United States Court of Appeals
For the First Circuit
Nos. 01-1984
GINA MARRERO,
Plaintiff, Appellee,
v.
GOYA OF PUERTO RICO, INC.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini-Ortiz, Senior U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Radamés A. Torruella, with whom Maggie Correa-Avilés and
McConnell Valdes were on brief, for appellant.
José F. Quetglas for appellee.
August 28, 2002
LIPEZ, Circuit Judge. Gina Marrero filed this employment
discrimination action against her former employer, Goya of Puerto
Rico, Inc. (Goya), under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. Marrero alleged that sexual harassment
by her former supervisor, Ramón Cárdenas, created a hostile work
environment; that Goya retaliated against her when she complained
about Cárdenas's behavior; and that, as a result of the retaliation
and continuing harassment, she was forced to resign. She sought
compensatory damages, back pay, and punitive damages.
The case proceeded to trial, and at the close of the
evidence Goya moved for judgment as a matter of law under Rule 50
of the Federal Rules of Civil Procedure. Goya argued, first, that
much of the alleged harassment fell outside Title VII's statute of
limitations, leaving events within the limitations period that did
not rise to the level of a hostile work environment. Second, Goya
maintained that the evidence was insufficient as a matter of law to
support Marrero's claims of retaliation and constructive discharge,
and her request for punitive damages. Finally, it urged the court
to enter judgment in its favor on the basis of the affirmative
defense recognized in Faragher v. City of Boca Raton, 524 U.S. 775
(1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742
(1998), for cases involving sexual harassment by a supervisor.
The district court deferred judgment on the motion and
submitted the case to the jury. After several hours of
deliberations, the jury returned a verdict in Marrero's favor,
awarding her $175,000 in compensatory damages, $11,250 in back pay,
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and $75,000 in punitive damages. Goya duly renewed its Rule 50
motion for judgment as a matter of law or, in the alternative, a
new trial. This time, the district court rejected the motion,
concluding that Goya had forfeited the statute of limitations
defense; that there was ample evidence to support the jury's
findings of a hostile work environment and retaliation, its award
of back pay for constructive discharge, and the punitive damages;
and that the jury reasonably concluded that Goya had not
established the elements of the Faragher/Ellerth affirmative
defense.
We review de novo the court's denial of Goya's motion for
judgment as a matter of law. White v. N.H. Dep't of Corrections,
221 F.3d 254, 259 (1st Cir. 2000). Like the district court, we
examine the evidence presented at trial in the light most favorable
to Marrero. Id. We "may not consider the credibility of
witnesses, resolve conflicts in testimony, or evaluate the weight
of the evidence." Katz v. City Metal Co., 87 F.3d 26, 28 (1st Cir.
1996) (internal quotation marks omitted). We must affirm unless
"reasonable persons could not have reached the conclusion that the
jury embraced." Negron-Rivera v. Rivera-Claudio, 204 F.3d 287, 290
(1st Cir. 2000). We review the district court's denial of Goya's
request for a new trial for an abuse of discretion, recognizing
that "[a] new trial should be ordered only if the court believes
that the outcome is against the clear weight of the evidence such
that upholding the verdict will result in a miscarriage of
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justice." Ramos v. Davis & Geck, Inc., 167 F.3d 727, 731 (1st Cir.
1999) (internal quotation marks and alterations omitted).
We conclude that Marrero's hostile work environment claim
was supported by sufficient evidence and was not barred by the
statute of limitations. We also conclude that Goya was not
entitled to judgment as a matter of law on the Faragher/Ellerth
affirmative defense, or the issue of constructive discharge.
However, we hold that the district court erred in accepting the
verdict for Marrero on her claim of retaliation. Because it is
impossible to determine what portion (if any) of the compensatory
and punitive damages awards was based on the jury's erroneous
finding of retaliation, we remand for a new trial on damages.
I. BACKGROUND
The jury could have found the following facts.1 Marrero
began work at Goya in April of 1995, where she served as a
secretary in the Sales Department, under the supervision of Ramón
Cárdenas, the Vice President for sales. Marrero also had duties in
the Exports Department, where her supervisor was Wilberto Rivera
and -- later -- José Luis Diaz.
Marrero was subjected to sexual harassment by Cárdenas
throughout her tenure at Goya. The harassment consisted primarily
of sexual comments, often accompanied by lascivious looks and
offensive gestures. Cárdenas also would contrive to "bump into"
Marrero in the narrow hallway between their work spaces, and on
1
We provide a sense of the case here. We provide more detail
in the relevant sections of the opinion.
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several occasions rubbed his body against hers as she used the
photocopier machine.
In the summer of 1995, Marrero confronted Cárdenas about
his behavior. After a brief respite, the harassment began again,
now accompanied by more "vulgar" comments made "with a gross tone."
In addition, Cárdenas began to criticize Marrero for work-related
matters. He would scold her for no reason, sometimes yelling at
her in front of other employees. On other occasions Cárdenas would
startle Marrero by slapping her desk with his fist; he then would
ask, "Aren't you tough? Are you scared?"
Cárdenas also used his authority to "punish" Marrero in
several ways. He often gave her extra work just as she was leaving
for the day, making her stay extra hours without pay for overtime.
Although he was aware that she was hypoglycemic, Cárdenas changed
Marrero's lunch hour so that she was forced to work for more than
five hours without a break. He also used his power in more petty
ways, such as refusing Marrero's requests to leave her desk to use
the bathroom.
Cárdenas's conduct made Marrero feel "offended,
humiliated, embarrassed, depressed." By the fall of 1995, she had
become "very anxious, very nervous" at work. Marrero had
difficulty concentrating; she "had to make a super-human effort" in
order to perform her duties.
In December of 1995, Marrero suffered a nervous
breakdown. She "couldn't function the way [she] was feeling." Her
family physician prescribed antidepressants and tranquilizers, and
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referred her to a psychiatrist, Dr. Fernando Cabrera. Marrero met
with Dr. Cabrera several times during December, 1995, and January,
1996. During her first visit, she mentioned that Cárdenas was
bothering and pressuring her at work, but she did not provide any
details. Dr. Cabrera described Marrero as "disorganized, confused,
and unable to talk in a coherent and logical way" about what was
bothering her. He diagnosed a major depression with psychotic
features and a panic disorder, and recommended that Marrero take a
five-week medical leave from work. During that time, he treated
her aggressively with antidepressants, tranquilizers, and anti-
psychotic drugs.
Marrero returned to work on February 5, 1996. She did
not feel that she had recovered fully, but "needed the money" from
work. She was greeted by more of the same harassment by Cárdenas.
He continued to make sexual comments, and "was always getting on
[Marrero's] case."
Eventually, the situation "became intolerable," and on
August 15, 1996, Marrero suffered another emotional breakdown. She
was taken by a Goya nurse to the emergency ward of a psychiatric
hospital, and from there to Dr. Cabrera's office. Marrero told Dr.
