143 F. Supp.2d 38 (2001) | Cited 0 times | D. Maine | May 8, 2001


Plaintiff Eileen Crowley's two-count Amended Complaint alleges thatDefendant L.L. Bean Inc. discriminated against her in violation of herrights under Title VII, 42 U.S.C. § 2000e-2 et seq. (Count I)and the Maine Human Rights Act, 5 M.R.S.A § 4572 (Count II). SeeAmended Complaint (Docket No. 2). Specifically, Crowley asserts thatL.L. Bean failed to take reasonable steps to eliminate or prevent thecontinuous sexual harassment she endured from a coworker. As aconsequence of the alleged unlawful conduct, Crowley requestscompensatory and punitive damages. L.L. Bean has filed a Motion forSummary Judgment. See Defendant L.L. Bean's Motion for Summary Judgment(Docket No. 33). For the reasons that follow, the Court will denyDefendant's Motion for Summary Judgment.


Summary judgment is appropriate only if the record shows "that there isno genuine issue as to any material fact and that the moving party isentitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). "Inthis regard, `material' means that a contested fact has the potential tochange the outcome of the suit under the governing law if the disputeover it is resolved favorably to the nonmovant. . . . By like token,`genuine' means that `the evidence about the fact is such that areasonable jury could resolve the point in favor of the nonmoving party.. . .'" McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1stCir. 1995) (citations omitted). The party moving for summary judgmentmust demonstrate an absence of evidence to support the nonmoving party'scase. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91L.Ed.2d 265 (1986). In determining whether this burden is met, the courtmust view the record in the light most favorable to the nonmoving partyand give that party the benefit of all reasonable inferences. See CadleCo. v. Hayes, 116 F.3d 957, 959 (1st Cir. 1997). Once the moving partyhas made a preliminary showing that no genuine issue of material factexists, "the nonmovant must contradict the showing by pointing tospecific facts demonstrating that there is, indeed, a trialworthy issue."National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995) (citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548); FED. R. CIV. P.56(e). "This is especially true in respect to claims on issues on whichthe nonmovant bears the burden of proof." International Ass'n ofMachinists & Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196,200 (1st Cir. 1996) (citations omitted).


In March 1996, Eileen Crowley started working at the L.L. Beanwarehouse in Freeport, Maine, as a temporary, parttime employee.Plaintiffs Opposing Statement of Facts (Docket No. 38), Crowley Aff.¶ 2. In July 1996, Crowley began training as a machine operator withLeo Davis, a trainer, on the second shift. Crowley Aff. ¶ 3. A mannamed Paul Juhl also worked on the second shift. Crowley Aff. ¶ 3.Sometime in September 1996, a general discussion in the break roomconcerning the subject of vision took place, and Juhl appeared to getangry at Crowley's response to a question he had posed to her during thediscussion. Crowley Aff. ¶ 6. The veins in Juhl's neck were stickingout and he started shaking. Crowley Aff. ¶ 6.

On Sept. 25, 1996, Crowleys birthday, a group of employees and Crowleydecided to go out after work for a drink. Crowley Aff. ¶ 7. As theywere leaving the bar, a van pulled into the parking lot and out jumpedJuhl, who was showered, shaved, and dressed in clean clothes. CrowleyAff. ¶ 7. He bowed down and ceremoniously handed Crowley a bookwrapped in newspaper and a big bow. Crowley Aff. ¶ 7. In presentingthe book to Crowley, he made an elaborate, swooping gesture with hishand. Crowley Aff. ¶ 7. Crowley opened the book, which pertained toeye care, and thought that he was trying to make up for how he hadbehaved in the break room. Crowley Aff. ¶ 7. About a month later,L.L. Bean sponsored a "Team Day" at a local recreational facility.Crowley Aff. ¶ 8. At Team Day, Crowley got a cramp in her foot in thepool. Juhl grabbed her foot and started massaging it, refusing to let goof it. Crowley Aff. ¶ 8. Crowley had to forcibly pull her foot fromhim. Crowley Aff. ¶ 8; Plaintiffs Opposing Statement of Facts,Bickford Aff. ¶ 10. Also in October 1996, someone started to followCrowley home from L.L. Bean after work; driving close behind her,shutting their car lights off, and repeatedly approaching the rear of hercar. Crowley Aff. ¶ 10.

There was also a day in October 1996 when, because work was lightCrowley was allowed to leave early, before her shift was over. CrowleyAff. ¶ 11. Crowley quickly left the building, but suddenly feltsomebody running after her. When Crowley turned around, she learned thatit was Juhl. Crowley Aff. ¶ 11. Juhl wanted to show her something andhe opened the door to his van, revealing a kayak. Crowley Aff. ¶ 11.Then he pulled out an oar with a big red ribbon wrapped around it andgave it to her, explaining that she would not need to be alone "on thelake" again.1 Crowley Aff. ¶ 11. Crowley took the oar and left.Crowley Aff. ¶ 11.

In December 1996, Juhl began a pattern of giving Crowley hand-carvedwooden coins with various sayings written on them. Crowley Aff. ¶13. He continued giving her coins for several months. Crowley Aff. ¶13. If she refused to take them from him, he would throw them hard ather. Crowley Aff. ¶ 13. Also in December, Juhl would show upregularly to help her, even though he was scheduled to work in adifferent building. Crowley Aff. ¶ 14. At the time, Crowley was incharge of the "ready area" at one of L.L. Bean's warehouse facilities— Building B, Casco Receiving Center ("CRC"). Crowley Aff. ¶14. Crowley went to Keith Menard and told him about, Juhl giving hercoins and showing up in her work area when he didn't need to be there.Crowley Aff. ¶ 15. Later in December, Crowley went to a Christmasparty at Juhl's house with some of her L.L. Bean co-workers. Crowley Aff.¶ 16. Juhl watched Crowley throughout the party. Crowley Aff. ¶16. Juhl followed her and showed her a map on the wall, pointing outwhere Crowley's house was located. Crowley Aff. ¶ 16. Crowley leftthe party.2 Crowley Aff. ¶ 16.

In January 1997, Crowley began work on the third shift. Crowley Aff.¶ 18. At this time, Juhl also worked on the third shift. Crowley Aff.¶ 18. He continued to appear in her building, even when he wasn'tscheduled to be there and to hang around Crowley's work area. CrowleyAff. ¶ 18. About two weeks after Crowley started working on thirdshift, she told John Andretta — Crowley's team leader at the OrderFulfillment Center ("OFC") — about the problems she was and hadbeen having with Juhl. Plaintiffs OpposingStatement of Facts, Andretta Aff. ¶ 7,3 Defendant L.L. Bean's Statementof Undisputed Material Facts, Ex. A L.L. Bean Depo. I at 73-74. She alsotold Steve McCourt — her team leader at the CRC — aboutnumerous incidents that occurred either during work or on L.L. Beanproperty. Plaintiff's Opposing Statement of Facts, McCourt Aff. ¶¶ 5,7-10 McCourt told supervisor Tim Marong. McCourt Aff. ¶¶ 7-10. Thatsame mouth, Juhl entered Crowley's car at work without permission, anddemanded a ride from her to another building. Crowley Aff. ¶ 19. Juhlalso gave Crowley a pair of Bean boots and appeared to get angry when sherefused them.4 Crowley later found the boots on her car in the L.L.Bean parking lot. Crowley Aff. ¶ 20.5

Sometime in January 1997, Juhl waited for Crowley outside the women'sbathroom at work near the ready area at a time when he was not evenscheduled to be in that building. Crowley Aff. ¶ 23. Crowley reportedthis incident to Andretta. Crowley Aff. ¶ 23. Crowley also toldAndretta that she was afraid and that Juhl was always trying to be nearher. Crowley Aff. ¶ 21. Co-workers had started to refer to Juhl as"Eileen's little stalker." Crowley Aff. ¶ 21. Around this time, Juhlbegan to frequently park his van next to Crowley's car in the L.L. Beanparking lot. Crowley Aff. ¶ 22. If Crowley would move her car at breaktime, she would find later that he had also moved his car to be againparked next to hers again. Crowley Aff. ¶ 22. She reported this toDave Baker, a supervisor, and Andretta. Crowley Aff. ¶ 22. Also inJanuary, Juhl returned Crowley's crockpot by putting it in her car in theL.L. Bean parking lot without her permission. Crowley Aff. ¶ 25.Around this same time, an incident occurred in which Steve Chamberlain,the stock control clerk, radioed Crowley that she needed to go to theother building to work and that Juhl would give her a ride to thebuilding. Crowley Aff. ¶ 26. Crowley refused and, after Crowleyexplained the situation to Chamberlain, he did not require Crowley to goto the other building with Juhl. Crowley Aff. ¶ 27.

