Baron v. Suffolk County Sheriff's Department

United States Court of Appeals
For the First Circuit

No. 03-2718

BRUCE BARON,

Plaintiff, Appellee,

v.

SUFFOLK COUNTY SHERIFF'S DEPARTMENT; SHERIFF OF SUFFOLK COUNTY,

Defendants, Appellants,

DANIEL HICKEY,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Boudin, Chief Judge,
Cyr, Senior Judge,
and Lipez, Circuit Judge.

Kathleen M. Cawley, Assistant General Counsel, Suffolk County
Sheriff's Department, for appellant.
Carolyn M. Conway, with whom DiMento & Sullivan was on brief,
for appellee.

March 29, 2005
 LIPEZ, Circuit Judge. Plaintiff Bruce Baron, a former

corrections officer at the Suffolk County House of Correction, was

allegedly harassed and forced to quit his job after he broke a code

of silence by reporting a fellow officer's misconduct. He sued

corrections officer Daniel Hickey, the Suffolk County Sheriff's

Department ("Department"), and Suffolk County Sheriff Richard Rouse

for civil rights violations stemming from that harassment. The

district court awarded summary judgment for Rouse on the grounds of

qualified immunity but denied summary judgment for the Department.

Following a four-day trial, the jury returned a verdict against the

Department and awarded Baron $500,000 in damages. The jury also

found that Hickey was liable for tortious interference with Baron's

contractual relationship with the Department but that the specific

harassment claims against him were time-barred; the jury awarded no

damages against Hickey.

The Department then moved for judgment as a matter of

law, as well as for a new trial and a remittitur of damages. The

court denied these motions. The Department now appeals. Reviewing

its claims, we find only one arguable error in the extensive record

-- namely, a jury instruction that did not identify a specific

individual as the final policymaker who must have condoned the

custom that violated Baron's civil rights. We conclude, however,

that this forfeited claim does not dictate reversal of the jury

verdict under the plain error test set forth in United States v.

Olano, 507 U.S. 725, 735-36 (1993). Accordingly, we affirm.

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 I.

We draw on the trial record for background, reciting the

facts in the light most favorable to the verdict. See SEC v. Happ,

392 F.3d 12, 17 (1st Cir. 2004); Wennik v. Polygram Group Dist.,

Inc., 304 F.3d 123, 126 (1st Cir. 2002).

A. Baron's employment at the House of Correction

Baron began working as a corrections officer at the

Suffolk County House of Correction in 1995. On January 27, 1997,

while Baron was on duty, he and a supervisor, Sergeant Walsh,

observed over a television monitor that another officer, Sergeant

William Curtis, was playing cards with inmates in violation of the

institution's policies. Walsh ordered Baron to call Deputy

Superintendent Richard Feeney1 to the unit and show him the

monitor, where Curtis could still be seen playing cards. Baron

complied, thereby essentially reporting Curtis's infraction.

Curtis was suspended for three days as a result.

Almost immediately after this incident, Baron's

colleagues began to harass him in retaliation for reporting

Curtis's card-playing in violation of a tacit "code of silence"

under which corrections officers refrain from reporting each other

for policy violations. Among other things, the corrections

officers shunned him at roll call and referred to him as a "rat."

They displayed posters mocking Baron throughout the facility. One

1
Feeney was promoted to Superintendent in October 1997 and
retired from the Department in 2002.

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poster accused him of being a child molester. During the summer of

1997, Baron also received harassing phone calls at work; once he

left work to find that his car had been defaced with feces and his

tires had been slashed.

Defendant Daniel Hickey, another corrections officer, was

the chief instigator of the harassment, repeatedly threatening

Baron and calling him a rat in front of inmates and other

corrections officers. In one of their more heated encounters in

September 1997, Hickey approached Baron in the cafeteria, said

"Excuse me, this is for the rat fink," and threw cheese onto

Baron's plate. He also called Baron a "low down Jewish rat bastard

coward."

