UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


CURRY, CYNTHIA D.

v.

DC


98-7121a

D.C. Cir. 1999


*	*	*


Opinion for the court filed Per Curiam.


Circuit Judge Henderson filed a separate opinion.


Circuit Judge Wald filed a separate opinion.


Circuit Judge Randolph filed a separate opinion.


Per Curiam: In accordance with the accompanying sepa- rate opinions,
the district court's order denying the motion for  judgment as a
matter of law is affirmed in part and reversed  in part and the
district court's judgment on the verdict for  plaintiff is affirmed.


Karen LeCraft Henderson, Circuit Judge:


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


I.


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


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


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




__________

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


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


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


On January 23, 19953 the EEO Office issued a report on its 
investigation of Curry's charges. The report found probable  cause to
believe Freeman had verbally harassed Curry, that  is, probable cause
"to sustain the allegations that sexual  harassment has occurred."4 JA
776. Peacock, the investigat- ing officer who authored the report,
testified that "the work- place ... was filled with sexual jokes,
sexual language." JA  306. Captain Alan Dreher, the head of the
Intelligence Unit,  learned of the report and personally admonished
Freeman  that sexual harassment would not be tolerated and, if it was 
going on, it was to stop. The EEO Office advised Curry by  letter that
she could file a complaint with the District's  Department of Human
Rights and Minority Business Devel- opment (DHR).5 The EEO Office's




__________

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


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


5 The MPD's EEO Office and the parties refer to the DHR as the  "Office
of Human Rights" and the "OHR." E.g., JA 798. Its 


the MPD's collective bargaining agreement and D.C. Code  s
1-617.1(b-1)(1) (1992)6 prohibited the MPD from taking  disciplinary
action against an officer more than forty-five days  after the MPD
became aware of the officer's improper con- duct. Peacock's
investigation took more than forty-five days  to complete and the
District took no formal disciplinary action  against Freeman. In June
1996 Curry transferred to the  Court Intelligence Unit.


Although she made no mention of it until November 1995,  Curry also
claimed Freeman regularly glared at her in a  harassing manner from
the time his verbal harassment  ceased in August 1994 until her June
1996 transfer out of the  Unit. She testified that Freeman "would look
at [her] in a  way that made [her] most uncomfortable, as if he was
un- dressing [her]." JA 235. Although Curry never invoked the  MPD's
formal complaint procedure with regard to Freeman's  glaring, she did
report it to supervisory personnel. She first  complained on November
7, 1995, during a telephone conver- sation initiated by Lieutenant
Emmogean Simpson-Jones of  the MPD's Labor Relations, EEO Office, who
asked her how  things were going. Although the record is unclear,
apparent- ly sometime between November 7 and December 14, 1995  Curry
also requested that the MPD transfer Freeman. On  December 14, 1995
the EEO Office issued a memorandum in  which the MPD's EEO Director
Brenda Wilmore noted that  Curry complained she was "experiencing a
'hostile environ- ment,' because [Freeman] constantly 'glare[d]' at
[her]" and  that there was "no verbal communication" between the two. 
JA 760. The memorandum concluded that "agency con- straints" left the
EEO Office unable to act on her request to 




__________

n proper name is as noted in the text. JA 761. Ultimately, on June  10,
1996 the DHR also found probable cause to believe that Free- man
sexually harassed Curry. JA 761.


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


transfer Freeman.7 The Director did offer to help Curry  transfer if
she so desired. At that time Lieutenant Alton  Bigelow, another EEO
officer, advised Freeman of Curry's  report about his glaring and
"warned him against acts of  intimidation." JA 764. Bigelow asked
Freeman to agree to a  transfer, a request Freeman declined.8


II.


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


A.


