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. 
                                

***********************************************************************
<<FOOTNOTES>>

<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.  Rodriguezs personnel file does 
not mention this incident.

<3> As Marias crew leader, Tamayo was interviewed.  She denied knowing about 
any harassment, adding that other women might not like Rodriguezs 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 defendants 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 husbands.  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 Martinezs 
statement.

<11> Defendant argues that this error was harmful because no other evidence 
suggests Harris knew of Rodriguezs 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 (1 years before discipline).  While those complaints 
doubtless contributed to Harriss retaliatory animus, the suspension and warning 
followed more directly from Tamayos 2001 complaint.

<14> Although EEOC did not bring a FEHA claim, we have an interest because 
Defendants 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).