Baron verbally complained to his supervisors and to the

Sheriff's Investigative Division (SID)2 about such harassment on

more than thirty occasions. Although Baron submitted at least

eight written complaints to the SID detailing specific incidents,

he did not keep copies of them and the SID produced only two in

response to this litigation. In one written complaint filed on

September 15, 1997, Baron reported that he had been harassed by

Hickey for eight weeks and "did not know why he has a personal

grudge against me." In the other written complaint in the record,

dated September 16, 1997, Baron reported that "Hickey started

harassing me about being a rat . . . and warning other officers

2
The SID is a division within the Department responsible for
investigating allegations of officer misconduct.

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that I may be monitoring them on camera." The September 16 report

also recounted the cafeteria confrontation between Hickey and

Baron.

SID investigator Neville Arthur collected reports from

Department employees who had been present at the time of the

confrontation in response to Baron's September 16 complaint. In

contravention of Department policy, however, Arthur did not submit

a final written report of his findings. Also in connection with

Baron's complaints, a deputy superintendent interviewed Hickey and

ordered him to leave Baron alone but did not discipline him. On

another occasion, a supervisor responded to Baron's complaints by

telling him to "be a man." Baron was ultimately transferred to the

night shift in October 1997, but the harassment did not abate.

Among other things, officers refused to cover his post for bathroom

breaks, requiring him to relieve himself in a cup or in a yard

adjacent to his post.

Over the ensuing months, as the harassment continued,

Baron was charged with several violations of institution policy.

In December 1997, a female inmate alleged that Baron had sexually

assaulted her. Baron claims that Hickey encouraged the inmate's

allegations in an effort to discredit him; a jury acquitted him on

the assault charge. Baron was also suspended for five days and

placed on employee probation for one year for giving food to an

inmate in violation of prison policy. In February 1998, Baron

collapsed at work from the stress of the harassment and had to be

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taken to the hospital. He subsequently returned to work. In June

1998, Baron violated institution policy by directly informing the

police of an inmate's claim that his girlfriend had been sexually

assaulted, rather than immediately reporting the claim to the

Department. Baron deviated from the internal reporting procedure

because he did not trust his superiors in the Department in light

of the ongoing harassment. As a result of the violation, Baron was

presented with a settlement agreement under which he would be

suspended for ten days. When Baron refused to sign the agreement

because it inaccurately recounted the incident, his suspension was

increased to twenty days. Baron did not serve the suspension

because he called in sick between the time when it was imposed and

September 3, 1998, when he resigned his position. Although the

Department contends that he resigned specifically to avoid the

suspension, Baron claims that he was forced to quit by the

psychological toll of the ongoing harassment.

B. Procedural history

In January 2001, Baron sued Hickey, Sheriff Rouse, and

the Department in Suffolk County Superior Court, alleging, inter

alia, that the retaliatory harassment he suffered for breaching the

Department's code of silence forced his constructive discharge and

violated his First Amendment and due process rights in violation of

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42 U.S.C. § 19833 and state law. The case was removed to federal

district court in January 2001.

After several claims were dismissed on motions for

summary judgment,4 the claims against Hickey and the Department

proceeded to trial in May 2003. The defendants moved for judgment

as a matter of law under Fed. R. Civ. P. 50(a) both at the close of

3
42 U.S.C. § 1983 provides that:

Every person who, under color of any . . . custom . . .
of any State . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law.
4
The court granted summary judgment for the Department on
Baron's claim under the Massachusetts Civil Rights Act, Mass. Gen.
Laws ch. 12, §§ 11H & 11I, finding that it was "not cognizable
under First Circuit precedents." The court initially denied
summary judgment on Baron's common law constructive discharge claim
against the Department but later dismissed the claim upon the
Department's motion for judgment as a matter of law, finding that
the grievance procedures provided under Baron's collective
bargaining agreement were his exclusive remedy for discharge.
Those rulings are not before us.
The court also awarded summary judgment for Sheriff Rouse on
the basis of qualified immunity:

Plaintiff . . . has produced insufficient evidence to
support a claim that the Sheriff acquiesced in the code
of silence in 1997 and 1998. . . . Thus, while there is
evidence that the Suffolk County House of Correction had
a widespread custom and practice of tolerating a code of
silence, based on this record, I conclude that the
Sheriff's hands-off management style did not arise [sic]
to the level of willful blindness or deliberate
indifference to the code of silence during the relevant
time period.