Title VII of the Civil Rights Act of 1964 makes it unlawful  for an
employer "to fail or refuse to hire or to discharge any  individual,
or otherwise to discriminate against any individual  with respect to
his compensation, terms, conditions, or privi- leges of employment,
because of such individual's race, color,  religion, sex, or national
origin." 42 U.S.C. s 2000e-2(a)(1).  A claim of sexual harassment is
cognizable under this provi- sion if the alleged harassment alters,
either expressly or 




__________

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


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


constructively, the terms or conditions of an individual's  employment.
See, e.g., Meritor Savings Bank, FSB v. Vin- son, 477 U.S. 57, 67-68
(1986). Courts describe an explicit  alteration as "quid pro quo"
harassment and a constructive  alteration as "hostile work
environment" harassment. Bur- lington Indus., Inc. v. Ellerth, 524
U.S. 742, 752 (1998). To  be actionable, however, the latter must be
severe or perva- sive. Id.; Oncale v. Sundowner Offshore Servs., Inc.,
118 S.  Ct. 998, 1002-03 (1998); Harris v. Forklift Sys., Inc., 510
U.S.  17, 21 (1993).


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




__________

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


Faragher era" has distinguished the standard applicable to  co-worker
harassment from that governing harassment by a  supervisor, applying
to the former a variation of the negli- gence standard the circuit had
applied pre-Faragher.10


While the reasonableness of an employer's response to  sexual
harassment is at issue under both standards, the  plaintiff must clear
a higher hurdle under the negligence  standard, where she bears the
burden of establishing her  employer's negligence, than under the
vicarious liability stan- dard, where the burden shifts to the
employer to prove its  own reasonableness and the plaintiff's




__________

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


v. Autozone, Inc., 180 F.3d 806, 812 n.2 (7th Cir. 1999) ("[T]he 
reasonableness of the employer's actions in preventing and  responding
to sexual harassment is relevant under both stan- dards, the
difference being who bears the burden of proof.").  Indeed, in
Faragher the Supreme Court reasoned that a  supervisor's harassment is
both more detrimental (or threat- ens to be) to the terms and
conditions of an individual's  employment and more difficult to stop
or have stopped than  similar behavior by a co-worker. See Faragher,
524 U.S. at  803. Moreover, the employer has a greater opportunity to 
guard against the misconduct of supervisors than that of  fellow
employees, see id., and, inversely, an employee has a  greater
opportunity to stop harassment by a co-worker in the  first instance.
See id. ("When a fellow employee harasses,  the victim can walk away
or tell the offender where to go, but  it may be difficult to offer


Our circuit has not articulated an employer liability stan- dard for
co-worker harassment since the Faragher and El- lerth decisions nor
had it squarely done so before.11 Consis- tent with the approach of
our sister circuits recognized in  Faragher, 524 U.S. at 799, we
announce the following stan- dard:12 An employer may be held liable
for the harassment of  one employee by a fellow employee (a
non-supervisor) if the  employer knew or should have known of the




__________

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


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


failed to implement prompt and appropriate corrective ac- tion.13


Curry's complaint specified two kinds of harassment for  which we must
determine whether a reasonable jury could  find that the District knew
or should have known of the  harassment and failed to implement prompt
and appropriate  corrective action.14 The first occurred from May 1994
to mid-




__________

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


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


August 1994 and consisted of Freeman's blatantly sexual  remarks. No
supervisor ever heard them. Neither Curry  nor anyone else made them
known to a supervisor or EEO  official until after the conduct had
ceased. Although a rea- sonable jury could have found from the
evidence that Curry's  workplace was filled with sexual banter, that
fact alone cannot  support a finding that the District should have
known of  Freeman's harassment of Curry, especially in the absence of 
any similar problems or complaints. The District had in  place a
policy against harassment, it had made its policy  known and it had
established an effective complaint proce- dure. The District,
therefore, was entitled to rely on its  employees to bring problems
with their co-workers to its  attention.


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




__________

n


Supervisors, 715 F.2d 971, 981 (5th Cir. 1983) (setting forth three 
factors for determining if plaintiff alleges continuing violation: (1)
 subject matter; (2) frequency; and (3) degree of permanence which, 
inter alia, may trigger plaintiff's duty to assert rights).


