IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________ Nos. 05-16945 & 06-16317 _______________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, and OLIVIA TAMAYO, Plaintiff-Intervenor-Appellee, v. HARRIS FARMS, INC., Defendant-Appellant. _____________________________________________________ On Appeal from the United States District Court for the Eastern District of California _____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _____________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY RONALD S. COOPER COMMISSION General Counsel Office of General Counsel VINCENT J. BLACKWOOD 1801 L Street, N.W., 7th Floor Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4721 BARBARA L. SLOAN FAX: (202 663-7090 Attorney TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings . . . . . 2 2. Statement of Facts. . . . . . . . . . . . . . . . . . . 4 The Rapes . . . . . . . . . . . . . . . . . . . . . 5 Harris's Anti-Harrasment Policy and Training. . . . 9 Martinez Incident . . . . . . . . . . . . . . . . . 10 Other Harassment of Tamayo. . . . . . . . . . . . . 12 First Complaint . . . . . . . . . . . . . . . . . . 14 Second Complaint. . . . . . . . . . . . . . . . . . 20 Coworker Harassment and Retaliation . . . . . . . . 25 3. District Court Decisions and Trial a. Intervention . . . . . . . . . . . . . . . . . . 30 b. In-Limine Ruling on "Other Acts" Evidence. . . . 32 c. Trial. . . . . . . . . . . . . . . . . . . . . . 33 d. Post-Judgment Rulings. . . . . . . . . . . . . . 37 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . 40 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . 40 ARGUMENT I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING THE "OTHER ACTS" EVIDENCE. . . . . . . . . 43 II. SUFFICIENT EVIDENCE SUPPORTS THE JURY'S FINDING THAT HARRIS FARMS IS LIABLE FOR PUNITIVE DAMAGES. . . . 51 III. THE DISTRICT COURT CORRECTLY HELD THAT THE FEHA CLAIMS IN TAMAYO'S COMPLAINT-IN-INTERVENTION WERE TIMELY. . . . . . . . . 57 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 65 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . 66 STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . 66 CERTIFICATE OF SERVICE STATUTORY ADDENDUM TABLE OF AUTHORITIES Page(s) CASES Biggs v. Nicewonger Co., 897 F. Supp. 483 (D. Or. 1995). . . . . . . . . 32, 47, 50 Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000). . . . . . . . . . . . . . 45 Burlington Northern & Santa Fe Railway v. White, 126 S.Ct. 2405 (2006) . . . . . . . . . . . . . . . . 55-56 DeLand v. Old Republic Life Insurance Co., 758 F.2d 1331 (9th Cir. 1985) . . . . . . . . . . . . . 48 Downs v. L.A. Dep't of Water & Power, 58 Cal.App.4th 1093 (Cal.App. 1997) . . . . . . 58, 60, 62 Ebbert v. DaimlerChrysler Corp., 319 F.3d 103 (3d Cir. 2003) . . . . . . . . . . . . . 59-61 EEOC v. Occidental Life Insurance Co., 432 U.S. 355 (1977) . . . . . . . . . . . . . . . . . . 59 Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991). . . . . . . . . . . . . . 47 Faragher v. City of Boca Raton, 524 U.S.775 (1998). . . . . . . . . . . . . . . . . . . 44 General Telephone Co. v. EEOC, 446 U.S. 318 (1980) . . . . . . . . . . . . . . . . . . 62 Gifford v. Achison, Topeka & Santa Fe Railway, 685 F.2d 1149 (9th Cir. 1982) . . . . . . . . . . . . . 60 Harris v. Forklift Systems, 510 U.S. 17 (1993). . . . . . . . . . . . . . . 44, 47, 50 Hemmings v. Tidyman's, 285 F.3d 1174 (9th Cir. 2002) . . . . . . . . . 40, 52, 56 Heyne v. Caruso, 69 F.3d 1475 (9th Cir. 1995). . . . . . . . . . . . . . 45 Hirase-Doi v. USWest Communications, 61 F.3d 777 (10th Cir. 1995). . . . . . . . . . . . 45, 50 Huddleston v. United States, 485 U.S. 681 (1988) . . . . . . . . . . . . . . . . . . 49 Josephs v. Pacific Bell, 443 F.3d 1050 (9th Cir. 2006) . . . . . . . . . . . . . 40 Kelly v. City of Oakland, 198 F.3d 779 (9th Cir. 1999). . . . . . . . . . . . . . 46 Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999) . . . . . . . . . . . . . . . . . 52-57 Lovejoy-Wilson v. NOCO Motor Fuel, 263 F.3d 208 (2d Cir. 2001) . . . . . . . . . . . . . 55-56 McInnis v. Fairfield Communities, 458 F.3d 1129 (10th Cir. 2006). . . . . . . . . . . . . 57 Missirlian v. Huntington Memorial Hospital, 662 F.2d 546 (9th Cir. 1981). . . . . . . . . . . . . 59-61 National Railroad Passenger Corp. (AMTRAK) v. Morgan, 536 U.S. 101 (2002) . . . . . . . . . . . . . . . . . . 51 Passentino v. Johnson & Johnson Consumer Products, 212 F.3d 493 (9th Cir. 2000). . . . . . . . . . . . . . 52 Perry v. Ethan Allen, 115 F.3d 143 (2d Cir. 1997) . . . . . . . . . . . . . . 44 Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) . . . . . . . . . . . . . 55 Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . 40 Saman v. Robbins, 173 F.3d 1150 (9th Cir. 1999) . . . . . . . . . . . . . 55 Sanchez v. Pacific Powder Co., 147 F.3d 1097 (9th Cir. 1998) . . . . . . . . . . . . . 40 Scholar v. Pacific Bell, 963 F.2d 264 (9th Cir. 1992). . . . . . . . . . . 59, 60-61 Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). . . . . . . . . . . . . . 55 Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir. 1994) . . . . . . . . . . . . 44-45 Swinton v. Potomac Corp., 270 F.3d 794 (9th Cir. 2001). . . . . . . . . . 44, 52, 57 United States v. Alisal Water Corp., 370 F.3d 915 (9th Cir. 2004) . . . . . . . . . . . . . 63 United States v. Mayans, 17 F.3d 1174 (9th Cir. 1994). . . . . . . . . . . . . . . 50 United States v. Plancarte-Alvarez, 366 F.3d 1058 (9th Cir. 2004) . . . . . . . . . . . . 49-50 United States v. Rivera, 43 F.3d 1291 (9th Cir. 1995). . . . . . . . . . . . . 48-49 Woods v. Graphic Communications, 925 F.2d 1195 (9th Cir. 1991) . . . . . . . . . . . . . 45 STATUTES 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . 2 Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.. . . . . . . . . . . . . passim 42 U.S.C. § 2000e-5(f). . . . . . . . . . . . . . . . . 2 42 U.S.C. § 2000e-5(f)(1) . . . . . . . . . . . . . . 59-64 42 U.S.C. § 1981a(b)(1). . . . . . . . . . . . . . . . . . . 52 California Fair Employment and Housing Act, Cal. Gov't Code §§ 12900 et seq. . . . . . . . . . passim Cal. Gov't Code § 12965 . . . . . . . . . . . 31, 42, 57-64 Cal. Gov't Code § 12965(b). . . . . . . . . . . . . . . 58 Cal. Gov't Code § 12965(d)(1)-(2) . . . . . . . . . 58, 63 Cal. Gov't Code § 12965(d)(3) . . . . . . . . . . . . . 62 RULES Federal Rule of Civil Procedure 24(a). . . . . . . . . . . 63-64 Federal Rule of Evidence 105 . . . . . . . . . . . . . . . . 49 Federal Rule of Evidence 401 . . . . . . . . . . . . . . . . 44 Federal Rule of Evidence 403 . . . . . . . . . . . . . 33, 43-51 Federal Rule of Evidence 404 . . . . . . . . . . . 33, 41, 43-51 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________ Nos. 05-16945 & 06-16317 _______________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, and OLIVIA TAMAYO, Plaintiff-Intervenor-Appellee, v. HARRIS FARMS, INC., Defendant-Appellant. _____________________________________________________ On Appeal from the United States District Court for the Eastern District of California _____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _____________________________________________________ STATEMENT OF JURISDICTION This is an appeal from a final judgment following a jury verdict for plaintiffs in a suit alleging sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq., and the California Fair Employment and Housing Act, Cal. Gov't Code §§12900 et seq. ("FEHA"). Judgment was entered on September 30, 2005. Docket entry number ("R")296. Defendant appealed the judgment (R292) and award of attorney's fees to plaintiff-intervenor. R364. The district court had jurisdiction under 28 U.S.C. §§1331 and 1345, and 42 U.S.C. §2000e-5(f). This Court has jurisdiction under 28 U.S.C. §1291. STATEMENT OF ISSUES 1. Whether the district court abused its discretion in admitting evidence that the same harasser harassed other women where plaintiff- intervenor knew about the incidents. 2. Whether sufficient evidence supports the jury's finding that defendant's conduct met the standard for punitive damages under Title VII. 3. Whether plaintiff-intervenor's FEHA claims were timely. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final judgment in this EEOC enforcement action. On September 30, 2002, the Commission brought suit alleging that Harris Farms violated Title VII by subjecting Olivia Tamayo to a sexually hostile work environment caused by her supervisor and coworkers, and then retaliating against her for complaining about the harassment. R1. On November 18, 2003, the district court granted Tamayo's motion to intervene. R29. The court subsequently denied defendant's motion to dismiss the FEHA claims alleged by Tamayo as untimely. R43. Before trial, the district court resolved the in-limine motions. R166. In so doing, the court invited the parties to "ask the court to reconsider" its rulings outside the jury's presence and to request a cautionary or special instruction if the evidence, as presented at trial, triggered such a need. Excerpts of Record volume ("v")1-ER166-67. Trial began on December 1, 2004. R184. On January 7, 2005, the court denied defendant's motion to strike testimony of witnesses who had testified on the first day of trial. v12-ER3267-70. On January 21, after deliberating for less than a day, the jury found for plaintiffs on all claims; awarded backpay, frontpay and compensatory damages; and, finding that the conduct was malicious or in reckless disregard of Tamayo's federally-protected rights, also awarded punitive damages. v18-ER5160-69. The court amended the judgment to include injunctive relief (R296); allocated the frontpay and compensatory damages to the state claims; and allocated the backpay and punitive damages (reduced to the $300,000 cap) to the federal claims. R266. The court denied defendant's motions for judgment as a matter of law and a new trial. R265, R267. Finally, the court granted attorney's fees to plaintiff-intervenor (R347) and denied a motion to increase the award. R363. Defendant appealed the judgment (R290, R292(amended notice)); defendant and intervenor appealed the fees. R364(defendant); R368(intervenor). This Court consolidated defendant's appeals. 8/2/06 Order. 2. Statement of Facts The jury found that Harris Farms discriminated against Olivia Tamayo by subjecting her to a sexually hostile work environment and retaliating against her when she complained. Defendant's brief presents one side of the story — one the jury rejected. There is another. Harris Farms is one of California's largest integrated farming operations, with over 1500 employees. v5-ER1195. Olivia Tamayo began working at Harris on a seasonal basis, weeding or picking crops, in 1985. v11-ER3176- 78. Over time, she also learned to drive tractors and other farm machinery. See, e.g., v11-ER3186. Eventually, she became a year-round employee. v12- ER3387-88. Tamayo reads, writes and comprehends Spanish at about a third- grade level; she understands very limited spoken English. v11-ER3175-76. Rene Rodriguez also has limited education and understands little English. Except for a time in the 1980s, Rodriguez worked continuously for Harris from 1966-67 through 1999. v19-ER5316-19. Rodriguez is the uncle of Rafael Reyna, Harris's farm manager until about 1993 (v19-ER5327, v9-ER2612- 13), and brother-in-law of Juan Barrera, a foreman in the 1970s and 1980s. v19-ER5328; v9-ER2618. Rodriguez's own responsibility level was disputed. He admitted that some employees called him "El Patron," or boss (v19-ER5379), but he described himself as an "errand boy." v19-ER5406. Evidence indicates that he oversaw crews working in the fields. v11-ER3182-84 (tracked time, distributed checks, directed and criticized work). He and a subordinate also supplied water and porta-potties to fields where female employees were working (v4-ER1012); additionally, he sometimes transported workers to their work- sites and supervised crews who scared birds away from crops, using rifles. v6-ER1628-29. He was assigned a radio-equipped truck (v11-ER2997); his job enabled him to move freely about the property and learn where and when employees were working. The Rapes In spring 1993, Tamayo was assigned to a weeding crew under Rodriguez's oversight. Shortly thereafter, she was promoted to crew leader; Rodriguez authorized her wage increase. v11-ER3181-88. After Tamayo's promotion, Rodriguez came to her house twice, while her husband Maximino was present, to show Tamayo how to record her crew-members' time. v11-ER3061-62. Rodriguez also occasionally left fruit on the porch, and Maximino, who initially considered Rodriguez a friend, once invited him over to watch a boxing match. See v11-ER3094 (Maximino: "That was . . . my mistake").