Baron did not appeal this ruling.

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Baron's case and at the close of evidence. In both cases, the

court denied the motion.

Following the four-day trial, the jury returned a verdict

against the Department, finding that Baron had proven that it had

a policy that caused a violation of his civil rights, and awarded

him $500,000 in damages. The jury found that the harassment claims

against Hickey were time barred5 but that he was liable for

tortious interference with a contractual relationship.6 The jury

did not award any damages based on its tortious interference

finding. Accordingly, the court entered judgment in favor of

Hickey7 and against the Department.

The Department now appeals, asserting a panoply of claims

aimed at virtually every aspect of the district court proceedings.

These claims essentially reduce to five major arguments. First,

the Department challenges the district court's conclusion that

Baron engaged in speech protected by the First Amendment. Second,

it asserts that Baron did not establish a basis for municipal

liability because there was no evidence of a custom of condoning a

5
Because there was a three-year statute of limitations on the
harassment claim against Hickey, the first question on the special
verdict form asked the jury whether Baron proved that Hickey had
harassed him past January 4, 1998. The jury answered that question
in the negative.
6
This finding was based on Baron's claim that Hickey's
harassment improperly interfered with his performance of his
employment agreement with the Department.
7
Neither party appeals the judgment with regard to Hickey.

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code of silence and retaliatory harassment, and that even if there

was such a custom, Baron failed to demonstrate that a Department

policymaker was aware of it. Third, the Department takes issue

with the special verdict form given to the jury, arguing that it

does not adequately specify the basis of the jury's verdict.

Fourth, the Department contends that the district court relied on

erroneous evidence in denying its motion for a new trial. Finally,

the Department maintains that there was no basis for the damages

award. We consider these claims in turn.

II.

A. First Amendment

The Department has argued throughout the course of this

litigation that the speech for which Baron was allegedly harassed

-- both the initial reporting of Curtis's infraction and the

subsequent complaints of harassment -- was not protected by the

First Amendment. The district court rejected this protected speech

argument at summary judgment, concluding that although the report

of Curtis's wrongdoing "does not seem to rise to the level of

breach of a public trust," there is an inherent public concern in

"the alleged supervisory tolerance of a pattern of escalating co-

worker harassment launched against a corrections officer for

reporting an infraction by a fellow officer in a prison setting and

then complaining about the harassment." The court summarily

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rejected this argument again at the close of trial in denying the

Department's motion for judgment as a matter of law.8

The Department renews its challenge to the court's

protected speech ruling on appeal.9 Specifically, the Department

asserts that there is nothing in the record to support the court's

finding that Baron's speech was of inherent public interest, and

thus protected speech.10 The Department also attacks the court's

First Amendment jury instructions, assigning error to the court's

8
Baron asserts that the Department failed to preserve this
First Amendment claim at trial. This contention rests on an error
in the electronic docket, which includes two copies of the
Department's motion for judgment as a matter of law based on
Baron's failure to demonstrate that he was constructively
discharged, identified as docket entries 98 and 99. Our review of
the paper record reveals that, in fact, docket entries 98 and 99
are two distinct motions for judgment as a matter of law, one based
on the First Amendment claim (number 98) and one based on the
constructive discharge issue (number 99).
9
Although the court made its protected speech determination in
a summary judgment ruling, it subsequently incorporated the
determination into the trial by referring to the earlier ruling in
its jury instructions. In addressing the Department's protected
speech argument, therefore, we are not reviewing the summary
judgment determination, but rather the ruling as it was
incorporated by reference into the trial by the jury instructions.
10
The Department also argues for the first time on appeal that
not only was Baron's reporting of Curtis not protected speech, but
that it was not speech at all. It emphasizes that Baron merely
directed his superiors' attention to a monitor on which Curtis
could be seen playing cards with inmates, rather than reporting the
incident himself. This claim must fail. Baron testified that he
called his superiors to the monitor on which Curtis could be seen
playing cards; that call, which was indisputably speech,
effectively reported Curtis's infraction in violation of the code
of silence.