15 Judge Wald is "puzzled" by this statement (Op. of Wald, J. at  1)
and is "unclear what exactly the panel is reversing, and why."  (Id.
at 1.) The jury verdict necessarily determined the District's 


According to Curry, the second type of harassment began  when the first
ended. Thus, from mid-August 1994 until  her transfer in June 1996,
Curry experienced sexual harass- ment in the form of Freeman's glaring
at her.16 Neverthe-




__________

n liability for the verbal sexual harassment. The district court then 
denied the District's motion for judgment as a matter of law and, to 
the extent its denial reaffirmed the District's liability for the
verbal  sexual harassment, we reverse that denial--in short the
District is  not liable to the plaintiff for the verbal sexual
harassment because it  had no notice of the conduct until after the
conduct had ceased. Its  response once it learned of the conduct was
appropriate as a matter  of law. The District is liable, however, for
the subsequent nonver- bal harassment, and we therefore partially
affirm the district court's  denial of the District's post trial
motion, because we cannot con- clude as a matter of law that the
District's response was appropri- ate once it learned of the nonverbal


16 Although the District, in its post-trial motion below, disputed  the
hostile work environment finding based on Freeman's glaring  JA 808,
it does not raise the issue on appeal. If it had, this appeal  might
have been disposed of at an earlier analytical stage, namely,  in
determining whether the conduct is sufficiently severe to create a 
hostile work environment. "Discriminatory conduct results in a 
hostile work environment when it is so severe or pervasive that it 
create[s] a work environment abusive to employees because of their 
race, gender, religion, or national origin, thus offending Title VII's
 broad rule of workplace equality." Park v. Howard Univ., 71 F.3d 
904, 906 (D.C. Cir. 1995) (quoting Harris, 510 U.S. at 22) (internal 
quotation marks omitted). In determining if the plaintiff satisfies 
this requirement, the court must consider all of the circumstances, 
including "the frequency of the discriminatory conduct; its severity; 
whether it is physically threatening or humiliating, or a mere 
offensive utterance; and whether it unreasonably interferes with an 
employee's work performance." Harris, 510 U.S. at 23. Other  courts
have held that a co-worker's staring, even when accompanied  by
physical touching, is not conduct severe enough to alter the  terms
and conditions of an individual's employment. See generally 
Adusumilli v. City of Chicago, 164 F.3d 353, 357 (7th Cir. 1998) 
(teasing plaintiff, police department employee, that waving at squad 
cars makes her look like prostitute, comments to her about bananas, 
rubber bands and low-neck tops, staring and attempts to make eye 


less, Curry first brought this harassment to light on No- vember 7,
1995 in response to a supervisor's inquiry. Until  then, the District
reasonably believed all problems between  Curry and Freeman had been
resolved. She never filed a  formal complaint regarding Freeman's
glaring. In response  to the complaint Curry did voice to
Simpson-Jones over the  telephone, however, an EEO officer (Bigelow)
simply told  Freeman about the complaint, warned him against the ob-
jectionable conduct (which he denied) and requested that he 
voluntarily transfer. EEO Director Wilmore then sent Cur- ry a
memorandum informing her the only available remedy  was her own
transfer. In view of this evidence, especially  the fact that Freeman
by this point was a "repeat offender,"  see Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 676 (10th  Cir. 1998),17 we cannot say that "the
evidence and all rea- sonable inferences that can be drawn therefrom
are so one- sided that reasonable men and women could not disagree" 
on the adequacy of the District's response once it knew of  Freeman's
glaring. Smith, 135 F.3d at 782. We therefore  affirm the district




__________

n contact and four isolated incidents in which co-worker briefly 
touched plaintiff's arm, fingers or buttocks fall within the "safe 
harbor for employers"); Shepherd v. Comptroller of Pub. Accounts,  168
F.3d 871, 874 (5th Cir. 1999) (stares and arm touching were not 
severe where none was physically threatening or likely to under- mine
reasonable plaintiff's workplace competence).


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


judgment as a matter of law with regard to Freeman's  glaring.18


B.


