
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1224                                 DARLENE F. MORRISON,                                 Plaintiff, Appellee,                                          v.                    CARLETON WOOLEN MILLS, INC. and MICHAEL RILEY,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                   [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]                                             _____________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                         and Boyle,* Senior District Judge.                                      _____________________                                 ____________________            David  J.  Kerman  with  whom  Robert  Lewis  and Jackson,  Lewis,            _________________              _____________      ________________        Schnitzler & Krupman were on briefs for appellants.        ____________________            Peter B. Bickerman with  whom Robert J. Stolt, Walter F. McKee and            __________________            _______________  _______________        Lipman & Katz, P.A. were on brief for appellee.        ___________________                                 ____________________                                    March 19, 1997                                 ____________________                                    ____________________        *Of the District of Rhode Island, sitting by designation.                      CAMPBELL, Senior Circuit Judge.   These appeals and                                ____________________            cross-appeals relate  to actions heard in  the district court            arising from  federal and state claims  of sexual harassment,            sex  discrimination, and disability discrimination brought by            Darlene  F.  Morrison  against her  employer  Carleton Woolen            Mills,  Inc. (the  "Company"),  and two  of her  supervisors,            Michael Riley and Lee Moody.  We affirm certain parts of  the            district court's judgment and reverse others.                                          I.                      In  Count  I  of  her  amended  complaint, Morrison            alleged  that she  was subjected  by  Carleton and  the other            defendants to  sexual harassment,  in violation of  the Maine            Human  Rights Act,  5 M.R.S.A.    4551, and Title  VII of the            Civil Rights Act of 1964, 42 U.S.C.   2000e et seq.  In Count                                                        __ ___            II,  she alleged  violation  of the  same  state and  federal            statutes  by reason of sex discrimination.  In Counts III and            IV,  Morrison alleged  that defendants  had subjected  her to            discrimination on account of  disability, in violation of the            Maine Human  Rights Act  and the Americans  with Disabilities            Act of 1990 (the "ADA"), 42 U.S.C.   12101 et seq.                                                         __ ___                      Trial before a jury began  in the district court on            October  4, 1994.1  The Title VII claims of sexual harassment                                            ____________________            1.   By consent  of the parties,  a United States  Magistrate            Judge  presided   over  the   jury  trial   and  subsequently            determined the various  non-jury issues.  28 U.S.C.    636(c)            (West 1993).                                         -2-            (Count  I) and  sex (gender)  discrimination (Count  II) were            presented to the jury  but only insofar as these  claims were            based upon conduct  occurring on or after  November 21, 1991,            the  effective  date  of the  1991  Civil  Rights  Act.   See                                                                      ___            Landgraf v. USI  Film Products, 511 U.S. 244 (1994).  The ADA            ________    __________________            disability  discrimination  claim  (Count  IV)  was  likewise            presented to the  jury.   However, the Maine  law claims  for            sexual   harassment,   sex   discrimination  and   disability            discrimination, and the Title VII claims for pre-November 21,            1991  conduct did not go to the jury but rather were reserved            for later decision by the magistrate judge.                      During the  jury trial, the court, upon defendants'            motion, dismissed as a matter of law all the claims (jury and            non-jury) against Moody and many of the claims against Riley,            to  wit, the  claims  for sexual  harassment (Count  I) after            November 21, 1991, for sex discrimination (Count II), and for            disability  discrimination (Counts  III and  IV).   The court            denied the  Company's motions  to dismiss the  claims against            itself.                      On October 14, 1994,  the jury returned verdicts in            Morrison's  favor on  her  Title VII  post-November 21,  1991            sexual  harassment claim  (Count  I) and  her ADA  disability            claim  (Count IV).    The jury  awarded  Morrison $50,000  in            compensatory damages  and $100,000 in punitive  damages.  The                                         -3-            jury  found against Morrison, and in favor of the Company, on            her Title VII gender discrimination claim (Count II).                      On April 10, 1995,  the court issued its Memorandum            of Decision deciding the non-jury claims that it had reserved            for  bench determination.  On  Count I, the  court found that            Morrison had been subjected to sexual harassment sufficiently            severe  and pervasive  to create  a hostile  work environment            prior  to  November  21,  1991.   Consequently,  it  ruled in            Morrison's favor, and against  the Company and Riley, on  her            Maine  law sexual harassment claim, and also on her Title VII            sexual  harassment claim  for conduct  prior to  November 21,            1991.  The court  assessed a civil penalty for  $10,000 under            state law.  5 M.R.S.A.   4613(2)(B)(7) (West Supp. 1996).                      On Count II (gender discrimination) the court found            no  incidents  of gender  discrimination before  November 21,            1991.   It, therefore, ruled  in favor of  the defendants and            against  Morrison under  Title  VII.   The court  determined,            however     contrary to the jury's Title VII verdict    that,            after  November  21, 1991,  Morrison  had  been subjected  to            gender discrimination,  finding the Company liable  under the            Maine Human  Rights Act.2   The  court declined,  however, to                                            ____________________            2.    In making  this finding,  the court  specifically noted            that,  in differing  with  the jury,  it  did not  intend  to            suggest that  the jury lacked sufficient  evidence from which            to conclude  contrary to the  court's findings.   "The  Court            simply  disagrees  with  the  jury's  conclusion  in  certain            respects."                                         -4-            award  her back pay, because  it would be  duplicative of the            jury's damages award.                      Finally, as to Count III, the court determined that            plaintiff had  not been disabled within the  meaning of Maine            law, and hence  found against Morrison and  for defendants on            the Maine law disability claim.  In determining that Morrison            was not disabled, the  court found that the Company  "did not            perceive her to be  unable to perform a major  life activity,            specifically  work."   The court  noted that the  Company had            only perceived Morrison as incapable of performing the single            position of floorperson.                      Defendants'  post-trial motions  for judgment  as a            matter of law, for  new trial, and other relief  were denied.            Plaintiff's own motion for new trial was also denied.                      The Company and  Riley appeal, and Morrison  cross-            appeals, from  the judgment  and the  rulings on the  various            motions  below.   Morrison  has  since  expressly waived  her            cross-appeal from  the jury's adverse verdict  under Count II            (gender discrimination).                                         II.                      The evidence at trial,  construed in the light most            favorable to Morrison, showed essentially the following.                      On  August  23, 1983,  Morrison  was  hired by  the            Company to  work as a  "spinner" in the  spinning department.            Later that year, Morrison bid on and was awarded the position                                         -5-            of "sewer."   Months later,  she bid on  and was  awarded the            position  of  "coner"  in  the  yarn preparation  department.            Morrison held  this position  from approximately May  of 1984            until January of 1987.  All the positions held by Morrison up            to this time were traditionally filled by female employees.                      In December  1986, Morrison bid on  the position of            "temporary  floorperson"  on  the  third shift  in  the  yarn            preparation  department.  At  this time, Riley  was the shift            supervisor  on  the  third  shift  in  the  yarn  preparation            department.  Riley was angry with Morrison for bidding on the            floorperson position.   Prior to December  1986, Morrison had            once  had an angry encounter with Riley when they both worked            on the second shift.   Riley had screamed at her  for leaving            her machine to go to the restroom.                      A month later,  Morrison was awarded the  temporary            floorperson  position.  