LYNCH, Circuit Judge.
A jury awarded Miguel Arrieta-Colon $76,000 in compensatory damages and $160,000 in punitive damages against Wal-Mart Puerto Rico, Inc. ("Wal-Mart") on his disability discrimination claim under the Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213.
Specifically, the jury found Arrieta had proven that he had an impairment or was regarded as having an impairment which substantially limited his ability to perform a major life function. Arrieta's claimed impairment was a penile implant used to correct a sexual dysfunction: the implant itself left Arrieta with the appearance of a constant semi-erection. The jury also found that Arrieta was subjected to a hostile work environment because of his disability. Arrieta's claim was that, due to his condition, he was constantly harassed both by his supervisors and co-workers, and that when he complained to his supervisors, no corrective actions were taken. The jury found that Arrieta was constructively discharged; that is, that he resigned from Wal-Mart due to the intolerable working conditions.
Wal-Mart appeals from the verdict, arguing that the district court erred in failing to instruct the jury on an affirmative defense under Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Wal-Mart also makes two insufficiency of the evidence arguments as to liability: (1) that Arrieta was not disabled within the meaning of the ADA, in that his impairment neither affected a major life activity nor was related to working conditions; and (2) that the evidence was insufficient to support the existence of a hostile work environment. Of these, the most difficult issue is that of whether Arrieta was disabled within the meaning of the ADA. But Wal-Mart did not preserve the issue at trial and does not demonstrate circumstances that would warrant our taking the extraordinary step of reaching the merits of that issue on appeal.
Wal-Mart also challenges the damages award, arguing (1) that the district court erred in its punitive damages instruction to the jury, (2) that there was insufficient evidence for the jury to award punitive damages, and (3) that Arrieta failed to mitigate his damages by taking advantage of Wal-Mart's open door policy.
Arrieta, in turn, appeals,
In the end, we affirm on both appeals, leaving all parties in the place the jury and the district court left them.
We recount the facts in the light most favorable to upholding the jury verdict as to the sufficiency challenge. Torres-Rivera v. O'Neill-Cancel, 406 F.3d 43, 45 (1st Cir.2005).
Arrieta began working at Wal-Mart in 1992. At the time, he suffered from Peyronie's Disease, which made it impossible
Arrieta filed paperwork with Wal-Mart's personnel department detailing the February 1994 procedure in order to obtain approval for medical coverage. Soon after returning to work after the surgery, Arrieta became the subject of harassment by his co-workers and supervisors. Three co-workers, the plaintiff, and supervisors all described the numerous incidents. On his first day back at work, Jorge Ortiz, an assistant manager, asked Arrieta "how it felt to have [his] new pump."
Arrieta married his present wife on June 18, 1995. The taunting about Arrieta's surgery continued for the remaining years that Arrieta worked at Wal-Mart, and was constant. On the one hand, much of the harassment expressed the view that Arrieta was impotent, and that he needed to use a pump to get an erection. One of Arrieta's co-workers testified that he thought Arrieta was impotent "[b]ecause according to what I know, a person who has had a little pump put in is because they are disabled as far as achieving an erection." Another co-worker testified that the jokes were "regarding his age, saying that he needed to have a pump in order to have relations. . . . What they almost always used was the part regarding the pump, that he needed to use a pump."
On the other hand, some harassing statements evidenced an impression that Arrieta was unusually enabled because of the implant. Assistant manager Ortiz once asked Arrieta, "old man, I'm going to be going out with someone tomorrow, and I wanted to know if you'll let me borrow your pump." Another time, Ortiz asked Arrieta, "Miguelito, did it work with your wife[?]" On one occasion, someone used the store's paging system to announce "that if [Arrieta] was close by to ask [Arrieta] to come to the warehouse to let him borrow a pump so that they could lift a pallet or a box." On another occasion, when Arrieta was visiting the personnel offices, a group of department managers in a meeting with personnel manager Mieles "began making comments such as, there is Viagra Man. No, he's got force power." As to this event, Arrieta testified, "I looked over at Miss Mieles, and I said this was the nonsense I was talking about four years ago." Mieles did not respond in any way.
