is usually insufficient."); cf. J.A. at 342-43 (Capt.  Dreher testifying that "in the aftermath" of Curry's complaint, he "let it be known verbally to my officials to pass  along that it wouldn't be tolerated in the workplace").  This  court has previously found that agency managers should  "promptly take all necessary steps to investigate and correct  any harassment, including warnings and appropriate discipline directed at the offending party."  Bundy v. Jackson,  641 F.2d 934, 947 (D.C. Cir. 1981) (Wright, J.);  accord  Yamaguchi v. United States Dep't of the Air Force, 109 F.3d  F.3d 1475, 1482 (9th Cir. 1997) (remedial measures must be  reasonably calculated to end the current harassment and to  deter future harassment).


34
It is undisputed that Freeman was never disciplined for his  harassment.  At the very least, a reasonable juror could  conclude that the failure to take any action against Freeman  for his verbal harassment contributed to Freeman's decision  to continue to harass Curry by staring at her. "Employers  send the wrong message to potential harassers when they do  not discipline employees for sexual harassment."  Ellison,  924 F.2d at 882.  "Title VII does not permit employers to  stand idly by once they learn that sexual harassment has  occurred.  To do so amounts to a ratification of the prior  harassment."  Fuller v. City of Oakland, 47 F.3d 1522, 1529  (9th Cir. 1995).  "In such instances, the combined knowledge  and inaction may be seen as demonstrable negligence, or as  the employer's adoption of the offending conduct and its  results, quite as if they had been authorized affirmatively as  the employer's policy."  Faragher v. City of Boca Raton, 524  U.S. 775, 789 (1998).  Thus I believe that under precedent  from the Supreme Court, this court, and our sister circuits,  the District could be held liable for failing to take action to deter future harassment once it had knowledge of the harassment in September 1994.


35
A reasonable juror, admittedly, might have concluded that  the District's "admonitions" were sufficient to deter future  harassment.  Compare Yamaguchi, 109 F.3d at 1483 ("[T]o  avoid liability an employer must take at least some form of  disciplinary action against a harassing co-worker ...."), with  Knabe v. Boury Corp., 114 F.3d 407, 412 n.8, 414 (3d Cir.  1997) (remedy may be adequate as a matter of law even  where it fails to stop harassment, so long as it could reasonably have been expected to deter harassment;  punitive action  not always necessary). But surely a reasonable juror would  not be compelled to reach that conclusion.  See, e.g., Adler,  144 F.3d at 676 ("Repeat conduct may show the unreasonableness of prior responses.");  Paroline v. Unisys Corp., 879  F.2d 100, 106-07 (4th Cir. 1989) (reasonable fact finder could  conclude that severe warning, delayed salary increase, and  similar punitive measures not adequate remedies), vacated in  part on other grounds, 900 F.2d 27 (4th Cir. 1990) (en banc).


36
My colleagues override the jury and the district court in  finding that the District cannot be held liable for harassment  occurring between September 1994 and November 1995 by  viewing the two phases of Freeman's harassment, the verbal  phase and the staring phase, as totally separate and unconnected.  It is of course possible that a reasonable juror could  also view the situation in such a fragmented way, so that  Curry's complaint about the verbal aspect of Freeman's behavior provided no notice to the District that Freeman might  continue to harass her in other ways, and thus the District  had no remedial obligation following notice of the verbal  harassment because it did not recur in that precise form. But cf. Fuller, 47 F.3d at 1529 (city always has obligation to  take remedial actions against harasser once it learns of  harassment);  Paroline, 879 F.2d at 107 (employer's knowledge of prior harassment sufficient to impute liability for  later harassment in the absence of adequate remedial measures).


37
However, it certainly cannot be assumed that all reasonable  jurors would have to view the evidence of harassment in that  compartmentalized way.  In fact, it does not appear the MPD  itself understood Curry's complaint about glaring as completely separate from the earlier harassment.  If it had, then  nothing would have barred the Department from disciplining  Freeman for the glaring--because the 45-day clock was  triggered only when the Department learned of a reason for  discipline.  Yet, when Curry complained that Freeman's glaring was creating a hostile work environment, the MPD told  her, in less than 40 days, that it was unable to take any action  to solve the problem.  The only reasonable explanation for  that powerlessness is that the Department was already on  notice of Freeman's behavior, but had failed to act within 45  days.6  Thus, the MPD believed that Freeman could not be  transferred in December 1995, because the MPD had been on  notice of his harassment since September 1994.  But yet my  colleagues say that Curry cannot recover for pre-November  1995 damages, because the MPD was not on notice of Curry's  ongoing problems with Freeman until November 1995.  That  result may make sense to my colleagues, but surely not every  reasonable juror would be compelled to so conclude.