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use of the term "constructive discharge" in explaining Baron's

burden of proof to establish a claim.

1. Protected speech determination

To prevail on a § 1983 claim based on a violation of his

First Amendment rights, a public employee like Baron must show that

"(1) his expression involved matters of public concern; (2) his

interest in commenting upon those matters outweighed the

[government employer's] interests in the efficient performance of

its pubic services; and (3) his protected speech was a substantial

or motivating factor in the . . . adverse employment actions."

Lewis v. City of Boston, 321 F.3d 207, 218 (1st Cir. 2003). This

appeal focuses on the first prong, the threshold question of

whether Baron was speaking "not as a citizen upon matters of public

concern, but instead as an employee upon matters only of personal

interest." Connick v. Myers, 461 U.S. 138, 147 (1983). In

answering this question of law, the Supreme Court has instructed

courts to consider "the content, form, and context of a given

statement, as revealed by the whole record." Id. at 147-48.

Not every First Amendment inquiry requires a full Connick

inquiry into form and context, however. There are some situations

where public interest will be apparent from the content of speech

alone:

Where a public employee speaks out on a topic which is
clearly a legitimate matter of inherent concern to the
electorate, the court may eschew further inquiry into the
employee's motives as revealed by the "form and context"
of the expression. On the other hand, public-employee

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 speech on a topic which would not necessarily qualify, on
the basis of its content alone, as a matter of inherent
public concern (e.g., internal working conditions,
affecting only the speaker and co-workers), may require
a more complete Connick analysis into the form and
context of the public-employee expression, "as revealed
by the whole record," with a view to whether the
community has in fact manifested a legitimate concern in
the internal workings of the particular agency or
department of government, and if so, whether the "form"
of the employee's expression suggests a subjective intent
to contribute to any such public discourse.

O'Connor v. Steeves, 994 F.2d 905, 913-14 (1st Cir. 1993) (internal

citations omitted).

The district court determined at summary judgment that

"the internal workings of the Sheriff's Department" were a matter

of inherent public concern, and thus found that Baron's speech was

protected without engaging in an extended analysis of its form and

context.11 The Department takes issue with this conclusion, arguing

11
It is not entirely clear from the summary judgment decision
whether the district court's ruling on protected speech applied to
both Baron's reporting of Curtis and his subsequent complaints of
harassment, or only to the latter. The Department contends that
the summary judgment order treated only the latter speech as
protected and that the court committed an additional error when it
referred to both the reporting and the complaints as protected
speech in the jury instructions. We disagree.
Although the district court did raise doubts at summary
judgment as to whether the report was protected speech, it did not
conclusively make such a ruling. An instruction treating the
initial report as protected speech is consistent with the court's
summary judgment statement that "[i]t is essential that corrections
officers be able to speak freely about misconduct." While playing
cards with inmates may be viewed as a relatively minor infraction,
a casual attitude toward reporting "minor" infractions may lead to
more serious infractions going unreported as well. The court's
jury instruction that it had found both Baron's initial reporting
of Curtis and his subsequent complaints of harassment protected was
therefore not plainly erroneous.

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that the content of Baron's expression was not a matter of inherent

public concern because it dealt exclusively with internal working

conditions at the House of Correction. We disagree.

It is true that some speech about internal working

conditions would not be of inherent public interest. For example,

in Connick, the Court considered whether a questionnaire circulated

by an Assistant District Attorney to her colleagues was protected

speech under the First Amendment. Most of the questionnaire dealt

with office transfer policy, employee morale, and the performance

of certain supervisors. The Court concluded that questions related

to discipline and morale were not protected speech:

[W]e do not believe these questions are of public import
in evaluating the performance of the District Attorney as
an elected official. . . . Indeed, the questionnaire, if
released to the public, would convey no information at
all other than the fact that a single employee is upset
with the status quo.