<1> In June 1993, Rodriguez arrived at Tamayo's worksite as her crew was beginning its morning break. Handing Tamayo a soda, he told her he would show her where her crew would be working next. Because he was her supervisor, Tamayo got into his truck and they drove off. Tamayo began feeling dizzy and confused. Eventually, Rodriguez pulled between rows of trees in an almond orchard and stopped. When Tamayo asked why they were there, Rodriguez responded that he had "liked" her since he first saw her and now she was going to "be his." He then got out of the truck, carrying a gun, walked around to her side of the vehicle, opened the door and, placing the gun on the dashboard, raped her. She protested, telling him to "leave" her, but she had "no strength" and felt "very scared," "horrified with the gun." v11-ER3250-57. When he was finished, he grabbed the gun and jumped down, saying that now she "belonged" to him and he would "never" let her alone. He stressed that she should not tell anyone because no one would believe her and, if she told her husband, Rodriguez would kill him. v12-ER3258-59; v12-ER3278-80. Rodriguez also showed Tamayo a knife, saying, "With this gun and this knife, I fought with a woman, the sister-in-law of Juan Barrera. . . . And with this same one, I'm going to fight against you. Because when I like a woman, I don't mind fighting." v12-ER3279. He also indicated that his nephew, Rafael Reyna, had destroyed the paperwork about the fight, and he avoided termination. v7- ER1996.<2> Rodriguez then returned Tamayo to her crew. She discussed the incident with no one. She explained that she was afraid that, if her husband learned of the rape, he would "confront" Rodriguez and either kill him, ending up in jail, or, given Rodriguez's gun and knife, be killed. She also feared her children would be harmed by the knowledge and violence. v12-ER3280. Rodriguez raped Tamayo twice more, in September 1993 and November 1994. She remembered the incidents vividly: "It's something you don't forget." v12-ER3432. On both occasions, Rodriguez arrived with his gun, told her she would "be his," and threatened to kill her husband if he found out. v12-ER3284, v12-ER3288; v12-ER3290, v12-ER3295. Tamayo said nothing to anyone about either incident. The first time, Tamayo was working for a labor contractor on land leased from Harris. According to her custom, she arrived early at her worksite; Rodriguez raped her in her vehicle and was gone before the other crew members arrived. v12-ER3280-88. The next time was in Tamayo's trailer while her husband was working late and her children were in their rooms. Rodriguez showed her the gun — he also had his knife — and ordered her to let him in. Afterwards, Tamayo showered and said nothing to Maximino when he returned. v12-ER3289-95. Uncertain how to stop this behavior, Tamayo contacted Rodriguez's oldest son, Rene Jr. She explained, "In my culture, what we think is that the oldest son . . . may be able to help . . . his father. He's the oldest." v12-ER3321. When Rene Jr. rode up on his motorcycle, she told him to "speak to his father, to hold him back because he had entered into [her] house and [she] wasn't going to stand it anymore." v12-ER3318-20(may also have said she would call the police or tell "office"). Rene Jr. responded by inviting her for a ride on his motorcycle. She ordered him off her property. Id. Despite this contact with his son, Rodriguez attempted to rape Tamayo again the following June. As in the second incident, she had arrived at her worksite slightly early. When Rodriguez approached her vehicle, she assumed he had come for her timesheets, which he continued to collect until 1997 (v11- ER3197). Instead, when she reached across the seat for the timesheets, Rodriguez opened the door, placed his gun on the dashboard, and prepared to rape her. This time, however, he was interrupted and left when another crew member approached. Tamayo pulled herself together and worked a full day, again saying nothing about the incident. v12-ER3298-3302. Harris's Anti-Harassment Policy and Training Neither Harris's anti-harassment policy nor its anti-harassment training programs put Tamayo on notice that she should report these incidents to Harris Farms as sexual harassment. Cf. v12-ER3414(first understood about reporting harassment after 1996 training). Throughout the relevant timeframe, Harris's anti- harassment policy — one paragraph in the employee handbook — was seriously out-dated. The policy did not define or otherwise clarify the term "harassment"; there were no anti-retaliation and confidentiality provisions; and victims were advised to complain to the "Executive Director" or "Manager," titles that did not correspond to any specific person. See v17-ER4872-73. Furthermore, like many employees, Tamayo had difficulty reading even Spanish. Vice-President/COO Erick Johnson and successive HR directors were aware of these defects, but they were not corrected. v3-ER676-77(uncorrected); v3-ER742-45(noting flaws); v5- ER1300-01(Johnson: "uncomfortable" with out-of-date handbook); v17-ER4968 (emails stressing need to finish update). Similarly, training, at best, was spotty. Evidence indicates that employees including Tamayo received some training in 1996 and/or 1997, long after the rapes. v11-ER3247; see also v11-ER3245-46(recalling one brief session in a field in about 1996). How much other training was provided was disputed. Harris asserted that employees periodically had short trainings during "tail-gate" meetings. v3-ER669-70. Employees recall that tail-gate meetings addressed only safety. v11-ER3248. Moreover, there is evidence that, even after the training, employees might not view rape by a supervisor as sexual harassment or Harris's responsibility. Tamayo, for example, defined sexual harassment as "when a man . . . speaks bad to a woman." v3-ER808-09; see also v5-ER1222(supervisor Corona)(when you "bother a lady at work," but John Harris is "not to blame" if you do). Martinez Incident In 1996, Harris Farms contracted out its HR function. Pursuant to that contract, Kelle Holt (later, Butler) was assigned part-time to handle HR matters at Harris. v3-ER659-62. In December 1996, seasonal workers Maria and Juan Martinez complained to the office about Rodriguez. Beginning in late November, they stated, Rodriguez had called Maria three times when Juan was out; they also received other hang-up calls they suspected were from him. In two calls, Rodriguez told Maria that he liked her and was always thinking of her. She told him to leave her alone — she was married and did not want any problems. He responded that he always got what he wanted; "he didn't know how but it was going to happen. Regardless of what [she] did, [she] was going to be his." v3-ER850-55; v16- ER4644-48(file memo). She hung up on him. Id. The third time Rodriguez called, the couple's daughter answered the phone; when Rodriguez realized it was not Maria, he hung up. Thereafter, the daughter contended, Rodriguez started driving by and/or parking in front of their house. v3-ER853-59. Holt interviewed the Martinezes, Rodriguez, and other witnesses. v16- ER4644-48; v16-ER4492-99.<3> She found Maria more "creditable" than Rodriguez who, when pressed, changed his story several times; admitted but could not explain the calls; and conceded that Maria had hung up on him. v16-ER4597- 98(file memo). See also v16-ER4638-43(Q-A's of Rodriguez's interview). Based on these interviews, Rodriguez was suspended for three days without pay; prohibited from having any contact with Maria or retaliating against anyone; and required to take sexual harassment training. A Final Written Warning was also placed in his file. v16-ER4594-98. Other Harassment of Tamayo Throughout the 1990s, in addition to the rapes, Rodriguez harassed Tamayo, over whom he exercised some authority until 1997 or 1998. For example, he told her he desired her and would never leave her. v12-ER3281. He also appeared at her worksite and warned her not to talk to other men or loudly criticized her work, ripping out weeds and throwing them at her feet. v12-ER3296-97; v10-ER2779- 80(daughter observed this conduct); v4-ER859(Rodriguez followed Tamayo around). Remembering his gun and threats, Tamayo did not complain. Additionally, when Rodriguez came to check the crew, he sometimes dropped notes on the ground by Tamayo, reading, for example, "Oh baby, I'm never going to leave you alone." Tamayo threw the notes away. v12-ER3316. He also once gave her a belt, which she discarded. v13-ER3757-58. On one occasion, Tamayo wrote Rodriguez a note. As she was working on a noisy tomato machine, he arrived and started talking to her, offering to bring some melons to her house. Embarrassed by the attention, fearing gossip, and wanting him gone, Tamayo scrawled a cryptic note on a piece of paper. She explained that it was meant to say that, as usual, he should call before delivering the melons and do so early because her husband was working the night shift in the almond department. v12-ER3313-15; v15-ER4348(note).<4> Rodriguez still had this note, preserved in his wallet, when Tamayo complained to HR in July 1999. v7-ER1953-54. In about December 1998, Tamayo asked her supervisor, Audelio Corona, to stop Rodriguez from bothering her and trying to find out where she was working. She found Corona's response — that Rodriguez "liked [her] a lot" — offensive. v12-ER3305-07. She did not know whether any action was taken on her complaint, but Corona indicated that he told Rodriguez to talk to him, rather than Tamayo. v5-ER1231-35. In any event, Corona's comment to Rodriguez apparently had little effect. In early summer, Rodriguez saw Tamayo talking to Corona, assumed they were having an affair, and yelled at her, saying that, if she spoke to Corona again, she would "pay." v13-ER3702-03. Thereafter, on about July 19, Rodriguez stopped his truck, blocking Tamayo's way, just as she was leaving her worksite. Thinking he had business to discuss, she rolled down her window part-way. He walked up, reached in and pulled her left arm out the window, preventing her from driving away. He then grabbed her hair and started trying to hit her face. When she shielded her face with her other hand, he grabbed it. She screamed, and he eventually released her but not before taking out his gun and saying, "If I want to, I can kill you." v12-ER3478-80; v7-ER1908-09. These incidents further frightened and depressed her. The next day, she told a supervisor she had a problem and was feeling "really bad." A few days later, he raised the subject and she described the assault. Concerned, he said that he would have to tell the office if she did not. She agreed to do so herself. v12-ER3308-11; v13-ER3717-19. First Complaint After the Martinez complaint, Harris's HR personnel changed. Holt was replaced by Shirley Butts, and an assistant, Sylvia Gomez, was hired, largely to handle routine matters such as employee benefits. Unlike Holt and Butts, Gomez had no college degree or formal training in HR matters but, according to John Harris, she was "fully qualified" for the job. v5-ER1186. Her application indicates she had worked at McDonald's as an assistant manager and at a department store in sales, bridal consulting and, ultimately, personnel. v16- ER4483-85. Harris also understood she was bilingual (v5-ER1203) although there is no evidence the company tested her comprehension and oral expression or, importantly, her ability to retain multiple sentences in Spanish before translating them into English. Tamayo arrived at the office on Monday, July 26, where she spoke to Butts and Gomez. While Harris used Oscar Olvera or Tony Cazares, both certified translators, for "important" matters (v5-ER1366-67), Gomez acted as translator for virtually all of Tamayo's interactions with the office. The focus of the July 26 discussion was the previous week's assault although Tamayo also mentioned other matters. See, e.g., v12-ER3310-13. As the interview ended, Butts agreed to investigate. Rodriguez was suspended pending completion of the investigation. v15-ER4327. Two days later, Tamayo spoke again to Gomez, mainly to clarify about Rodriguez's weapons. Based on these interviews, Gomez put together a statement, which Tamayo signed, unread, on August 2. v12-ER3311-12. The statement provides a chronology of the assault and surrounding events. Regarding weapons, it indicates that Tamayo said she thought Rodriguez