In February 1997, Crowley again discussed her worries and concernsabout Juhl stalking her with Andretta. Crowley Aff. ¶¶ 29-30. Otheremployees noticed that Juhl seemed to always be where Crowley was, forexample, rushing to sit beside her at meetings and breaks, and going outof his way to be near her. Bickford Aff. ¶¶ 14-15; Campbell Aff.¶¶ 5-7. Juhl would also often work in Crowley's aisle, sometimesblocking her movement. Bickford Aff. ¶ 16. Crowley also spoke to teamleader McCourt in January or February of 1997 about problems with Juhl,including, among other incidents, the boat oar, the parking his car nextto hers, his following her around at work, and his acts of blockingaisles. McCourt Aff. ¶¶ 7-9. McCourt agreed to keep an eye on Juhl andtold Crowley to contact him immediately if she had any further troublewith Juhl. McCourt Aff. ¶ 10. Crowley also notified both of her teamleaders that she was scared of Juhl. Crowley Aff. ¶ 30; McCourt Aff.¶ 9. McCourt went to supervisor Tim Marong in January or February of1997 and told him what Crowley had reported. McCourt Aff. ¶¶ 7-10.

On February 16, 1997, Juhl entered Crowley's house uninvited andunannounced. Crowley Aff. ¶ 35. He started taking off his boots, eventhough Crowley told him not to. Crowley Aff. ¶ 35. Juhl kept tryingto get Crowley to touch his sweater, gesturing to the sweater'sV-neck.6 Crowley Aff. ¶ 35. Then he tried to grab her hand.Crowley Aff. ¶ 35. Crowley started to go into the kitchen to get awayfrom his reaching for her hand; he grabbed her wrist, and released itonly when she pulled it back. After a verbal exchange, Crowley understoodthat Juhl had recently been outside her house watching her. Crowley Aff.¶¶ 35-37. Finally, Crowley was able to persuade Juhl to leave. CrowleyAff. ¶¶ 38-39. After Crowley got him out the door, she shut and lockedthe door, then ran around the house to make sure that everything waslocked.7 Crowley Aff. ¶ 41. A half anhour later, Crowley saw someone whom she thought was a woman,cross-country siding in her front yard. Crowley Aff. ¶ 44-46. At thetime, Crowley was on the phone with Tammy Bickford, another L.L. Beanemployee. Crowley Aff. ¶ 46. Suddenly Crowley saw Juhl, in a newoutfit, standing outside her kitchen window just staring, his facepressed against the window. Crowley Aff. ¶ 46. Juhl departed, but heleft his ski poles by her door. Crowley Aff. ¶ 47.

Later that night, Crowley brought Juhl's ski poles to work and gavethem to team leader Andretta. Crowley Aff. ¶ 48. She told him thatJuhl had come to her home three days in a row and that she had broughtthe ski poles in so that Juhl would have no excuse to go back to herhome.8 Crowley Aff. ¶ 48. Andretta went to Juhl and told him thatCrowley did not want him pursuing her.9 Andretta Aff. ¶ 23.Crowley also told McCourt and Marong about Juhls invasion of her home andcross-country skiing in her front yard. McCourt Aff. ¶ 16; CrowleyAff. ¶ 50. Andretta spoke to McCourt and Marong about Juhl invadingCrowley's home.10 Andretta Aff. ¶ 25. On February 17, McCourtscheduled an appointment for Crowley to meet with Pat Bressette-Long ofthe Human Resources Department ("HR"). McCourt Aff. ¶ 16; CrowleyAff. ¶ 50. McCourt also spoke to supervisor Marong about theCrowley/Juhl issue. McCourt Aff. ¶¶ 16, 28-29.

On February 17, Crowley spoke to Bressette-Long about Juhl. CrowleyAff. ¶ 51. Crowley understood that Bressette-Long wanted her tofollow the chain of command and tell the people who needed to know ifJuhl continued to harass her. Crowley Aff. ¶¶ 51, 54. During herdiscussion with Bressette-Long, Crowley reported all of the incidentswith Juhl, including his uninvited intrusion into her house, hisobserving her from outside her home, his following her home from work,the gift incidents, the act of grabbing her foot in the pool, hisbehavior at the Christmas party, other people's remarks on his behaviortoward her, and his frequent appearance near her at work.11 CrowleyAff. ¶ 52. Bressette-Long gave Crowley the L.L. Bean security phonenumber and her phone number. Crowley Aff. ¶ 53.

In March 1997, Marong discussed the home invasion with Crowley.DefendantL.L. Bean's Statement of Undisputed Material Facts. Ex. F Marong Aff.¶ 6. Marong encouraged Crowley to call the police or L.L. Beansecurity if there were any further out-of-work incidents that made heruncomfortable. Marong Aff. ¶ 6. Marong also told Crowley to callBressette-Long if she had any more problems with Juhl. Marong Aff. ¶6. Marong told Crowley that L.L. Bean would schedule her and Juhl indifferent buildings to keep them apart.12 Marong Aff. ¶ 9.Supervisor Marong instructed team leaders McCourt and Andretta to keepCrowley and Juhl in separate buildings. McCourt Aff. ¶ 18; CrowleyAff. ¶ 32.

On March 10, 1997, L.L. Bean conducted hiring for regular, part-timeemployees. Juhl was hired. Crowley was not one of the people hired forregular, part-time work. Crowley Aff. ¶ 55. On March 17, 1997, Marongcalled Bressette-Long and told her about the home invasion.Bressette-Long Depo. at 21-22, 132-83. L.L. Bean performed a criminalbackground check on Juhl that revealed that Juhl had not been convictedof a crime. Defendant L.L. Bean's Statement of Undisputed MaterialFacts, Ex. G Bressette-Long Depo. at 22. On March 24, Crowley was hiredas regular, part-time employee. Crowley Aff. ¶ 56. Crowley was toldthat her hire would be retroactive to March 10, 1997. Crowley Aff. ¶56.

L.L. Bean has two distribution/warehouse facilities in Freeport— OFC and CRC. L.L. Bean Depo. I at 220, 223. Two teams rotate on adaily basis, between the two distribution facilities. L.L. Bean Depo. Iat 220, 223. It is common practice at L.L. Bean to ask employees workingin one warehouse building to volunteer to work in another building whenthe workload is heavier there. Marong Aff. ¶ 6; L.L. Bean Depo. I at220, 223. Hence, although Crowley and Juhl were put on separate shifts inMarch 1997, this action did not keep Juhl away from Crowley. AndrettaAff. ¶¶ 27-28; McCourt Aff. ¶¶ 19-20. During the time that Juhl andCrowley were supposed to be separated, Juhl was allowed to volunteer towork in her building. Andretta Aff. ¶ 30-35; McCourt Aff. ¶¶19-20. While in that building, Juhl would get near to Crowley atdepartment meetings, go out of his way to sit next to her, and shadow herwhile she was working by going up on his machine when she went up andgoing down when she went down. Crowley Aff. ¶ 58. Throughout March,Crowley had a number of meetings with Bressette-Long to keep her informedabout Juhls activities. Crowley Aff. ¶ 57.

In April 1997, Andretta left his team leader position and was replacedby team leader Dave Baker. Crowley Aff. ¶ 61. When the change tookplace, Tammy Bickford went to the new team leader, Baker, and told himthat Juhl was stalking Crowley. Bickford Aff. ¶¶ 33-34. Around thesame time, Leo Davis was appointed to a newly created position —performance team leader. Crowley Aff. ¶ 61. Crowley reported to Bakerand Bressette-Long that Juhl was interfering with her work by blockingher in aisles with his machine. Crowley Aff. ¶ 62. For example,Crowley reported that one day while she was working up high in an areathat was not well lit, she noticed a shadow go across the lighted end ofthe aisle, looked up, and saw Juhl standing in the end of the aisle,dancing like "John Travolta in that movie Night Fever." Crowley Aff.¶ 63. Crowley met with Bressette-Long a number of times inApril and May, and specifically told her about this incident Crowley Aff.¶¶ 64-65.