The District challenges the district court's denial of its  post-trial
motion requesting, in the alternative, remittitur of  the $100,000
damages award. See 9 F. Supp. 2d at 4. We  order remittitur only
where, after a "detailed appraisal" of  the evidence bearing on
damages, we find the award grossly  excessive. See Grunenthal v. Long
Island R.R. Co., 393 U.S.  156, 159 (1968). An award is grossly
excessive if "it is so 




__________

n 18 In addition to challenging liability, the District appeals the
trial  court's admission into evidence of portions of the DHR probable
 cause report. Curry disputes that the District preserved its objec-
tion below, Br. of Appellee at 16, and the record is unclear on the 
issue. Compare Reply Br. at 18 and JA 6-32 with JA 149-56, 371- 77.
Assuming arguendo the District properly objected below, its  objection
was based on Rule 403, Federal Rules of Civil Procedure,  and we
believe the district court's reasons are sufficient for us to 
conclude that it did not abuse its discretion in admitting the 
evidence. See 9 F. Supp. 2d at 3-4.


The District also challenges the district court's failure to charge 
the jury that an employee who at one time has a consensual  intimate
relationship with a co-worker is obliged to tell the co- worker that
advances are no longer welcome. Whether familiarity  of a sexual
nature is "unwelcome" is a question of fact. See  Meritor, 477 U.S. at
68 ("[T]he question whether particular conduct  was indeed unwelcome
... turns largely on credibility determina- tions committed to the
trier of fact, ... [and t]he correct inquiry is  whether respondent by
her conduct indicated that the alleged  sexual advances were
unwelcome...."). Here, the district court  properly presented to the
jury Curry's and Freeman's past history  as a factor for it to
consider in determining harassment vel non.  JA 743 ("The Defendant
contends that Detective Curry had en- gaged in welcome sexual conduct
with Detective Freeman and  therefore, she had a burden to inform the
District when the conduct  became unwelcome, which she failed to
do."). The lapse of time  between the end of their relationship and
the alleged harassment,  coupled with Freeman's persistence in spite
of Curry's unrespon- siveness, are sufficient to support a finding of


inordinately large as obviously to exceed the maximum limit  of a
reasonable range within which the jury may properly  operate."
Langevine v. District of Columbia, 106 F.3d 1018,  1024 (D.C. Cir.
1997) (quoting Williams v. Stewart Motor Co.,  494 F.2d 1074, 1085
(D.C. Cir. 1974)). We allow remittitur,  however, "only if the
reduction permits the highest amount  the jury tolerably could have
awarded." Langevine, 106 F.3d  at 1024 (quoting Carter v. District of
Columbia, 795 F.2d 116,  135 n.13 (D.C. Cir. 1986)) (internal


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


Curry's damages evidence also included the testimony of  her pastor and
her supervisor after she transferred to the  Court Intelligence Unit
in June 1996. Curry's pastor, Rever- end Thomas J. Baltimore,
testified that he had counseled her  for more than three years. The
two worked "through a 




__________

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


number of crises" which, apart from the workplace harass- ment,
included her father's death and "conflicts" with other  family members
and fellow church members. JA 477-78.  Baltimore testified that he
continued to counsel Curry, who  "worries [him] to death." JA 477.
William E. Wagner, her  supervisor after she transferred, testified
that Curry was  emotionally upset in July 1996, manifested by her
difficulty in  concentrating and sitting still and by "paranoi[a] in
her  work."20 JA 472. Curry eventually told him that her prob- lems
related to the pending sexual harassment litigation.  Curry also
testified that she was reluctant to seek counseling  from a
psychiatrist or psychologist because she feared it  would jeopardize
her eligibility to obtain a higher level of  security clearance which


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


III.


For the foregoing reasons, the district court's denial of the 
District's motion for judgment as a matter of law or, in the 




__________

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


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


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


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




__________

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


It appears that my colleagues, the district court, and I all  agree
that the District can be found liable for harassment  which occurred
after it had notice. See Henderson Op. at 9- 10, 11-12 n.15. The only
question before us then is whether  the damages the jury awarded Curry
are "beyond all reason  or so great as to shock the conscience. Courts
may not set  aside a jury verdict merely deemed to be generous;
rather,  the verdict must be so unreasonably high as to result in a 
miscarriage of justice." Langevine v. District of Columbia,  106 F.3d
1018, 1024 (D.C. Cir. 1997) (internal quotation marks  and citation
omitted). In my view, the jury's award of  $100,000 to a police
officer who suffered years of harassment  does not remotely qualify as
a miscarriage of justice, whether  Curry can recover for damages
incurred before November 7,  1995, as I would find, or only for
damages incurred after that  date, as my colleagues find.