carried a gun but she had never seen it; she once heard it go off. The statement also says that Rodriguez has a knife that Tamayo saw him use once to cut watermelons v16- ER4530-33. According to Tamayo, that is not what she said. She said that Rodriguez carried a gun which she had seen although she did not see it the time it discharged at work. She also indicated that she had seen his knife various times, including the time he cut the watermelons. v12-ER3312-13. On July 30, Butts interviewed Rodriguez, with Olvera translating. v18- ER5117-19. Rodriguez admitted stopping by Tamayo's vehicle but explained that he had done so because he thought she wanted to talk to him. He denied hitting her or grabbing her hair. He then stated that he and Tamayo had had a consensual relationship, which she initiated, for many years. It had ended, and he was "jealous" of other men in her life. v7-ER1957-62. As evidence of the affair, he showed them the note she had written on the tomato machine. He reported that she had also written other notes but he had thrown them away, adding that his wife had found this one in his wallet — he did not explain why she allowed him to keep it. v7-ER1953-54; cf. v19-ER5387-94(another version of note's history). Thereafter, Butts, with Gomez translating, met with Tamayo to hear her reaction to Rodriguez's story. Tamayo found the meeting upsetting. v12-ER3326. Among other things, she denied the consensual relationship; explained the note; described the Barrera incident; and named two women, Josefina Guardado and Beatriz Ortiz, that she believed had also had problems with Rodriguez. She then stressed that she wanted no further interactions with Rodriguez at work. v10- ER2892; v12-ER3323-26(Tamayo); compare v17-ER4891-92(statement). On August 2, she was told to and did sign a statement, in English only, purporting to memorialize this interview. v12-ER3322-23. A few days after Tamayo's complaint, her husband commented that he had not seen Rodriguez at work recently. Tamayo confided that Rodriguez had assaulted her; she had complained to the office; and Rodriguez had been suspended. Maximino then insisted on hearing "everything"; Tamayo complied, beginning with the first rape. v11-ER2994-95. Aspects of her account jibed with Maximino's own knowledge, such as her description of Rodriguez's gun, which Maximino had once seen. v11-ER2996; v11-ER3112. Further, he "kn[e]w [his] wife." v11-ER3005. He therefore concluded she was telling the truth. v11- ER3113-14(responding to Harris's counsel's question about his "story," stating "for you it's a story. For me, it's reality . . . . for me these are truths"). On July 31, at Harris's request, a local Deputy Sheriff, Dana Crittenden, came out to Harris Farms to interview Tamayo and Rodriguez. Tamayo was "surprised" to see Crittenden as she had never been questioned by the police before. v12-ER3327. Olvera translated for Rodriguez, Gomez for Tamayo. v12- ER3328-29; v6-ER1528-31. At least once, while translating, Gomez exclaimed: "That's not what you said before." v6-ER1530. As the interviews progressed, Tamayo began hyperventilating. v6-ER1530. She suspected that Crittenden was not hearing everything she was saying: for one thing, the translations were too short. v12-ER3329-30. By way of illustration, Crittenden said she learned from both Tamayo and Rodriguez that Rodriguez had given Tamayo a bracelet, which Tamayo's husband had found. She recalled asking "What's that mean?" when Tamayo pointed to her wrist and being told it meant "bracelet." v5-ER1445-46. According to Tamayo, however, she never mentioned a bracelet — Rodriguez had never given her one — although she did gesture to her wrist when describing how Rodriguez had grabbed her on July 19. v12-ER3330-32. At one point, Butts passed Crittenden a note stating: "Rumor having affair." v8-ER2212-13. Crittenden speculated that Rodriguez was jealous because Tamayo was now with another man. She was never told that Rodriguez had previously been accused of sexual harassment. v5-ER1447-48. Nor did she hear anything about a gun(v5-ER1448), although Tamayo stated that she said Rodriguez had a "firearm." v12-ER3480. After the interviews, Crittenden concluded that there had been no battery; Rodriguez was "just holding [Tamayo's] hand asking her to come back, that he was sorry." v5-ER1457. There were no marks, and Tamayo appeared to be lying. v5-ER1450; v6-ER1464-68 (finding Tamayo "fidgety;" answers "unresponsive" and "evasive"). Crittenden therefore recommended simply that the parties be separated. v5-ER1456. Tamayo protested — "but he carries a gun" — but was told to leave. v12-ER3485. On August 2, Butts and Gomez interviewed the two women Tamayo identified as witnesses. One said that Rodriguez had repeatedly asked her about attending a flea market but had eventually left her alone. v16-ER4537(adding that Clarisa Mendoza said Rodriguez was interested in her). The other said she had observed Rodriguez visiting and taking food to a contract employee; she had advised the woman to discourage Rodriguez to avoid gossip. v16-ER4536. The company then closed its investigation. In a file memo, Butts concluded that Tamayo had "credibility" since she had a history as an honest employee and had nothing to gain from making a false complaint. In addition, Rodriguez admitted to having a "romantic" interest in Tamayo; two other employees confirmed that Rodriguez "has sought out other female employees in an effort to be friendly"; and Rodriguez had previously received a warning and been suspended for sexual harassment. v16-ER4538-40. Nevertheless, the memo continued, Harris could not determine what actually happened. v16-ER4538. Accordingly, Rodriguez was reinstated with backpay but given a stationary job that would preclude him from moving freely about the farm. He was also told to avoid all contact with Tamayo and to avoid interactions with other women that might give the "appearance of a relationship." Finally he was ordered to attend sexual harassment training and review the sexual harassment brochure. v16-ER4539-41. Accepting these conditions, Rodriguez went out on sick leave. v8-ER2208. Harris also had a local law firm prepare papers seeking a TRO and stay- away order for Tamayo. Tamayo, however, had to pay the process-server and handle the case herself after the initial filing. v17-ER4717. Second Complaint Tamayo's supervisors were not told to shield her from Rodriguez. v5- ER1227. In early August, she was assigned to drive a discing machine in a field in front of Rodriguez's house. Because he was on leave, she saw him repeatedly — this made her "uncomfortable and nervous," but she did not complain. v11- ER3236-40. On August 16, Tamayo was assigned to disc in an isolated one-square-mile area. At some point, she observed Rodriguez's truck driving up and down very slowly along the dirt road by the field. In light of her complaint, Rodriguez's recent threats, and the solitary location, she became alarmed. Having no radio or walkie-talkie, she drove her tractor to the middle of the field, put on her headlights — a signal of trouble — and waited. Some 20 minutes later, Corona, her supervisor, appeared. Showing him Rodriguez's truck, she asked if Rodriguez was back at work. Corona said that he had seen Rodriguez but did not know if he was still on leave. v11-ER3202-07; but see v5-1230(Corona told Gomez it was Rodriguez's truck but unsure of driver); id.(unsure if Rodriguez's truck). Upset and crying, Tamayo asked to be taken to the office. v11-ER3214. During the 10 to 12-minute drive to the office, Tamayo explained that she was "very frightened" both because of her complaint and because Rodriguez had said that he would kill her and maybe Corona if he saw them together. Saying little, Corona left her at HR. According to Tamayo, at HR she explained that she had seen Rodriguez's truck driving slowly along the field. She also explained that she was frightened and feeling very ill — rapid heartbeat, dry mouth, urge to cry — and would like to see a doctor. Butts confirmed that Rodriguez was not working and agreed to let Tamayo leave work early for medical reasons. v11- ER3214-19; v11-ER3221-23. The doctor prescribed some medication for Tamayo and asked the cause of her distress. She explained that she had just seen a man from work with whom she had had past problems and who had recently hit her "because of sexual harassment." The doctor responded, "no, at work, that shouldn't be at work." v11-ER3224-26. Thereafter, Tamayo went on short-term disability. See v16-ER4556. On August 18, encouraged by the doctor and Maximino (v12-ER3333), Tamayo went to the office and offered to tell Butts and Gomez "the whole truth" about the situation with Rodriguez. v10-ER2903. According to Tamayo, she described the rapes and attempted rape as well as Rodriguez's other harassment, threats and use of a weapon. She also repeated what he had said about "fighting" over Juan Barrera's sister-in-law and getting what he wants. See, e.g., v12-ER3333-34; v12-ER3346-47; v12-ER3478 (adding Rodriguez pulled out gun during rapes and on July 19). She further explained that she had not mentioned these incidents before because of her husband and her fear of Rodriguez. She added that the rapes were "very hard," but, after the assault, she knew she needed help to make Rodriguez leave her alone. v13-ER3695. The "statement" Gomez prepared purporting to memorialize this account differs materially. See v17-ER4712-14; v17-ER4718-21(fragment). A few key differences include the following. Rodriguez asserted that he fought over Juan Barrera's "wife" "in his home territory," rather than Barrera's sister-in-law at Harris Farms. Rodriguez "violated" Tamayo twice, rather than once, in the almond grove. After she began working for a labor contractor, he raped her "everyday . . . in the fields" (or perhaps in a truck), rather than once in her vehicle. There is no mention of the rape at her house or the attempted rape. Compare v17- ER4712-13 with v12-ER3336-42; v13-ER3750-58.<5> The parties agree that, at the end of this session, Tamayo noted that she had received papers from Rodriguez's attorney, responding to the TRO request. Stressing that the hearing was the next day, Tamayo asked Butts how she should proceed. Butts responded that she could not give legal advice; Gomez suggested that Tamayo appear at the hearing, seek a continuance and hire a lawyer. Tamayo and Maximino together followed this advice. v11-ER3008-09; v12-ER3343-46. In November, a stay-away order was issued. v17-ER4883-86. Throughout the rest of August and September, Gomez repeatedly attempted to have Tamayo, who was still on leave, sign the statement. See v17-ER4715-16 (file memo listing contacts). Parts of the statement Tamayo did not understand; parts were simply wrong. She proposed some corrections, noted on one English version, but eventually gave up, concluding that it was beyond repair. v12- ER3346-47. Harris did not investigate. See v12-ER3350("ignored" and disbelieved her complaint); cf. v6-ER1734(investigation possible without signed statement). On September 24, she filed a charge with the Commission. v16- ER4490-91. Soon thereafter, Tamayo was called to the office and questioned about her charge. Butts, with Gomez translating, recommended that she withdraw the charge, warning that the process would be "very hard" on her because Harris "had very good attorneys in Texas" and she was "like nothing against the company." When Tamayo responded that she would let EEOC's investigation proceed, Butts said that Harris would give her until the next day to withdraw the charge. The following day, Tamayo reaffirmed that she would not "remove" her charge; Butts warned that "nothing was going to go well" for her. v12-ER3350-52. After the charge was filed, Butts reinterviewed Rodriguez, who mainly denied the allegations (v17-ER4722), and interviewed two of three witnesses Tamayo had identified.