In May 1997, Crowley talked to Bressette-Long and Dave Simmons aboutproblems with Juhl. Crowley Aff. ¶ 66. Bressette-Long investigatedCrowley's complaints. Defendant L.L. Bean's Statement of UndisputedMaterial Facts, Ex. H Bressette-Long Aff. ¶ 10. As part of theinvestigation, Bressette-Long interviewed Juhl and team leader Andretta.Bressette-Long Aff. ¶ 10. After talking to Andretta, Bressette-Longunderstood that the team leaders were attempting to keep Crowley and Juhlseparate at work by scheduling them in different buildings or ondifferent shifts and teams. Bressette-Long Aff. ¶ 10.13Bressette-Long, advised Tim Parker, the director of security, ofCrowley's concerns and Juhl's conduct. Parker asked security employeeMike Coughlin to investigate. Bressette-Long Depo. at 38, 127, 129, 131.As a result of Crowley's complaints and the investigation, Bressette-Longand the new third shift supervisor, Dave Simmons, met with Juhl on May12, 1997, and delivered a verbal warning to avoid contact with Crowley inthe workplace. Bressette-Long Aff. ¶ 11. Bressette-Long explainedthat Crowley was uncomfortable with Juhl's behavior, instructed him tostay any from Crowley in the workplace, and told him that any failure onhis part to try to avoid contact with Crowley would result in more severedisciplinary action by L.L. Bean. Bressette-Long Depo. at 59-60, 83-84;Bressette-Long Aff. ¶ 11.

Shortly after being given the warning, there was a request forvolunteers to go to work in another building, and Juhl was allowed tovolunteer. L.L. Bean Depo. I at 220, 223. Immediately upon arrival, Juhlwould look for Crowley and position himself near her, even if he was notsupposed to be in her area. Crowley Aff. ¶ 68. Juhl followed her inthis manner throughout May and June 1997. Crowley Aff. ¶ 68. In Juneand July 1997, Juhl would go into an aisle next to Crowley's and he wouldgo up and down on a transtacker at the same time she went up or down sothat he could see her across the shelving. Crowley Aff. ¶ 69. In lateJune or early July, Crowley was admitted to the hospital forstress-related dehydration. Crowley Aff. ¶ 70.

In July 1997, Crowley was moved from the third shift to the firstshift, and Juhl remained on the third shift. Crowley Aff. ¶ 73. Atthe end of his shift, Juhl would wait at the time clock in an apparentattempt to see Crowley. Crowley Aff. ¶ 73. Crowley tried to usedifferent time clocks to avoid him. Crowley Aff. ¶ 73. On September2, Crowley was moved from first to second shift. Crowley Aff. ¶ 74.Upon Crowley's change of shift, Juhl, instead of remaining after hisshift, started coming in early and appeared in her building duringCrowley's shift. Crowley Aff. ¶ 74. Juhl would seek Crowley out andmake contact with her or position himself near her.Crowley Aff. ¶ 74. Crowley reported his behavior to varioussupervisors, including Dave Baker, Pete Farley, Steve Gowen, Leo Davisand Keith Menard, the team leader on the second shift. Crowley Aff.¶ 74; Plaintiffs Opposing Statement of Facts, Menard Aff. ¶¶ 7-9.Also in the fall of 1997, another employee, Jimmy Campbell, went to asupervisor, Gowen, and reported the manner in which Juhl was alwaysfollowing Crowley around and was going out of his way to be near her.Plaintiffs Opposing Statement of Facts, Campbell Aff. ¶¶ 11-13.Campbell also reported to Gowen that Crowley was worried about Juhl'sbehavior. Campbell Aff. ¶¶ 11-13.

From October 1997 through December 1997, Juhl continued to overlap hisshift with Crowley's. Crowley Aff. ¶ 75. When Juhl appeared, just ashe did the other times, he tried to be physically near her, sometimesblocked her, watched her and stared at her, and would stand at the end ofthe aisle in which Crowley was working. Crowley Aff. ¶ 75. Juhlsconduct toward Crowley continued throughout the winter of 1997 and springof 1998. Weekes Aff. ¶¶ 6-8. On January 1, 1998, Crowley began to workon the first shift. Crowley Aff. ¶ 79. Juhl continued to volunteer towork in the same building as Crowley, and L.L. Bean allowed him to doso. Crowley Aff. ¶ 79. Crowley frequently encountered Juhl when theywere working in the same building. Crowley Aff. ¶ 79.

In late January 1998, Crowley, while working on the first shift andabout to return to the third shift, spoke with the first shift supervisorof replenishment, Bob Anderson, about Juhl. Anderson Depo. at 21-23.Crowley told Anderson that she could not work in the same area as Juhl.Anderson Depo. at 21-23. Anderson communicated Crowley's request to DaveSimmons, the third shift supervisor. Anderson Depo. at 23, 25, 27-28.Simmons responded that everyone should make "darn sure" that Juhl andCrowley are kept separate. Defendant L.L. Bean's Statement of UndisputedMaterial Facts, Ex. U.

In early February 1998, following the death of a friend of Crowley'sfrom cancer, Juhl gave Crowley a book on cancer prevention.14 CrowleyAff. ¶ 82. When Juhl gave Crowley the book, he pushed the book on herand tried to grab her hand while giving her the book, holding onto thebook so that their hands would touch. Crowley Aff. ¶ 83. On February17, 1998, Crowley was put back on the third shift — the same shiftJuhl worked. Crowley Aff. ¶ 84. Although employees from the thirdshift had two teams of workers who were initially assigned to work indifferent buildings, the third shift workers often ended up in the samebuilding. Plaintiffs Opposing Statement of Facts, Bickford Depo. at 91.

Juhl continued to block Crowley in the aisles where she was working,park his machine at the end of her aisle, and work near her instead ofwhere he was assigned. Crowley Aff. ¶ 85. This behavior occurred fromFebruary through April 1998. Crowley Aff. ¶ 85. Juhl also continuedto shadow Crowley with his machinery, going up in an adjoining aisle whenshe went up and going down when she went down. Crowley Aff. ¶ 86.Depending on how dense the shelves were, Crowley might suddenly findherself looking across a shelf directly at Juhl, who would be staring ather. Crowley Aff. ¶ 86. Other times, he would put himself in theposition exactly where sheneeded to work forcing her to ask him to move. Crowley Aff. ¶ 86.

On March 30, 1998, first and third shifts were consolidated into firstshift, with two teams alternating between L.L. Bean's two distributioncenters. Crowley Aff. ¶ 87. L.L. Bean scheduled both Crowley and Juhlon first shift. Crowley Aff. ¶ 87. On March 30, Juhl went to thewrong building to work — where Crowley, not he, was scheduled towork. Campbell Aff. ¶ 16. On March 31, Juhl again went to the wrongbuilding — again where Crowley, not he, was scheduled to work.Crowley Aff. ¶ 89. On April 1, 1998, Juhl arrived at Crowley'sbuilding for the third day in a row. Crowley Aff. ¶ 90. Immediatelyafter seeing Juhl, Crowley went to Baker, stating that she believed thatshe and Juhl were supposed to be in separate buildings. Crowley Aff.¶ 91. Shortly thereafter, Crowley heard Juhl being paged to go to theoffice and learned that he had been made to leave the building. CrowleyAff. ¶ 91. Not long after this incident, sometime in April 1998, Juhlgot in front of Crowley with a machine he was operating, and she askedhim to move. Crowley Aff. ¶¶ 94-95. Juhl turned, stared, and said thather request would "cost [her]." She reported the incident to Coffin, whotold Crowley that he had reported the incident to Bob Anderson. CrowleyAff. ¶¶ 94-95. On April 27, Juhl was put on the second shift, and heresumed his early arrival to overlap with Crowley's shift. Crowley Aff.¶ 96. When Juhl appeared, just as he did the other times that he hadshown up in Crowley's building, he tried to be physically near her,watched her and stared at her, and stood at the end of her aisle. CrowleyAff. ¶ 96.