38
My colleagues also assert that the District could not reasonably be faulted during the period when the verbal harassment had ceased and Curry had not yet complained to anyone  of the staring.  But I do not believe that Title VII law  supports such a demarcation between the two types of  harassment such that the District's obligation to monitor the  type of harassment it knew about necessarily stops at the line where a new kind of harassment begins.  The District was on  notice that an identified employee had been harassing a coworker;  it may therefore be held responsible for failing to  prevent the continuation of that harassment, whether in the  same form or a different form, and whether reported or not.See Sharp v. City of Houston, 164 F.3d 923, 931 (5th Cir.  1999) (police department liable for harassment despite lack of  complaint by plaintiff where officer had made harassing remarks in past to other women officers;  "despite having been  put on notice that [he] might be a problem, [the department]  had made no effort to supervise or constrain his behavior");Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777,  784 (10th Cir. 1995) (prior harassment of other women can  serve as sufficient notice to hold employer liable for harassing  conduct of co-worker);  Paroline, 879 F.2d at 107 (same);Yates v. Avco Corp., 819 F.2d 630, 635-36 (6th Cir. 1987) (fact  that company was aware that supervisor had harassed women  in past and took no remedial action could establish constructive notice of later harassment because it was evidence of  harassing tendencies and of the failure of company's antiharassment policy).


39
Finally, I believe my colleagues misunderstand the extent  of an employer's liability for co-worker harassment.  Judge  Henderson's opinion appears to suggest that an employer's  liability only extends to the harassment which occurred after  the point at which it had knowledge.  But that is not what the  cases say.  See Fuller, 47 F.3d at 1529 (employer who fails to  take appropriate remedial action after notice liable for past  harassment even where harassment stopped after employer  received notice);  see also Knabe, 114 F.3d at 413-14 (considering whether employer's response was sufficiently reasonable to avoid liability despite fact that plaintiff had quit the  day employer responded to her complaint).  In fact, the  Supreme Court has also indicated that an employer's failure  to remedy harassment may constitute ratification of past  harassment:  "[T]he combined knowledge and inaction may be  seen as ... the employer's adoption of the offending conduct  and its results, quite as if they had been authorized affirmatively as the employer's policy."  Faragher, 524 U.S. at 789;  accord Fuller, 47 F.3d at 1529 (employer's failure to act  "amounts to a ratification of the prior harassment").  Thus,  regardless of the District's knowledge vel non of Freeman's  harassment prior to November 7, 1995, its failure to act after  that date could be found to constitute "adoption" of Freeman's conduct up to that point.7


40
In the end, we have before us here a classic case of  harassment.  The evidence shows that Curry was harassed on  a continuous basis from May 1994 until June 1996, with only  partial relief occasioned by her repeated efforts to transfer  away from Freeman, which were temporarily successful in  1995 and finally successful in 1996.  The MPD knew of  Curry's allegations in September 1994, and concluded they  were justified in January 1995.  However, MPD was prohibited from doing anything to effectively address the problem by  the 45-day rule, so the only actions ever taken in response  were vague requests that if harassment were going on, it  should stop.  Unsurprisingly, given these circumstances, the  harassment did not stop, although it changed to a more subtle  form.  This case falls squarely within Ellerth:  "An employer  is negligent with respect to sexual harassment if it knew or  should have known about the conduct and failed to stop it."524 U.S. at 759;  see also Faragher, 524 U.S. at 789 ("[c]ombined knowledge and inaction may be seen as demonstrable  negligence ....").  Thus, I cannot agree with my colleagues  that Curry can recover only for harassment which occurred  after November 7, 1995.


41
In sum, I believe that the jury would have been fully  justified in awarding Curry compensation for damages suffered before November 1995.  But, more than that, I do not  believe that the award of $100,000 was excessive, even adopting my colleagues' view that compensable damages could only  accrue beginning in November 1995.8  Judge Henderson  states that "the jury considered the harassment beginning in  May 1994."  Henderson Op. at 15.  The jury returned a  general verdict.  There is simply no evidence in the record as  to when the jury found that damages began to accrue, and  this court is required to uphold the jury's verdict if there is  any reasonable basis for it.9  Judge Henderson's opinion  appears to assume that because the jury heard evidence of  damages dating back to 1994, the jury's damage award was  based on the period 1994-1996, and therefore the jury would  have awarded less had it confined itself to the period after  November 1995.  This inference is irrelevant to our review of  a jury verdict.  We do not sit to second-guess the jury;  we  can only order remittitur if the verdict is "beyond all reason."Langevine, 106 F.3d at 1024.  A reasonable jury could well  have found that the harassment which occurred from November 1995 to June 1996, when Curry left the unit, caused  Curry to suffer $100,000 in damages, especially when viewed  against the backdrop of Freeman's prior harassment.