Cabrera "I cannot work anymore" and that Cárdenas was "making her
feel bad." Dr. Cabrera interviewed the Goya nurse, who confirmed
that it "was true, that [Marrero] was being harassed by . . . Mr.
Cárdenas." Dr. Cabrera issued a medical certificate to Goya
excusing Marrero from work for two weeks. The certificate stated
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that Marrero was suffering from "depression and anxiety caused by
work."
Marrero returned to work after two weeks of sick leave.
Again, she was subjected to continuing harassment by Cárdenas,
culminating in the events of October 31, 1996. Cárdenas told
Marrero that he was going out to buy Halloween presents. He gave
her "a direct penetrating look with lust," and said: "I have a
little present for you that you're never going to forget and if you
don't do the things I tell you and order you to do I am going to
fire you." Marrero interpreted that comment as a sexual
invitation, and a threat that if she did not submit, she would be
fired.
Marrero immediately reported the incident to Diaz (her
supervisor in the Exports Department). Marrero had discussed
Cárdenas's behavior with Diaz previously, as she had with his
predecessor, Rivera. She also had complained to Remigio Nieves,
the Vice President of the Human Resources Department. Following
the "Halloween presents" incident, Marrero sent a memo to Nieves,
requesting a copy of Goya's policy on discrimination and
harassment. When Nieves did not respond, Marrero decided to seek
advice from the Department of Labor for the Commonwealth of Puerto
Rico. She met with Nieves several days later and informed him that
she planned to file a formal grievance.
Marrero went on sick leave from November 13 to 20, 1996.
During that time, she filed a charge of sexual harassment with the
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Equal Employment Opportunity Commission (EEOC) against Cárdenas and
Goya. She also retained legal counsel.
Marrero returned to work on Wednesday, November 20. That
morning, she met with Nieves and Goya's in-house counsel, Horacio
Cabrera. The three discussed Marrero's problems with Cárdenas, and
Marrero confirmed that she had filed a charge with the EEOC.
Nieves then handed her a letter stating that she had been
transferred to the Human Resources Department, where she would
serve as his secretary. In that job, Marrero would no longer be
under Cárdenas's direct supervision; however, her new desk would be
approximately the same distance from Cárdenas's office as her
original location. She asked Nieves why she could not be
transferred to an available secretarial position in another
building, away from Cárdenas. Nieves responded that the decision
had been made; he urged her to view the transfer as a promotion.
In her new position as Nieves's secretary, Marrero would
perform largely the same duties as she had as secretary for the
Sales and Exports Departments. Nevertheless, Nieves told her that
she would have to undergo a probationary period "to see whether
[she] could perform the new duties." Marrero viewed the
probationary period as a threat to her job security.
Marrero remained at the new position for the final two
days of the work week. She was trained by Maritza Ramos, secretary
to the President of Goya. Marrero felt threatened by Ramos, who --
together with Nieves -- subjected her to "extreme supervision."
Moreover, Cárdenas continued to bother Marrero in her new position.
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He stared at her, made faces, and laughed at her. At one point he
said, "[you] thought [I] was going to be screwed," but "it was
[you] who ended up screwed."
As a result of the continuing harassment and the
hostility she felt in her new job, and acting on advice from Dr.
Cabrera, Marrero did not return to work after Friday, November 22.
She hoped that she would be able to go back to Goya once her
emotional condition improved. However, by March of 1997 -- after
continuous psychiatric treatment, and on the recommendation of Dr.
Cabrera -- Marrero decided she had no choice but to resign. She
gave notice of her retirement on March 24, 1997. Shortly
thereafter, she filed a second charge with the EEOC alleging
retaliation and constructive discharge.
II. HOSTILE WORK ENVIRONMENT
Marrero's complaint alleged, inter alia, that the
constant sexual harassment by Cárdenas created a hostile work
environment actionable under Title VII. In order to prevail on
that claim, she had to establish that the harassment was so "severe
or pervasive" as to alter the terms of her employment, creating a
work environment that was both objectively hostile and perceived as
hostile by Marrero herself. Faragher, 524 U.S. at 786 (internal
quotation marks omitted). As explained below, we conclude that
there was sufficient evidence to support the verdict. Before we
reach that issue, however, we first must address Goya's argument
that Marrero's hostile work environment claim is barred by the
statute of limitations.
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A. Statute of Limitations
Under Title VII, a plaintiff must file a charge with the
EEOC "within one hundred and eighty days after the alleged unlawful
employment practice occurred." 42 U.S.C. § 2000e-5(e). In a
"deferral jurisdiction" such as Puerto Rico, that period is
extended to 300 days. See id. § 2000e-5(e)(1); Mohasco Corp. v.
Silver, 447 U.S. 807, 814 n.16 (1980).2 Here, Marrero filed her
hostile work environment charge on November 13, 1996. Counting
back 300 days, Goya maintains that she can recover only for events
occurring on or after January 18, 1996.
The first time Goya presented that argument in any detail
was in its Rule 50 motion for judgment as a matter of law, filed at
the close of Marrero's case. Marrero responded on two fronts.
First, she argued that Goya had forfeited the statute of
limitations defense by failing to raise it earlier in the
2
As we have explained elsewhere:
The full story is more complicated, in part because
§ 2000e-5(e) interacts with § 2000e-5(c), which imposes
a sixty-day waiting period between the filing of a charge
with state or local authorities and the filing of a
charge with the EEOC[.] A complainant in a deferral
State . . . need only file his charge within 240 days of
the alleged discriminatory employment practice in order
to insure that his federal rights will be preserved. If
a complainant files later than that (but not more than
300 days after the practice complained of), his right to
seek relief under Title VII will nonetheless be preserved
if the State happens to complete its consideration of the
charge prior to the 300-day period.
Thomas v. Eastman Kodak Co., 183 F.3d 38, 47 n.5 (1st Cir. 1999)
(internal quotation marks and alterations omitted).
Those subtleties are of no import here. Marrero filed her
charge less than one month after one of the instances of harassment
that makes up her hostile work environment claim. As we explain
below, that is enough to satisfy the statute of limitations here.
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litigation. Second, she maintained that her hostile work
environment claim was governed by the so-called "continuing
violation doctrine," and therefore was immune from Title VII's time
bar. Under the continuing violation doctrine, Marrero argued, a
plaintiff may recover for events outside the 300-day limitations
period "if they are deemed part of an ongoing series of
discriminatory acts and there is some violation within the statute
of limitations period that anchors the earlier claims." O'Rourke
v. City of Providence, 235 F.3d 713, 730 (1st Cir. 2001) (internal
quotation marks omitted). Marrero contended that the "chain" of
harassment by Cárdenas, which continued into the limitations
period, satisfied that standard.