As  shift supervisor,  Riley approved            her transfer  to the position and  certified her satisfactory            completion of the  thirty-day probationary period.   However,            he had no  discretion under the  Company's contract with  the            Union to  refuse  a position  to  the most  senior  qualified            person who bid on it, which, in this case, was Morrison.                      When Morrison told Fred DeVaudreuil, the department            supervisor and  Riley's superior,  that she had  been awarded            the floorperson  position, he asked her  to reconsider taking            it.   He indicated that  the Company  was not happy  with her                                         -6-            getting the job.   Morrison  believed that  he was  concerned            thatshewould beinjured andassured himthatshe wouldbe careful.                      In April 1987,  seven female employees  of Carleton            filed a formal grievance against  Riley, charging that he was            harassing employees  at the Company by  yelling, making false            accusations  and   threatening  their  jobs.     The  Company            responded by  stating  that it  did not  condone shouting  by            anyone, but that employees  must recognize that they are  not            at liberty "to ignore management directives or to be tardy in            following them."   Ultimately,  this  grievance was  resolved            informally, with Plant Manager  Everett Owens advising  Riley            about the need to be more "low key."                       In  February 1988,  Morrison bid  on the  permanent            opening  for the position of floorperson  on the third shift.            Once again,  Riley became  very angry, telling  Morrison that            the job  was not for her,  and that she was  taking jobs away            from men.   Days after  Morrison was awarded  the floorperson            bid, Riley told her that she was going to regret it, and that            sooner or later he was going to get her out of the job.                      The floorperson  is responsible for  bringing boxes            of  yarn on bobbins to the machine operators, for taking full            cones  of  yarn, weighing  them  and  storing them,  and  for            changing the warp  beams.   Changing a warp  beam, which  can            weigh  up to 1,100 pounds when full of yarn, involves several                                         -7-            steps.   First, the warp  is removed from  its cradle  with a            crow-bar type of tool.  The warp then drops about two inches,            after which it must be rolled to where it can be picked up by            a hydraulic lift and moved into a storage area.                      Morrison remained in the floorperson position until            March  of 1989.  During that  time various incidents occurred            that are relevant to the present action.                      After changing  a warp beam, Morrison  went to wash            her hands.  When  she left the restroom moments  later, Riley            was waiting for her.  He accused her of being in the restroom            for a long time and threatened to write her up.                      Riley  took  Morrison   into  the  plant  manager's            office.  He then told her that he was a big person within the            Company and that "any woman would be proud to have a man in a            position like this."                      Several female employees  complained that the  room            was too hot because of the machinery.  They asked Riley if he            could open more of the ceiling vents.  Riley said he  thought            that they were just having "hot flashes", and walked away.                      Riley threatened  to fire  Morrison if she  did not            drive  his  girlfriend  (and future  wife)  and  co-employee,            Juanita Courtney, to her house from work during her shift.                      Riley  told several  people in  Morrison's presence            that the  other female floorperson,  Linda Paul, was  able to                                         -8-            stay in such  a position  because she and  Moody patted  each            other on the rearend.                      Morrison reported a  problem with a box  of yarn to            Riley, who told her she was probably so dumb she  created the            problem herself.                      Riley told Morrison that Courtney was pregnant.  He            said "you thought  I was too old, didn't  you", and "I showed            you."                      In March 1989, Morrison  accepted a position as the            medical clerk for  the Company  nurse, Lucille  Turner.   Two            months later, Morrison  decided that she wanted to  return to            her former position.                      In October 1989, Morrison bid on a temporary coner,            fixer and tender ("fixer") position.  Riley flew into a rage,            telling Morrison  that she was  "stepping out of  bounds" and            that "her place was in the kitchen."                      Thereafter,  Morrison  bid  on  a  permanent  fixer            position.  Riley told her fellow workers that if she got  the            job, she would have to travel to a training seminar and share            a  motel room with Moody  and another male  worker.  Morrison            voided her bid  in an  effort to stop  speculation about  the            seminar, and returned to her floorperson position.                      In  June 1990, a  first shift  floorperson, William            Rogers,  asked Morrison to swap shifts with him.  Even though            Riley  had moved to the  first shift, Morrison  agreed to the                                         -9-            switch.  Riley told Morrison that he "was not going to put up            with any bullshit on the first shift" and that he "had enough            bitches in  the first shift."   Riley also called a  male co-            worker  over to where he and Morrison were standing and began            patting him in  the rearend, and told her that she would have            to get used to such behavior in the first shift.                      Riley and  Moody moved their desk  near the women's            restroom, explaining that they wanted  to watch the usage  of            the restroom so that  they could write female workers  up for            abusing  the  privilege of  using the  restroom.   Also, they            regularly made comments about  Morrison bending over boxes to            the point where she felt very uncomfortable having to do so.                      Other incidents occurred between the spring of 1990            and the fall of 1991.                      Riley handed  Morrison a  piece of paper,  which he            said was an  application for  a fixer position.   She  turned            over  the paper and discovered, to her annoyance, that it was            entitled "Application for a Piece of Ass."                        Riley gave  Morrison an ink-blot that, when folded,            depicted various  sexual acts involving persons  and animals.            He called her  a "dumb  broad" for being  unable to  properly            fold it, after  which he folded it for her.   Morrison became            very upset and called Riley a "filthy pig."                      Riley told Morrison that  Moody wanted to do "funny            things" to her  body, although Moody later denied ever making                                         -10-            such  a  comment.    On another  occasion,  Moody  approached            Morrison and told her that he would like to see her naked.                      Moody handed Morrison a document entitled "Canadian            Condom  Marketing  Board", which  contained sexually-oriented            attempts at humor.   Morrison  asked Moody why  he was  doing            this,  and he replied something  to the effect  that he takes            his orders from the office.                      Riley  asked Morrison if she knew what a man with a            ten-inch penis eats for breakfast.  When she did not respond,            he proceeded to tell her what he had eaten for breakfast.                      Riley  gave Morrison a  document entitled "Proposed            Restroom Policy."   This  document, another crude  attempt at            humor, informed employees that  if they occupied the bathroom            stalls  for more  than  three minutes,  certain events  would            occur,  including  the taking  of  their  photographs in  the            stalls.                      Riley regularly screamed and hollered at the  women            employees in  the yarn preparation department, but not at the            men.  If any  of the women indicated that they might complain            about  his behavior, he would tell them "pay-back's a bitch."                      During this  period of time, Morrison  went, on two            occasions, to  the office  of Annette McGowan,  the Company's            personnel  manager,  to   complain  about  Riley's  harassing            behavior.  On  neither occasion was Morrison allowed to speak                                         -11-            with  McGowan.   McGowan's secretary  told Morrison  that she            would  not be allowed to see McGowan without her supervisor's            permission,  even  though  Morrison  informed  her  that  her            complaint was about Riley, her supervisor.                      In May 1991, Morrison injured her shoulder at work.            She  kept   working,  but   was  eventually   diagnosed  with            tendinitis,  and told  to take  ibuprofen and  learn  to pace            herself.                      In October 1991, Morrison  injured her back at home            while  she was making her bed.  Morrison went to the Belgrade            Regional  Health  Center  where  she  saw  Gretchen  Hill,  a            registered  nurse-practitioner.    Hill found  that  Morrison            appeared  to have  a lower lumbar  muscle strain  without any            disc problems.   