On June 23, immediately after Juhl was allowed to volunteer forCrowley's shift, Juhl again tracked her down. Crowley Aff. ¶ 100. Atone point during the shift, Juhl parked his machine at the end of theaisle where Crowley was working, blocked her path, and refused to movewhen she asked him to.15 Crowley Aff. ¶ 100. Juhl was stockingcases and was in the lower end aisles. Crowley was assigned to work inthe upper aisles. Crowley Aff. ¶ 101. As she was working, Crowleybecame aware that Juhl had moved his cases and his work to the end of heraisle. Crowley Aff. ¶ 101. She returned to stock control and wasasked if she could work in the back-to-stock aisle, which was far awayfrom where Juhl was working. Crowley Aff. ¶ 101. Shortly afterstarting work in the back-to-stock aisle, Crowley noticed that Juhl wasagain cutting stock nearby, where she believed he should not have been.Crowley Aff. ¶ 101. As she got closer, she saw that he was simplystaring up at her as she was up in the air, and she told him to move sothat she could get her machine past. Crowley Aff. ¶ 101; SchlaackAff. ¶ 21. Juhl only looked up and smiled. Crowley Aff. ¶ 101;Plaintiffs Opposing Statement of Facts, Schlaack Aff. ¶ 21. ThenCrowley saw Davis, performance team leader, come into the area, motion toJuhl, and talk with him. Crowley Aff. ¶ 102. She looked down at Davisand he looked at her, and she then realized that Davis was not going totake any further action to stop Juhl from staring at her. Crowley Aff.¶ 102. Crowley told Juhl again that she needed to get by, and hestarted laughing. Crowley Aff. ¶ 103. When Crowley asked Juhl tomove, hemoved his machine just far enough out of the aisle to allow her to moveher machine. Crowley Aff. ¶ 103; Schlaack Aff. ¶ 21.

Crowley dropped her work off and began to cry. Crowley Aff. ¶ 104.It was at that point that she realized L.L. Bean was not going to takeany action to keep Juhl away from her. Crowley Aff. ¶ 104. Crowleywent back to where Juhl was working and told him that when he saw her inan aisle, he needed to stay away from her and to go work in anotheraisle. Crowley Aff. ¶ 104. Juhl got down from his machine and got onhis hands and knees, saying "I will obey your paranoid delusions."Crowley Aff. ¶ 104. Then he started bowing on the ground, makingmotions with his hand and, finally, placed himself in a prayer positionat her feet. Crowley Aff. ¶ 104. Immediately after this incident,Crowley left work.16 Crowley Aff. ¶ 105.

The next day, Anderson asked Davis to investigate what had happened.Plaintiffs Opposing Statement of Facts, Anderson Depo. at 41-42, 50.Crowley told Davis that this was an ongoing thing and that he should lookat all the documentation that Bressette-Long had compiled. Crowley Aff.¶ 106. The same day, Peter Farley and Steve Gowen told Crowley thatthey were assigning her to the dock.17 Campbell Aff. ¶¶ 22, 107.In June of 1998, Ken Libby went to Anderson and told him that if L.L.Bean did not do something about the situation between Juhl and Crowley,they would be reading about her in the headlines. Anderson Depo. at 46;Plaintiffs Opposing Statement of Facts, Libby Aff. ¶ 21. Juhl'sconduct on June 23, 1998, was found to be in violation of L.L. Bean'spolicy 3.1, "Standards of Behavior," and he was given a written warning onJune 30, 1998. Defendant L.L. Bean's Statement of Undisputed MaterialFacts, Ex. J, Written Warning to Juhl; L.L. Bean Depo. I at 192:Defendant L.L. Bean's Statement of Undisputed Material Facts, Ex. B,L.L. Bean Depo. II at 66-68; Defendant L.L. Bean's Statement ofUndisputed Material Facts, Ex. I, Batchelder Depo. at 25-27. The writtenwarning, issued by L.L. Bean supervisor Becky Batchelder, stated, inpart, that Juhl had created a "hostile environment" and had "engaged inthreatening and intimidating behavior." Defendant L.L. Bean's Statementof Undisputed Material Facts, Ex. J; Batchelder Depo. at 68. The writtenwarning also stated:

The team leaders will attempt to schedule you and Eileen in separate facilities, and you must abide by the schedule and avoid contact. if, however, business needs dictate that we schedule you in the same facility, you will avoid contact with Eileen, including remaining as far from her as possible. If, after investigation of an observed or reported incident of contact. we feel that you could have avoided the incident, we will enact further disciplinary action up to and including termination.

Defendant L.L. Bean's Statement of Undisputed Material Facts, Ex. J;Batchelder Depo. at 68.

On July 3, Crowley contacted the Freeport Police Department to file acomplaint against Juhl for harassment. Crowley Aff. ¶ 113. On July6, Crowley went to the Lewiston District Court, and obtained a TemporaryProtection Order against Juhl. Defendant L.L. Bean's Statement ofUndisputed Material Facts Ex. W; Crowley Aff. ¶ 114. On July 7,Crowley went to work at the OFC. Crowley Aff. ¶ 115. As she wasentering the building, she saw Juhl entering the building in front of herand walking into the break room. Crowley Aff. ¶ 115; PlaintiffsOpposing Statemeat of Facts, Crossman Aff. ¶¶ 30-32. Crowleyimmediately went to work. Crowley Aff. ¶ 115; Crossman Aff. ¶¶30-32. Juhl was permitted to remain in the building. Crowley Aff. ¶116; Crossman Aff. ¶ 34; Plaintiffs Opposing Statement of Facts,Davis Depo. at 40-41. When Crowley heard that Juhl was allowed to stay inthe building, she decided that she needed to go to the Freeport Police toget them the Temporary Protection Order to serve on Juhl. Crowley Aff.¶ 117. Juhl was served with Temporary Protection Order by a FreeportPolice officer at L.L. Bean. Crowley Aff. ¶ 120; Batchelder Depo. at27, 29. Upon being served the order, Juhl was suspended from L.L. Beanwith pay. Davis Depo. at 41; Batchelder Depo. at 27. On July 17, theLewiston District Court held a hearing and granted Crowley's request fora Protective Order against Juhl. Defendant L.L. Bean's Statement ofUndisputed Material Facts Ex. X; Crowley Aff. ¶ 126. L.L. Beanterminated Juhl's employment effective June 24, 1998. L.L. Bean Depo. Iat 195; Batchelder Depo. at 72.

In September 1998, Crowley filed a complaint with HR alleging thatDavis and Farley had not protected her from harassment by Juhl. CrowleyAff. ¶ 133. After hearing the results of L.L. Bean's investigationinto Davis's conduct, Crowley believed that L.L. Bean would not protecther from harassment. Crowley Aff. ¶ 135. On December 18, Crowleysigned a charge of discrimination complaint, which was received by theMaine Human Rights Commission ("MHRC") on December 21, 1998. DefendantL.L. Bean's Statement of Undisputed Material Facts, Ex. Y; Crowley Aff.¶ 137.


Among other things, Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e et seq, prohibits an employer from discriminating"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). This includes unwelcome,sex-based conduct that alters a term or condition of employment —also referred to as a hostile work environment sexual harassment.Similarly, the Maine Human Rights Act forbids hostile work environmentsexual harassment. See 5 M.R.S.A. § 4572. Both statutes set forth alimitation period in which claims must be filed in order to beactionable. As a preliminary matter, the Court will consider whether theclaims in this Amended Complaint were filed within the respective statuteof limitations. The Court will then consider whether Crowley hassatisfied the elements of her prima facie case. Finally, the Courtaddresses Crowley's punitive damages claim.

A. Time Limit Provisions of Title VII

Defendant claims that only incidents of alleged sexual harassmentoccurring after April 15, 1998, are actionable under Title VII (Count I)and that only incidents occurring after June 21, 1998, are actionableunder the MHRA (Count II). Plaintiff disagrees with Defendant's premisethat some of the acts of harassment alleged arenot actionable under either statute of limitations, and argues that theevidence in the record establishes that a continuing violation such thatall of the sexual harassment perpetrated by Juhl is actionable. In thealternative, Plaintiff insists that even if the record does not support acontinuing violation, the acts of sexual harassment that are time barredare nonetheless admissible as evidence of the discriminatoryenvironment. In addition, Plaintiff challenges the date calculated byDefendant for timely claims under Title VII asserting that even if nocontinuing violation is found, the actionable Title VII sexual harassmentin this case should be those acts that occurred after February 1998.18

Since the calculation of the statutes of limitation is relevant eitherto determine whether Plaintiff' has established an anchor claim forpurposes of a continuing violation or, in the absence of a continuingviolation, to determine what acts of discrimination may be compensable inthis case, the Court will first address the applicable statutes oflimitation. Maine law provides that an "action shall be commenced notmore than 2 years after the act of unlawful discrimination." See 5M.R.S.A. § 4613(2)(C). Plaintiff filed her Complaint with this Courton June 22, 2000. Therefore, in the absence of a continuing violation,Plaintiff must establish that an act of discrimination occurred on orafter June 22, 1998, in order to recover under the MHRA.