<6> The investigation then "fizzled out"; no findings were ever made. v9-ER2436, v9-ER2453. In early December, despite the stay-away order, Maximino was assigned to work near Rodriguez. Throughout the fall, Maximino and Tamayo had been hearing gossip and taunts — which Maximino understood originated from Rodriguez and friends like Clarisa Mendoza — about Tamayo's supposed relationship with Rodriguez. Fed up, Maximino was drawn into an exchange of words with Rodriguez and suspended for three days. He then told the office he was quitting and taking Tamayo with him because she was no longer safe at Harris. v11-ER3016-25. Returning to the office a few days later to pick up their checks, the Tamayos met with Butts and Johnson. Learning that Rodriguez would retire and move to Texas the following week, they agreed to stay. v11-ER3026-27(adding Johnson would "try to stop the problems"). Johnson also recommended that, to put the incident behind them, Tamayo should withdraw her charge. He warned: "If this continues with EEOC, there will be more. And it's the lawyers' job to be jerks." v9-ER2397-2403. Coworker Harassment and Retaliation In the spring of 2000, Harris brought its HR function in-house. Although Gomez had had little additional training, she was promoted to HR Director. v5- ER1185-86(selected a "top person" for HR). In early fall, Tamayo was assigned to work in the almond department. While there, she complained to supervisor Luciano Solorio that several of her coworkers — Rodriguez's friends Clarisa Mendoza and Marcos Godinez, as well as Jose Hernandez and Refugio Mosqueda — were continually making sexual jokes, gossiping about her alleged relationship with Rodriguez and speculating about her preferred sexual practices. v12-ER3357-60. Mendoza and Mosqueda had previously received Final Written Warnings for sexual harassment. v7- ER1810-11. After her complaint, Tamayo was transferred out of the almond department but then transferred back in January 2001. Mendoza, Hernandez, and Mosqueda as well as Lourdes and Gustavo Ramirez and several other employees were also working there. v12-ER3360-62. The sexual talk continued. On January 27, Hernandez approached Tamayo and told her not to worry about the video that Mendoza and Godinez were reportedly planning to make — according to rumor, Rodriguez had offered these individuals $2000 to drug Tamayo, strip her, and make a video, with copies for Rodriguez and Maximino, of Hernandez having sex with her in a field. v12-ER3363; see also v6-ER1643-45(noting other comments). Tamayo began crying; she later told Lourdes that it was "just too much. This doesn't end." Lourdes responded that "this [would] be taken care of" and then told Mendoza, Hernandez, and Mosqueda that she, Gustavo, and Tamayo were "going to the office." Mendoza warned that Lourdes and Gustavo would "be sorry" if they complained. v12-ER3364-66.<7> After work that day, Tamayo told Solorio about the comments. On January 29, Solorio arranged a meeting with Tamayo, the Ramirezes and Department Head John Alcorn, where Tamayo told Alcorn she was "very tired" of the comments and "very frightened" about the threats. In addition, all three employees expressly asked to speak to Farm Manager Larry Chrisco, not Gomez, about the gossip and threats. v12-ER3366-70. Tamayo was then assigned to work alone, something she was afraid to do in light of the threats. On February 2, Solorio let her go to the office to complain. There, she explained to Gomez that she was afraid to work alone, particularly given the threats, and asked whether Chrisco knew of her solitary assignment. Gomez said she would check and get back to Tamayo. v12-ER3370-73. The next day, Gomez arrived with Alcorn at Tamayo's worksite, where she was again working alone, and reported that Chrisco had said: "You're going to work where you're needed, not where you say." Nor would Harris add another employee to the one-person job. However, Gomez agreed to schedule an meeting with Chrisco for February 5. That meeting did not occur. v12-ER3373-75. On about February 5, Tamayo learned that Gomez had interviewed Mendoza, Hernandez and Mosqueda, and that people were talking about Tamayo's complaints as well as her witnesses, Lourdes and Gustavo Ramirez. v12-ER3376- 78. In fact, when Tamayo insisted on talking to Chrisco, Gomez decided to investigate her complaints without waiting to hear what she alleged. Thus, on February 3, Gomez interviewed those three alleged harassers. Although investigations are normally done in private, Gomez conducted these interviews out in the open, in a field. She did not take along a translator but translated the information into English herself; no Spanish version of the interviews was made. v6-ER1756-57; v7-ER1758-83; v17-ER4854-57(statements). No one identified Tamayo as a gossiper. On February 15, Gustavo arrived at work to discover that the rear tires on the truck he typically drove had been punctured. The brake line in his wife's vehicle was also cut; she crashed into a tree but escaped injury. v12-ER3378-79. The vandals were never identified. Chrisco and Gomez finally met with Tamayo and the Ramirezes on February 21. The three explained about the gossip and threats, naming Mendoza, Hernandez, Mosqueda, and Godinez. Tamayo also explained that, particularly because of the threats, she was "very frightful." v12-3380-81. Moreover, while she wanted to put the previous year's events behind her, these people would not let her do so. She said that she had "confronted" Mendoza to ask her to stop gossiping, but Mendoza had merely accused the others. v17-ER4860-64(Gomez's meeting notes). As the meeting ended, Chrisco assured them that their allegations would be investigated and that Harris would not tolerate harassment or threats. v12- ER3381. Two days later, he drafted a memo recommending that all six of these individuals be suspended without pay for two weeks and then reinstated only if and when appropriate vacancies arose. He added: "To investigation [sic] there [sic] accusations takes a lot of time and expense which Harris Farms has to bare [sic]." v17-ER4865-67. Gomez reportedly reinterviewed Mendoza, Hernandez and Mendoza, who denied the allegations. She also interviewed Godinez, who denied having heard any gossip. v17-ER4858(statement). Gomez then concluded that Godinez was not involved in the gossip but it was impossible to determine which of the others were at fault. Accordingly, she decided that because Mendoza, Mosqueda, and Lourdes had previously been disciplined, they should be fired. v17-ER4868-69; v16-ER4579-83.<8> By contrast, Hernandez, Gustavo, and Tamayo should be suspended for three days without pay and receive a final written warning (v16-ER4575-78); Tamayo's suspension was later shortened to one day. v16-ER4584. On March 10, Tamayo was summoned to the office and told of her suspension and final written warning. v17-ER4875(suspension); v15-ER4335 (warning). According to her, she was given no explanation for her punishment, nor told what would happen to the others. She refused to sign the warning since, in her view, she was being punished for merely asking for help. The following day, she and Maximino resigned. Tamayo explained that, with the warning in her file, it was just a matter of time before she was fired and that would make finding a new job more difficult. v12-ER3381-87; v12-ER3399-3400. Tamayo's daughter, who was on seasonal layoff, was never called back to work. v10-ER2770-71. 3. District Court Decisions and Trial a. Intervention In September 2002, the Commission filed suit, alleging sexual harassment and retaliation under Title VII. R1. In November 2003, the magistrate granted Tamayo's motion to intervene alleging parallel Title VII and FEHA claims. v1- ER17-25; v1-ER26-29. Harris moved to dismiss the complaint-in-intervention, mainly arguing that the motion was untimely because, in defendant's view, her right to file state claims expired 90 days after EEOC filed suit. R33. The district court denied Harris's motion. v1-ER42-51. The court noted that the limitations period for bringing FEHA claims is tolled pending administrative resolution of a charge deferred to EEOC. In addition, the "‘time for commencing an action for which the statute of limitations is tolled . . . expire[s] when the federal right-to-sue period to commence a civil action expires.'" v1- ER47(quoting FEHA §12965). California courts have held that tolling extends until an EEOC right-to-sue letter is received, and here, no right-to-sue notice was ever issued. v1-ER46-48. The court acknowledged defendant's argument that the 90-day limitations period is triggered when EEOC files suit. v1-ER48. Even if "reasonable," the court stated, there is no authority for such a rule. Further, the court was "unaware of any authority on when the tolling period would expire" where as here "EEOC conducts an investigation and then files a civil action" without issuing a right-to- sue notice. Accordingly, the court refused to dismiss Tamayo's FEHA claims. v1-ER50-51. b. In-Limine Ruling on "Other Acts" Evidence Shortly before trial, a hearing was held on the in-limine motions. The court began by inviting the parties to revisit its rulings during trial "if circumstances have changed" and to seek a limiting instruction as appropriate. v1-ER166-67. Thereafter, the court considered Harris's motion to exclude "any mention or reference to incidences or allegations of sexual harassment involving . . . the alleged harasser against other employees that were not witnessed by . . . Tamayo." v1-ER204. The Commission assumed that this motion addressed both the Martinez and Barrera incidents. v1-ER204. However, counsel for Harris clarified: "we agree that the Maria Martinez matter can come in because Ms. Tamayo was interviewed." v1-ER206. The court then ruled that "evidence of other incidences involving other individuals are not admissible except . . . as evidence of sexual harassment . . . and/or an explanation for [Tamayo's] failure to complain" to the extent that she had knowledge of the incidents. v1-ER211-12(adding that evidence might go to credibility). In the court's view, this ruling was consistent with caselaw cited by both parties. Id. (citing Biggs v. Nicewonger Co., 897 F.Supp. 483 (D. Or. 1995)). Whether Tamayo had such knowledge and, if so, what effect it had on her were jury questions. See v1-ER211-12. Thereafter, counsel for Harris stated: "I assume . . . they have to prove these incidents occurred. Not just that somebody heard about them. . . . They have to have . . . somebody come in and say the offenses occurred." The court replied: "It's my understanding that the plaintiffs [have] the actual witnesses that we've already stated by name." Counsel responded: "That's fine. If they call those witnesses, fine." v1-ER212-13. c. Trial The case was tried to a jury over 23 days, from December 1, 2004, through January 21, 2005. Hermila and Matias Barrera testified on December 1 and described the events set out, supra, at 8 n.2. During their testimony, Harris objected to specific questions on grounds such as hearsay. See, e.g., v3-ER612; v3-ER615(vague). However, the company never objected generally that the evidence was inadmissible under Rule 403 or 404, Fed.R.Evid. Over one month later, on January 4, Harris moved to strike this testimony, arguing mainly that the company was surprised the incident occurred in 1980 and recognized immediately that the evidence was irrelevant and prejudicial. v12- ER3261-64. The court denied the motion, finding it untimely and the testimony relevant to Tamayo's state of mind — her fear, her failure to complain and her overall perception of a sexually hostile work environment. However, the court repeated its invitation to submit appropriate cautionary or limiting instructions. v12-ER3267-70. Defendant did not do so. Cf. v18-ER5184 n.3(Harris did not dispute EEOC's attestation that no request was made). To the jury, Harris took the position that Tamayo was lying about her relationship with Rodriguez and that Harris acted appropriately in responding to her complaints. Much of the evidence consisted of Butts and Gomez reading or affirming passages from various documents. See, e.g., v7-ER1956-74(Gomez: affirming Rene's "statement"); v7-ER1982-98(Gomez: affirming documents' contents); v7-ER2005(objection to Gomez reading Tamayo's "statement"); v9- ER2456-66(Butts: affirming contents of Tamayo's "statement"). A key witness was Rene Rodriguez. Testifying mainly by video, he explained inter alia that, after Tamayo initiated the affair (or they both did (v19- ER5358)), the two had sex three times a week from 1993 to 1999 — approximately 1000 times — mostly at her house, around 6 p.m. v19-ER5344-45; compare v19-ER5360-61(by "mistake" told HR in 1999 that affair ended in 1997). Maximino was never home and, while Tamayo had small children, Rodriguez could not recall where they were during these trysts. v19-ER5346-47. Despite their lengthy affair, he could not recall anything they had talked about besides the relationship (v19-ER5348-49("We would rightly or nicely talk")); he did not know she had been hospitalized and had surgery during this time (v19-ER5355) nor could he describe any distinguishing