Hill  informed Turner, the  Company's nurse,            that Morrison would be absent for one week.                        Morrison  returned to see Hill  one week later.  By            that time, the pain was  gone, although she was  experiencing            some stiffness.   Hill  was considering allowing  Morrison to            return to work, so she called Turner again.  Turner suggested            that Morrison should be kept out of work  for two more weeks,            a suggestion that Hill accepted.                      On November 8, 1991,  Hill issued Morrison a return            to  work slip  for full  activity.   Hill testified  that she            would  have preferred Morrison to work  in a limited capacity            for a short period of time,  but she felt that Morrison could                                         -12-            successfully return to  work without restriction.   Following            another  conversation with Turner,  Hill wrote a  new note on            November 13, 1991, which suggested that Morrison be placed on            light  duty work  from November 11  through November  22, and            then return to regular duty.                      Turner and  McGowan met with Morrison  and informed            her that the Company had no light duty work available at  the            time.   McGowan then  offered Morrison the  option of bidding            into a  different position, or accepting a layoff slip, which            would entitle her to unemployment benefits.  Morrison did not            want  to lose  her floorperson  seniority  by bidding  into a            different position, so she accepted the layoff.                      Morrison believed that she had medical clearance to            return  to regular duty after  November 22, 1991,  and so, on            November  25,   1991,  she  went  to   the  yarn  preparation            department and sought to  punch in.  Morrison could  not find            her  own timecard, and asked  Moody where she  could find it.            Moody responded by saying, "Girlie, I don't know.  You're not            coming back to my department.  Go see nursie."  Morrison felt            "stupid."                        Turner told  Morrison that she remained  on layoff,            and  that she had no authority to  allow her to work.  Turner            advised  Morrison to  speak with  McGowan.   McGowan informed            Morrison that she did not have the authority to return her to            work absent medical clearance, and suggested that she see Dr.                                         -13-            Barron, the Company's physician.   On November 26,  1991, the            next day, Morrison went to see Dr. Barron.                      The examination of Morrison consisted of the  nurse            taking her  blood pressure,  temperature and weight,  and the            doctor  asking her how she felt.  Dr. Barron advised Morrison            that  he would be going to view the floorperson position, but            he reported to her  (and wrote in  his office notes) that  he            saw no physical reason why she could not return to work.                        After  he  viewed  the  floorperson  position,  Dr.            Barron wrote the following notation:                      "I  feel that  [Morrison] can do  most of                      the  work without any problems.  However,                      when  it   came  to  watching   the  warp                      removed, I  felt  that this  was far  too                      much for  a woman  with tendinitis  and a                      back  problem.   I understand  that these                      warps  weigh in  the neighborhood  of 500                      pounds  and  the  manipulation of  moving                      them onto  a hydraulic lift  is certainly                      more than she  can do.  Over a  period of                      time,  I feel that  she would be crippled                      doing this job.  With tendinitis and back                      problems within a year she will be out of                      work    and    on    disability.       My                      recommendation  is that she not be put on                      this type of job."            Dr. Barron did not speak to Morrison's treating  physician or            her  nurse-practitioner.     Dr.  Barron  disregarded   their            opinions   which  indicated  that  Morrison  was  capable  of            fulfilling  her  duties,  because   they  had  not  seen  the            floorperson position.   At the  time of  trial, Morrison  was            still  not permitted to  work in the  floorperson position on            the basis of Dr. Barron's evaluation.                                         -14-                      On  November  23, 1992,  Morrison returned  to work            after she decided to bid  on a fixer position.   She received            the position,  although after a  month she was  "bumped", was            laid  off for a few  weeks, accepted a  creeler position, and            eventually returned as a  fixer.  After a dispute  over being            paid  as   a  temporary  fixer,  Morrison   finally  attained            permanent  fixer status.   Since  she returned,  Morrison has            worked  primarily  on   the  third  shift,  under   different            supervisors from  Riley and  Moody.  Morrison  testified that            she had no problems  with Riley and Moody after  she returned            as  they  stayed away  from  her.    The Company's  personnel            manager  told Morrison  that  she had  spoken  to the  people            Morrison would be working with and that they would not harass            her about her former complaints.  Morrison was to report back            any complaints she might have.                       Morrison  further  testified, however,  that, after            her return, most of  her co-workers would no longer  speak to            her.  She  felt that this  was due to  the fact that most  of            those  who   spoke  to   her  were  harassed   afterwards  by            supervisors  for doing so.  Also, the third shift supervisor,            Ernest  Clark,   often  criticized   Morrison  for   her  job            performance.  The Company,  moreover, never asked Morrison to            substitute  when  the  floorperson  was  absent, even  though            employees  with   less  experience  were  asked   to  do  the            floorperson's job.   And finally, Morrison  became very upset                                         -15-            and angry when  she saw  a petition,  expressing support  for            Riley and Moody, being circulated among Carleton employees.                                         III.                      Defendants appeal from  the adverse jury  verdicts,            from  the adverse findings of the district court and from the            denial of various motions including their motion for judgment            as a matter of law.                      A federal district court may  not set aside a  jury            verdict and direct the entry of a contrary verdict, unless no            reasonable jury could have returned a  verdict adverse to the            moving  party.  Jacques v. Clean-Up Group, Inc., 96 F.3d 506,                            _______    ____________________            509 (1st Cir. 1996).  In making this determination, the court            examines the  evidence adduced  at  trial in  the light  most            favorable  to the  nonmoving  party,  drawing all  reasonable            inferences in  its favor.    Id.   On appeal,  we review  the                                         ___            district court's  determination  de novo,  applying the  same                                             __ ____            standards.  Id.                        ___                      Our review  of a  district court's own  findings of            fact is for clear  error only; we review its legal rulings de                                                                       __            novo.  Damon v. Sun  Co., Inc., 87 F.3d 1467, 1483  (1st Cir.            ____   _____    ______________            1996).                                         IV.            A. Sexual Harassment (Count I)            ______________________________                      Title VII of the Civil Rights Act of  1964 provides            that  it is an "unlawful  employment practice for an employer                                         -16-            . . . to discriminate against any individual  with respect to            his   compensation,  terms,   conditions  or   privileges  of            employment  because  of  such  individual's  . . . sex."   42            U.S.C.    2000e-2(a)(1) (West 1994).  The  Maine Human Rights            Act,  likewise,  provides  that  it  is  unlawful  employment            discrimination  for an  employer to  discriminate against  an            employee on the basis  of sex "with respect to  hire, tenure,            promotion,  transfer,  compensation,  terms,   conditions  or            privileges of  employment . . . ."   5 M.R.S.A.    4572(1)(A)            (West Supp. 1996).3                      In   1980,   the   Equal   Employment   Opportunity            Commission  ("EEOC")  promulgated guidelines  specifying that            sexual  harassment is  a  form  of employment  discrimination            based on  sex in violation  of Title  VII.  See  29 C.F.R.                                                           ___            1604.11 (1996).  Under Title VII, "unwelcome sexual advances,            requests  for sexual  favors,  and other  verbal or  physical            conduct  of a  sexual  nature constitutes  sexual  harassment            when:  (1)   submission  to  such  conduct   is  made  either            explicitly  or   implicitly  a   term  or  condition   of  an            individual's employment; (2) submission  or rejection of such                                            ____________________            3.   