461 U.S. at 148. Based on that holding, we noted in O'Connor that

speech about internal working conditions may not qualify as a

matter of inherent public concern "on the basis of its content

alone," and instead "may require a more complete Connick analysis."

994 F.2d at 914.

As the district court recognized, however, Connick does

not entirely foreclose the possibility that under some

circumstances, speech regarding internal working conditions may be

of inherent public interest. Indeed, the Supreme Court identified

one item on the Connick questionnaire as falling into this

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category: a question asking whether Assistant District Attorneys

"ever feel pressured to work in political campaigns on behalf of

office supported candidates." 461 U.S. at 149. Noting that "there

is a demonstrated interest in this country that government service

should depend upon meritorious performance rather than political

service," the Court found that the political pressure question

involved "a matter of interest to the community upon which it is

essential that public employees be able to speak out freely without

fear of retaliatory dismissal." Id.

The district court concluded that this line of reasoning

applied equally to Baron's repeated reports of harassment in

retaliation for violating the code of silence:

It is apparent that the issue of whether a corrections
officer is willing to "walk the blue line" to report
wrongdoing within the prison walls is a matter of great
interest to the community, and the courts. This problem
is analogous to the situation in which a public employee
feels pressured to work in a political campaign, which
the Supreme Court discussed in Connick. It is essential
that corrections officers be able to speak out freely
about misconduct without the pressure of a "code of
silence" and fear of extreme retaliatory harassment
sufficient to force resignation.

The court also emphasized that "[t]he community has in fact

manifested a legitimate concern in the internal workings of the

Sheriff's Department." As evidence of that concern, the court

cited a series of 2001 Boston Globe newspaper articles chronicling

abuse and mismanagement at the House of Correction, and the Stern

Report, commissioned by Governor Jane Swift in 2001 in response to

mounting allegations of mismanagement of the Suffolk County

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Sheriff's Department, which recommended a number of sweeping

changes to the Department, including an aggressive attack on the

code of silence.12

The Department now argues that the district court should

not have considered these sources because they reflect public

interest several years after the speech at issue here. While it is

true that this specific evidence of public interest post-dates

Baron's speech, there is nothing to suggest that the public would

not have been similarly interested in internal Department

conditions in 1997 and 1998 when Baron repeatedly complained about

retaliatory harassment without a meaningful response from his

superiors. Given that the court's protected speech determination

rested on a finding of inherent public interest, the small time

discrepancy that the Department points to is unimportant. If there

was an inherent public interest in internal Department conditions

in 2001, there is no reason to doubt that the same interest was

present in 1997.

Retaliation against officers who breach a code of silence

among their colleagues at a county House of Correction implicates

the public interest in a way that morale among Assistant District

Attorneys does not. Unlike the speaker in Connick, Baron was

12
The Stern Report was not offered into evidence at trial and
the district court emphasized that it did not consider the report
in evaluating the Department's post-verdict sufficiency of the
evidence claim. It is, however, part of the record on appeal
because of the court's reliance on it at the summary judgment
stage.

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reporting actual wrongdoing on the part of public employees. Cf.

461 U.S. at 148 (employee did not "seek to bring to light actual or

potential wrongdoing"). The wrongdoing Baron complained of,

including officers' violations of prison policy, retaliation for

breaching the code of silence, and prison officials' failure to

investigate or put a stop to that retaliation, affected not only

Baron and his co-workers, but also the prison inmates who were

under the Department's control. Accordingly, Baron's speech

involved a "legitimate matter of inherent concern to the

electorate," O'Connor, 994 F.2d at 913-14, and the district court

properly "eschew[ed] further inquiry into the employee's motives."