The parties do not agree on the date by which to calculate the statuteof limitation under Title VII in this case. In order to bring a Title VIIlawsuit in federal court, a plaintiff must first timely file a charge ofdiscrimination with either the Equal Employment Opportunity Commission("EEOC") or the relevant state or local agency that oversees theprocessing of such charges. See 42 U.S.C. § 2000e-5 (e)(1). A TitleVII lawsuit may assert only those allegations of discrimination orunlawful employment practices that occur within a statutorily specifiedperiod of time prior to the filing of a charge of discrimination. When aplaintiff files a charge of discrimination with the EEOC, that statute oflimitations is one hundred eighty days. See id. However, when a claimant"has instituted proceedings with a State or local agency with theauthority to grant or seek relief" from the charge of discrimination, thestatute of limitations is extended to three hundred days. Id.

"In order to give States and localities an opportunity to combatdiscrimination free from premature federal intervention, the Act providesthat no charge may be filed with the EEOC until 60 days have elapsed fromthe initial filing of the charge with an authorized state or localagency, unless the agency's proceedings `have been earlier terminated.'"EEOC v. Commercial Office Products Co. 486 U.S. 107, 110-11, 108 S.Ct.1666, 100 L.Ed.2d 96 (1988)(quoting 42 U.S.C. § 2000e-5 (c)). TitleVII also authorizes the EEOC to enter into work sharing agreements withstate agencies.See 42 U.S.C. § 2000e-8 (b). See also 29 C.F.R. § 1601.13(a)(3)(iii); 29 C.F.R. § 1601.13 (b)(1). In EEOC v. Commercial OfficeProducts Co., 486 U.S. 107, 108 S.Ct. 1666, 100 L.Ed.2d 96, the SupremeCourt has held that a state agency "terminates its proceedings within themeaning of 42 U.S.C. § 2000e-5 (c) if it has waived the sixty-daydeferral of filing period in a work sharing agreement with the EEOC.

Crowley filed a charge of discrimination with the MHRC on December 21,1998. Crowley Aff. ¶ 137; Defendant L.L. Beans Statement ofUndisputed Material Facts. Ex. Y. Defendant argues that this action issubject to the sixty-day filing deferral imposed by the statute, makingPlaintiffs effective date of filing February 19, 1999. Defendant L.L.Bean's Motion for Summary Judgment at 5-6. On that basis, Defendant thencalculates the three hundred-day period and asserts that only thoseincidents of alleged sexual harassment occurring on or after April 15,1998, are actionable under Title VII. Id. Plaintiff responds that thework sharing agreement between MHRC and the EEOC waives the sixty-daydeferral period so that a case is filed with the EEOC on the same day itis filed with the MHRC — in this case, Defendant's 21, 1998.19Opposition to Defendants Motion for Summary Judgment (Docket No. 37) at14-15.

Essentially, the parties disagree on whether the work sharing agreementbetween the MHRC and the EEOC waives Maine's exclusive sixty-day periodfor processing a charge of discrimination and, thus, "terminates" theMHRC's proceedings within the meaning of 42 U.S.C. § 2000e-5 (c). Thework sharing agreement between the MHRC and the EEOC provides thatcharges filed with the MHRC are "automatically dual filed with the EEOC."Plaintiffs Opposing Statement of Facts, Ryan Aff. and attached worksharing agreement at II (C). The Court interprets that provision of thework sharing agreement to waive Maine's exclusive sixty-day deferralperiod. Therefore, for purposes of calculating the statute of limitationsin this case, Maine "terminated" its proceedings on December 21, 1998,and Plaintiff may be compensated for at least the incidents ofdiscrimination that occurred in the three hundred days preceding December21, 1998, — in other words, any incident after February 24, 1998.

The record establishes at least one act alleged sexual harassmentwithin the limitations periods for both Title VII and the MHRA. Thatincident occurred on June 23, 1998, when Juhl was permitted to work inthe same building as Crowley and followed her to a remote area of thedistribution facility, blocked her way, and made an intimidatingstatement to her. In light of Juhl's prior conduct, L.L. Bean's knowledgeof Juhl's conduct, and L.L. Bean's decision to permit Juhl in the samework area as Plaintiff, the June 23 incident constitutes an actionableincident of sexual harassment within the limitations period. Cf. UnitedAir Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571(1977). Having determined that thereoccurred at least one incident of sexual harassment within thelimitations period for both Title VII and the MHRA, the Court turns tothe determination of whether Plaintiff has established a continuingviolation.

1. Continuing Violation

The continuing violation doctrine is an equitable exception that allowsan employee to seek damages for otherwise time-barred allegations.Continuing violations come in two forms: serial and systemic. L.L. Beanargues that there is not a continuing violation and, thus, the Courtcannot consider conduct outside the three hundred-day limitations periodprescribed by the statute. See 42 U.S.C. § 2000e-5(e)(1). Plaintiffresponds that there are issues of fact regarding the existence of both aserial and systemic continuing violation.

Serial Violation

A serial continuing violation occurs where the Title VII violation isof a continuing nature and the charge is filed "during the life of theviolation or within the statutory period." O'Rourke v. City ofProvidence, 235 F.3d 713, 730 (1st Cir. 2001)(quoting Pilgrim v. Trusteesof Tufts College, 118 F.3d 864, 868 (1st Cir. 1997)). See also Provencherv. CVS Pharmacy, 145 F.3d 5, 14 (1st Cir. 1998). The Court found abovethat the June 23, 1998, incident is an allegedly discriminatory eventthat occurred within the statute of limitations period; hence thatincident anchors the earlier claims. In determining whether such anongoing violation exists, the Court must consider three questions:

1) is the subject matter of' the discriminatory acts sufficiently similar that there is a substantial relationship between the otherwise untimely acts and the timely acts?

2) are the acts isolated and discrete or do they occur with frequency or repetitively or continuously?

3) are the acts of sufficient permanence that they should trigger an awareness of the need to assert one's rights?

O'Rourke, 235 F.3d at 731 (emphasis in original and citations omitted).In order to establish a serial continuing violation, the Court mustanswer the first two questions in the affirmative and the final questionin the negative. The Court finds that Crowley satisfies the first twoprongs of the test. The record establishes, and Defendant does notdispute, that there is a substantial relationship between the June 23,1998, act and Juhl's previous conduct. The alleged discriminatory conductoccurred on a weekly basis for almost two years. Juhl's conduct rangedfrom physical contact with Plaintiff, which was clearly intentional andsexual in nature to threatening, as perceived by Crowley, incidents ofstaring and stalking. The record also contains evidence that the untimelyacts of harassment were continuous in time with the timely acts thatCrowley has alleged. Plaintiff testified that Juhl's harassment continuedunabated, in various forms, from the fall of 1996 through June of 1998.In addition, other L.L. Bean employees testified that they witnessedJuhl's ongoing conduct towards Crowley.

Defendant challenges only the third prong of the serial violationtest. With respect to the issue of permanence, Defendant argues thatPlaintiff knew in early 1997 that she was being subjected to a hostilework environment and that her employer was not responding adequately, butthat she nonetheless failed to commence proceedings in a timely manner.Defendant L.L. Bean's Motion for Summary Judgment at 6-7. Plaintiffdisputes L.L. Bean's characterization of what she knew in 1997 asknowledge of sexualharassment and belief that L.L. Bean would not effectively address thesituation. Crowley Aff. ¶ 142. The record is clear that, at least byJanuary of 1997, Crowley believed that Juhl was sexually harassing her.There is, however, a genuine issue of material fact as to when Crowleybelieved mat L.L. Bean was not adequately responding to her complaintsabout Juhl. If Crowley believed prior to February 24, 1998, that L.L.Bean was not doing enough, then she is not entitled to the equitableexception to the statutory filing requirement. On the other hand, ifCrowley establishes that she did believe prior to February 24, 1998, thatL.L. Bean was adequately responding to her complaints, then she isentitled to recover for a serial continuing violation. See O'Rourke, 235F.3d at 732 (not error for jury to find that serial continuing violationexisted where plaintiff, after years of complaints to her employerregarding sexual harassment, filed an EEOC complaint after it becameclear to plaintiff that there would be no recourse through heremployer).