features about her body. v19-ER5350-55, v19-ER5362-63; cf. v19-ER5400(could not describe house because he only stayed 10-15 minutes). Rodriguez denied knowing the Barreras although they are his in-laws (v19- ER5369-71), or making advances to Maria Martinez (v19-ER5371-74) or other women (v13-ER3812; v19-ER5413-14). He admitted being "jealous" in July 1999 when he speculated that Tamayo had another man; the confrontation leading to her first complaint was his attempt to "converse" with her about this other affair. v10- ER2600-01. He also admitted having two guns and a knife. v19-ER5322-23; v19-ER5396-98. One hotly-contested question was whether Rodriguez was a supervisor. The jury was shown numerous documents referencing Rodriguez as Tamayo's supervisor or otherwise in management. See, e.g., v16-ER4544(1998: "foreman"); v16-ER4547 (July 1999: Rodriguez in "supervision"); v16-ER4551 (1997: Rodriguez as Tamayo's supervisor); v16-ER4553(1996: Rodriguez signed Tamayo's appraisal); v16-ER4598(Martinez investigation findings, noting Rodriguez "performs in supervisory capacity"); v16-ER4594(Rodriguez's Final Written Warning: "your position as a supervisor"). In addition, witnesses including Tamayo described him as a supervisor. See, e.g., v11-ER3192-94 (observed Rodriguez's name listed as supervisor on office wall in 1997 or 1998); v4-ER880-81(Martinez thought Rodriguez was Tamayo's supervisor since he gave orders and supervised crew's work). Company witnesses testified that the documents were wrong; Rodriguez had no supervisory responsibilities. v3- ER729-30(after talking to Harris's attorneys and Gomez, Holt concluded Rodriguez was not supervisor); v4-ER1013-14(Chrisco: Rodriguez not supervisor); v5-ER1274-75 (Gomez: did research and concluded Rodriguez was not supervisor). The jury also heard the translator, noting "difficulties with the syntax," attempt to translate several passages from Gomez's rendition of Tamayo's August 18 "statement." See v10-ER2955-56.<9> In addition, the jury heard Butts say that she found some information in that "statement" — such as the assertion that Rodriguez raped Tamayo every day — "ridiculous" (v11-ER3065-67) but she never taped the interviews or reinterviewed Tamayo with a professional translator. The case went to the jury on January 21. That afternoon, the jury returned a verdict for plaintiffs, finding that Rodriguez was a supervisor, that Harris was liable for harassment by him and by her coworkers, that the company retaliated against her because of her complaints, and that the conduct was malicious or in reckless disregard of plaintiff's federally protected rights. v18-ER5160-65. The jury awarded backpay, frontpay, and compensatory damages. Id. The jury then determined that punitive damages were appropriate and awarded $500,000 in punitive damages. v18-ER5168-69. Thereafter, the district court allocated the frontpay and compensatory damages to the state law claims; allocated the backpay and punitive damages to the federal law claims and lowered the punitive damages award to the $300,000 cap; and awarded injunctive relief and attorney's fees. v18-ER5220; v18- ER5230-60; v19-ER5308. d. Post-Judgment Rulings Harris moved for a new trial and judgment as a matter of law. R213; R215. In its new trial motion, defendant argued inter alia that the district court committed prejudicial error in admitting "other acts" evidence. The court denied the motion. v18-5175-5215. In reaching this conclusion, the court began by summarizing its rulings on the in-limine motion. In particular, the court noted that Harris agreed that information about the Martinez incident was admissible; the rule the court adopted for the admission of "other acts" evidence was based on caselaw cited by both parties; and the parties were invited to request reconsideration or limiting instructions as needed as the trial progressed. v18-ER5181-84. The court further noted that at trial, defendant "did not contemporaneously object to evidence concerning Martinez [or] Barrera." v18-ER5184-85. As for defendant's motion to strike the Barreras' testimony, the court continued, it was not "timely" under Rule 103, Fed.R.Evid. Furthermore, even if the objection were preserved, the evidence was "relevant and probative because Rodriguez himself used the incident to frighten and control Tamayo"; it "goes to Tamayo's state of mind and helps to explain why she did not report Rodriguez sooner" and aids "in establishing a hostile work environment." v18-ER5185-86. "Because Rodriguez used this past ‘remote' conduct, it became part of the current situation and environment facing Tamayo." v18-ER5186(probativeness outweighed prejudice). Finally, the court added, defendant never requested a limiting instruction or established that such a request would be futile. v18-ER5186-88. The court also denied defendant's motion for judgment as a matter of law on punitive damages. Noting the deferential standard of review for jury verdicts, the court stated that punitive damages are appropriate if the jury finds the defendant acted with reckless disregard of plaintiff's rights — i.e., "in the face of a perceived risk that its actions will violate the plaintiff's rights under federal law." v18- ER5223-24. To impute liability to the employer, the court continued, evidence must show, e.g., that "a managerial employee acted within the scope of his or her employment." v18-ER5225. "[G]ood faith efforts to comply with Title VII . . . are insufficient if [defendant's anti-discrimination] policies are not enforced or are ineffective." Id. Applying those standards, the court found sufficient evidence to support the punitive damages award. The court noted that Harris knew its anti-harassment policy was inadequate, but "no revisions or up-dates . . . were printed or distributed." v18-ER5225-26. Evidence also showed that Tamayo's 1999 complaints and other statements were inaccurately, even nonsensically, translated. Moreover, after the first complaint, Tamayo was assigned to work by Rodriguez's house — her supervisor was not informed about her complaint — and no action was taken when she complained about Rodriguez's truck circling the field where she was working. Finally, although a few interviews were done after she filed her EEOC charge, no serious action was ever taken on Tamayo's rape complaint. v18- ER5226-27. As for the 2001 complaint, despite the violent nature of some of the rumors and Tamayo's reported fears of working alone, she was not allowed to transfer to a job around other people. Nor was she even interviewed for about three weeks, during which time her witnesses' vehicles were vandalized. Furthermore, Gomez decided to discipline Tamayo even though she was the one who had sought assistance, two of the alleged harassers had histories of improper gossip and harassment, and no specific evidence supported Gomez's assertion that Tamayo had made sexually inappropriate comments. v18-ER5227-28. Finally, "the investigation of the 1999 complaints . . . and the retaliatory conduct regarding the 2001 complaint were performed and approved by defendant's human relations director and management." v18-ER5229. Viewed as a whole, the court concluded, this evidence fully supports the jury's finding. Id. STANDARD OF REVIEW Judgment as a matter of law is inappropriate unless "the evidence, construed in the light most favorable to the non-moving party, permits only one reasonable conclusion, which is contrary to the jury's verdict." Hemmings v. Tidyman's, 285 F.3d 1174, 1196 (9th Cir. 2002). In ruling on a motion, the court "may not make credibility determinations or weigh the evidence" and "must draw all reasonable inferences in favor of the nonmoving party." Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000). "[A]ll evidence favorable to the moving party that the jury [was] not required to believe" must also be disregarded. Id. at 151. This Court reviews the denial of a new trial motion (Hemmings, 285 F.3d at 1189-90) as well as evidentiary rulings for abuse of discretion. Josephs v. Pacific Bell, 443 F.3d 1050, 1064 (9th Cir. 2006). Interpretation of a statute is reviewed de novo. Sanchez v. Pacific Powder Co., 147 F.3d 1097, 1099 (9th Cir. 1998). SUMMARY OF ARGUMENT In this appeal, defendant does not dispute that the evidence the jury heard was sufficient to support its findings that Harris subjected Tamayo to a sexually hostile work environment not once but twice — in and before 1999, and again in 2001 — and retaliated against her for complaining about the harassment. While paying lip service to the deferential standard of review, however, defendant's brief reads as if the verdict were favorable to Harris. Had the company properly presented the evidence, the flaws in its arguments for reversal would be even more apparent. Defendant challenges three rulings: the admission of "other acts" evidence, the sufficiency of the punitive damages evidence, and the timeliness of Tamayo's FEHA claims. None of its arguments warrants reversal. First, the district court acted well within its discretion in allowing the jury to hear what defendant calls "other acts" evidence — evidence that Rodriguez harassed and fought over other women. This and other courts typically find such evidence relevant and admissible in Title VII sexual harassment cases, especially where, as here, the plaintiff-victim had knowledge of those other incidents. The evidence here was admitted to show, for example, Tamayo's motive for not complaining about the harassment sooner — a proper purpose under Fed.R.Evid. 404. Harris's argument for inadmissibility is based mainly on an inapplicable test from criminal law. Nor has Harris shown that the court abused its discretion in finding its objections to this evidence waived. Its arguments therefore should be rejected. Second, the jury reasonably found that punitive damages were appropriate, there being ample evidence that "managerial agents" at Harris acted with at least reckless disregard of Tamayo's federally protected rights. As the court noted, the jury properly could have considered evidence that Harris knowingly failed to update its out-dated anti-harassment policy and procedures; relied on incompetent, even unintelligible, translations of Tamayo's complaints; took no action on her rape and stalking complaints; and opted to suspend her without pay after she complained about threats and other ongoing harassment. Also relevant were Harris's repeated warnings that "nothing [would] go well" for her if she did not dismiss her charge and Chrisco's suggestion that she be punished because investigation of her complaints cost the company a lot of time and money. In challenging the award, Harris simply ignores this evidence, pressing its version of the facts, which the jury was free to reject. The company asserts that the harassers were not "managerial agents," but that is beside the point. Liability was based largely on the conduct of Harris's HR and other high-level managers. Finally, the court correctly denied defendant's motion to dismiss Tamayo's FEHA claims as untimely. Where, as here, the state claims were referred to EEOC for processing, the time for commencing an action alleging FEHA claims "expires" when the "federal right-to-sue period to commence a civil action expires." Under Title VII, the "federal right-to-sue period" typically expires 90 days after receipt of an EEOC right-to-sue notice. Here, because the Commission brought an enforcement action, Tamayo never received a right-to-sue notice but rather intervened, so the 90-day period was never triggered. Harris's argument that limitations begin running when EEOC files suit has no statutory basis nor would it provide the explicit notice this Court requires that limitations will expire in 90 days. This Court should therefore decline Harris's invitation to read language into the FEHA and Title VII that neither Congress nor the California legislature chose to include. ARGUMENT I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING THE "OTHER ACTS" EVIDENCE. Harris Farms argues that the district court "committed prejudicial error" in allowing the jury to hear evidence that Rodriguez harassed Hermila Barrera and Maria Martinez — what the company describes as inadmissible "other acts" evidence under Rules 403 and 404, Fed.R.Evid. Brief at 45. On the contrary, the court acted well within its broad discretion in admitting this evidence, which was highly relevant to two key issues in the case, and in finding that defendant failed to preserve any objection to its admission. To prevail in a Title VII suit