The Maine  courts have  relied on the  federal case  law            surrounding  Title  VII for  the  purpose  of construing  and            applying the provisions of  the Maine Human Rights Act.   See                                                                      ___            Bowen v. Department of Human Servs., 606 A.2d 1051, 1053 (Me.            _____    __________________________            1992).    We, therefore,  apply the  same legal  standards in            considering  whether or  not the  evidence was  sufficient to            support  determinations  under  both  the  state  and federal            statutes.                                         -17-            conduct  is  used  as  the  basis  for  employment  decisions            affecting such  an individual;  or (3) such  conduct has  the                                                   ______________________            purpose  or  effect  of  unreasonably  interfering  with   an            _____________________________________________________________            individual's  work performance  or creating  an intimidating,            _____________________________________________________________            hostile  or  offensive working  environment."    29 C.F.R.               ___________________________________________            1604.11(a) (1996) (emphasis added).                      In Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57                         _________________________    ______            (1986), the Supreme Court confirmed that a violation of Title            VII  can  be  established  through evidence  of  an  abusive,            hostile or offensive work environment.  Quoting from the EEOC            guidelines, the  Supreme Court  stated that the  existence of            sexual harassment must be assessed "in light of the record as            a whole and the totality  of the circumstances."  Id.  at 69;                                                              ___            see  also  Harris v.  Forklift Sys.,  Inc.,  510 U.S.  17, 23            _________  ______     ____________________            (1993) (relevant  factors, though no single  one is required,            include the  frequency  of the  discriminatory  conduct;  its            severity; whether it is threatening or humiliating, or a mere            offensive utterance;  and whether it  unreasonably interferes            with an employee's work performance).                      In Lipsett  v. University of Puerto  Rico, 864 F.2d                         _______     __________________________            881, 897-98 (1st Cir. 1988) (quoting Meritor Savs. Bank, FSB,                                                 _______________________            477 U.S. at 67)4, this court held that, for sexual harassment                                            ____________________            4.   We note that the  plaintiff's claims in Lipsett actually                                                         _______            proceeded  under Title IX  of the Civil Rights  Act of 1964.             This  court,   however,  viewed  the  standards   for  sexual            harassment  claims under Title  IX to be  equivalent to those            used under Title VII.  See Lipsett, 864 F.2d at 899.                                     ___ _______                                         -18-            to  be  actionable,  "it  must  be  'sufficiently  severe  or            pervasive  to . . . create an  abusive working environment.'"            See  also  Harris, 510 U.S. at  21.  We said that an employer            _________  ______            "is  liable  upon a  finding  of  hostile environment  sexual            harassment perpetrated by its  supervisors upon employees  if            an   official   representing   that  institution   knew,   or            . . . should  have known,  of  the  harassment's  occurrence,            unless that official can show that he or she took appropriate            steps to halt it."  Lipsett, 864 F.2d at 901.                                _______                      Claimants  under  Title VII  were,  until recently,            limited to  the equitable  remedies of injunctive  relief and            back  pay.  The 1991 Civil Rights Act, which became effective            on November 21, 1991,  amended Title VII, and, for  the first            time,  authorized  individuals alleging  intentional unlawful            discrimination  to  seek  compensatory and  punitive  damages            against their employers.   The 1991  Act also conferred  upon            Title VII  plaintiffs the right to  a trial by jury.   See 42                                                                   ___            U.S.C.    1981a(b)-(c) (West 1994).  In Landgraf, the Supreme                                                    ________            Court held that the right to such damages and to a jury trial            did not apply to conduct that occurred prior to the effective            date  of the Act, i.e. prior to November 21, 1991.  Landgraf,                                                                ________            511 U.S. at 244-45.                      Pursuant  to Landgraf, Morrison's  Title VII sexual                                   ________            harassment  claim was tried to the jury only insofar as based            upon conduct on and after November  21, 1991.  Insofar as the                                         -19-            Title  VII  harassment claim  was for  conduct prior  to that            date,  it  was  tried  to  the  magistrate  judge,  who  also            determined in its entirety  Morrison's claim that the alleged            sexual  harassment  violated  the  Maine  Human  Rights  Act.            Because  Title VII  damages were  only recoverable  for post-            November 21, 1991 sexual  harassment, that date assumes great            importance here.                 1. Before November 21, 1991                    ________________________                      During the  pre-November  21, 1991  period,  as  to            which the magistrate judge rather than the jury was the trier            of fact,  the court  determined under Count  I that  Morrison            "was subjected to sexual  harassment sufficiently 'severe  or            pervasive enough to create  an objectively hostile or abusive            work  environment'", quoting  Harris, 510  U.S. at  21.   The                                          ______            court also found that Morrison "'subjectively perceive[d] the            environment  to be abusive.'   Id."  This hostile environment                                           ___            was found to have existed prior to November 21, 1991, and the            Company  was found  to have  known about  it, or  should have            known about it, because  it was so pervasive.   The Company's            plant manager and plant supervisor5 were found to have worked            in the same general  area as plaintiff and Riley,  "and could                                            ____________________            5.   Carleton and  Riley point  out in their  appellate brief            that there is no  such position as "plant supervisor"  at the            Company,  nor  was there  any  testimony at  trial  about any            comparable  position.    Notwithstanding any  error  in  this            particular,  we  uphold  the  court's  finding  of knowledge.            Infra.            _____                                         -20-            not have missed the discriminatory  atmosphere that permeated            the department."  Based on these conclusions, the court found            against the Company and Riley on Morrison's claims of hostile            environment sexual harassment under Maine law and under Title            VII  for conduct occurring before November 21, 1991.  We find            ample record evidence to sustain these findings.                      As  an  initial  matter,  we  turn  to  defendants'            contention that the federal and state statutes of limitations            do not allow us to look at any  conduct antedating the middle            of  1991  in  support  of  the  hostile  environment  claims.            Section  2000e-5(e)(1) of  Title VII provides  that claimants            must file a charge of discrimination with the EEOC within 300            days of the alleged  discriminatory act.  42 U.S.C.    2000e-            5(e)(1) (West 1994).   Section 4613(2)(C) of  the Maine Human            Rights  Act states that "[t]he action  shall be commenced not            more than two  years after the act of unlawful discrimination            complained of."  5 M.R.S.A.   4613(2)(C) (West 1989).                      Since Morrison  filed her  charge with the  EEOC on            April  23, 1992, and her complaint with the district court on            September 3,  1993, the  appellants argue that  only acts  of            sexual  harassment occurring  after  June 27,  1991, for  her            federal  claim, and  after September 3,  1991, for  her state            claim, should  be considered in reviewing  the sufficiency of            the  evidence.  We disagree.   The district  court found that            the hostile environment  at Carleton had existed for a number                                         -21-            of  years  prior to  November 21,  1991 and  continued beyond            September 3, 1991.  We have held that there is no prohibition            on recovery  for earlier conduct if  the "systemic violation"            extends into the limitation period. See Jensen v. Frank,  912                                                ___ ______    _____            F.2d  517, 523 (1st Cir. 1990).  Here, the systemic violation            continued without  interruption from  the late  1980's onward            through September  3, 1991.   It was,  therefore, appropriate            for the district court to look at  defendants' conduct dating            back to the  1980's, and  we may do  likewise, in  evaluating            Morrison's federal and state sexual harassment claims.                      