In fact, with the implant, Arrieta was initially able to engage in intercourse with his wife. Later psychological depression,
Assistant manager Ortiz and Jose Ramos, a support manager under Ortiz, were initiators of the comments about Arrieta's condition, according to the testimony of Rey Rodriguez, one of Arrieta's co-workers. During meetings at the beginning of the night shift, Ortiz "would come into the warehouse with a joke regarding the pump." Rodriguez testified that Jose Ramos "would use [the paging system] to make jokes regarding the pump. . . . [Ramos] said . . . that Arrieta was ready with his baton." Another co-worker, Eliezer Ramos, recounted an incident between Arrieta and assistant manager Ortiz. Ortiz had been particularly offensive:
Eliezer Ramos also testified that Dennis Baerga, another assistant manager and yet a third supervisor of Arrieta, once said "[L]ook, Miguel Arrieta's pump seems to be working" within the presence of assistant manager Ortiz and Gilberto Rosa, who was a department manager for cosmetics, but not Arrieta's supervisor.
Arrieta's former supervisors, Ortiz and Jose Ramos, themselves admitted key facts. Support manager Jose Ramos admitted participating in the taunting:
Assistant manager Ortiz acknowledged that he was aware of the taunting, and that Arrieta had complained to him about it:
Ortiz also admitted knowing that Arrieta went to department manager Gilberto Rosa to complain. Neither Ortiz nor Rosa took action in response to these complaints.
The evidence shows that Arrieta complained to superiors in his chain of command at Wal-Mart, up to the level of store manager.
In 1997, Arrieta made another request that he be transferred from the overnight shift to the morning shift. This time, he directed his request to Benjamin Gomez, who was Font's replacement as store manager. He told Gomez that he "was having trouble with the jokes made by the guys." Gomez, rather than transferring Arrieta to the morning shift, transferred him to the afternoon shift, which exacerbated the problem. Arrieta said that once the decision to transfer him was made, he could not decline. According to Arrieta, the change to the afternoon shift only made his problems worse — he was still being harassed, only this time the harassment occurred in front of customers in the store, rather than just fellow employees. He told Gomez this. In his resignation letter, Arrieta noted that when he had complained to Gomez about the change to the afternoon shift, Gomez responded "in a mocking tone of voice and sarcastically" that "we are not here to make accommodations for anyone."
The harassment took an emotional toll on Arrieta. He had trouble sleeping, lost weight, and experienced a loss of libido to the point where he became unable to engage in sexual relations. On May 19, 1998, Arrieta complained to his urologist that he had a loss of sexual desire. The urologist found no physical reason for Arrieta's loss of libido, and so recommended that Arrieta see a psychiatrist or psychologist. On September 9 and October 5 of 1998, Arrieta consulted a psychiatrist, reporting loss of libido, loss of weight, and a depressive mood. The psychiatrist diagnosed Arrieta as having a dysthymic disorder with late onset. On February 5, 1999, the psychologist certified that Arrieta was disabled on account of dysthymic disorder and that such disability was not work related. Arrieta's wife, Nereida Olivencia, testified that when they got married they had plans to have children, but after Arrieta's problems began, that was no longer possible.
Co-workers also noticed a change for the worse in Arrieta. Rey Rodriguez testified, "[Y]ou could see that Mr. Miguel Arrieta's emotional system wasn't working the same way anymore." Delio Crespo testified, "At first, [Arrieta] used to share a lot with us, and after [a while], he withdrew from the group to the point where I had to ask about where he was, because I couldn't see him."
No recording by the company was ever made of Arrieta's complaints, including his complaints to the Personnel Department. In fact, Mieles, the personnel manager, acknowledged that there might not be any written record of an employee making use of the open door policy and that she had never even seen such a recording for any employee, much less one for Arrieta.