like this one challenging an alleged sexually hostile work environment, the Commission must establish two factors. First, that the harassment, viewed subjectively and objectively, was "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., 510 U.S. 17, 21-22 (1993); see also, e.g., Perry v. Ethan Allen, 115 F.3d 143, 139 (2d Cir. 1997). This can be determined only by considering "all the circumstances," including the "frequency" and "severity" of the harassment and whether it was "physically threatening or humiliating." Harris, 510 U.S. at 23. Second, that there is a basis for imputing liability to the employer. That typically entails consideration of the employer's anti-harassment policy and complaint procedures as well as the victim's reasons for not complaining. See, e.g., Faragher v. City of Boca Raton, 524 U.S.775, 807-08 (1998) (supervisory harassment); Swinton v. Potomac Corp., 270 F.3d 794, 803-04 (9th Cir. 2001) (coworker harassment). Evidence that the same harasser harassed other women — what defendant refers to as "other acts" evidence — is highly relevant to both elements of the claim. See Fed.R.Evid. 401 (evidence is "relevant" if it has "any tendency" to make existence of material fact "more . . . or less probable"). Thus, particularly where the victim was aware of the other incidents, this and other courts have routinely admitted such evidence in Title VII harassment cases. See, e.g., Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994) (evidence of hostile work environment); Hirase-Doi v. USWest Commc'ns, 61 F.3d 777, 782 (10th Cir. 1995) (same, notice); Woods v. Graphic Commc'ns, 925 F.2d 1195, 1201-02 (9th Cir. 1991) (hostile work environment where plaintiff was subjected to some incidents of racial hostility and heard about others); cf. Heyne v. Caruso, 69 F.3d 1475, 1480 (9th Cir. 1995) (pretext); but cf. Brooks v. City of San Mateo, 229 F.3d 917, 925 (9th Cir. 2000) (other harassment unknown to plaintiff inadmissible to show hostile environment). Here, the so-called "other-acts evidence" concerned Rodriguez's propositioning of Hermila Barrera and Maria Martinez, the respective responses to those propositions, and Tamayo's awareness — whether direct or via Rodriguez — of those incidents. The court reasonably allowed the jury to consider this evidence in determining whether plaintiffs had established their hostile work environment claims. Turning first to the Martinez incident, it is remarkable that Harris is now challenging the admission of that evidence (Brief at 45-58), which was relevant inter alia to show how Kelle Holt handled a harassment complaint as well as that Harris had questioned Rodriguez's credibility and given him a Final Written Warning for sexual harassment. At the in-limine hearing, Harris's counsel stated unequivocally: "we agree that the Maria Martinez matter can come in [as evidence]." v1-ER206. Harris also identified Martinez as a potential defense witness (v1-ER82) and agreed to the admission, for all purposes, of various joint trial exhibits detailing Martinez's complaint and Harris's response to it. See, e.g., v16-ER4492-4501, v16-ER4674-80. Nor did defendant ever object to this evidence under Federal Rule of Evidence 403 (more prejudicial than probative) or 404 ("other acts") during the trial. Any objection the company might have therefore was clearly waived. Kelly v. City of Oakland, 198 F.3d 779, 786 (9th Cir. 1999) (failure to timely object constitutes waiver). Indeed, its argument on appeal verges on the frivolous. As for the Barrera incident, the district court reasonably admitted that evidence to show Tamayo's state of mind — specifically, why she did not complain more promptly and reasonably found the work environment hostile or abusive. v12-ER3267-70. The Barreras testified that Rodriguez gave Hermila an "obscene" letter asking her to "be his"; when Matias saw the letter, he confronted Rodriguez and, despite Rodriguez's gun, had to be restrained from fighting him. Tamayo learned of this incident because Rodriguez described it to her and used it — after raping her — to underscore the seriousness of his threats that he would harm her and/or her family without regard to possible repercussions, unless she concealed his harassment. v12-ER3279("With this gun and this knife, I fought with . . . [Juan Barrera's] sister-in-law . . . . Because when I like a woman, I don't mind fighting."). He also suggested that his family connections would protect him if she complained, just as they had when his nephew destroyed records of the earlier incident. v7-ER1996. Tamayo explained that these statements, like Rodriguez's repeated display of his gun, made her "very frightened." If she complained or told her husband, he "would confront Rene and Rene would kill him. Or . . . do something against Rene and end up in jail." v12-ER3279-80. As the district court recognized, the jury could find this evidence helpful in explaining Tamayo's motive for enduring Rodriguez's harassment in silence for so long. See Fed.R.Evid. 404(b)(noting that other acts may be used to prove matters such as "motive"). The jury could also consider the evidence in assessing the work environment — to the extent Rodriguez could and would act with impunity, that might well contribute to a perception that the work environment was hostile to both Tamayo and a reasonable woman in her position. See Harris, 510 U.S. at 22; Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991) (reasonable woman standard). On appeal, defendant fails to show that the admission of this evidence was an abuse of discretion. Initially, we note that the rule for admissibility adopted by the district court essentially accords with Harris's proposed rule. Citing Biggs v. Nicewonger Co., 897 F.Supp. at 485, Harris urged exclusion of any incidents not witnessed by or related to Tamayo during her employment. R100; accord Brief at 47. In response, the court required plaintiffs to show that Tamayo had contemporaneous knowledge of the incidents. See, e.g., v1-ER211-12. Harris cites no harassment case where application of a similar rule was held to be reversible error. Moreover, defendant indicated that it did not oppose references to the Barrera incident if the Barreras themselves appeared and testified. Specifically, at the in-limine hearing, Harris's counsel stated: "I assume [plaintiffs] have to prove these incidents occurred. Not just that somebody heard about them. . . . [Plaintiffs] have to have . . . somebody come in and say the offenses occurred." v1-ER212. When the court responded that it understood "plaintiffs [had] the actual witnesses," counsel replied: "That's fine. If they call those witnesses, fine." v1- ER212-13. Any error in the admission of this evidence was therefore invited by Harris and, so, not preserved for appeal. See, e.g., DeLand v. Old Republic Life Ins. Co., 758 F.2d 1331, 1336-37 (9th Cir. 1985) (party may not complain on appeal where objection is inconsistent with position taken below). Ignoring the in-limine proceedings, defendant argues that it preserved its objection by objecting during the Barreras' testimony and later filing a motion to strike. Brief at 58. This is half-true — defendant made objections and moved to strike, but the court nonetheless acted well within its discretion in finding waiver. As noted in its brief, during the Barreras' testimony, Harris objected to specific questions on various grounds such as hearsay (v3-ER612). This did not preserve an objection under Rule 403 or 404. See, e.g., United States v. Rivera, 43 F.3d 1291, 1295 (9th Cir. 1995) ("party fails to preserve an evidentiary issue . . . by making the wrong specific objection")(original emphasis). As for the motion to strike, it was filed over one month after the Barreras testified, with no explanation for the delay. Defendant's only cited authority does not hold that a court abuses its discretion in rejecting such a motion as untimely. See Brief at 58 (citing Huddleston v. United States, 485 U.S. 681, 690-91 & n.7 (1988) (noting that court may consider striking conditionally-admitted evidence once objector moves to strike at close of trial on grounds that offeror failed to satisfy condition)). Moreover, despite repeated invitations to propose a limiting instruction (v12-ER3269; v1-ER166-67), defendant never offered one. See Fed.R.Evid. 105 ("upon request" court shall instruct jury as to evidence admitted for one purpose). Defendant hinges its present argument on a four-part test borrowed from criminal law. Brief at 46-56 (citing United States v. Plancarte-Alvarez, 366 F.3d 1058 (9th Cir. 2004)). Plancarte holds evidence of prior bad acts inadmissible unless it tends to prove a material element of the charged offense; it is sufficient to support a finding that defendant committed the other acts; the acts are not too remote in time; and, if defendant's knowledge or intent is at issue, the acts are similar to the offense charged. 366 F.3d at 1062. Under this test, Harris argues, evidence of the Barrera (and Martinez) incidents was inadmissible largely because the incidents were dissimilar to and, regarding the Barreras, too remote in time from the harassment Tamayo experienced in this case.<10> Defendant does not attempt to reconcile this rule with Harris or, for example, Biggs and Hirase-Doi, both of which are cited in its brief. Brief at 47. In fact, Plancarte is inapplicable to this Title VII hostile work environment case. The test was designed to ensure that the "guilt or innocence" of a criminal defendant is "established by evidence relevant to the particular offense being tried, not by showing [he] has engaged in other acts of wrongdoing." United States v. Mayans, 17 F.3d 1174, 1181-82 (9th Cir. 1994). It therefore might apply if Rodriguez were on trial for rape. He was not. Rather, the issue for the jury was whether Tamayo was subjected to a sexually hostile work environment, an issue controlled by Harris' totality-of-circumstances test. We have found no case, nor has defendant cited any, that analyzes other incidents of sexual harassment under the Plancarte test. Nor would such a test make sense. The fact that harassment of other women was less severe than the harassment suffered by the victim has no bearing on whether knowledge of the earlier harassment enhanced the hostile work environment of the victim who brought suit. Similarly, "remote" incidents of harassment may serve as "background evidence" even if they fall outside the limitations period for the alleged discriminatory "practice." See AMTRAK v. Morgan, 536 U.S. 101, 113 (2002). Indeed, under defendant's proposed rule, a jury would be barred from hearing, for example, that, in propositioning a plaintiff, the company president told her that, if she refused, he would fire her just as he did an employee who rejected him several years before. Yet, that is just the sort of threat a reasonable woman might well find most credible.<11> In short, nothing in defendant's brief suggests that admission of this evidence was an abuse of discretion. We therefore urge the Court to reject defendant's challenges to the court's evidentiary rulings. II. SUFFICIENT EVIDENCE SUPPORTS THE JURY'S FINDING THAT HARRIS FARMS WAS LIABLE FOR PUNITIVE DAMAGES. Harris also challenges the sufficiency of the evidence supporting the punitive damages award. As the district court correctly concluded, however, ample evidence supports the jury's finding. Defendant's arguments to the contrary are premised on factual assertions that the jury could and did reject. In 1991 amendments to Title VII, Congress made punitive damages available to a Title VII plaintiff who proves that her employer "engaged in a discriminatory practice . . . with malice or with reckless indifference to [her] federally protected rights." 