From  the late 1980s  into the fall  of 1991, there            was ample  evidence of crude, demeaning and sexually-oriented            behavior  by  Riley  and  others  directed  at  Morrison.   A            rational factfinder could conclude that the harassment was so            severe  or  pervasive  that  it created  a  work  environment            abusive  to Morrison because of her gender.  Harris, 510 U.S.                                                         ______            at 22.  There  is, indeed, evidence that the  harassment went            so far as to adversely affect Morrison's ability to function,            by  making  her  fearful  to  apply  for  certain  employment            opportunities and undermining her  mental and emotional well-            being.                      Even so, the appellants  argue that the Company, as            an entity,  cannot be  held liable  because Morrison  has not            shown  that it knew, or should have known, of the harassment.            Morrison did not complain of harassment to the Company during                                         -22-            the period,  even though  there were procedures  available to            file such complaints.  This is a closer question, but we find            sufficient evidence to support  the finding of the magistrate            judge that the  Company knew  or should have  known that  the            hostile  environment existed  despite plaintiff's  failure to            use official procedures to complain.  In April  1987, several            female employees  of Carleton  had filed a  grievance against            Riley,  alleging that he was  harassing them.   At that time,            Plant  Manager Everett Owens told Riley to be more "low key",            but  never  took any  action  to discipline  or  more closely            supervise him.   In the years before the trial  of this case,            Union President Gwendolyn  Gatcomb brought several complaints            concerning  Riley's  behavior  to the  attention  of  Company            personnel.   In spite  of these  complaints, Riley  and other            Carleton  supervisors  were allowed  to  continue  with their            responsibilities  and  their  harassing  conduct.    Morrison            testified  that  she had  tried to  bring  the matter  to the            attention of Personnel Manager  Annette McGowan, but had been            unable  to  see her.   The  magistrate  judge found  that the            layout of the mill was such that higher management "could not            have missed the discriminatory  atmosphere that permeated the            department."  We are satisfied that the evidence sufficiently            supports  the   court's  above   finding,  and  can   see  no            justification to disturb it on appeal.                 2. After November 21, 1991                    _______________________                                         -23-                      For us to  affirm the  jury's award  of damages  to            Morrison  on her Count  I Title VII  sexual harassment claim,            the  record  must reveal  evidence  of  conduct on  or  after            November 21, 1991      the  effective date of the  1991 Civil            Rights  Act        sufficient   to  have  created  a  hostile            environment  as that term is used under Title VII.  Landgraf,                                                                ________            511 U.S. at 244-45.  Hostile environment sexual harassment is            a  particular  species of  sex  discrimination.   The  EEOC's            regulations, as  noted,  describe it  as "[u]nwelcome  sexual            advances,  requests for  sexual favors,  and other  verbal or            physical conduct of a sexual nature . . . when . . . (3) such            conduct has the purpose or effect of unreasonably interfering            with  an   individual's  work  performance  or   creating  an            intimidating, hostile, or offensive working environment."  29            C.F.R.    1604.11(a) (1996).   The Supreme Court  speaks of a            "workplace . . . permeated with 'discriminatory intimidation,            ridicule and  insult' . . . that is  'sufficiently severe  or            pervasive to  alter the  conditions of a  person's employment            and  create an  abusive working  environment.'"   Harris, 510                                                              ______            U.S. at 21 (citations omitted).                      In  the  present  case, the  jury  heard  extensive            evidence of the vulgar pre-November 21, 1991 incidents which,            as we have held, amply support the magistrate judge's finding            of hostile environment sexual harassment during that  earlier            time.   However, the jury's  task was to  determine Title VII                                         -24-            liabilities and damages  for the  period from   November  21,            1991  onward.  The jury  could take the  earlier conduct into            account  only to the extent  it was legally  relevant to what            later  happened     for  example,  to help  prove  the intent            behind an act committed after November 21, 1991, or the act's            likely effect on someone  like Morrison.  See, e.g.,  Fed. R.                                                      ___  ____            Evid. 402, 403, 404(b),  406, 412.   The earlier abuse is  no            substitute for proof of actual sexual harassment occurring in            the post-November  21, 1991 period.   Because we  cannot find            evidence  of sexually  abusive conduct  in this  later period            sufficient  to support the jury's Title VII award under Count            I, we are obliged to reverse that part of the verdict.                        From  October 19,  1991  until  November 23,  1992,            Morrison  was  either on  medical  leave  or on  layoff  from            Carleton, hence she could not, during that period,  have been            subjected to workplace abuse,  nor could her work performance            at  Carleton have  been  interfered with  by abusive  conduct            while there.  The only incident during that period that might            be  construed as  workplace  sexual  harassment  occurred  on            November  25, 1991, when Morrison went to Carleton seeking to            return to work.   Moody refused to let her  punch in, telling            her she had  first to get medical clearance.   In turning her            away, Moody called Morrison  "Girlie" and told her to  go see            "nursie",  raising the  question whether  use of  these terms            made Moody's remark so  offensive as to support a  finding of                                         -25-            hostile environment  sexual harassment.   In order  to assess            Moody's probable intent when  he spoke as he did  on November            25,  1991 and  the reasonable  effect of  the phraseology  on            Morrison,  see Harris,  510 U.S. at  22 (citing  Meritor Sav.                       ___ ______                            ____________            Bank,  FSB,  477 U.S.  at 67),  the  jury could  consider the            __________            evidence of  Moody's and others' prior  offensive conduct and            remarks in the period before November 21, 1991.  In light  of            that history, the jury  could reasonably construe Moody's use            of the  terms "Girlie" and "nursie" as demeaning, rather than            as merely light-hearted banter, and could also determine that            Morrison  had reason to be offended.  Morrison testified that            Moody's remark, made at  a time when "everybody was  lined up            getting ready to punch in", made her feel "stupid."                      We are  unable to  conclude, however,  that Moody's            "Girlie-nursie" remark was, by  itself, a sufficient basis to            hold  the  Company liable  to  Morrison under  her  Title VII            sexual  harassment claim.   Morrison was  not working  at the            time.  Her contact  on this one  day with the Company's  work            environment was fleeting.   There is no evidence  the Company            knew  of or  sanctioned Moody's  particular phraseology.   We            know  of  no case  where a  single,  brief encounter  of this            mildly offensive sort, at  a time when the plaintiff  was not            actually working, and hence could not be affected in her work            performance and  conditions of  employment, has been  held to            create a sexually hostile  workplace environment.  See, e.g.,                                                               ___  ____                                         -26-            Harris, 510 U.S. at  21 (conduct must be severe  or pervasive            ______            enough  to  create an  objectively  hostile  or abusive  work            environment affecting employee's  conditions of  employment);            Chamberlin v. 101 Realty,  Inc., 915 F.2d 777, 783  (1st Cir.            __________    _________________            1990) (single or isolated remarks  do not establish a hostile            environment).  Even assuming this incident, when coupled with            the more serious pre-November  21, 1991 incidents, might lead            a  rational  jury  to   conclude  that  the  earlier  abusive            environment would have remained the same through November 25,            1991, the fact that Morrison was not working at Carleton from            November 21, 1991 until November 23,  1992    a year later               makes  this conclusion  largely irrelevant  to her  claim for            damages  during this  period.  Morrison  could not  have been            injured by hostility at a workplace she did not attend.6                      We realize that Morrison contends that she accepted            layoff status  only because  of the Company's  refusal during            this  period to let  her return to  her floorperson position.            