Goya did not dispute that Marrero's allegations of sexual
harassment, if true, would satisfy the relatedness requirement of
the continuing violation doctrine. It emphasized, however, that we
had refused to apply the continuing violation doctrine in cases
where the plaintiff was "aware that [she] was being unlawfully
discriminated against while the earlier acts, now untimely, were
taking place." Provencher v. CVS Pharm., 145 F.3d 5, 14 (1st Cir.
1998). Goya insisted that Marrero was aware of the discrimination
at least as early as December of 1995, when -- according to her own
testimony -- she suffered a nervous breakdown as a result of
Cárdenas's behavior. Thus, Goya argued that Marrero was obligated
to file a charge within the next 300 days and, having failed to do
so, could not recover for the earlier (now untimely) events.
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The district court did not address the merits of
Marrero's continuing violation claim, or Goya's response. Instead,
it held that Goya had forfeited its statute of limitations defense
by failing to raise it earlier in the proceedings. We express no
view on the forfeiture issue because the Supreme Court's recent
decision in National Railroad Passenger Corp. v. Morgan, 122 S. Ct.
2061 (2002), makes clear that Goya's statute of limitations defense
fails on its merits.
In Morgan, the Court distinguished between hostile work
environment claims and claims involving discrete acts of
discrimination or retaliation, such as a discharge, failure to
promote, denial of transfer, or refusal to hire. Id. at 2070-72.
As noted, a Title VII plaintiff must file a charge with the EEOC
within 300 days "after the alleged unlawful employment practice
occurred." 42 U.S.C. § 2000e-5(e). The Court reasoned that "[a]
discrete retaliatory or discriminatory act 'occurred'" for purposes
of the statute of limitations "on the day that it 'happened.'"
Morgan, 122 S. Ct. at 2070. Therefore, the plaintiff must file a
charge within 300 days "of the date of the act or lose the ability
to recover for it." Id. at 2071.
Hostile work environment claims are different. A hostile
work environment, the Court explained, is created by "repeated
conduct" -- "a series of separate acts that collectively constitute
one 'unlawful employment practice.'" Id. at 2073-74 (quoting 42
U.S.C. § 2000e-5(e)(1)). As such, hostile work environment claims
do not "turn on single acts but on an aggregation of hostile acts
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extending over a period of time." Havercombe v. Dep't of Educ.,
250 F.3d 1, 6 (1st Cir. 2001). It follows that the "unlawful
employment practice" that triggers the statute of limitations
occurs, not "on any particular day," but "over a series of days or
perhaps years." Morgan, 122 S. Ct. at 2073. Thus, the Court
concluded, the statute of limitations is satisfied as long as the
plaintiff files a charge within 300 days of one of the many acts
that, taken together, created the hostile work environment.
In so holding, the Supreme Court explicitly rejected the
view -- advanced by Goya here -- that "the plaintiff may not base
a suit on individual acts that occurred outside the statute of
limitations unless it would have been unreasonable to expect the
plaintiff to sue before the statute ran on such conduct." Id. at
2075. Title VII, the Court explained, "does not separate
individual acts that are part of the hostile work environment claim
from the whole for purposes of timely filing and liability." Id.
Rather, the "incidents comprising a hostile work environment are
part of one unlawful employment practice" and, in order to comply
with the statute of limitations, "the employee need only file a
charge within [300] days of any act that is part of the hostile
work environment." Id. That standard clearly is satisfied here:
Marrero filed her charge on November 13, 1996, less than one month
after the "Halloween presents" incident.
B. Sufficiency of the Evidence
Goya argues that, even if the jury was entitled to
consider Cárdenas's conduct throughout the course of Marrero's
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employment, the evidence was insufficient to establish harassment
of the requisite severity or pervasiveness. Although it does not
dispute that Marrero subjectively perceived her work environment as
hostile and abusive, Goya insists that any harassment by Cárdenas,
while perhaps "inappropriate," was too "mild[]" to create an
objectively hostile work environment. We disagree.
There is no "mathematically precise test" for determining
when conduct in the workplace moves beyond the "merely offensive"
and enters the realm of unlawful discrimination. Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Rather, the question
whether the environment is objectively "hostile or abusive" must be
answered by reference to "all the circumstances," including the
"frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee's work performance." Id. at 23. "Subject to some
policing at the outer bounds," it is for the jury to weigh those
factors and decide whether the harassment was of a kind or to a
degree that a reasonable person would have felt that it affected
the conditions of her employment. Gorski v. N.H. Dep't of
Corrections, 290 F.3d 466, 474 (1st Cir. 2002).
Here, the jury reasonably could have found that Marrero
was subjected to harassment on a daily basis, including humiliating
sexual remarks and innuendos. For example, Cárdenas constantly
referred to Marrero as "the redhead" and frequently made comments
such as "the redhead is really hot," "the redhead is on fire," or
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"if this is what hell is like then the devil can take me with him."
Cárdenas also made repeated comments about Marrero's lips, legs,
and clothing. He even used Marrero's hypoglycemia as an avenue for
innuendo: making a reference to his diabetes, Cárdenas told her
"what goes down in you goes up in me," and asked her "are you sweet
to men?" At other times, Cárdenas was more explicit: he once asked
Marrero "what are you going to do with the thing you have between
your legs?" Finally, the jury could have found that Cárdenas's
"Halloween presents" comment was a sexual invitation, coupled with
a threat that Marrero would be fired if she did not accept.
Taken together, such comments support the jury's finding
of a hostile work environment. See O'Rourke, 235 F.3d at 729
("Evidence of sexual remarks, innuendoes, ridicule, and
intimidation may be sufficient to support a jury verdict for a
hostile work environment."); White, 221 F.3d at 260-61 (finding a
hostile work environment where, inter alia, "disgusting comments"
and conversations occurred "everyday"). It bears emphasis that the
harassment here was more or less constant from Marrero's first day
of work in April of 1995 until she left in November of 1996. Thus,
this case is easily distinguished from those in which courts have
refused to find a hostile work environment based solely on sexual
comments that are few and far between. See, e.g., Chamberlin v.
101 Realty, Inc., 915 F.2d 777, 783 (1st Cir. 1990) (expressing
doubt as to whether five sexual comments made over the course of a
four to five week period constituted harassment severe and
pervasive enough to create a hostile work environment). As we have
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observed elsewhere, "[t]he workplace is not a cocoon, and those who
labor in it are expected to have reasonably thick skins." Suarez
v. Pueblo Int'l, Inc., 229 F.3d 49, 54 (1st Cir. 2000). However,
it is one thing to say that employees must learn to tolerate
"simple teasing, offhand comments, and isolated incidents (unless
extremely serious)." Faragher, 524 U.S. at 778 (internal quotation
marks and citation omitted). It is quite another to require
employees to suffer the constant attentions of a lascivious
supervisor.