Under the open door policy, the supervisors had affirmative obligations as well. Benjamin Gomez, in response to a question by Arrieta's counsel, agreed that "any manager who would have heard or been present" during the harassment "would have had an obligation to investigate." No investigation was ever undertaken, although Arrieta had complained about the taunting to at least three supervisors in his immediate chain of command (assistant manager Ortiz, and store managers Font and Gomez), the personnel manager Mieles, and Rosa, who was not Arrieta's immediate supervisor but nonetheless a department manager. Arrieta had been taunted by at least three of his supervisors — assistant managers Baerga and Ortiz, and support manager Jose Ramos.
Arrieta concluded it was futile to complain further to the supervisors: "[T]hese jokes . . . had been begun by supervisors themselves and had become commonplace. Who are you going to complain to?" Delio Crespo, a co-worker, agreed. In reference to the taunting of Arrieta, Crespo stated: "I didn't feel the need to . . . contact any manager, because they were all present."
Arrieta explained that he decided not to escalate his complaints about the harassment to the Wal-Mart home office because of his prior experience with that office. He never received a response to a letter he had written to the home office in 1993 about how his work experience was not meeting his expectations. Arrieta wrote this letter "because when you're given all the orientation and you're given all the chats, what would happen was actually totally opposite of the way it was supposed to be." Arrieta said, "Since that letter was never answered, I never heard anything else about it. Then it seemed to me that with any other small incidents, it would just be wasting my time."
On October 19, 1998, Arrieta filed a charge of discrimination before the Equal Employment Opportunity Commission (EEOC) and the Department of Labor and Human Resources of Puerto Rico, alleging he had been subjected to a hostile work environment as a result of his age and medical condition. In his charge, Arrieta stated: "Often, allusions are made to my medical record, and I am the object of jokes and remarks on the part of my [s]upervisors and coworkers. I am told that I am already old, that I need a new operation because the pump does not work and other remarks that allude to an operation that I underwent approximately 4 years ago. Mocking is continuous on the part of my coworkers and [s]upervisors. . . ."
Arrieta received two written reprimands after this date. On October 23, 1998, Arrieta was reprimanded for failing to secure keys which could be used to access and steal merchandise. Then, on November 2, 1998, Arrieta was reprimanded for working twenty-four minutes of overtime without
An undated document in evidence titled "Exit Interview" indicates that Arrieta's last day of work was November 2, 1998. While the record is not clear about the details of Arrieta's departure from Wal-Mart, Wal-Mart claims that Arrieta was given a leave of absence on that date.
On March 22, 2000, the EEOC issued Arrieta a Notice of Right to Sue. Arrieta filed suit on June 21, 2000 against Wal-Mart, alleging violations of the ADA, the Age Discrimination in Employment Act (ADEA), and several provisions of Puerto Rico law. On January 14, 2004, the district court granted Wal-Mart's motion for summary judgment as to Arrieta's claims under the ADEA, but allowed Arrieta's hostile work environment and constructive discharge claims under the ADA and state law to go to jury trial.
During the trial, both Arrieta and Wal-Mart submitted proposed jury instructions. Wal-Mart proposed the following instruction regarding its anti-discrimination policy, as part of a broader instruction on the required elements of a hostile work environment claim:
Arrieta, for his part, requested only one additional instruction, which sought to avoid having the jury draw a negative inference from the fact that the EEOC did not make any determination on Arrieta's complaint; this proposed instruction was denied. Arrieta made no other objections to the instructions.
At the end of Arrieta's case in chief, Wal-Mart moved for judgment as a matter of law under Fed.R.Civ.P. 50 on the grounds that Arrieta had failed to establish that he was disabled within the meaning of the ADA. However, Wal-Mart failed to renew its motion at the close of all the evidence. On January 30, 2004, the jury returned a verdict in Arrieta's favor on the ADA claims and in Wal-Mart's favor on the state law claims, and awarded Arrieta compensatory damages of $76,000 and punitive damages of $160,000.