Morrison insists that the  refusal, while supposedly based on            health  concerns, was  actually based  on the  Company's bias            against women  working as  floorpersons.  The  jury, however,            specifically  rejected Morrison's  Count  II,  Title VII  sex                                            ____________________            6.    Obviously, an  award  of $150,000  in compensatory  and            punitive damages  would be patently excessive  for one mildly            offensive  remark.    Even  supposing  the  workplace  itself            remained potentially abusive  during Morrison's absence, this            would  be irrelevant while she  was on layoff  status and not            present.                                         -27-            discrimination claim  premised on such a  theory, finding for            the Company on Count  II.  The magistrate judge,  contrary to            the jury,  later upheld Morrison's  sex discrimination  claim            under Maine law, holding that the Company's refusal to  allow            _______________            Morrison to go  back to her floorperson  position was gender-            based  and  discriminatory.     But  the  jury's  verdict  is            conclusive  on the part of the Count II claim seeking damages            under Title  VII.  The jury found for Morrison on her Count I            claim of  hostile environment  sexual harassment, but,  as we            discuss here, there was insufficient evidence of abuse during            the  post-November 21, 1991 period for us to affirm the award            of damages under that theory.7                       Following the  period of  over a year  during which            she did not work at the  Company (from October 19, 1991 until            November  23, 1992), Morrison finally returned  to work.  But            the  record covering  the period  after Morrison's  return to            work on  November  23, 1992  provides scant  support for  her            hostile environment claim.  When she returned, she accepted a            different,  somewhat higher-paying position8, and reported to                                            ____________________            7.    The  jury's finding  against  Morrison  under Count  II            refutes any argument that  the jury based its Count  I sexual            harassment   verdict  on   a   finding  that   Morrison   was            discriminated against  when denied the opportunity  to return            to  the floorperson  position.  Cf.  Chamberlin, 915  F.2d at                                            __   __________            782-83.            8.   The  Company's personnel manager testified  that, at the            time of  trial, a  fixer  was paid  $9.64 per  hour, while  a            floorperson  was  paid  $8.54  per hour.    Morrison  herself            testified that a  similar pay difference existed in 1989 when                                         -28-            new  supervisors.   There is  no evidence  that, in  this new            position,  her  supervisors, or  any  other  person for  that            matter,  subjected  her   to  "discriminatory   intimidation,            ridicule  and insult", Harris, 510  U.S. at 21,  much less to                                   ______            sexually   offensive,  embarrassing  or   vulgar  conduct  or            remarks,  or other sex-based conduct or  remarks, such as had            occurred prior to November 21, 1991 when she was working as a            floorperson  under  Riley.   The Company's  personnel manager            advised  her that  employees  had been  warned  to treat  her            fairly and equitably,  and that  she was  to report  anything            offensive  immediately  so   that  it  could   be  corrected.            Morrison did not thereafter  complain of sexual harassment to            Company personnel.   Morrison conceded that  her old nemeses,            Riley and Moody, stayed away from her, and never harassed her            after she returned to work.  Morrison, nonetheless, points to            certain incidents  that  occurred during  this later  period,            which,  according  to  her,  gave  rise  to  a  hostile  work            environment at Carleton.                      Morrison  testified that  most of  the  people with            whom  she had worked  for years would no  longer speak to her            when she  returned to work  in November 23,  1992, ostensibly                                            ____________________            she  had  briefly worked  as a  fixer.   There  was  a period            shortly after  her return  when she  was "bumped",  laid off,            returned  as  a creeler,  and  ultimately  restored to  fixer            status.  Morrison and  the Company thereafter skirmished over            her fixer pay  scale, whether it was temporary  or permanent;            eventually she got the permanent rating.                                         -29-            because discouraged by  management from  doing so.   The  few            that  did were reprimanded  by their  supervisors afterwards.            Morrison felt  that some  of her  co-workers would  no longer            cooperate  with  her,  thereby   making  her  job  much  more            difficult, and that one of her new supervisors, Ernest Clark,            would occasionally assign her  excessive work.  Ernest Clark,            according to Morrison,  would also follow her around and look            for flaws in her work, and would often blame her for mistakes            that  were not of her own doing.  Morrison further complained            that,  for  some  time after  she  had  completed a  training            period, she  received temporary pay, instead  of regular pay,            for her work as a fixer, and that, despite her seniority, she            never was asked to  fill in for those employees  with higher-            ranking jobs  within the  Company.  Lastly,  Morrison claimed            that  she saw  a  petition expressing  support for  Riley and            Moody circulating throughout the  Company, an event that, she            says, led her to seek professional counselling.                        Morrison argues that she does not need to show that            management's conduct  during this later period was "expressly            sexual"  in  order  to  establish  a  sexually  hostile  work            environment based  on gender discrimination.   We accept that            many different  forms of  offensive behavior may  be included            within  the   definition   of  hostile   environment   sexual            harassment.  See Spain v. Gallegos, 26 F.3d 439, 447 (3d Cir.                         ___ _____    ________            1994) (employee  can show  that there  is a sexually  hostile                                         -30-            work    environment    "without   proving    blatant   sexual            misconduct.").  However, the  overtones of such behavior must            be, at the very least, sex-based,  so as to be a recognizable            form of sex discrimination.  McKinney v. Dole, 765 F.2d 1129,                                         ________    ____            1138  (D.C.  Cir. 1985).    Merely  because a  supervisor  is            overbearing or  fellow employees  unsociable and hard  to get            along  with, does not suffice  unless underlying motives of a            sexual  or  gender  discriminatory  nature   are  implicated.            Spain, 26 F.3d at 449.            _____                      The  post-November  23,  1992  conduct  alleged  by            Morrison  occurred over  a year  after the  earlier sexually-            explicit misconduct  by the  other supervisors in  her former            position.    The later  conduct, as  said,  was not  the kind            associated  with  a  claim  for  hostile  environment  sexual            harassment.   See, e.g., Gross  v. Burggraf  Constr. Co.,  53                          ___  ____  _____     _____________________            F.3d 1531, 1546  (10th Cir. 1995) (employee did not establish            a gender-based  hostile environment by  showing that employer            reprimanded  her in  front  of other  employees, grilled  her            about some plans to bring discrimination charges against him,            and  told her "she  was skating on  thin ice.").   It was not            shown  that   Supervisor  Clark's  harshness  was   based  on            annoyance with her  as a  woman, or because  he regarded  the            fixer position as off limits for women.  A connection between            Morrison's gender and the incidents she complains of  was not            established.   The record contains no  evidence that Morrison                                         -31-            complained to the  Company that  she was  being subjected  at            this  time to further  sexual harassment or  that the Company            knew  or  should  have   believed  that  Morrison  was  being            subjected  to  sexual  harassment   then.    If  the  Company            deliberately  sought to  isolate or  punish Morrison  for her            earlier complaints of harassment,  by telling other employees            not  to speak  to her,  such conduct  might have  supported a            claim   for   unlawful  retaliation,   but  not   for  sexual            harassment.9   The evidence  presented by Morrison  is simply            insufficient to  establish a post-November  21, 1991 sexually            hostile work environment created  by severe or pervasive sex-            based harassment.                      Morrison seeks to overcome  the deficiencies in the            evidence  by  contending  that the  more  recent,  non-sexual            incidents could be linked to the pattern of vulgar, sexually-            related  misconduct that  occurred at  Carleton prior  to the            effective  date of the 1991 Civil Rights Act.  