Systemic Violation

A continuing violation may also be established with evidence of apervasive, institutionalized system of discrimination that involvesdiscrimination through an employer's policies or practices. Defendantargues that in order for Plaintiff to successfully assert a claim forsystemic continuing violation, the law requires that "a policy actuallycaused the discrimination" and that L.L. Bean has no policy that causedthe discrimination. L.L. Bean's Reply in Support of Its Motion forSummary Judgment (Docket No. 45) at 11. Plaintiff responds that asystemic continuing violation lies in L.L. Bean's practice of theinterpretation of what constitutes sexual harassment, as well as itspractice of setting an erroneously high threshold for what an employeemust say in order for L.L. Bean leadership to recognize and investigatesexual harassment. Specifically, Plaintiff asserts that when enforcingits sexual harassment policy, L.L. Bean reacts only to conduct of anovertly sexual nature as opposed to conduct directed at a victim becauseof her sex. The alleged discriminatory conduct in this case consists ofL.L. Bean's failure to investigate or to take sufficiently aggressiveaction against Juhl after receiving complaints regarding his conducttowards Crowley.

Defendant relies on an overly narrow construction of what type ofconduct on an employers part will constitute a systemic continuingviolation — one which ignores the fact that the law allows for arefusal to rectify a discriminatory practice or a repetition of thepractice itself to constitute a continuing violation of civil rights. Therecord demonstrates that issues of fact exist as to whether L.L. Beanpermitted Juhl's allegedly harassing conduct to continue unremedied for solong as to amount to a discriminatory policy or practice on the part ofL.L. Bean. Specifically, L.L. Bean's knowledge of the harassment fromJanuary 1996 and its failure to take any meaningful steps to address thesituation until June 1998 constitute evidence of such a policy orpractice. Hence, whether L.L. Bean failed to rectify its practice of notacknowledging harassment based on sex and, if so, whether such failure torectify a discriminatory practice or a repetition of the practice itselfrenders the act a continuing violation of Plaintiffs rights remain issuesto be resolved by the trier of fact. That is, the trier of fact mustdetermine whether L.L. Bean either engaged in a company policy ofdiscrimination or refused to rectify a continuing practice thatdiscriminated on the basis of gender. Accordingly, there are issues offact to be resolved at trial regarding both types of a continuingviolation.20

B. Prima Facie Case of Hostile Work Environment

The Court now turns to the conduct at issue, and whether, if proven, itis actionable under Title VII. L.L. Bean asserts that Crowley cannotprove a prima facie case for hostile work environment sexual harassment.Plaintiff disagrees. In general terms, hostile work environment sexualharassment is unwelcome gender-motivated harassment that constructivelyalters the terms, conditions, or privileges of employment without causingtangible job detriment. To establish a prima facie case for hostile workenvironment sexual harassment, Crowley must show the following: (1) thatshe is a member of a protected class; (2) that she was subjected tounwelcome harassment; (3) that the harassment was based upon sex; (4)that the harassment was sufficiently severe or pervasive so as to alterthe conditions of her employment and to create an abusive workenvironment; (5) that the sexually objectionable conduct was bothobjectively and subjectively offensive, such that a reasonable personwould find it hostile or abusive, and that the victim in fact didperceive it to be so; and (6) that some basis for employer liability hasbeen established. See O'Rourke, 235 F.3d at 728 (citing Faragher v. Cityof Boca Raton, 524 U.S. 775, 787-89, 118 S.Ct. 2275, 141 L.Ed.2d 662(1998); Harris v. Forklift Sys., Inc., 510 U.S. 17, 20-23, 114 S.Ct.367, 126 L.Ed.2d 295 (1993); Mentor Sav. Bank, FSB v. Vinson, 477 U.S. 57,65-73, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)).

Here, it is undisputed that Crowley is a member of a protected classand that she was subjected to harassment. Thus, the first and secondelements of her prima facie claim are met. All of the other elements ofCrowley's claim are in dispute. The Court will address the remainingelements of Plaintiffs prima facie case in turn.

1. Unwelcome Harassment Based On Sex

L.L. Bean admits that Crowley was harassed by Juhl, but insists thatsuch harassment was not sexual or based on her sex. Specifically, L.L.Bean asserts that "Juhl's efforts to befriend and get near Plaintiff werenot objectively based on her sex, and thus are not actionable,irrespective of Plaintiffs subjective interpretation of his conduct."Defendant L.L. Bean's Motion for Summary Judgment at 10. Plaintiff'responds that the sexual harassment in this case was directed at herbecause she was a woman, and maintains that if she were a man, Juhl wouldnot have treated her in the same manner. Opposition to Defendant's Motionfor Summary Judgment at 4.

On this record, there is an issue of fact as to whether Crowleysuffered harassment based on sex. While a jury couldfind that the hostile conduct directed toward Crowley was Juhl's way ofattempting to make friends or find other nonsexual motivations for hisconduct, this does not eliminate the conclusion by a jury that histreatment of Crowley was based on her sex. See e.g., Oncale v. SundownerOffshore Servs., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)("Courts and juries have found the inference of discrimination easy todraw in most male-female sexual harassment situations, because thechallenged conduct typically involves explicit or implicit proposals ofsexual activity . . ."). The Court is mindful that in a case such asthis, where the issue turns to a significant degree on how words andactions were communicated, a plain record may not adequately capture whathappened on any given occasion. Words, in sexual harassment cases inparticular, can take on very different meanings depending on how thosewords were communicated and the context in which they were communicated.For example, an otherwise non-explicit word, depending on the tone of thespeaker, may come across as humorous, tongue-in-cheek, or as a sexualadvance. There is sufficient evidence in the record on the issue ofwhether Juhl's conduct was based on Crowley's sex to withstand summaryjudgment.

2. Harassment Alters the Conditions of Employment

The fourth element of the prima facie case requires that Crowley showthat the harassing conduct was sufficiently severe or pervasive so as toalter the conditions of her employment. Defendant first challenges theseverity of the harassment, asserting that "[t]he severity of Juhl'salleged harassment of Plaintiff falls far below . . . actionable sexualdiscrimination." Defendant L.L. Bean's Motion for Summary Judgment at10. Defendant also argues that Crowley "has offered no showing that thealleged harassment hindered her productivity, diminished her prospectsfor pay raises or promotions, or negatively affected her evaluations bysuperiors." L.L. Bean's Reply in Support of Its Motion for SummaryJudgment at 5.

Addressing this point, the Supreme Court has instructed that a courtshould look to all of the circumstances, including the frequency of thediscriminatory conduct, its severity, whether it is a mere offensiveutterance or physically threatening or humiliating, and whether itunreasonably interferes with the employee's work performance. SeeHarris, 510 U.S. at 23, 114 S.Ct. 367, 126 L.Ed.2d 295. The Supreme Courthas repeatedly emphasized that simple teasing. offhand comments, andisolated incidents, unless extremely serious, will not amount todiscriminatory changes in the terms and conditions of employment. See,e.g. Faragher, 524 U.S. at 787 n. 1, 118 S.Ct. at 2283 n. 1; Oncale, 523U.S. at 82, 118 S.Ct. at 1003.

The record in this case is sufficient to allow the jury to considerthis issue. Crowley has established that she was repeatedly exposed toJuhl's intimidating conduct in the workplace. In addition, the recorddemonstrates that there are issues of fact to be resolved as to whetherthe intimidating workplace was severe enough to prevent Crowley fromeffectively performing her duties. See Burlington Indus. v. Ellerth,524 U.S. 742, 751-52, 118 S.Ct. 2257, 141 L.Ed.2d 633, (1998) (notingthat distinction between quid pro quo and hostile work environmentharassment is concrete versus constructive alteration of terms,conditions, or privileges of employment). The record includes evidencethat Juhl's conduct directly interfered with Crowley's work performance,as evidenced by Crowley leaving work after interactions with him,Crowley's hospitalization forstress-related illness, and her having to move to different places duringher shift in an attempt to avoid Juhl. Additionally, the recorddemonstrates that Juhl frequently put his machine in the way of Crowley'smachine, and that this conduct affected Crowley's work by stopping herfrom moving in and out of aisles quickly and affecting safe maneuveringof the large warehouse vehicles. Crowley Aff. ¶¶ 59-60. Resolving allambiguities and drawing reasonable inferences in favor of Crowley, theCourt concludes that a jury could find that Juhl's actions constitutedconduct that a reasonable person in Crowley's position would findsufficiently severe or pervasive to alter the conditions of heremployment.