Nor did Cárdenas limit himself to a purely private
dialogue. He also discussed Marrero's appearance with other
employees. For example, he told Marrero's co-workers that she
"would be the model that would be used for any future female
employees that Goya would hire." Another time, Cárdenas invited a
male employee to assess what sort of underwear Marrero was wearing
under her skirt. It was hardly unreasonable for Marrero to find
such behavior humiliating.
Marrero also testified that Cárdenas subjected her to
unwelcome physical touching. On approximately five occasions,
Cárdenas made full "body to body" contact with her in the hallway.
At other times, he would just "brush[] by" her, or would stand in
her way and -- when she tried to pass him -- pretend that they were
dancing. When Marrero had to use the photocopier machine, Cárdenas
often hovered over her with his hands on her shoulders, or stood
close by, rubbing the side of his body against her.
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On other occasions, Cárdenas harassed Marrero in ways
that were not explicitly sexual. Using his power as her
supervisor, he altered her work hours knowing that it would
exacerbate her hypoglycemia. He often stood at her desk and stared
angrily at her, and when she did not pay attention to him he would
pound her desk with his fist to startle her. He criticized her
work unfairly, sometimes embarrassing her by yelling at her in
front of her co-workers. Our cases make clear that, "where a
plaintiff endures harassing conduct, although not explicitly sexual
in nature, which undermines her ability to succeed at her job,
those acts should be considered along with overtly sexually abusive
conduct in assessing a hostile work environment claim." O'Rourke,
235 F.3d at 729.
Finally, there was evidence from which the jury could
have found that Marrero's work was adversely affected by the
harassment. She became anxious and depressed, and often found it
difficult to concentrate. Marrero's supervisors noticed the
change, and -- after the first few months of her employment -- her
performance evaluations dropped from "excellent" to "regular."
In sum, there was ample evidence to support the verdict
on Marrero's hostile work environment claim. As we noted at the
outset, "[o]verriding a jury verdict is warranted only if the
evidence is so one-sided that the movant is plainly entitled to
judgment, for reasonable minds could not differ as to the outcome."
Colasanto v. Life Ins. Co. of N. Am., 100 F.3d 203, 208 (1st Cir.
1996) (internal quotation marks omitted). That is not the state of
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the evidence in this case. Accordingly, we affirm the district
court's denial of Goya's motion for judgment as a matter of law on
the hostile work environment claim.
III. GOYA'S AFFIRMATIVE DEFENSE
Goya argues, next, that it cannot be held liable for
Cárdenas's behavior even if a hostile work environment existed. As
a general rule, an employer is vicariously liable for an actionable
hostile work environment created by a supervisor. See Faragher,
524 U.S. at 807; Ellerth, 524 U.S. at 765. However, the Supreme
Court has recognized an affirmative defense to employer liability
that "look[s] to the reasonableness of the employer's conduct as
well as that of [the] plaintiff victim." Faragher, 524 U.S. at
781; see also Ellerth, 524 U.S. at 765 (describing the affirmative
defense). Goya maintains that it established that affirmative
defense here, and that the district court erred in denying its
motion for judgment as a matter of law on that ground.
The Faragher/Ellerth affirmative defense has two
necessary elements, and the employer bears the burden of proof as
to both. Faragher, 524 U.S. at 807-08; Ellerth, 524 U.S. at 765.
First, the employer must show that it "exercised reasonable care to
prevent and correct promptly any sexually harassing behavior."
Ellerth, 524 U.S. at 765. That requirement typically is addressed
by proof that the employer "had promulgated an antiharassment
policy with [a] complaint procedure." Id. Second, the employer
must establish "that the plaintiff employee unreasonably failed to
take advantage of any preventive or corrective opportunities
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provided by the employer or to avoid harm otherwise." Id. That
prong is usually addressed by proof that the plaintiff unreasonably
ignored an established complaint procedure.3
Thus, the availability of the affirmative defense often
will turn on whether the employer had established and disseminated
an anti-discrimination policy, complete with a known complaint
procedure. Such was the case here. As the district court observed
in denying Goya's motion for judgment as a matter of law, "[o]ne of
the most hotly contested issues in [the] case, and which depended
entirely on the credibility of the witnesses, was precisely
whether . . . Goya had in effect a policy against discrimination
and whether it installed posters to that end."
3
The defense is not a bar to liability for a "tangible
employment action" (such as "hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits") that would be
actionable under Title VII independent of a hostile work
environment. Ellerth, 524 U.S. at 761. Citing that rule, Goya
argues that the district court erred in instructing the jury that
Marrero had alleged that an "adverse action" had been taken against
her. It maintains that, because of that instruction, the jury
might have thought that Goya was not entitled to the affirmative
defense. That argument need not detain us. Marrero did attempt to
prove that Goya took adverse action against her: she hoped to show
that Goya (not Cárdenas) retaliated against her and constructively
discharged her. But the jury instructions made clear that Goya
still could avoid liability for Marrero's hostile work environment
claim (which did not involve allegations of a tangible employment
action) if it proved the two elements described above. The verdict
form shows that the jury rejected the affirmative defense, not
because Marrero proved a "tangible employment action," but because,
in the words of the verdict form, Goya failed to prove that it had
"exercised reasonable care to prevent and promptly correct any
sexually harassing behavior" and that "Marrero unreasonably failed
to take advantage of any preventative or corrective opportunities
provided by Goya."
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On the one hand, Marrero and her co-worker Zelma Miranda-
Rivera testified that they did not receive any orientation
regarding sex discrimination; that they were not given any written
policy on sexual harassment or available grievance procedures; that
they were not aware of any complaint procedure; and that they never
saw any anti-harassment literature posted anywhere in the
workplace. Marrero also testified, without contradiction, that
Goya ignored her request -- first lodged on October 31, 1996 -- for
a copy of the company's anti-discrimination policy.
On the other hand, Nieves testified that Goya had asked
an outside law firm to draft a written policy on sexual harassment,
and that it received that policy in August or September of 1995.
The policy was not dated, however, and on cross-examination Marrero
established that Nieves had stated in his deposition that he used
the same policy during Marrero's orientation in April of 1995
(several months before he later claimed to have received it).
Moreover, although the policy had a signature line so that the
employee could certify that she had received it, Goya could not
produce a copy signed by Marrero. Nieves testified that Goya never
asked its employees to sign the policy.
Nieves also testified that Goya began to use anti-sexual
harassment posters in 1991, 1992, or 1993 -- he was not sure when.
Nieves stated that the posters were placed all around Goya's
facilities, including the glass doors of the entrance to the lobby
"so that anyone who would go to Goya would be able to see the
poster." However, in the film of Goya's facilities that was shown
-20-
to the jury, there were no posters to be seen anywhere on the
premises, including the glass doors of the lobby.