Morrison urges            that  the later incidents could be evaluated by the jury, not            in  isolation, but rather as  a continuation of  what she and                                            ____________________            9.   Title VII of the Civil Rights Act of 1964 has a separate            statutory provision, not at issue here, making it an unlawful            employment practice for  an employer to discriminate  against            an individual  because of his  or her having  opposed another            unlawful  practice or made a charge under the subchapter.  42            U.S.C.    2000e-3(a) (West 1994);  see also Fennell  v. First                                               ___ ____ _______     _____            Step  Designs,  Ltd.,  83  F.3d  526,  535  (1st  Cir.  1996)            ____________________            (outlining the elements of a retaliation claim).                                         -32-            other employees encountered  at the  Company before  November            21, 1991.                      This point  might have arguable  merit relative  to            Moody's "Girlie-nursie" remark on  November 25, 1991, were it            not for the isolated nature of this incident, occurring as it            did when Morrison was  on continuous leave, hence not  at the            workplace so as  to be exposed to a  hostile environment.  As            to the events after  her return to work on November 23, 1992,            the pre-November 21, 1991  harassment was too remote in  time            and  character  to  transform  the  later  conduct  into  the            different  kind of behavior needed to support a damages claim            for  hostile  environment  sexual harassment.    Morrison, by            then, was  working in a new position  with other supervisors.            To  establish that  she  was entitled  to  damages for  being            subjected to  hostile environment discrimination  during this            later period, she had  to show some conduct within  that time            frame fitting  into a  cognizable definition of  abusive work            environment  harassment.   If this  were not so,  the Company            would  be held  liable for  conduct which  it would  not have            known  was either improper or a source of potential liability            under the "hostile environment" theory at issue.                      In light  of the foregoing, we hold  that there was            insufficient evidence from which a rational  factfinder could            conclude that  Morrison was  subjected to a  sexually hostile            work environment at Carleton after November 21, 1991.                                          -33-            B. Gender Discrimination (Count II)               ________________________________                      In  Count  II,  the  district court  ruled  in  the            Company's  favor on  Morrison's  federal claim,  finding that            there   were  no  incidents  of  sex  discrimination  against            Morrison prior to  November 21, 1991.10   The district court,                     _____            however,   held    that   Morrison   had    established   sex            discrimination after November 21,  1991, and entered judgment            in her  favor  under  Maine  law.   We  find  that  there  is            sufficient  evidence  in  the  record below  to  support  the            court's  state law  ruling  and, accordingly,  we affirm  its            judgment in this respect.                      The district  court first  found that Morrison  was            not  permitted  to  return  to her  floorperson  position  on            November  25,  1991  "because of  Lucille  Turner's,  Annette            McGowan's, and Dr. Barron's  perception that women would more            likely be  severely injured in the  floorperson position than            would men."  The record permits the inference that Morrison's            injury  was  temporary  and  not  especially  serious.    The            evidence  shows   that  Turner   convinced  Hill  to   extend            Morrison's layoff,  and later suggested that  Morrison should                                            ____________________            10.  As  with   Count  I,  the  issue   of  whether  Carleton            discriminated  because  of  gender  against   Morrison  after            November  21, 1991 in violation of Title VII was presented to            the jury.  The  jury found against Morrison on that claim, as            noted.  The magistrate  judge subsequently found otherwise on            the  same  facts for  purposes  of Morrison's  Maine  law sex            discrimination  claim,  finding  gender discrimination  after            November 21,  1991  based on  the  Company's refusal  to  let            Morrison continue in the floorperson position.                                         -34-            not be allowed to  return to the floorperson position.   When            Morrison was given the choice of either accepting a layoff or            leaving the floorperson position,  McGowan told her that "she            should have seen this  coming because . . . [the Company] did            not want [her]  on the job."  Finally, even though Dr. Barron            talked  extensively  with  Turner about  Morrison's  physical            condition, he refused to  consult with her treating physician            or her nurse-practitioner, both  of whom felt she was  fit to            perform her  floorperson duties, in recommending  that she be            kept out of the job.                      The district  court stated  that  it was  satisfied            that "a man presenting the same medical history and clearance            to return to work would have been immediately permitted to do            so."  The record  below gives credence to this  statement, as            two long-time Carleton  employees, William Rogers and  Norman            Williams, testified  that the  Company has permitted  them to            remain in  their physically-demanding jobs,  despite the fact            that they  have, respectively, a  chronic back problem  and a            ruptured cervical disc.   Moreover, Leland Rice, who,  at one            time,  worked as a floorperson  at Carleton, and  who is only            five  foot  three inches  tall and  weighs  no more  than 140            pounds, testified that he did not find any aspect of the job,            including  the removal of the warp beam, to be very difficult            to perform.    It  could  be found,  therefore,  that,  while            Carleton  seized upon  Morrison's  relatively  minor  medical                                         -35-            problems  to exclude  her from  the floorperson  position, it            allowed other male employees,  with more serious ailments and            less physical abilities, to continue working for the Company.                      It  is  true,  to  be  sure,  that  there  was also            evidence    suggesting     that    legitimate    health-based            considerations  had motivated  the Company's  decision.   But            this  is the  kind of  matter  best sorted  out by  the trial            court.  There was sufficient evidence to support a reasonable            trier's  finding that  Morrison was  rejected because  of her            gender.  The court  was entitled to conclude  that Morrison's            sex  "was  a substantial  motivating  factor  in the  adverse            employment  decision."   Cumpiano v.  Banco  Santander Puerto                                     ________     _______________________            Rico, 902 F.2d 148, 155  (1st Cir. 1990).  Finding  no error,            ____            we affirm.   We also hold  that, on remand, the  court should            reopen  the issue  of  back pay  given  our vacation  of  the            damages awards under Counts I and IV.            C. Disability Discrimination (Count IV)               ____________________________________                      In  Count  IV,  the  jury  returned  a  verdict  in            Morrison's favor on her  federal ADA claim.  When  this claim            was  submitted to the jury, the court correctly told the jury            that Morrison  could recover only  for violations of  the Act            occurring  on or after July  26, 1992, the  effective date of            the Act.  Because the record reveals no evidence of any post-            July  26, 1992  violations,  we are  obliged to  overturn the            verdict.                                           -36-                      Ever  since the  ADA became  effective on  July 26,            1992, the courts have  consistently held that the Act  is not            retroactive.  Miller  v. CBC  Cos., 908 F.  Supp. 1054,  1062                          ______     _________            (D.N.H. 1995) ("there is little doubt the First Circuit would            decline to  extend the continuing violation  theory to permit            [plaintiff]   to   recover   for  the   defendants'   pre-ADA            conduct.").  As a  result, to uphold  a claim under the  ADA,            there must  be evidence  that the claimant  was discriminated            against because of a disability on or after July 26, 1992.                      Morrison's discrimination claim, however,  is based            on Carleton's rejection of  her request, made in the  fall of            1991, to be  allowed to continue in  the floorperson position            that  she had previously held.  The Company's decision to bar            her from the position  was effectively made, and communicated            to  her, in November 1991, eight  months before the statute's            effective date.  While  Morrison grieved the decision through            her   union,  in  proceedings   strenuously  pursued  through            February  of 1992,  and  while the  grievance process  itself            appears  to  have continued  into 1993,  when the  matter was            stated  to  be  arbitrated,  its subject  was  the  Company's            alleged  unfair practice in the  fall of 1991.   