First Circuit holds that whether sexual harassment began before policy period is question for factfinder

I have previously written about a decision of the United States District Court for the District of Massachusetts in the case of  Manganella v. Evanston Ins. Co., 2011 WL 5118898 (D. Mass.).  A Jasmine employee, Burgess, sued Jasmine and another employee, Manganella, on the ground that she had been sexually harassed by Manganella. 

Jasmine sought defense and indemnity under an insurance policy issued by Evanston Insurance.  Evanston denied coverage on the ground that the sexual harassment did not happen in its entirety after the policy period began, as required for coverage under the policy.

The District Court granted summary judgment to Jasmine, holding that Evanston had not met its burden of proving that the harassment began before the policy period.

Evanston appealed to the First Circuit Court of Appeals.  The issue on appeal was whether the finder of fact, rather than a judge deciding a question of law, must conclude that the sexual harassment did or did not begin before the policy period. 

Burgess's complaint alleged that Manganella had subjected her to sexual harassment throughout her employment with Jasmine, which began prior to the policy period.  She later filed an affidavit stating that the harassment did not begin until after the policy period began.  Later she asserted that although Manganella made off-color comments prior to the policy period, she was not threatened by him until after the policy period began.

In Manganella v. Evanston Ins. Co., __ F.3d __, 2012 WL 6217625 (1st Cir.), the First Circuit held that considered in the light most favorable to Jasmine, Burgess's statements do not necessarily show that the conduct giving rise to the discrimination complaint began before the policy period.  The court also held that when considered in the light most favorable to Evanston, the statements could support the inference that the harassing conduct did include the pre-policy period statements.

The court held that the undisputed facts therefore do not entitle either party to summary judgment.  Rather, the issue "is a quintessential question for a factfinder."