42 U.S.C. §1981a(b)(1). This provision focuses on the employer's mental state, rather than the nature of the alleged discrimination. Kolstad v. American Dental Ass'n, 527 U.S. 526, 535 (1999). Thus, for example, an employer may be liable for punitive damages if it discriminates "in the face of a perceived risk that its actions will violate federal law" even if the alleged conduct is not egregious. Id. at 536; Hemmings, 285 F.3d at 1197 ("employer knowingly or recklessly acted in violation of federal law"). However, punitive damages are not appropriate if the employer reasonably believed that its conduct was lawful — for example, because plaintiff's theory of discrimination was "novel or otherwise poorly recognized," (Kolstad, 527 U.S. at 536-37) or where "the discriminatory employment decisions of managerial agents . . . are contrary to the employer's good-faith efforts to comply with Title VII." Id. at 545-46; accord Swinton, 270 F.3d at 810-11; Passentino v. Johnson & Johnson Consumer Prods., 212 F.3d 493, 515 (9th Cir. 2000). Applying that standard here, the jury reasonably found defendant liable for punitive damages. In denying Harris's post-trial motions, the district court highlighted some of the evidence the jury could have considered. In particular, the court noted the company's failure to update its grossly inadequate anti-harassment policy; the reliance on inaccurate — even nonsensical — translations of Tamayo's complaints; the failure to instruct Tamayo's supervisors to distance her from Rodriguez after her complaint; the failure to act on Tamayo's rape complaint and report that Rodriguez was hovering around her isolated work-site until after she filed a charge; the failure in 2001 to transfer Tamayo to a job around people despite the reported threats to her person; the failure of Gomez and Chrisco to meet with Tamayo until three weeks after she requested a meeting; and their decision to suspend her, without pay, after she complained about the threats and other ongoing harassment. See v18-ER5204-07. Additionally, the jury could have considered Harris's warnings that "nothing [would] go well" for Tamayo if she did not dismiss her charge (v12- ER3350-52; v9-ER2397-2403) and Chrisco's recommendation that Tamayo, along with her harassers, be suspended for two weeks because "investigation [of] there [sic] accusations takes a lot of time and expense which Harris Farms has to b[ear]." v17-ER4866-67. Significantly, all of this conduct was done by HR and/or other high-level managers. The district court therefore properly concluded that ample evidence supports the jury's finding that Harris Farms acted with at least reckless disregard of Tamayo's federally-protected rights in its handling of her complaints and ensuing retaliation. In challenging the jury's finding, Harris Farms essentially ignores the evidence the jury credited. It then parses the various "claims" alleged by the Commission — harassment, constructive discharge, and retaliation, arguing that none supports a punitive damages award. Brief at 66-76. Regarding the harassment and constructive discharge claims, defendant asserts that they are "premised" on the conduct of Rodriguez and Tamayo's coworkers. According to Harris, these individuals lacked "sufficient managerial capacity" to justify a punitive damages award against the company. Brief at 67- 69.<12> This misunderstands the nature of the claims. The focus is not on Tamayo's harassers but on HR personnel like Butts and high-level managers like Chrisco. They are the ones who engaged in the conduct listed above. Harris does not dispute that these individuals were "sufficiently senior to be considered in a managerial capacity for purposes of punitive damages." See Brief at 60. As for retaliation, defendant makes two arguments. Both are flawed.<13> First, defendant argues that there is "no evidence that the one-day suspension and warning" — the only conduct defendant acknowledges might be retaliatory — would "deter an objectively reasonable person from complaining about discrimination" as required under Burlington Northern & Santa Fe Railway v. White, 126 S.Ct. 2405, 2411-18 (2006). Brief at 73. Initially, we note this argument is waived because Harris's JMOL and new trial motions (v13-ER3780- 82; v13-ER84-86; R213, R215) did not address whether, based on the evidence, a reasonable jury could find that this conduct meets the Burlington Northern standard (or this Court's earlier parallel standard, Ray v. Henderson, 217 F.3d 1234, 1242 (9th Cir. 2000)). See Saman v. Robbins, 173 F.3d 1150, 1154 (9th Cir. 1999) (failure to raise argument in Rule 50 or 59 motion precludes appellate challenge to sufficiency of the evidence). In any event, under the circumstances here, a jury could easily find that the discipline meted out to Tamayo is actionable. See, e.g., Smith v. City of Salem, 378 F.3d 566, 576 (6th Cir. 2004) (24-hour suspension actionable despite subsequent reinstatement); Lovejoy-Wilson v. NOCO Motor Fuel, 263 F.3d 208, 223 (2d Cir. 2001) (one-week suspension without pay actionable despite later reimbursement). Tamayo is a low-wage worker and, unlike the Burlington Northern plaintiff, was never reimbursed for her loss. Moreover, as she explained, the Final Written Warning left her vulnerable to termination, which would make finding any job — much less full-time employment — more difficult. v12- ER3383-88. Furthermore, the standard is "making or supporting a charge of discrimination." 126 S.Ct. at 2415. Employees in this wage bracket — like the Ramirezes — might well think twice before agreeing to support another employee's discrimination complaint if they knew such support would cost them money and jeopardize their continued employment. Second, defendant argues that the evidence does not support a finding that Harris had the requisite mental state when it retaliated against Tamayo. According to defendant, Gomez — who, it asserts, was not a "managerial agent" — punished Tamayo only after an "extensive" investigation of her 2001 complaint. Brief at 75-76. This argument, like the rest of defendant's brief, ignores the standard of review. See Hemmings, 285 F.3d at 1196 (reversal proper only if the "evidence, construed in the light most favorable to [plaintiffs], permits only one reasonable conclusion, which is contrary to the jury's verdict"). While the jury might have agreed with defendant, it reasonably could and presumably did believe that Gomez's investigation was perfunctory and unprofessional and that Tamayo was disciplined not because she made "inappropriate comments" but because her complaints were costing Harris time and money (see v17-ER4866-67). As for imputing liability to defendant, even if this argument were preserved (it was not), the jury was virtually compelled to impute Gomez's actions to the company. As director of HR, she was acting within the scope of her employment in purporting to address harassment complaints and, moreover, Harris ratified her conduct. See, e.g., Kolstad, 527 U.S. at 542-44; McInnis v. Fairfield Communities, 458 F.3d 1129, 1137 n.2 (10th Cir. 2006); cf. Swinton, 270 F.3d at 810-11 (liability for conduct of manager with authority to "investigate" or de-facto duty to receive and address harassment complaints). Accordingly, because the evidence amply supports the jury verdict and defendant's contrary arguments are entirely without merit, the punitive damages award should stand. III. THE DISTRICT COURT CORRECTLY HELD THAT THE FEHA CLAIMS IN TAMAYO'S COMPLAINT-IN-INTERVENTION WERE TIMELY. Finally, defendant argues that the district court erred in denying its motion to dismiss Tamayo's FEHA claims as untimely filed. On the contrary, the court's ruling, unlike Harris's creative reading of Title VII, accords with the statutory language as well as this Court's caselaw and, moreover, makes good sense.<14> Until recently, the FEHA required that private suits under that statute be filed within one year after the claimant received a right-to-sue notice from California's Department of Fair Employment and Housing ("DFEH"). Cal. Gov't Code §12965(b). In 2002, however, the statute was amended to provide for tolling of the limitations period where a charge was timely filed concurrently with EEOC and DFEH, and DFEH deferred the processing of the charge to EEOC. In such cases, the "time for commencing an action . . . expires when the federal right-to- sue period to commence a civil action expires," or one year from the date of the FEHA right-to-sue notice, "whichever is later." §12965(d)(1)-(2); see Downs v. L.A. Dep't of Water & Power, 58 Cal.App.4th 1093, 1102 (Cal.App. 1997) (tolling lasts "until a right-to-sue letter from the EEOC is received"). Here, Harris concedes that §12965(d)'s tolling factors were satisfied since DFEH deferred Tamayo's timely FEHA charge to EEOC and issued a right-to-sue notice. Brief at 41. The issue is whether Tamayo's complaint-in-intervention, alleging parallel Title VII and FEHA claims, was filed before "the federal right-to- sue period expired." See Brief at 41-42. It clearly was. Under §706(f)(1) of Title VII, an individual who has filed a charge with the Commission may bring a private action if the Commission has not entered into a conciliation agreement or brought an enforcement action within 180 days after her charge was filed. 42 U.S.C. §2000e-5(f)(1). The individual normally must file suit within 90 days of receiving notice from the Commission that one of the above-mentioned conditions has occurred. Id. This notice, to be effective, must clearly and explicitly "inform [the] claimant that she had 90 days to bring a civil action." Scholar v. Pacific Bell, 963 F.2d 264, 266 (9th Cir. 1992). Only such explicit notice triggers the 90-day limitations period. Missirlian v. Huntington Mem'l Hosp., 662 F.2d 546, 549 (9th Cir. 1981); cf. Ebbert v. DaimlerChrysler Corp., 319 F.3d 103, 116-17 (3d Cir. 2003) (claimant must be told of 90-day period). Here, as Harris tacitly admits, the Commission never issued, and Tamayo never received, a notice that she had a right to sue within 90 days. Rather, the Commission brought an enforcement action based on the allegations in Tamayo's Title VII charge, and Tamayo exercised her unconditional right under §706(f)(1) to intervene in the Commission's action. See 42 U.S.C. §2000e-5(f)(1). Title VII does not specify a limitations period within which complaints-in-intervention — or EEOC enforcement actions — must be filed. See id.; EEOC v. Occidental Life Ins. Co., 432 U.S. 355 (1977) (no limitations period on EEOC actions). Notwithstanding both this caselaw and the plain language of Title VII, Harris urges this Court to hold that the 90-day suit-filing period begins running upon the filing of an EEOC enforcement action. Tacking together snippets from various sources, Harris first notes that §706(f)(1) requires EEOC to notify a claimant if a conciliation agreement is not reached within 180 days after the charge was filed. The company then reasons that, although EEOC did not issue a right-to-sue letter here when conciliation failed, Tamayo was "put on notice that no conciliation agreement could be reached" when the Commission filed suit.<15> Thus, the argument goes, 90 days later, her federal right-to-sue period expired along with her right to bring parallel state claims. Brief at 42-45. Harris notes that neither a written right-to-sue notice nor "actual notice" is always required. Id. at 42-44 & n.8 (citing Ebbert, 319 F.3d at 109, 116, Scholar, 963 F.2d at 267, and two out-of-circuit cases like Scholar). This argument, though novel, has no merit. As noted above, Downs specifies that an FEHA action is tolled "until a right-to-sue letter from the EEOC is received," rather than until the Commission files suit. 58 Cal.App.4th at 1102. Furthermore, this Court requires that Title VII claimants be expressly informed of both the right to sue and the 90-day limitations period. See Scholar, 963 F.2d at 266; Missirlian, 662 F.2d at 549. Clearly, the Commission's initiation of a lawsuit does not provide such notice. Ebbert, cited by Harris, actually undermines its argument. While the Court suggested that, in appropriate circumstances, something less than written notice might suffice, it went on to stress that "[o]ral notice must be equivalent to written notice." 