Both Wal-Mart and Arrieta made post-judgment motions. Wal-Mart sought judgment as a matter of law under Fed.R.Civ.P. 50 (this time, raising the claim that Arrieta had not established that he was disabled under the ADA), a new trial under Fed.R.Civ.P. 59, or vacation of the judgment under Fed.R.Civ.P. 60(b)(6). Arrieta sought an award of back pay and front pay. The district court denied both parties' motions for reasons discussed below.
A. Jury Instruction on Ellerth-Faragher Defense
This case involves evidence of both harassment by supervisors and harassment by co-workers. In two companion cases decided in 1998, the Supreme Court addressed the question of an employer's vicarious liability for actionable discrimination by a supervisor with immediate or successively higher authority over the plaintiff employee. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633; Faragher, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662.
Prior to Ellerth and Faragher, cases had established the standard for employer liability for co-worker harassment of the plaintiff employee. Ordinarily, where the harassment is by a non-supervisory co-worker, the employer is liable only if the plaintiff can show that the employer "knew or should have known of the charged . . . harassment and failed to implement
As to actionable discrimination by supervisors, Faragher articulated some clear lines:
After Ellerth and Faragher, the question that arose was whether a constructive discharge, occasioned by supervisor harassment so severe it was intolerable, constituted a per se tangible employment action so as to preclude the assertion of the Faragher affirmative defense. This court addressed the question in Reed. See 333 F.3d at 32-33. As is often our wont, we said that while other circuits had adopted hard and fast per se rules as to whether a constructive discharge was or was not a tangible employment action, we would not adopt such a rule. Id. at 33 ("[W]e see no reason to adopt a blanket rule one way or the other. Here, it is clear to us that the constructive discharge label cannot be used to preclude the affirmative defense."). Instead, we focused on whether the supervisor's action was an "official action" comprising the kind of tangible employment action (e.g., discharge, reduction in pay) that the Supreme Court appeared to have in mind. Id. Reed did allow for the possibility that, on other facts, the affirmative defense as to supervisor harassment could be precluded in a constructive discharge case.
The Supreme Court addressed the same issue in Pennsylvania State Police v. Suders, 542 U.S. 129, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004), adopting a test similar to that in Reed. Suders held that constructive discharge is not a per se "tangible employment action." Rather, it held that
Where the evidence shows that the defendant cannot prove an affirmative defense under the Faragher standard, there is no reason to remand for the giving of a Faragher instruction. See O'Rourke v. City of Providence, 235 F.3d 713, 736 (1st Cir.2001). Indeed, in Faragher itself, the Supreme Court declined to remand because the factual findings made in the trial court demonstrated that the employer was not, on the evidence, entitled to the defense. 524 U.S. at 808-10, 118 S.Ct. 2275.
In this case, the court instructed the jury on January 29, 2004, rejecting defendant's proposed Ellerth-Faragher instruction. At that time, Suders had not yet been decided, but Reed had been. Nonetheless, Wal-Mart did not ask for an instruction on whether a tangible employment action, or a "tangible event" as that term is defined by Reed, had taken place. Instead, Wal-Mart's instruction assumed there was no tangible employment action and that it was entitled to assert the Ellerth-Faragher defense.
In its ruling on the post-judgment motion the court said it had declined to give the proposed instruction because the Ellerth-Faragher defense was not applicable. The court found, in essence, that no reasonable jury could have concluded that either element of the defense had been met. First, the court noted that the open door policy existed on paper, but had not been put into practice. Indeed, when Arrieta complained to the Personnel Department and to several supervisors, no corrective actions were taken and his complaints were not even recorded. Second, the evidence was that Arrieta had reasonably availed himself of the procedures and the company had more than sufficient notice of the problems. We can find no reversible error; as in Faragher, the evidence did not support giving the instruction, irrespective of whether Wal-Mart's conduct amounted to a tangible employment action.