42
Similarly, Judge Henderson's opinion appears to place  great weight on the fact that Curry's physical problems began  to manifest themselves in 1994, "nearly one full year, if not  more, before she reported the glaring."  Henderson Op. at  15.  The fact that Curry had suffered prior to November in  no way detracts from her damages from November onward. Curry testified she had nightmares and felt the need to sleep with her gun next to her pillow.  Her skin broke out, she had  headaches, and lost her appetite.  Other witnesses testified  that she became extremely nervous and would call her sister  almost every night, very late, crying.


43
Moreover, I can find no evidence to support the suggestion  that damages ceased to accrue in June 1996.  See Henderson  Op. at 15 (evidence on damages went beyond "the eight  months for which the District can be held liable").  William  Wagner supervised Curry after her transfer in June 1996,  and he testified that, even in the absence of Freeman, she  was "really emotionally upset."  J.A. at 470.  "[S]he was  having problems concentrating with the things that I was  trying to discuss with her, almost to the point that she was in  tears."  Id. at 471.  Curry's sister testified that Curry's skin  problems were, in March 1998, "just now starting to clear."Id. at 426.  Curry's sister also testified that Curry's face was  still "drawn in ... this is not what my sister looked like  [before 1994]."  Id. at 427.  Similarly, her pastor testified  that he had been counseling her, trying to help her regain her  confidence, from late 1994/early 1995 at least until trial in  March 1998.


44
The question then that the jury had to decide was what  amount would compensate Curry for the damage she suffered  from Freeman's harassment that can be attributed to the  District's negligence.  There was substantial evidence before  the jury that Curry's damages continued until the time of  trial, and perhaps have continued to this day.  Cf. id. at 806  (court instructing jury that it could award damages for "emotional and mental anguish and anxiety the Plaintiff has suffered or will continue to suffer") (emphasis added).


45
"A court must be especially hesitant to disturb a jury's  determination of damages in cases involving intangible and  non-economic injuries."  Langevine, 106 F.3d at 1024.  I see  no basis for concluding that an award of $100,000 for eight  months of harassment and years of stress is "beyond all  reason."  Cf. id. ($200,000 for largely emotional distress  damages from false arrest not excessive);  Smith v. Northwest  Fin. Acceptance, Inc., 129 F.3d 1408, 1417 (10th Cir. 1997) ($200,000 emotional distress damages not excessive where  plaintiff's symptoms included headaches, sleeplessness, and  frequent crying);  Kientzy v. McDonnell Douglas Corp., 990  F.2d 1051, 1062 (8th Cir. 1993) (damages of $125,000 for past  emotional distress and $25,000 for future emotional distress  from discriminatory discharge not excessive);  see also Ruiz v.  Gonzalez Caraballo, 929 F.2d 31, 34 (1st Cir. 1991) ("[T]ranslating legal damage into money damages--especially in cases  which involve few significant items of measurable economic  loss--is a matter peculiarly within a jury's ken.") (quotation  marks omitted).


46
In sum, I do not believe that Curry could only recover  damages which accrued after November 7, 1995.  Even if I  did, however, I would still find the jury's verdict a sustainable  and reasonable one.


47
For these reasons, I would affirm the district court's decision in its entirety and I concur in the decision not to require  remittitur of the jury verdict.

Randolph, Circuit Judge, concurring:

48
I join all of Judge  Henderson's opinion except for Part II-B.  For the reasons  given by Judge Wald regarding the period after October  1995, I agree that the jury's award of $100,000 must be  sustained.



Notes:


1
 This is not to say, of course, that actual notice is always  required to hold an employer liable for co-worker sexual harassment under Title VII.  See, e.g., Williamson v. City of Houston, 148  F.3d 462, 465 (5th Cir. 1998) ("[c]onstructive notice can result from  showing the pervasiveness of the harassment.") (internal quotation  marks omitted);  Adler v. Wal-Mart Stores, Inc., 144 F.3d 644, 673  (10th Cir. 1998) ("[M]any courts have held that the pervasiveness of  sexual harassment can properly lead to an inference of knowledge.");  Hall v. Gus Constr. Co., 842 F.2d 1010, 1016 (8th Cir. 1988)  (incidents of harassment so numerous that employer held liable for  not discovering and ending harassment).