3. Harassment Subjectively and Objectively Offensive

In addition to being severe or pervasive, actionable hostile workenvironment sexual harassment must be both subjectively and objectivelyoffensive — conduct or language that a reasonable person would findhostile or abusive, and that the victim did, in fact, perceive to be so.See Faragher, 524 U.S. at 787, 118 S.Ct. at 2283; Harris, 510 U.S. at21-22, 114 S.Ct. 367, 126 L.Ed.2d 295. Turning to the subjective portionof the analysis, the Court finds that the record reveals that Crowleyfound the environment to be hostile and abusive. Construing the facts inCrowley's favor, she was allegedly subjected to a variety of hostileincidents by Juhl, including: his following her to her car, thebathroom, and remote areas of the warehouse; his blocking her movement inthe warehouse facilities; his grabbing her foot; and his entering herhouse without permission. Crowley has testified that she felt threatenedand was frightened by these incidents. Crowley Aff. ¶ 11, 16-17, 21,29-30. Crowley's statements to coworkers and management, as well as L.L.Bean's investigative notes corroborated her distress. McCourt Aff. ¶9; Anderson Depo. at 21-23; Defendant L.L. Bean's Statement of UndisputedMaterial Facts, Ex. P Bressette-Long notes. Indeed, Crowley's complaintsabout her environment were serious enough to prompt L.L. Bean toattempt, for a time, to separate Crowley and Juhl. There is no evidenceto refute Crowley's testimony concerning her subjective feelings. Thus,Crowley has satisfied the subjective component of establishing a hostileenvironment claim. This evidence is sufficient to support the conclusionthat Crowley actually perceived her environment to be abusive.

Turning next to the objective component of the analysis, the Courtfinds that there are material issues of fact regarding whether theinfliction of harassment was severe or pervasive enough to create anenvironment that a reasonable person would find hostile or abusive.Whether a reasonable person would objectively perceive Juhl's conduct ascreating a hostile work environment is a matter frequently left to thesound discretion of reasonable jurors, and should be left to the jurorsin this case. As discussed above, the evidence reflects that Crowleyworked in a large warehouse facility, where she faced a number ofintimidating behaviors by Juhl, including his following and watching herand blocking her movement. The repeated incidents at the L.L. Beanfacility were all in addition to a number of other disturbing events thatoccurred off L.L. Bean property, including Juhl entering her home withoutpermission attempting to force Crowley to touch him, and possiblesurveillance of her at home. This evidence may lead a jury to concludethat Juhl's harassment was pervasive enough such that a reasonable personwould find the environment hostile or abusive. Evaluating the severityand pervasiveness of a harasser's conduct on summary judgment is oftendifficult and, in many cases,inappropriate. This is especially so in the instant case, as Crowley'sallegations of a hostile work environment are unusual; they are not thetypically alleged sexually derogatory comments or a physically abusivework environment Resolving ambiguities and drawing all reasonableinferences in Crowley's favor, the Court cannot say, as a matter of law,that these incidents could not amount to a claim of a hostile workenvironment. A reasonable jury could find that the totality of theincidents of which Crowley complains were sufficiently severe andpervasive to constitute a hostile work environment.

4. Basis for Employer Liability

In a case where an employee is harassed by a coworker, a plaintiff mustalso show a basis for employer liability. To impute Juhl's harassingconduct to L.L. Bean, Plaintiff must demonstrate that L.L. Bean "knew orshould have known of the charged sexual harassment and failed toimplement prompt and appropriate corrective action." White v. NewHampshire Dep't of Corrections; 221 F.3d 254, 261 (1st Cir. 2000)(quotingBlankenship v. Parke Care Ctr., Inc., 123 F.3d 868, 872 (6th Cir. 1997)(internal quotation marks omitted)). L.L. Bean argues that it tookappropriate employment actions to remedy the situation. Plaintiffdisagrees.

The record establishes that L.L. Bean knew of the harassment by Juhl.L.L. Bean was put on notice of the harassment Crowley experienced byrepeated, specific complaints from Crowley to several managers. Crowleycomplained of harassment to Bressette-Long, Andretta, Marong, McCourt,Baker, Farley, Gowen, Davis, and Anderson. In this case, the complaintsCrowley lodged gave L.L. Bean sufficient notice to impute liability tothe company. Nevertheless, a clear factual issue exists as to whetherL.L. Bean, on notice of Plaintiff's allegations of a hostile workenvironment from early 1997, took "prompt and appropriate correctiveaction" adequate to remedy the situation. Accordingly, the Court findsthat there are genuine issues of material fact as to whether Crowley wassubjected to hostile work environment sexual harassment by L.L. Bean.

C. Punitive Damages

Crowley seeks punitive damages under Title VII for the hostileenvironment that she was subjected to while working at L.L. Bean.Punitive damages may be awarded under Title VII only when a "complainingparty demonstrates that the respondent engaged in a discriminatorypractice or discriminatory practices with malice or with recklessindifference to the federally protected rights of an aggrievedindividual." 42 U.S.C. § 1981a(b)(1). L.L. Bean seeks summaryjudgment on the punitive damages issue, arguing that its accommodation ofCrowley's concerns and complaints bears no resemblance to the malice orrecklessness required to make out a claim for punitive damages. DefendantL.L. Bean's Motion for Summary Judgment at 16. Crowley responds that herclaim survives summary judgment, pointing to the evidence in the recordthat shows that L.L. Bean allowed Juhl to work in Crowley's building evenafter issuing him a written warning to stay away from Crowley. Oppositionto Defendant's Motion for Summary Judgment at 18.

In Kolstad v. American Dental Ass'n, 527 U.S. 526, 119 S.Ct. 2118, 144L.Ed.2d 494 (1999), Supreme Court expressly rejected the idea "thateligibility for punitive damages can only be described in terms of anemployer's `egregious' misconduct." Id. at 534-35, 119 S.Ct. at 2124. Theterms "malice" and "reckless indifference" ultimately focus on theactor's state of mind. See id. at 534-35, 119 S.Ct at 2123-24. Thus, theproper question iswhether the employer engaged in the conduct alleged with the "knowledgethat it may be acting in violation of federal law." Id. at 535, 119S.Ct. at 2124. "[A]n employer must at least discriminate in the face of aperceived risk that its action will violate federal law to be liable inpunitive damages." Id. at 536, 119 S.Ct. at 2125.

The record contains sufficient evidence to create an issue of materialfact over whether L.L. Bean discriminated against her with recklessindifference to her rights. In this case, Crowley alleges that, in termsof any definitive action to stop Juhl's conduct, L.L. Bean substantiallyignored her complaints about Juhl's harassment and intimidation fornearly two years. Although L.L. Bean put forth some effort to keep Juhlaway from Crowley, the record establishes that there were many instancesafter L.L. Bean was on notice of Juhl's intimidating behavior in whichL.L. Bean permitted Juhl to work with Crowley. Indeed, the writtenwarning that L.L. Bean issued to Juhl stated that he had created a"hostile environment" and had "engaged in threatening and intimidatingbehavior." Defendant L.L. Bean's Undisputed Statement of Material Facts,Ex J. There remains an issue of fact as to whether the conduct by L.L.Bean, in allowing Juhl to work in the same building as Crowley, was takenwith knowledge that it may be acting in violation of federal law. TheCourt will deny Defendant's motion with respect to Crowley's claims forpunitive damages.


Accordingly, it is ORDERED that Defendant's Motion for Summary Judgmentbe, and it is hereby, DENIED on Count I and Count II.

1. Crowley was intimidated by Juhl's conduct because the weekendbefore she had been out on the lake in front of her house and could notget back to shore because she lost a boat oar. Crowley Aff. ¶ 11.Juhl's statement led Crowley to believe that he had been watching herthat previous weekend. Crowley Aff. ¶ 11.

2. Crowley left Juhl's house without the crock pot she had bought forthe party. Juhl later wanted Crowley to come to his house to pick up hercrock pot; but she refused, insisting that he bring it to work with him.Crowley Aff. ¶ 17.

3. L.L. Bean objects to Crowley's reliance on the affidavits ofcurrent and former L.L. Bean employees, arguing that Crowley'scommunications with them violated Maine Bar Rule 3.6(f). Defendant L.L.Bean's Reply Statement of Facts (Docket No. 46) at 2. Defendantspecifically objects to the use of the affidavits of John Andretta, TammyBickford, James M. Campbell, Michael T. Crossman, Kenneth R. Libby, SteveMcCourt, Keith Menard, Bennett Schlaack, and George F. Weekes. Id.Plaintiff strenuously disputes that she violated the Maine BarRules.