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


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




__________

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


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


The Metropolitan Police Department investigated Curry's  complaint and
concluded that there was probable cause that  Freeman was verbally
harassing Curry. However, the De- partment was unable to take any
action against Freeman  because its investigation took roughly four
months, and then- D.C. law prohibited disciplining an MPD employee
more than  45 working days after the Department had notice of the
cause  for discipline. MPD could not even transfer Freeman to  another
unit without his consent, which he declined to give.  Freeman's
supervisor testified that he did not learn the 




__________

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


results of the Department's investigation of Freeman until  trial, and
expressed his view that "[i]t would gain the Depart- ment nothing for
me to know" that the investigation had  found probable cause that
Freeman was harassing Curry.  J.A. at 537. Similarly, a year later,
when Curry complained  about the constant glaring she was
experiencing, the MPD  told her that it was unable to do anything to
help her.4  Meanwhile, Curry was ostracized as a result of the


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


This meager response is not, in my view, consistent with  what courts
have required of a reasonable employer under  Title VII. "Title VII
requires more than a mere request to  refrain from discriminatory
conduct." Ellison v. Brady, 924 




__________

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


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


F.2d 872, 882 (9th Cir. 1991). Where evidence of harassment  exists, an
employer cannot avoid liability by simply making  known a general
policy against harassment. See Jackson v.  Quanex Corp., -- F.3d --,
--, 1999 WL 707766 at *17 (6th  Cir. Sept. 9, 1999); Adler v. Wal-Mart
Stores, Inc., 144 F.3d  664, 676 (10th Cir. 1998) ("Courts have
explained that simply  indicating to a perpetrator the existence of a
policy against  harassment is usually insufficient."); cf. J.A. at
342-43 (Capt.  Dreher testifying that "in the aftermath" of Curry's
com- plaint, he "let it be known verbally to my officials to pass 
along that it wouldn't be tolerated in the workplace"). This  court
has previously found that agency managers should  "promptly take all
necessary steps to investigate and correct  any harassment, including
warnings and appropriate disci- pline directed at the offending
party." Bundy v. Jackson,  641 F.2d 934, 947 (D.C. Cir. 1981) (Wright,
J.); accord  Yamaguchi v. United States Dep't of the Air Force, 109
F.3d  F.3d 1475, 1482 (9th Cir. 1997) (remedial measures must be 
reasonably calculated to end the current harassment and to  deter


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


deter future harassment once it had knowledge of the harass- ment in
September 1994.


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


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


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


My colleagues also assert that the District could not rea- sonably be
faulted during the period when the verbal harass- ment had ceased and
Curry had not yet complained to anyone  of the staring. But I do not
believe that Title VII law  supports such a demarcation between the
two types of  harassment such that the District's obligation to
monitor the  type of harassment it knew about necessarily stops at the




__________

n 6 Judge Henderson suggests the possibility that it was the MPD's 
collective bargaining agreement (CBA) that prevented the transfer  of
Freeman in December 1995. See Henderson Op. at 6 n.7.  However, Lt.
Peacock's testimony was that the CBA prevented the  MPD from
transferring an officer as an alternative to discipline,  where
discipline was barred by the 45-day rule. See J.A. at 311- 12. Where
the 45-day rule was not a barrier to discipline, Sgt.  Major testified
that transfer of the offending officer was the usual  practice when
there was probable cause to believe one officer had  sexually harassed
another officer. See J.A. at 537-38.