Morrison has            not  pointed to  additional incidents that  took place  on or            after July 26, 1992, which constituted separate violations of            the ADA during the later period.                                             -37-                      The regulations promulgated pursuant to the ADA add            nothing to  Morrison's  claim.   These  regulations  prohibit            disability  discrimination with  respect  to "  . . . layoff,            termination, right to return from layoff, and rehiring."   29                         ___________________________            C.F.R.    1630.4(b)  (1996) (emphasis  added).   However, the            denial  of any right Morrison  had to return  from layoff was            complete  well before July 26, 1992.  Morrison was denied the            floorperson  position in the fall of 1991 after she sought to            return from  medical leave.   By  then  Morrison had  already            accepted a layoff slip in lieu of bidding on another job, and            remained on layoff until November 23, 1992, when she accepted            the "fixer" position  with the Company.   Morrison would have            us  find a continuing violation,  based on a  theory that not            restoring her to her old  floorperson position formed part of            a continuous  chain of  misconduct extending beyond  the July            26, 1992 deadline.  But the Company's inaction is not enough.            As  we  said  in  a somewhat  analogous  situation,  "'it was            incumbent upon  [her] to allege facts  giving some indication            that    the   later   refusals   were   themselves   separate            . . . violations.'"  Velazquez v.  Chardon, 736 F.2d 831, 833                                 _________     _______            (1st Cir. 1984) (quoting Goldman v. Sears, Roebuck & Co., 607                                     _______    ____________________            F.2d 1014, 1018 (1st Cir. 1979)).                      As    Morrison    does    not   demonstrate    that            discriminatory  conduct  forming a  basis  of  her ADA  claim            occurred  after  July  26,  1992,  we  need  not  decide  the                                         -38-            Company's  further  contention that  Morrison's  claim failed            because  her   purported   disability  did   not   meet   the            definitional  requirements of the Act.  There may be merit to            this and related substantive contentions, but we do not reach            them  because   Morrison's  asserted  violation  of  the  ADA            occurred prior to July 26, 1992.            D. Riley's Individual Liability               ____________________________                      In footnotes in  their briefs, the parties  contest            whether  Riley  can  be held  liable  under  Count  I in  his            individual capacity for violations of Title VII and the Maine            Human  Rights Act.  We  deal separately with  the federal and            the state aspects of this issue.                 1. Individual Liability under Title VII                    ____________________________________                      Title VII defines "employer",  in relevant part, as            "a  person engaged in an industry  affecting commerce who has            fifteen  or  more employees  . . . and  any agent  of  such a            person."    42  U.S.C.    2000e(b)  (West  1994).   There  is            controversy over  whether this  language  allows a  corporate            supervisor, such as Riley, to be sued as the "agent of such a            person."   Several circuits have held "No."  See, e.g., Tomka                                                         ___  ____  _____            v.  Seiler Corp., 66 F.3d  1295, 1313-17 (2d  Cir. 1995); but                ____________                                          ___            see id. at 1318-24 (Judge Parker's dissenting opinion).   The            ___ ___            question has no very obvious answer.                      We decline to answer it here.  The district court's            ruling that Riley was liable under Title VII for pre-November                                         -39-            21,  1991 sexual harassment (Count I) has little or no actual            impact on Riley that we can discern.  Neither the Company nor            Riley were or can be held  answerable in damages for the pre-            November  21, 1991 conduct, and  it is not  apparent that any            other available type of federal relief can be applied against            Riley notwithstanding  the court's  determination that  he is            liable under Title VII.  In such circumstances, and given the            absence  of  developed  argument  by  the  parties and  of  a            reasoned disposition  of this question by the court below, we            are not inclined to seize this  opportunity to create circuit            precedent on this relatively complex issue.                 2. Individual Liability under the Maine Human Rights Act                    _____________________________________________________                      In   finding  Riley   liable,  together   with  his            employer, under  Maine state law for  sexual harassment under            Count  I,   the  court  imposed  a   $10,000  civil  penalty.            Authority  for the penalty is found in the Maine Human Rights            Act.   5 M.R.S.A.   4613(2)(B)(7) (West Supp. 1996).  Riley's            liability for  that penalty  is apparently joint  and several            with the Company's.   The state  law judgment against  Riley,            therefore, is not  merely academic, as was the  adverse Title            VII finding, supra.                         _____                      Still, we  are disinclined to rule at  this time on            whether or not Maine law  allows individual liability.  While            arguably the different language of the Maine law more clearly            allows individual liability  than does Title VII, there is no                                         -40-            relevant state court precedent.  A  federal district court in            Maine  has  construed  the  law  as   disallowing  individual                                                  ___________            liability, relying on the  federal precedent that trends that            way.  Quiron v. L.N. Violette Co. Inc., 897 F.  Supp. 18, 20-                  ______    ______________________            21  (D.  Me.  1995).     Appellants'  objection  to  allowing            individual  recovery here was not set out in the statement of            issues  in their  brief, and  consists of  one sentence  in a            footnote, together with a citation to Quiron and a subsequent                                                  ______            case.  We have said  that a party owes this court  "developed            argumentation."   United  States  v. Caraballo-Cruz,  52 F.3d                              ______________     ______________            390, 393 (1st  Cir. 1995);  cf. Kost v.  Kozakiewicz, 1  F.3d                                        __  ____     ___________            176, 182 (3d Cir. 1993)  (casual mention in footnote, without            citation,  not  enough).    See Wright,  Miller,  Cooper  and                                        ___            Gressman, Federal  Practice and  Procedure, Vol. 16,    3974,                      ________________________________            n.1 (West 1977 & Supp. 1996).  The district court  itself did            not  have occasion  to discuss  the issue,  although appellee            concedes that  defendants  raised it  in one  of their  trial            motions.  Riley is  represented by the same attorneys  as the            Company and, for all  that appears, may never be  required by            his  employer  to share  personally  in  the  payment of  the            $10,000 penalty.                      Under   these  circumstances,  we  think  the  most            satisfactory  way  to  handle  the issue  is  to  vacate  the            individual judgment  against Riley  under Count I  and remand            with  instructions that,  if either  party wishes,  the court                                         -41-            shall reopen, and expressly  rule upon, the issue  of whether            the Maine Human Rights Act provides for individual liability.            In  so doing, the court  may, in its  discretion, certify the            question to the Supreme Judicial Court of Maine.  This course            will  ensure  either a  reasoned  decision  or a  dispositive            ruling by Maine's  highest court.   It will  also enable  the            parties and the court to drop the matter if, as the  parties'            casual treatment suggests, it is of no  practical interest to            them.                      The legal questions  of individual liability  under            both  Title VII and  the Maine statute  are significant ones.            Precisely  because this is so, we  do not wish to decide them            in the fragmented, undeveloped setting in which they appear.                                          V.                      We affirm the district  court's rulings on Counts I            and  II, except  we vacate  the finding  against  Riley under            Count I.   We reverse the jury's verdicts on Counts I and IV.            We vacate the court's amended judgment and remand for further            proceedings,  and  for  the  entry  of a  new  judgment,  not            inconsistent  with this  opinion.   Upon remand  the district            court shall reopen  the question  of back pay  and any  other            available form of  relief that may  now be appropriate  under            the affirmed claims given our reversal of the jury's verdicts            under Counts  I and  IV.   The parties shall  bear their  own            costs of appeal.                                           -42-                      It is so ordered.                                          -43-