The United States District Court for the District of Maine has adoptedthe Code of Professional Responsibility of the Maine Supreme JudicialCourt. See LOCAL RULE 83.3(d). Maine Bar Rule 3.6(f) prohibitscommunications between an attorney and an adverse party that isrepresented by counsel. Two of the affidavits at issue were given byindividuals who were no longer employed by L.L. Bean at the time of theirinterview. See Affidavits of John Andretta and Keith Menard. There iscertainly no violation of the rule with respect to Crowley securing thestatement of those former L.L Bean employees. With respect to thoseindividuals who were employed by L.L. Bean when they gave theirstatements, the Court notes that the Professional Ethics Commission ofthe Maine Board of Overseers of the Bar has opined on this question in aclosely related context — a municipal corporation. In thisopinion, the Commission concluded that the rule reaches only thoseemployees who "have responsibility for making decisions on the litigationand matters directly related to it," and employees "who have theresponsibility of communicating municipal policy and decisions to itsattorney, receiving the attorney's advice in the first instance, anddirecting the work of the municipality's staff in preparing forlitigation." Maine Manual on Professional Responsibility (2000), Opinion94. Explaining further that unless they are in the category of officialswho will be deemed to represent the municipality or unless they areseparately represented by counsel in the matter," there is no reason toprohibit counsel from investigating the facts and preparing for trial.Id. The Court finds that the issue regarding the scope of representationapplicable to municipal corporations applicable to private corporationssuch as L.L. Bean. The employees who gave sworn statements are witnessesto the events in this case. Such employees are subject to beinginterviewed unless Defendant shows that they are within the scope ofrepresentation contemplated by Maine Bar Rule 3.6(f). Defendants havenot made such a showing. The Court, therefore, denies Defendants requestto exclude those affidavits.

4. Crowley became aware of Juhl's violent temper over time through thereputation he had gained as well as through personal observation. CrowleyAff. ¶ 72; Andretta Aff. ¶ 9. According to Bennett Schlaack,third shift employees were aware of Juhl's violent temper, and hadobserved him throw tantrums and punch or kick boxes and equipment in arage. Plaintiff's Opposing Statement of Facts, Schlaack Aff. ¶¶10-11. Alan Coffin witnessed one of Juhl's "tantrums" at work when somecases fell off a piece of equipment that he been operating. Plaintiff'sOpposing Statement of Facts. Coffin Aff. ¶ 18 Juhl began to scream,kick and punch the cases, and it took him a long time to calm down.Coffin Aff. ¶ 18. Other employees had told supervisory employees,such as Leo Davis, that they were scared of Juhl. Davis Depo. at 94.Juhl's violent outbursts made his pursuit of Crowley particularlyintimidating, especially on third shift when few people were at work andmuch of each building was dark. Crowley Aff. ¶ 18.

5. Crowley did not give them back this time because she did not wantto keep on having this interaction with him. Crowley Aff. ¶ 20.

6. Juhl was wearing military fatigue pants with a sweater like thearmy sweaters with patches on the elbows. Crowley Aff ¶ 35.

7. Crowley did not go to the police at that time because she thoughtshe might hurt Juhl's chances of getting hired as a regular, part-timeemployee if she did, and she was afraid that he would blame her and thenretaliate against her. Crowley Aff. ¶ 44. Also, Leo Davis had toldCrowley and others several times that they had to make sure they had avery clean record if they wanted to get hired. Crowley Aff. 45,Plaintiff's Opposing Statement of Facts, Menard Aff. 6.

8. Crowley also told Andretta that she was concerned about bringingmanagement's attention to the issue because the hiring process fortemporary, part-time positions to regular, part-time positions was totake place within a week. She told him she was concerned that if shefiled a complaint against Juhl and he did not get hired, he wouldretaliate against her, or she would be considered a troublemaker andwould not be hired. Crowley Aff. ¶ 49. Andretta told Crowley heunderstood, saying "[W]e'll try to get around it." Crowley Aff. ¶49; Andretta Aff. ¶¶ 19-21.

9. Sometime in February 1997, Andretta himself witnessed Juhl waitingfor Crowley outside of the women's bathroom. Andretta Aff. ¶ 11. Thiswas the second bathroom incident Crowley Aff. ¶ 31. Andretta toldCrowley that he had witnessed Juhl waiting outside the lady's room whileshe was inside. Andretta Aff. ¶ 11; Crowley Aff. ¶ 31.

10. There is a factual dispute as to whether all of theseconversations occurred on or after February 17.

11. Bressette-Long claims she did not hear of the home invasion untilMarch 17. Defendant L.L. Bean's Statement of Undisputed Material Facts,Ex. H Bressette-Long Aff. ¶ 9.

12. There is a factual dispute as to whether Marong also told Crowleythat there may be occasions when Crowley and Juhl would need to work inthe same building. Marong Aff. ¶ 9; Plaintiff's Opposing Statement ofFacts ¶ 21.

13. Crowley has moved to strike portions of Bressette-Long and TimMarong's affidavits. See Motion to Strike Portions of Defendant'sAffidavits (Docket No. 43). Crowley argues that two statements inBressette-Long's affidavit were made without her personal knowledge. Forpurposes of this motion, the Court will deny Plaintiff's motion withrespect to the testimony of Bressette-Long because the statements werebased on Bressette-Long's understanding of the facts and are profferedfor the purpose of assessing the adequacy of her action. The Court willalso deny Plaintiff's request to strike portions of Marong's affidavit.Plaintiff does not request that any particular portion of Marong'saffidavit be stricken and there do not appear to be any statements inMarong's affidavit made upon information and belief.

14. He gave this book to Crowley right after her friend's death, andCrowley believes that the only way he could have known about the death isby following and watching her. Crowley Aff. ¶ 82.

15. On June 23, while Dave Paquette and Jimmy Campbell were workingtogether, Campbell saw Juhl tearing out of an aisle on his machine, goingso fast that he banged his machine into a safety rail. Plaintiff'sOpposing Statement of Facts, Campbell Aff. ¶ 20. Paquette and Campbellwent to see where Juhl was in such a hurry to go, and Campbell saw thatit was the aisle where Crowley was working. Campbell Aff. ¶ 20.

16. L.L. Bean had previously authorized Crowley to leave work earlythat day. Crowley Aff. ¶ 105.

17. During the time Crowley was assigned to the dock, Juhl drove hismachine past the dock on at least one occasion. Crowley Aff. ¶ 110.On June 27, 1998, Juhl came out to the dock where Crowley was working topick up stock. Crowley Aff. ¶ 110. He drove his order picker operatormachine out to the clock to pick up cases of merchandise, even though theforklifts would routinely pick up the cases. Crowley Aff. ¶ 110.Crowley reported this conduct to dock coordinator Gowen. Crowley Aff.¶ 110. Gowen noticed and reported the incident to management and HR.Plaintiffs Opposing Statement of Facts, L.L. Bean Depo. III at 219-220and Ex. 67.

18. In applying the MHRA prohibition on sexual harassment, the LawCourt has consistently looked to federal law for guidance where "federalcourts [are] interpreting . . . federal statutory equivalents" to theMHRA. Maine Human Rights Commission v. Local 1361, 383 A.2d 369, 375(Me. 1978). See also Nadeau v. Rainbow Rugs, Inc., 675 A.2d 973, 976(Me. 1996); Maine Human Rights Commission v. Maine Dept. of Defense andVeterans' Services, 627 A.2d 1005, 1007 (Me.1993); Bowen v. Dept. ofHuman Services, 606 A.2d 1051, 1053 (Me.1992); Plourde v. Scott PaperCo., 552 A.2d 1257, 1262 (Me.1989); Percy v. Allen, 449 A.2d 337, 342(Me.1982). The Court will thus analyze the Crowley's MHRA claims underthe analogous federal standard.

19. Plaintiff asserts that, for purposes of calulating timely filing,the Court should use December 18, 1998, the date she sent her notice ofclaim to the Maine Human Rights Commission, rather than December 21,1998, the date her complaint was received by the Commission. Oppositionto Defendant's Motion for Summary Judgment. Plaintiff cites no statute orcase law that supports her contention. The Court will use December 21, asthe date the complaint was "initially instituted" with the MHRC. See42 U.S.C. § 2000e-5 (e)(1). In any event, the three-day divergencedoes not appear to effect the condensability of Plaintiff's claims.

20. Even if Plaintiff fails to establish a continuing violation, adiscriminatory act which is not made the basis for a timely charge maystill be relevant background evidence in a Title VII proceeding. SeeUnited Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d571 (1977). The post-February 24, 1998, acts take on a different flavorwhen considered in the context of a two-year pattern of behavior thatincluded unauthorized entry into her home and car, unwelcome grabbing ofher foot and hand, and stalking her at work and outside the workplace.Therefore, contrary to Defendant's assertion, the incidents that occurredbefore February 24, 1998, even if time-barred, would clearly be relevantto demonstrate important context for the later allegedly discriminatorybehavior of Juhl.

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