2
 Curry stated she did not complain at first about Freeman's  behavior because, based on what she had seen happen to other  female police officers, she did not think it would be good for her  career if she complained.  She seems to have been prescient in that  regard.


3
 I disagree with the gratuitous dicta in Judge Henderson's  opinion that Freeman's glares may not have been sufficiently severe  to be actionable under Title VII.  See Henderson Op. at 12-13 n.16.Whether harassing behavior was sufficient to create a hostile work  environment is an intensely fact-based question.  See Howard v.  Burn Bros., 149 F.3d 835, 840 (8th Cir. 1998) ("Once there is  evidence of improper conduct and subjective offense, the determination of whether the conduct rose to the level of abuse is largely in  the hands of the jury.");  Paroline v. Unisys Corp., 879 F.2d 100,  105 (4th Cir. 1989) ("Whether Moore's harassment was sufficiently  severe or pervasive is quintessentially a question of fact."), vacated  in part on other grounds, 900 F.2d 27 (4th. Cir. 1990) (en banc).The fact that other courts have found harassing behavior which  included staring not to be actionable does not establish any sort of  generalization that "a co-worker's staring, even when accompanied  by physical touching, is not conduct severe enough" to be actionable.  Henderson Op. at 12 n.16.  There was ample evidence  presented that Freeman's harassment affected Curry's ability to  work, and it is far from clear that no reasonable person would have  been affected by Freeman's intimidation tactics.  Cf. Shepherd v.  Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir. 1999)  (finding boorish behavior not actionable because it did not undermine plaintiff's workplace competence);  see also Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 536 n.18 (7th Cir. 1993) (mere  presence of an employee who has engaged in particularly severe  harassment can create hostile work environment);  Ellison v. Brady, 924 F.2d 872, 883 (9th Cir. 1991) (same).


4
 An officer did ask Freeman to stop harassing Curry, but that  request had no effect.


5
 In its effort to support the notion that the District acted  "quickly and reasonably," Judge Henderson's opinion considerably  overstates the evidence about what Freeman's supervisors said to  him.  See Henderson Op. at 11.  Far from issuing "clear, prompt  [and effective] admonitions," id., Freeman's supervisors merely  indicated in general terms that sexual harassment was not acceptable, and that if it was going on it should stop.  See J.A. at 340-43,  496.  There was no evidence that once the MPD concluded that  Freeman had been harassing Curry it said anything more serious to  him.  In fact, the Department did not think it necessary to share  the results of the investigation with Freeman's supervisor.  Further, I do not consider the "admonitions" to have been effective or  adequate, since their only apparent effect was to convert Freeman's  harassment from verbal requests for sex into silent but intimidating, sexually evaluative stares.


6
 Judge Henderson suggests the possibility that it was the MPD's  collective bargaining agreement (CBA) that prevented the transfer  of Freeman in December 1995.  See Henderson Op. at 6 n.7.However, Lt. Peacock's testimony was that the CBA prevented the  MPD from transferring an officer as an alternative to discipline,  where discipline was barred by the 45-day rule.  See J.A. at 31112.  Where the 45-day rule was not a barrier to discipline, Sgt.  Major testified that transfer of the offending officer was the usual  practice when there was probable cause to believe one officer had  sexually harassed another officer.  See J.A. at 537-38.


7
 There is no reason why this approach is inconsistent with Title  VII's " 'primary objective' " of preventing harassment, Faragher,  524 U.S. at 806, since an employer who acts appropriately once it  has knowledge will never be liable.  On the contrary, it would be  strange if the particular date on which an employee made a futile  complaint had significance for the amount of damages for which she  could recover.


8
 It is not at all clear on what basis Judge Henderson's opinion  asserts, without citation to the record, that Curry's contact with  Freeman after November 1995 was "isolated, incidental ... and  passing."  Henderson Op. at 16.  Freeman testified that during this  time his office was roughly 25 feet from her desk.  J.A. at 592.  I  do not see how that fact supports an inference that the two had  merely isolated and passing contact with one another, particularly  given our deferential standard of review for a jury verdict.  See  Swanks v. WMATA, 179 F.3d 929, 933 (D.C. Cir. 1999).


9
 Thus, there is no basis in the record for the assertion that "[t]he  jury verdict necessarily determined the District's liability for the  verbal sexual harassment."  Henderson Op. at 11-12 n.15.