Id. The Department's additional arguments regarding the form and

context of Baron's speech are thus inapposite.

2. Constructive discharge jury instruction

The Department also contends that it is entitled to a new

trial based on the district court's instructions to the jury on the

elements of Baron's First Amendment claim. As the Department

concedes, it forfeited this claim by failing to timely object to

the instructions as required by Fed. R. Civ. P. 51(c). The

district court cited this failure as the basis for refusing to

consider the Department's challenge when it was raised for the

first time in a post-trial motion. The Department now renews its

claim before us.

A petitioner's "failure to object when the court issued

the [jury] instruction constitute[s] a forfeiture of her right to

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object on appeal." Flynn v. AK Peters, Ltd., 377 F.3d 13, 25 (1st

Cir. 2004). Under Fed. R. Civ. P. 51(c)(2)(A), a timely objection

to jury instructions must be raised before the instructions are

delivered. "Our interpretation of Rule 51 is quite strict."

Connelly v. Hyundai Motor Co., 351 F.3d 535, 544 (1st Cir. 2003).

"There is a good reason for this strictness. We enforce our

object-or-forfeit rule 'to compel litigants to afford the trial

court an opportunity to cure [a] defective instruction and to

prevent the litigants from ensuring a new trial in the event of an

adverse verdict by covertly relying on the error.'" Flynn, 377

F.3d at 25 (quoting Cross v. Cleaver, 142 F.3d 1059, 1068) (8th

Cir. 1998)) (alteration in original). Accordingly, we review the

Department's forfeited claim only for plain error. See Fed. R.

Civ. P. 51(d)(2); Babcock v. Gen. Motors Corp., 299 F.3d 60, 63-64

(1st Cir. 2002).

The Department assigns error to the district court's

references to Baron's "constructive discharge" in explaining the

necessary elements of his First Amendment claim. It contends that

these references gave jurors the mistaken impression that the court

had already determined that Baron was constructively discharged,

when in fact it remained part of Baron's burden of proof to make

that showing. A review of the full jury instructions, however,

clearly belies this claim. The court explained that:

The second element of plaintiff's claim is that he was
constructively discharged . . . and that this
constructive discharge deprived him of his constitutional

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 right of free speech under the First Amendment and his
right of due process under the Fourteenth Amendment.
. . .
In order to find that the plaintiff has been
constructively discharged, he must prove by a
preponderance of the evidence that his working conditions
were so difficult and so unpleasant that a reasonable
person in his shoes would have felt compelled to resign.
In order to prevail, Mr. Baron must prove that based on
an objective assessment of the conditions under which he
was expected to work, it was so difficult as to be
intolerable.

The court then went on to explain the remaining elements of Baron's

First Amendment claim:

In order to prove his First Amendment claim against the
Department, Mr. Baron must establish two elements of his
claim: First, that his acts or speech were protected by
the free speech clause of the First Amendment; and
second, that those acts of speech were a substantial or
motivating factor in his constructive discharge.

Coming on the heels of the instruction regarding the requisite

findings for a constructive discharge, the use of the term

"constructive discharge" in this and the ensuing instructions in no

way suggests that the court had already concluded that Baron had

been constructively discharged. The instruction was not plainly

erroneous.

B. Municipal Liability

It is well-settled that municipalities may not be held

liable for the constitutional violations of their employees in a

§ 1983 suit based on a respondeat superior theory of liability.

Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Rather,

"it is when execution of a government's policy or custom . . . by

those whose edicts or acts may fairly be said to represent official

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policy, inflicts the injury that the government as an entity is

responsible under § 1983." Id. at 694. In a § 1983 suit based on

an official policy promulgated by officials with final policymaking

authority, attribution to the municipality is easily established.

Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). But

"[u]nlike a 'policy,' which comes into existence because of the

top-down affirmative decision of a policymaker, a custom develops

from the bottom-up." Britton v. Maloney, 901 F. Supp. 444, 450 (D.