We need not decide which party presented the most
persuasive testimony. "[I]t is for jurors, not judges, to weigh
the evidence and determine the credibility of witnesses." Ins. Co.
of N. Am. v. Musa, 785 F.2d 370, 372 (1st Cir. 1986). Thus, in
reviewing the district court's denial of Goya's Rule 50 motion, we
"cannot evaluate the credibility of witnesses, resolve conflicts in
testimony, or evaluate the weight of evidence." Criado v. IBM
Corp., 145 F.3d 437, 441 (1st Cir. 1998) (internal quotation marks
omitted). We can grant judgment as a matter of law only if "the
evidence, together with all reasonable inferences in favor of the
verdict, could lead a reasonable person to only one conclusion,
namely, that the moving party was entitled to judgment." Lama v.
Borras, 16 F.3d 473, 477 (1st Cir. 1994).
That standard is especially exacting where, as here, the
moving party bears the burden of proof on the issue in question.
See Serv. Auto Supply Co. v. Harte & Co., Inc., 533 F.2d 23, 24
(1st Cir. 1976). We have said that the party with the burden of
proof is entitled to judgment as a matter of law only if it has
established its case by "testimony that the jury is not at liberty
to disbelieve." Jordan v. United States Lines, Inc., 738 F.2d 48,
49 (1st Cir. 1984) (internal quotation marks omitted). In that
situation, relief under Rule 50 is warranted only if the moving
party's evidence is "'uncontradicted and unimpeached.'" Serv. Auto
-21-
Supply Co., 533 F.2d at 25 (quoting Fed. Ins. Co. v. Summers, 403
F.2d 971, 975-76 (1st Cir. 1968)).
Goya has not satisfied that strict standard here.
Although Goya's witnesses testified that the company had an anti-
discrimination policy in place during the relevant period and that
it disseminated the policy to its employees, that testimony was
contradicted by Marrero and her co-worker Miranda-Rivera and called
into question by the video tape and Nieves's conflicting statements
during his deposition. The jury was "at liberty to disbelieve"
Goya's witnesses, Jordan, 738 F.2d at 49, and to credit the
testimony by Marrero and Miranda-Rivera.
In order to qualify for judgment as a matter of law on
its affirmative defense, Goya had to show that a reasonable jury
was compelled to find in its favor on both elements of the defense.
We have concluded that Goya has not satisfied that standard with
respect to the first prong -- the existence of an antiharassment
policy with a known complaint procedure. Accordingly, we need not
consider whether the evidence presented at trial compelled a
finding in Goya's favor on the second prong.4 See Faragher, 524
U.S. at 808.
IV. RETALIATION
Goya argues that there was insufficient evidence to
support the jury's finding of retaliation. In order to make out a
4
Nor need we consider Goya's claim that the district court
erred in excluding certain evidence that, Goya insists, would have
strengthened its case under the second element of the affirmative
defense.
-22-
prima facie case of retaliation, Marrero had to prove that (1) she
engaged in protected conduct under Title VII; (2) she suffered an
adverse employment action; and (3) the adverse action was causally
connected to the protected activity. Hernandez-Torres v.
Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998).
Goya does not dispute that Marrero engaged in conduct that is
protected by Title VII when she filed her sexual harassment charge.
It maintains, however, that Marrero never suffered an "adverse
employment action" as a result of that conduct.
We have explained that "[a]dverse employment actions
include 'demotions, disadvantageous transfers or assignments,
refusals to promote, unwarranted negative job evaluations, and
toleration of harassment by other employees.'" White, 221 F.3d at
262 (quoting Hernandez-Torres, 158 F.3d at 47); accord Graham v.
State Farm Mut. Ins. Co., 193 F.3d 1274, 1283 (11th Cir. 1999).
Whether an employment action is "adverse" -- and therefore
actionable under Title VII -- is gauged by an objective standard.
Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996). "Work places
are rarely idyllic retreats, and the mere fact that an employee is
displeased by an employer's act or omission does not elevate that
act or omission to the level of a materially adverse employment
action." Id.
Here, Marrero's retaliation claim rests on two separate,
and allegedly adverse, employment actions: her transfer to the
Human Resources Department; and Goya's toleration of harassment by
other employees. We address those claims in turn.
-23-
A. Disadvantageous Transfer
Marrero filed a charge of employment discrimination with
the EEOC on November 13, 1996. She returned to work on Wednesday,
November 22, to find that she had been transferred to the Human
Resources Department, where she was to serve as Nieves's secretary.
Marrero concedes that the transfer was not, on its face, a
demotion. She continued to serve as secretary to a Vice President
in the company, and her general job description and salary remained
the same. Nevertheless, Marrero argues that the transfer was
"disadvantageous" because she was required to do more work,
subjected to "extreme supervision," and forced to undergo a period
of probation.
"The clear trend of authority is to hold that a
purely lateral transfer, that is, a transfer that does not involve
a demotion in form or substance, cannot rise to the level of a
materially adverse employment action." Ledergerber v. Stangler,
122 F.3d 1142, 1144 (8th Cir. 1997) (internal quotation marks
omitted); accord Kocsis v. Multi-Care Management, Inc., 97 F.3d
876, 885 (6th Cir. 1996) ("[R]eassignments without salary or work
hour changes do not ordinarily constitute adverse employment
decisions in employment discrimination claims."). Similarly, a
transfer or reassignment that involves only minor changes in
working conditions normally does not constitute an adverse
employment action. See Jones v. Fitzgerald, 285 F.3d 705, 714 (8th
Cir. 2002); Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d
132, 136 (7th Cir. 1993) ("[A] materially adverse change in the
-24-
terms and conditions of employment must be more disruptive than a
mere inconvenience or an alteration of job responsibilities.").
"Otherwise every trivial personnel action that an
irritable . . . employee did not like would form the basis of a
discrimination suit." Williams v. Bristol-Myers Squibb Co., 85
F.3d 270, 274 (7th Cir. 1996).
At the same time, however, "Title VII does not limit
adverse job action to strictly monetary considerations." Collins
v. Illinois, 830 F.2d 692, 703 (7th Cir. 1987). Congress
recognized that job discrimination can take many forms, and does
not always manifest itself in easily documentable sanctions such as
salary cuts or demotions. Accordingly, Congress "cast the
prohibitions of Title VII broadly" to encompass changes in working
conditions that are somewhat more subtle, but equally adverse.
Rodriguez v. Bd. of Educ., 620 F.2d 362, 364 (2d Cir. 1980).
Consistent with that broad statutory mandate, courts have rejected
any bright line rule that a transfer cannot qualify as an "adverse
employment action" unless it results in a diminution in salary or
a loss of benefits.