where a new kind of harassment begins. The District was on  notice that
an identified employee had been harassing a co- worker; it may
therefore be held responsible for failing to  prevent the continuation
of that harassment, whether in the  same form or a different form, and
whether reported or not.  See Sharp v. City of Houston, 164 F.3d 923,
931 (5th Cir.  1999) (police department liable for harassment despite
lack of  complaint by plaintiff where officer had made harassing re-
marks in past to other women officers; "despite having been  put on
notice that [he] might be a problem, [the department]  had made no
effort to supervise or constrain his behavior");  Hirase-Doi v. U.S.
West Communications, Inc., 61 F.3d 777,  784 (10th Cir. 1995) (prior
harassment of other women can  serve as sufficient notice to hold
employer liable for harassing  conduct of co-worker); Paroline, 879
F.2d at 107 (same);  Yates v. Avco Corp., 819 F.2d 630, 635-36 (6th
Cir. 1987) (fact  that company was aware that supervisor had harassed
women  in past and took no remedial action could establish construc-
tive notice of later harassment because it was evidence of  harassing
tendencies and of the failure of company's anti- harassment policy).


Finally, I believe my colleagues misunderstand the extent  of an
employer's liability for co-worker harassment. Judge  Henderson's
opinion appears to suggest that an employer's  liability only extends
to the harassment which occurred after  the point at which it had
knowledge. But that is not what the  cases say. See Fuller, 47 F.3d at
1529 (employer who fails to  take appropriate remedial action after
notice liable for past  harassment even where harassment stopped after
employer  received notice); see also Knabe, 114 F.3d at 413-14
(consid- ering whether employer's response was sufficiently reason-
able to avoid liability despite fact that plaintiff had quit the  day
employer responded to her complaint). In fact, the  Supreme Court has
also indicated that an employer's failure  to remedy harassment may
constitute ratification of past  harassment: "[T]he combined knowledge
and inaction may be  seen as ... the employer's adoption of the
offending conduct  and its results, quite as if they had been
authorized affirma- tively as the employer's policy." Faragher, 524


accord Fuller, 47 F.3d at 1529 (employer's failure to act  "amounts to
a ratification of the prior harassment"). Thus,  regardless of the
District's knowledge vel non of Freeman's  harassment prior to
November 7, 1995, its failure to act after  that date could be found
to constitute "adoption" of Free- man's conduct up to that point.7


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


In sum, I believe that the jury would have been fully  justified in
awarding Curry compensation for damages suf- fered before November
1995. But, more than that, I do not  believe that the award of
$100,000 was excessive, even adopt-




__________

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


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


Similarly, Judge Henderson's opinion appears to place  great weight on
the fact that Curry's physical problems began  to manifest themselves
in 1994, "nearly one full year, if not  more, before she reported the
glaring." Henderson Op. at  15. The fact that Curry had suffered prior
to November in  no way detracts from her damages from November onward.
 Curry testified she had nightmares and felt the need to sleep 




__________

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


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


with her gun next to her pillow. Her skin broke out, she had 
headaches, and lost her appetite. Other witnesses testified  that she
became extremely nervous and would call her sister  almost every
night, very late, crying.


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


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


"A court must be especially hesitant to disturb a jury's  determination
of damages in cases involving intangible and  non-economic injuries."
Langevine, 106 F.3d at 1024. I see  no basis for concluding that an
award of $100,000 for eight  months of harassment and years of stress
is "beyond all  reason." Cf. id. ($200,000 for largely emotional
distress  damages from false arrest not excessive); Smith v. Northwest
 Fin. Acceptance, Inc., 129 F.3d 1408, 1417 (10th Cir. 1997) 


($200,000 emotional distress damages not excessive where  plaintiff's
symptoms included headaches, sleeplessness, and  frequent crying);
Kientzy v. McDonnell Douglas Corp., 990  F.2d 1051, 1062 (8th Cir.
1993) (damages of $125,000 for past  emotional distress and $25,000
for future emotional distress  from discriminatory discharge not
excessive); see also Ruiz v.  Gonzalez Caraballo, 929 F.2d 31, 34 (1st
Cir. 1991) ("[T]rans- lating legal damage into money
damages--especially in cases  which involve few significant items of
measurable economic  loss--is a matter peculiarly within a jury's


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


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


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