319 F.3d at 115-16. The Court then concluded that the oral notice there — a call from EEOC telling plaintiff her charge would be dismissed — was insufficient because defendant did not prove plaintiff "knew when the 90-day statute of limitations would start as a result of her phone conversations with the EEOC." Id. As for Scholar, it is factually inapposite. The Court held that the limitations period for filing a Title VII action started running when plaintiff's daughter signed the certified mail receipt for plaintiff's right-to-sue notice (specifying the 90-day period) even though plaintiff did not personally receive the notice until a few days later. See 963 F.2d at 266-67. More importantly, as noted above, Scholar stands for the proposition that a claimant must expressly be informed that she "has 90 days to bring a civil action." Id. at 266. Thus, like Ebbert, Scholar undermines, rather than supports, defendant's argument. Finally, defendant asserts that its interpretation of Title VII is "reasonable and necessary" because otherwise there would be "no applicable statute of limitations," and an individual like Tamayo could "raise new state law claims at any time after EEOC files a civil action." Because "Congress and the California Legislature" could not have intended that result, Harris suggests, this Court has "an obligation" to rewrite Title VII so that it makes sense. Brief at 44. On the contrary, the statutes are entirely reasonable as written. The main purpose of a statute of limitations is to prevent the litigation of stale claims. See, e.g., Downs, 58 Cal.App.4th at 1009. As for the 2002 amendments to §12965, they enable claimants to litigate parallel federal and state claims in a single suit, thereby conserving judicial resources. Downs, 58 Cal.App.4th at 1100; §12965(d)(3) (§12965(d) codifies holding in Downs, equitably tolling FEHA limitations period pending EEOC charge processing). Both purposes are furthered by the plain language of the provisions. As noted above, unlike for private civil actions, Congress did not include a limitations period in Title VII for complaints-in-intervention. Congress recognized that even when the Commission files suit on behalf of a particular claimant, its interests may diverge from those of the claimant. General Tel. Co. v. EEOC, 446 U.S. 318, 326 (1980) (noting EEOC also acts "to vindicate the public interest in preventing employment discrimination"). By giving claimants the unconditional right to intervene in EEOC actions, Congress ensured that they could adequately protect their own private interests. Id. at 331. At the same time, however, because there is no explicit limitations period, claimants need not reflexively move to intervene as soon as the Commission files suit but may, if they choose, wait to see whether such action is actually necessary. And, because the FEHA limitations period has not been triggered by the issuance of a federal right- to-sue notice, claimants may correspondingly wait before alleging parallel FEHA claims. Staleness is not a concern because of EEOC's pending enforcement action. In contrast, defendant's proposed requirement that claimants allege FEHA claims within 90 days of the initiation of an EEOC enforcement action would have the opposite effect. Claimants who might otherwise wait and see would be forced to choose — either intervene, perhaps unnecessarily, or forego that right and gamble that EEOC's suit will adequately protect their interests. That result is contrary to the purpose of §12965(d)(1)-(2). Nor is there substance to defendant's stated concern that, without a rigid limitations period, claimants could "raise new state claims at any time after EEOC files a civil action." Brief at 44. Rather, Rule 24(a), Fed.R.Civ.P., which governs intervention, requires that such motions be "timely." Three factors are considered: the "stage of the proceedings at which the applicant seeks to intervene," the "prejudice to other parties," and "the reason for and length of the delay." United States v. Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004) (district court has discretion to determine timeliness, a "flexible concept"). Thus, for example, if a claimant delayed in moving to intervene and the elements of her state claim were vastly different from those of her Title VII claim, a defendant could likely show prejudice, making assertion of that claim inappropriate. That did not happen here. When Tamayo moved to intervene, the magistrate judge carefully considered the relevant factors. The judge noted that the suit had been pending just under one year when Tamayo's motion was filed, so the litigation was still at a preliminary stage. Moreover, Harris identified no "substantive distinction between the Title VII and FEHA claims to warrant a different discovery than that [already] conducted," and no other cognizable prejudice by the delay. Consequently, the judge did not consider the one-year delay in filing to be "extreme" and, so, granted Tamayo's motion. v1-ER17-25. Harris's appellate brief likewise points to no cognizable prejudice from the challenged delay. Brief at 38-45. We therefore urge the Court to decline the company's invitation to rewrite Title VII and the FEHA, adding a limitation period that neither Congress nor the California legislature elected to include. Instead, the Court should hold that the district court correctly concluded that Tamayo's FEHA claims were timely. CONCLUSION For the foregoing reasons, the judgment below should be affirmed. Respectfully submitted, RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel ______________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4721 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 13,997 words, from the Statement of Jurisdiction through the Conclusion, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportional typeface using Microsoft Word 2003 with Times New Roman 14-point font. Attorney for Equal Employment Opportunity Commission Dated: _________________________ STATEMENT OF RELATED CASES The Commission agrees with Appellant's Statement of Related Cases. _________________________ Barbara L. Sloan Dated: __________________ CERTIFICATE OF SERVICE I certify that two copies of the foregoing Brief of the Equal Employment Opportunity Commission As Appellee were sent September 24, 2007, by express mail, postage prepaid, to: William J. Smith W.J. SMITH & ASSOCIATES 2350 W. Shaw Avenue, Suite 132 Fresno, CA 93711 Richard M. Pearl LAW OFFICES OF RICHARD M. PEARL 1816 Fifth Street Berkeley, CA 94710 Lowell T. Carruth Todd W. Baxter Scott M. Reddie MCCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP P.O. Box 28912 5 River Park Place East Fresno, CA 93720-1501 __________________________ Barbara L. Sloan STATUTORY ADDENDUM §706(f)(1) of Title VII, 42 U.S.C §2000e-5(f)(1) (excerpts) (f)(1)If within thirty days after a charge is filed with the Commission, . . . the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government. . . . The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission . . . . If a charge filed with the Commission . . . is dismissed by the Commission, or if within [180] days from the filing of such charge . . . the Commission has not filed a civil action under this section . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge . . . by the person claiming to be aggrieved . . . . Cal. Gov't Code §12965(b), (d) (excerpts) (b) If an accusation is not issued within 150 days after the filing of a complaint, or if the department earlier determines that no accusation will issue, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department will issue, on his or her request, the right- to-sue notice. This notice shall indicate that the person claiming to aggrieved may bring a civil action under this part against the [employer] named in the verified complaint within one year from the date of that notice. If the person claiming to be aggrieved does not request a right-to-sue notice, the department shall issue the notice upon completion of its investigation, and not later than one year after the filing of the complaint. . . . . . . . (d)(1) Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met: (A) A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing. (B) The investigation of the charge is deferred by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission. (C) A right-to-sue notice is issued to the person claiming to be aggrieved upon deferral of the charge by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission. (2) The time for commencing an action for which the statute of limitations is tolled under paragraph (1) expires when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later. (3) This subdivision is intended to codify the holding in Downs v. Department of Water and Power of City of Los Angeles (1997) 58 Cal.App.4th 1093. *********************************************************************** <> <1> This brief will refer to Olivia Tamayo as “Tamayo” and her husband as “Maximino.” Hermila and Matias Barrera, Lourdes and Gustavo Ramirez, and Maria and Juan Martinez will also each be referred to by first name. <2> Evidence shows that, in about 1980, Rodriguez propositioned Hermila Barrera, a woman related by marriage to Juan Barrera and Rodriguez. One evening while her husband Matias was out, Rodriguez arrived unannounced and handed Hermila an “obscene” letter, asking her to “be his.” v3-ER612-13; v3-ER653 (correcting translation). Even though Rodriguez had a gun, when Matias saw the letter, he went looking for Rodriguez but was restrained. v3-ER636-38. Hermila complained to Juan Barrera, and the couple did not see Rodriguez again. v3-ER614; v3-ER637-38. Rodriguez’s personnel file does not mention this incident. <3> As Maria’s crew leader, Tamayo was interviewed. She denied knowing about any harassment, adding that other women might not like Rodriguez’s scrutiny of their work, but when he yelled at her, she would say calm down and there would be no problem. v3-ER802-10. Tamayo later explained that she said nothing about her own problem largely because she was afraid of Rodriguez. v12-ER3304-05. <4> The note reads: “Going to work at night. My husband. The almonds. Call me early. You know.” v7-ER1956. <5> Several copies of another English version, one of which is annotated “w/out new changes 9/29/99,” also went to the jury. It contains sentences such as “Does Shirley ask him if Rene the tocaro? Yes. Him as it ascended up of me.” and “After the tomatoes, I give birth to of working for Harris.” See, e.g., v18-ER5084-87. <6> One witness, Lourdes Ramirez, confirmed that she had heard Rodriguez talk “in a mean tone of voice to Tamayo in front of other employees” and noticed that he often passed by where Tamayo was working and yelled at men who were talking to her. Once he tried to talk to Lourdes, but she rejected his advances. She also stated that “Clarisa” told her that Tamayo and Rodriguez were having an affair. v17-ER4727-28. The other witness stated that she never had problems with Rodriguez. She had heard that Tamayo and Rodriguez were lovers but never saw Tamayo “do anything like that.” v17-ER4724-25. <7> Contrary to defendant’s brief, Hernandez did not tell “Olivia that Gustavo Ramirez said he was going to give her a drug and then take a video of her.” Brief at 18 (citing v12-ER3363). Nor did Mendoza say that “everyone would be fired” if Tamayo complained to HR. Id. (citing v12-ER3366). Hernandez reported that Gustavo was saying Mendoza and Godinez would make the video. v12-ER3363 (“they say that Ms. Clarisa and Marcos are talking to Rene to give you a drug and then . . . make a film of you”). Mendoza said Lourdes and Gustavo would be fired if they complained. v12-ER3366. <8> Lourdes had signed a return-to-work agreement in 1996 after being reprimanded for complaining about unfair treatment. v18-ER4980-85. <9> “A meeting that followed a telephone conversation Olivia called herself had with Sylvia.” “Rene, they would come and they would be friendly as . . . if it were a friend of my husband’s.” “Did you go to a doctor? . . . No. . . . grass or pasture.” “He turned me father three to the field at approximately 10:30 a.m.” v10-ER2955-56. <10> Harris also baldly asserts that there is insufficient evidence that these incidents occurred. Brief at 48, 51. The jury could, however, believe the testimony of Martinez and the Barreras. Indeed, Kelle Holt credited Martinez’s statement. <11> Defendant argues that this “error” was harmful because no other evidence suggests Harris knew of Rodriguez’s harassment. Brief at 56-58. The evidence was not admitted to show notice. Harris had notice because Tamayo complained — twice — in 1999. <12> Defendant also asserts that the constructive discharge claim was “based on the working conditions created by the co-workers and . . . Rodriguez.” Brief at 67 n.10. That is partly true. It was also based on the conduct of managerial agents such as Butts, Gomez, Chrisco, and Johnson. <13> Defendant mistakenly suggests that Tamayo complained about harassment only in 1999. Brief at 72-73 (1½ years before discipline). While those complaints doubtless contributed to Harris’s retaliatory animus, the suspension and warning followed more directly from Tamayo’s 2001 complaint. <14> Although EEOC did not bring a FEHA claim, we have an interest because Defendant’s argument is based on a faulty construction of Title VII. <15> EEOC issues such letters upon request, but Tamayo neither did nor was required to request one. See Gifford v. Achison, T&S.F.Ry., 685 F.2d 1149, 1152 (9th Cir. 1982) (claimant normally may let EEOC retain jurisdiction over Title VII charge).