For example, the Second Circuit held in Rodriguez that
the district court erred in dismissing the sex discrimination suit
of a junior high school art teacher who was transferred to an
elementary school in the same system, notwithstanding the fact that
the transfer did not entail a reduction of salary or other monetary
benefits. See id. It emphasized that the plaintiff had spent her
entire career teaching junior high school students, and in fact had
-25-
recently earned a doctoral degree in art education with a focus on
programs for such students. See id. The art programs at the
elementary level, the court explained, "were so profoundly
different from those in the junior high school as to render utterly
useless [the plaintiff's] twenty years of experience and study in
developing art programs for middle school children." Id. at 366.
Describing the transfer as "a severe professional trauma," the
court concluded that such a "radical change in the nature of the
work [the plaintiff] was called upon to perform" constituted an
adverse employment action. Id.
Similarly, the Seventh Circuit found adverse employment
action in Collins, where the plaintiff was transferred from her
post as a consultant in the "development group" at the Chicago
Public Library to a newly-created job in the library's reference
unit. 830 F.2d at 704. The court noted that the plaintiff's new
supervisors in the reference unit "seemed unsure of what
plaintiff's responsibility and authority would be." Id. Moreover,
although the plaintiff previously had her own office, a telephone
at her desk, printed business cards, and listings in professional
publications as a library consultant, she lost those benefits after
the transfer. See id. In her new position, the plaintiff was
placed at a desk "out in the open," where "a receptionist's desk
typically would be located." Id. She "had no telephone at her
desk with which she could conduct her business responsibilities."
Id. She "was not allowed to have business cards printed and she
was no longer listed in professional publications as a library
-26-
consultant." Id. Finally, rather than doing the consulting work
she enjoyed, the plaintiff "was relegated to doing reference work."
Id.
In contrast to cases such as Rodriguez and Collins, the
evidence presented here showed -- at most -- that the transfer
resulted in some minor, likely temporary, changes in Marrero's
working conditions. As we explained above, Marrero was transferred
from the Sales and Exports Departments to the Human Resources
Department, where she was to serve as Nieves's secretary. Although
Marrero's basic job description and duties remained the same, the
jury could have found that she would have been required to do more
work after the transfer. Marrero was the only employee who knew
how to prepare certain paper work for the Exports Department.
Therefore, as a practical matter, she was forced to do that work
even after she was transferred to the Human Resources Department
and assumed her new duties there. Marrero was not compensated for
that extra work.
Such a minor increase in work responsibilities is not
enough to render a lateral transfer materially adverse. That is
especially true where, as here, there is no indication that the
increase would have been permanent. Just as Marrero had to go
through a training period in her new position, the employee who
replaced her in the Sales and Exports Departments would need to be
trained before she could take over all of Marrero's duties.
However, Marrero testified that she could not remember whether she
had trained the employee who assumed her old post. She conceded,
-27-
moreover, that she never complained to Nieves or anyone else at
Goya regarding her continuing work in the Exports Department. Most
importantly, Marrero left work after spending no more than three
days in her new position. Given that short time span, she could
not show that the increase in work was anything other than an
unintended and temporary inconvenience caused by the transition.
Marrero also presented evidence regarding the less
tangible aspects of the transfer. She testified that, during the
three days she spent in the Human Resources Department, Maritza
Ramos "precluded [her] from performing some of the basic duties of
her position." Ramos told Marrero not to open Nieves's mail but to
pass it along to her, and not to handle any confidential phone
calls. Moreover, Nieves and Ramos subjected her to "extreme
supervision" -- watching her while she did her filing, and standing
behind her when she talked on the phone. Marrero felt that Nieves
and Ramos were "exerting pressure on [her]."
Finally, Marrero was forced to undergo a probationary
period in her new post, which she perceived as a loss of job
security. She did not feel that she was a real part of the
department; she believed her supervisors "hadn't taken [her] into
account." A departmental meeting was held while Marrero was there,
but she was not invited. She believed that the other members of
the department "had snubbed" her.
That evidence -- even when examined in the light most
favorable to Marrero -- "is insufficient to prove that, viewed
objectively, this transfer was an adverse personnel action." Serna
-28-
v. City of San Antonio, 244 F.3d 479, 484 (5th Cir. 2001) (emphasis
added). It is not enough that Marrero felt stigmatized and
punished by the transfer. A more "tangible change in duties or
working conditions" is needed before we can conclude that the
transfer was, in substance, a demotion. Phillips v. Collings, 256
F.3d 843, 848 (8th Cir. 2001). As the Eighth Circuit recently
explained, the sort of "intensified personal animus, hostility,
disrespect, and ostracism" that Marrero alleged here "fails to
constitute a material employment disadvantage" sufficient to
transform an ostensibly lateral transfer into an adverse employment
action. Jones, 285 F.3d at 714; see also Manning v. Metropolitan
Life Ins. Co., 127 F.3d 686, 693 (8th Cir. 1997) (holding that
evidence of "disrespect and ostracization by . . . supervisors" did
not establish an adverse employment action). Rather, in order to
prove that the transfer was materially adverse, Marrero had to show
that Goya "[took] something of consequence from [her], say,
by . . . reducing her salary, or divesting her of significant
responsibilities," or that it "withh[e]ld from [her] an
accouterment of the employment relationship, say, by failing to
follow a customary practice of considering her for promotion after
a particular period of service." Blackie, 75 F.3d at 725. Such
proof is wholly lacking here.5
5
We note that, on different facts, the imposition of a
probationary period could tip the scales in the employee's favor.
Job security is "something of consequence," Blackie, 75 F.3d at
725, the deprivation of which could constitute an adverse
employment action. Here, however, there was no evidence from which
the jury could have gauged the effect, if any, Marrero's
probationary status had on her job security. For example, Marrero
-29-
B. Toleration of Harassment
Marrero also alleges that Goya retaliated against her by
tolerating harassment by its employees. As we explained in the
previous section, "environmental" harm such as harassment by co-
workers or supervisors is actionable under Title VII if it is so
severe or pervasive that it alters the conditions of the
plaintiff's employment. Just as an employer will be liable for
discrimination if it tolerates a racially or sexually hostile work
environment, it will be liable for retaliation if it tolerates
severe or pervasive harassment motivated by the plaintiff's
protected conduct. See White, 221 F.3d at 262; Richardson v. N.Y.
State Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir.
1999).
Here, however, any suggestion that Marrero was subjected
to a retaliatory hostile work environment is belied by the
undisputed fact that she spent less than three days at Goya after
filing her complaint with the EEOC. See Conto v. Concord Hosp.,
Inc., 265 F.3d 79, 82 (1st Cir. 2001) (rejecting as a matter of law
a hostile work environment claim based on harassment occurring
during a four-day period on the ground, inter alia, that the
"greatly abbreviated" time period "substantially undermined
did not present any evidence that her one and a half years at Goya
gave her a particular kind or degree of security that dissolved
once she was placed on probation. Absent such evidence, the jury
could not reasonably have concluded that Goya took something of
consequence from Marrero, or withheld an accouterment of the
employment relationship from her, by forcing her to go through a
probationary period in her new position.