On this record there is and can be no assertion the jury was misled or that there has been a miscarriage of justice. The instruction the court gave placed the burden on the plaintiff to show not only that his work conditions were intolerable but also that his employer knew or should have known about the intolerable conditions and deliberately allowed them to recur. Thus, whether or not the supervisors themselves engaged in harassment, the supervisors, including Wal-Mart's own personnel department, were well aware of the co-worker harassment and chose to let it occur, providing another basis for Wal-Mart's liability.
B. Sufficiency of Evidence Challenges to Verdict
1. Sufficiency of Evidence to Support Finding Arrieta Was Disabled Within the Meaning of ADA
Were we forced to squarely confront it, the question of whether Arrieta suffered from a disability or was regarded as having a disability within the meaning of the ADA, as found by the jury, would be a difficult one. However, Wal-Mart failed to preserve appellate review of the issue by failing to renew its Rule 50 motion at
Wal-Mart admits the procedural default, but argues that nonetheless we have some room to review the claim, based on our "modicum of residual discretion to inquire whether the record reflects an absolute dearth of evidentiary support for the jury's verdict." Faigin v. Kelly, 184 F.3d 67, 76 (1st Cir.1999); see also Surprenant, 424 F.3d at 13. This review is exceedingly narrow, and "only very unusual circumstances will justify treating a motion at the close of the plaintiff's case as a surrogate for a motion at the close of all the evidence." Keisling, 19 F.3d at 759.
Such extraordinary review is not warranted in this complicated case. Under Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998), "reproduction is a major life activity for the purposes of the ADA" and "[r]eproduction and the sexual dynamics surrounding it are central to the life process itself." Id. at 638-39, 118 S.Ct. 2196. But at the same time, Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) held that "if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures — both positive and negative — must be taken into account when judging whether that person is `substantially limited' in a major life activity and thus `disabled' under the Act." Id. at 482, 119 S.Ct. 2139.
Both Sutton and Bragdon have to do with actual disability. But here the jury explicitly found that Arrieta was either disabled or "regarded as" disabled. Under the ADA, a plaintiff is "regarded as" disabled if he:
29 C.F.R. § 1630.2(l); see Rodriguez v. ConAgra Grocery Prods. Co., 431 F.3d 204 (5th Cir.2005) (discussing "regarded as" basis for liability). Whether Arrieta met either the actual disability or the "regarded as" test is not an easy issue.
Absent preservation of the issue, and any clear explication of it even on appeal, we decline to address the issue.
2. Sufficiency of Evidence To Support Hostile Work Environment
Wal-Mart argues that the evidence was insufficient to support the jury's finding that there was a hostile work environment that reasonably led to a constructive discharge.
Wal-Mart faces a daunting appellate standard of review. We review denials of motions for a new trial for abuse of discretion, keeping in mind that "[a] district court should only grant such motions if `the outcome is against the clear weight of the evidence such that upholding the verdict will result in a miscarriage of justice.'" Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 375 (1st Cir.2004) (quoting Ramos v. Davis & Geck, Inc., 167 F.3d 727, 731 (1st Cir.1999)).
There is no abuse of discretion here. As the district court correctly noted:
As a result, the jury verdict as to the existence of a hostile work environment is not "against the clear weight of the evidence."
1. Adequacy of Evidence to Support Punitive Damages
After the award of punitive damages, Wal-Mart asked that the verdict of punitive damages be set aside, altered, or amended under Fed.R.Civ.P. 59(e).
Our review of the denial of the motion to alter or amend the judgment under Rule 59(e) is for abuse of discretion. McCord v. Horace Mann Ins. Co., 390 F.3d 138, 144 (1st Cir.2004). If the district court committed an error of law, such as an improper instruction harmful to the outcome of the case, that would be an abuse of discretion. Even if an instruction was erroneous, we ask whether we can say with fair assurance that the jury verdict was likely unaffected. See Putnam Res. v. Pateman, 958 F.2d 448, 471 (1st Cir.1992).