-30-
[plaintiff's] contention that the [harassing] conduct was either
sufficiently frequent or severe" (footnote omitted)). Her
retaliation claim is, by definition, based on the events that
occurred within that three-day period. Obviously, no one at Goya
could have harassed Marrero in retaliation for her protected
conduct until after she engaged in that conduct.
That said, the preceding year and a half of sexual
harassment undoubtedly colored Marrero's perception of the events
in her last three days at Goya, as it would for any reasonable
employee in her position. Thus, we do not view those three days in
a vacuum, but consider them in light of all that came before. To
that limited extent, Marrero's experiences before engaging in the
protected conduct are relevant to her retaliation claim.
Even when examined in that light, however, the evidence
of retaliatory harassment falls far short of the mark. Marrero
testified that, during the time she spent in the Human Resources
Department, Nieves and Ramos "pressured" and "snubbed" her.
Moreover, Cárdenas continued to bother her in her new position.
The jury reasonably could have found that some of that harassment
was motivated by Marrero's protected conduct. Cárdenas once said
to Marrero: "you thought that you were going to get me into hot
waters but you ended up being in hot waters." He also laughed at
her in a taunting fashion, indicating, "I got away with it."
A few incidents over the course of three days cannot
reasonably be deemed "pervasive" retaliatory harassment,
particularly when those incidents are of the same type and kind
-31-
that repeatedly occurred in the workplace before the plaintiff
engaged in the protected activity. Thus, it was incumbent on
Marrero to show that the retaliatory harassment was so severe that
it rendered her work environment objectively hostile and abusive
notwithstanding the extremely short time span. See Faragher, 524
U.S. at 788 (explaining that "isolated incidents" are not
sufficient to create actionable harassment "unless [they are]
extremely serious"). The conduct by Nieves and Ramos, while
certainly unpleasant, was not particularly severe. As such, it
does not support the imposition of liability under Title VII.
Cárdenas's comments present a slightly closer question.
Given that Marrero had endured a year and a half of harassment
while under his supervision, it would not be unreasonable for her
to find his taunting especially offensive. Moreover, Marrero
presented evidence from which the jury could have found that Nieves
was aware of Cárdenas's behavior. That fact surely contributed to
her feeling that the environment in the Human Resources Department
was hostile. But the question remains whether these acts were
severe enough, "without the added weight of repetition over time or
cumulation with other acts of [retaliatory] harassment, to stand
alone as the basis for a harassment claim." Hostetler v. Quality
Dining, Inc., 218 F.3d 798, 808 (7th Cir. 2000) (finding sufficient
severity based on two incidents of forcible sexual contact with
"overtones of . . . attempted sexual assault"). We conclude that
they were not. Title VII does not "guarantee[] a working
environment free from stress." Calhoun, 798 F.2d at 561 (internal
-32-
quotation marks omitted). Something more "egregious" than rudeness
and mockery is needed before we can permit a finding of a
retaliatory hostile work environment based on intermittent contact
over a three-day period.
In sum, we conclude that the district court erred in
denying Goya's motion for judgment as a matter of law on Marrero's
claim of retaliation. Even when viewed in the light most favorable
to the verdict, the evidence presented at trial was insufficient to
establish that Marrero was subjected to an adverse employment
action as a result of her protected conduct.
V. CONSTRUCTIVE DISCHARGE
Marrero left Goya on November 22, 1996, and -- after
several months of sick leave -- formally resigned in March of 1997.
She claims that she was forced to leave in order to escape the
intolerable working conditions at Goya. Thus, she sought "post
quit" damages in the form of back pay, on the ground that she was
constructively discharged. Barbara Lindeman & Paul Grossman,
Employment Discrimination Law ch. 21, at 838 (3d ed. 1996); see
Hernandez-Torres, 158 F.3d at 47 (explaining that a "discharge"
under Title VII "may be constructive as well as a direct firing").
Although the verdict form did not require the jury to state
explicitly its conclusion on Marrero's claim of constructive
discharge (as it did with respect to her hostile work environment
and retaliation claims), the jury apparently credited her version
of events, as it awarded her $11,250 in back pay.
-33-
Goya argues that Marrero's claim of constructive
discharge must stand or fall with her retaliation claim. It
maintains that if we find (as we have) that the evidence was
insufficient to support the jury's verdict on the issue of
retaliation, we must vacate the award of back pay as well.
However, the evidence presented at trial,6 the arguments by
counsel,7 and the district court's jury instructions8 all show that
Marrero claimed that two separate stressors forced her to retire:
severe and pervasive harassment by Cárdenas, and the retaliation by
Goya. Although we have concluded that Marrero failed to establish
that the events that occurred during the alleged period of
retaliation rose to the level of an adverse employment action, the
evidence drawn from that period remains relevant to her claim of
constructive discharge. Just as an act of harassment that is not
actionable in and of itself may form part of a hostile work
environment claim, see Morgan, 122 S. Ct. at 2073, Marrero's
experiences during her last week of work -- although insufficient
to establish liability on their own -- are properly part of her
6
For example, Marrero testified that she was forced to resign
"because of the retaliation and the hostile work environment."
7
Marrero's counsel stated in his closing argument that Marrero
"was forced to resign her employment because the sexual harassment
created intolerable working conditions" and that "she was
constructively discharged because she complained of the sexual
harassment to the Equal Employment Opportunity Commission."
8
The judge told the jurors that Marrero claimed "that she was
forced to resign because of defendant's discriminatory and
retaliatory conduct" and instructed them that they could award back
pay if they found that "she was exposed to sexual harassment and/or
retaliation."
-34-
constructive discharge claim. Therefore, we must examine that
claim in light of all the evidence presented at trial.
In order to establish that Goya should be held
responsible for the economic losses she suffered as a result of
quitting, Marrero had to show that her working conditions were "so
difficult or unpleasant that a reasonable person in [her] shoes
would have felt compelled to resign." Alicea Rosado v. Garcia
Santiago, 562 F.2d 114, 119 (1st Cir. 1977). The standard is an
objective one; it "cannot be triggered solely by the employee's
subjective beliefs, no matter how sincerely held." Suarez v.
Pueblo Int'l, Inc., 229 F.3d 49, 54 (1st Cir. 2000); see also
Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 561 (1st Cir. 1986)
("[T]he law does not permit an employee's subjective perceptions to
govern a claim of constructive discharge." (internal quotation
marks omitted)).
We conclude that the jury reasonably could have found
that Marrero's working conditions were objectively intolerable,
compelling her resignation. Marrero was subjected to constant
harassment by Cárdenas during the year and a half she spent at
Goya. To be sure, the fact that the plaintiff endured a hostile
work environment -- without more -- will not always support a
finding of constructive discharge. See Landgraf v. USI Film
Prods., 968 F.2d 427, 430 (5th Cir. 1992) ("To prove constructive
discharge, the plaintiff must demonstrate a greater severity or
pervasiveness of harassment than the minimum required to prove a
hostile working environment."). Rather, the jury must find that
-35-
the working conditions were so unpleasant that "staying on the job
while seeking redress [would have been] intolerable." Keeler v.