As to punitive damages, the district court instructed:
While this is not a precise Kolstad instruction, it is close. As this court said in Romano v. U-Haul Int'l, 233 F.3d 655 (1st Cir.2000), in Kolstad the Supreme Court held:
Id. at 669 (citations omitted).
Wal-Mart's objection to the instruction, both before the district court and on appeal, is unclear. Wal-Mart does not argue that the district court's instruction was erroneous because it did not mention the good-faith aspect of Kolstad. Rather, Wal-Mart argues that because it had provided ample evidence of its open door policy, "Arrieta's supervisors' misconduct could not be imputed to Wal-Mart and the instructions to the jury should not have been given." In sum, Wal-Mart's position appears to be that, as a matter of law, punitive damages are unavailable if there is any evidence of good-faith efforts by the employer to comply with the law. Wal-Mart's position is wrong and would allow companies to pay lip service to the law while blatantly violating it.
The difficulty for Wal-Mart is that the Supreme Court did not adopt a test that any evidence of a good-faith effort could shield it from liability; rather, it required a finding of a good-faith effort to comply with the law. On these facts, a jury could easily conclude that the open door policy was a sham designed to give the appearance, but not the reality, of an effort to comply with the law, and that Wal-Mart acted with reckless disregard of Arrieta's rights. Goya, 304 F.3d at 30; Romano, 233 F.3d at 670.
That leaves Wal-Mart's argument that there was insufficient evidence for a jury to award punitive damages. Wal-Mart argues that any conscious wrongdoing by supervisors could not be imputed to Wal-Mart because there was a lack of evidence that the managers who taunted Arrieta and ignored his complaints were acting within the scope of their employment. We reject this argument; we agree with the district court that, on these facts, a reasonable jury could have found that the supervisors were acting in the scope of their employment. We agree with the district court that a reasonable jury could award punitive damages.
2. Mitigation of Damages
Wal-Mart argues that Arrieta "failed to mitigate [his damages] when he failed to
Whatever the argument may be, it must fail because the factual underpinning — that Arrieta failed to take advantage of the open door policy — is simply not supported by the record taken in the light most favorable to upholding the jury verdict. Arrieta made numerous complaints about the harassment to his immediate supervisors and the Personnel Department, and Wal-Mart had ample notice of Arrieta's complaints.
Arrieta appeals from the denial of his post-verdict motion that he be awarded equitable remedies of nearly five years of back pay and front pay. We affirm. Arrieta brought this situation on himself.
As the district court correctly noted, in this circuit when the jury is asked, as here, to resolve issues of liability and compensatory damages, the issue of back pay is normally decided by the jury as well. See Johnson, 364 F.3d at 379-80. Here, Arrieta did not advise the court before the jury was instructed that he wished to reserve the issue of back pay from the compensatory damages calculation by the jury, nor did he object to the instructions on compensatory damages. So the district court was not put on notice that Arrieta wished to have the issue of back pay decided by the court. We are not inclined to hold the plaintiff harmless from the foreseeable consequences of his actions. See Saldana Sanchez v. Vega Sosa, 175 F.3d 35, 37 (1st Cir.1999) (rejecting plaintiff's claim for back pay where the plaintiff failed to request an explicit instruction).
The district court went on to say that Arrieta had failed to provide evidence that he had looked for work or was unable to work, and so he had not met the mitigation requirement for an equitable award of back pay. We cannot say this was plain error, even giving plaintiff the benefit of plain error review rather than finding that he had waived the issue.
As to front pay, the district court held it would not, on the evidence before it, exercise its discretion to make an award. "Front pay should not be awarded unless reinstatement is impracticable or impossible." Johnson, 364 F.3d at 380. The court held that Arrieta did not request reinstatement, and had set forth no evidence of impossibility or impracticability of reinstatement, of inability to work, or of work life expectancy. There was no abuse of discretion.
We reject the appeals from both sides and affirm. No costs are awarded.