Putnam Fid. Trust Co., 238 F.3d 5, 10 (1st Cir. 2001). In
addressing that question, however, the jury reasonably can take
into account how the employer responded to the plaintiff's
complaints, if any. An employee's assessment of whether she can
remain at work while pursuing remedies for the harassment she has
endured obviously will be affected by the likelihood that the
harassment will continue unabated.
Here, Marrero repeatedly complained about the harassment
to her supervisors Rivera and Diaz, and to Nieves in the Human
Resources Department. Nothing was done until she filed a charge of
sexual harassment with the EEOC. Even then, Goya took no action
against Cárdenas. Instead, it transferred Marrero to a new post as
Nieves's secretary.
Although Marrero was no longer under Cárdenas's
supervision, she was still stationed near his office. Goya knew
that Cárdenas would continue to interact with Marrero in her new
position because Cárdenas's duties required him to go to her work
area, and Marrero's desk was near the office of Cárdenas's
supervisor. Yet Goya refused Marrero's request that she be moved
to another building, away from Cárdenas. Not surprisingly,
therefore, Cárdenas continued to harass her even after the
transfer.
Based on that evidence, the jury reasonably could have
found that "a reasonable person in [Marrero's] shoes would have
-36-
felt compelled to resign." Alicea-Rosado, 562 F.2d at 119. Given
the inadequacy of the transfer after a long history of hostility
and frequent complaints, Marrero reasonably believed that her
working conditions at Goya would not change and that she could only
anticipate more of the same intolerable harassment. If she wanted
to avoid further harm, she would have to leave work entirely. See
Cortes v. Maxus Exploration Co., 977 F.2d 195, 200-01 (5th Cir.
1992) (affirming finding of constructive discharge where employer
refused to take adequate corrective measures to protect employee
from future harassment).
Indeed, the jury could have found that the transfer
actually made things worse for Marrero. Not only did Cárdenas
continue to harass her sexually, but he also taunted her for her
(apparently unsuccessful) attempts to remedy the situation by
complaining to Goya officials. Nieves -- the official to whom
Marrero had brought her complaint -- was aware of Cárdenas's
behavior, but did nothing to stop it. Adding insult to injury,
Nieves made Marrero feel as if she were the problem employee. He
"pressured" her and subjected her to "extreme supervision,"
including listening to her phone calls.
As we explained in the previous section, absent some more
substantial and tangible changes in Marrero's duties or work
conditions, such personal unpleasantness is insufficient to
establish that the transfer was a materially adverse act of
retaliation. And, given the fact that Marrero remained in her new
position for less than three days, the harassment by Cárdenas and
-37-
the pressure from Nieves and Ramos were neither severe nor
pervasive enough to establish a retaliatory hostile work
environment. However, when combined with the harassment Marrero
endured during the previous year and a half, the events during
those final days provide further support for the jury's finding of
constructive discharge.
Unlike Marrero's retaliation claim -- which by definition
is confined to the three-day period she spent at work after filing
her charge of sexual harassment -- her claim of constructive
discharge is based on the totality of her experience at Goya.
Accordingly, in assessing that claim, the jurors were entitled to
draw on all the evidence of harassment, and Goya's response. In
order to override the verdict, we must conclude that all of that
evidence, together with all reasonable inferences in favor of the
verdict, is insufficient to support the jury's finding that a
reasonable employee in Marrero's position would have felt compelled
to quit. We see no basis for such a conclusion here. The jury
reasonably could have found that Marrero's working conditions,
hostile and abusive before the transfer, became even worse after
the transfer, and that a reasonable employee would have believed
that she had no choice but to resign.
VI. PUNITIVE DAMAGES
Goya argues, finally, that Marrero was not entitled to
punitive damages. It points out that, in cases involving
misconduct by a supervisor, the employer will not be liable for
punitive damages if it made a "good-faith effort to comply with the
-38-
requirements of Title VII." Romano v. U-Haul, Int'l, 233 F.3d 655,
669 (1st Cir. 2000). Based on the evidence presented at trial,
however, the jury reasonably could have found that Goya made no
such effort, but rather acted with "reckless disregard" for
Marrero's rights. Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 536
(1999). Marrero complained about Cárdenas's behavior to her
supervisors in the Exports Department -- first Rivera, and then
Diaz. Neither did anything. Indeed, on one occasion Rivera
cautioned Marrero that she should keep in mind that Cárdenas was a
vice president and had worked at Goya for many years, whereas she
was a relative newcomer. Marrero also complained to Nieves, who
simply advised her to "ignore" Cárdenas. It was not until Marrero
filed a sexual harassment charge with the EEOC that Goya took
action.
Moreover, as we explained with respect to Goya's
affirmative defense, the jury was justified in finding that Goya
did not have a sexual harassment policy in effect during the
relevant events. Even if such a policy existed, Goya did not
present any evidence that it had implemented it, either through
educating its employees or enforcing its mandate. See Romano, 233
F.3d at 670 (holding that the defendant employer is responsible for
proving that it made good faith efforts to comply with the
requirements of Title VII, and that the mere existence of an
antidiscrimination policy was insufficient absent proof that the
employer actually implemented the policy). Thus, we see no merit
-39-
to Goya's claim that the punitive damages award should be set
aside.
VII. CONCLUSION
We affirm the judgment of the district court with respect
to Marrero's hostile work environment and constructive discharge
claims, her entitlement to punitive damages, and Goya's attempt to
establish the Faragher/Ellerth affirmative defense. We reverse the
district court's judgment with respect to Marrero's claim of
retaliation, concluding that Goya was entitled to judgment as a
matter of law on that claim.
That leaves the matter of damages. As noted, the jury
awarded Marrero $175,000 in compensatory damages, $11,250 in back
pay, and $75,000 in punitive damages. We have no way of knowing
what portion, if any, of the compensatory and punitive damages
awards was based on the jury's erroneous finding of retaliation.
Accordingly, we have no choice but to remand for a new trial as to
damages for the hostile work environment and the constructive
discharge.
Finally, based on its finding that Marrero was the
"prevailing party" in this action, the district court awarded her
attorney's fees and the costs of litigation. See 42 U.S.C.
§ 2000e-5(k). On remand, the court should consider whether an
adjustment in that award is appropriate in light of our holding
with respect to Marrero's claim of retaliation. See Andrade v.
Jamestown Hous. Auth., 82 F.3d 1179, 1191 (1st Cir. 1996)
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(explaining that "a court should award only that amount of fees
that is reasonable in relation to the results obtained").
Affirmed in part, reversed in part, and remanded. No
costs are awarded.
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