Mass. 1995), aff'd in part and rev'd in part on other grounds, 196

F.3d 24 (1st Cir. 1999). In a § 1983 suit premised on custom,

then, we must first determine whether the custom is fairly

attributable to the municipality. Bordanaro v. McLeod, 871 F.2d

1151, 1156 (1st Cir. 1989). This standard is met when a custom is

"so well settled and widespread that the policymaking officials of

the municipality can be said to have either actual or constructive

knowledge of it yet did nothing to end the practice." Id.; see

also City of St. Louis v. Praprotnik, 485 U.S. 112, 130 (1988)

(plurality opinion). If a custom is attributable to the

municipality, we must also inquire whether it was "the cause of and

the moving force behind the deprivation of constitutional rights."

Bordanaro, 871 F.2d at 1156.

The Department contends that the verdict against it

cannot stand because Baron did not demonstrate the prerequisites

for municipal liability set forth in Monell and Bordanaro.

Specifically, it insists that Baron presented insufficient evidence

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to establish that the ongoing harassment he suffered was the result

of a custom or policy of which a policymaker had actual or

constructive knowledge. We disagree.

1. Evidence of custom

We review de novo the district court's denial of a motion

for judgment as a matter of law. Tapalian v. Tusino, 377 F.3d 1,

5 (1st Cir. 2004). "In undertaking this review, we look to all

evidence in the record, drawing all reasonable inferences therefrom

in the nonmovant['s] favor, and resist the temptation to weigh the

evidence or make our own credibility determinations." Zachar v.

Lee, 363 F.3d 70, 73 (1st Cir. 2004). We will affirm the denial

unless no reasonable person, viewing the evidence in this light,

could have reached a verdict for the nonmoving party. Id. A

challenge to the denial of a motion for a new trial faces a similar

uphill battle; we review the denial only for an abuse of

discretion. Rivera Castillo v. Autokirey, Inc., 379 F.3d 4, 13

(1st Cir. 2004).

The Department moved for judgment as a matter of law

during the trial, and for judgment as a matter of law or a new

trial after the verdict, asserting that Baron had not shown a

custom within the Department of retaliating against corrections

officers for breaches of a code of silence. The district court

summarily rejected the trial motions and disposed of the post-trial

motion in a written order that thoroughly explained its reasoning.

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 The Department disputes the district court's post-trial

explanation that there was sufficient evidence to establish a

custom of "condoning the use of harassment to enforce the code of

silence against 'rats.'" It points out that Baron testified only

to his own experience. Unlike other cases involving similar

claims, there was no evidence here that other House of Correction

officers had suffered such retaliation or that other complaints had

not been adequately investigated. Cf., Jeffes v. Barnes, 208 F.3d

49, 53 (2d Cir. 2000). Absent such evidence, the Department

contends, a jury could not reasonably have concluded that Baron's

harassment was attributable to a municipal custom.

As Baron points out, however, the Department's position

unduly minimizes Feeney's testimony. Feeney was the deputy

superintendent, fourth-in-command in the Department, in January

1997 when the harassment of Baron began. He was promoted to

superintendent, third-in-command and in charge of day-to-day

operations at the House of Correction, in October 1997 while the

harassment was ongoing. Feeney testified at trial that "there are

some officers that are reluctant to report things, and when they

do, they're evasive and vague in their reports." Baron's attorney

then asked Feeney to read from his earlier deposition, in which the

following exchange took place:

Q: Are you aware of any code of silence between fellow
officers reporting violations on each other?
A: Yes.

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 Q: What is it, the code of silence?
A: Lack of reporting to protect each other.
Q: When Officer Baron reported Sergeant Curtis, did he
violate that?
A: Yes.

Feeney was then asked if there would be consequences if an officer

were to report another officer. He answered, "There could be."

Cf. Sharp v. Houston, 164 F.3d 923, 935 (5th Cir. 1999)

(recognizing that a code of silence "can be perpetuated only if

there is retaliation for violations of it"). Feeney also testified

that Baron had complained to him about the harassment.

That other Department employees denied at trial the

existence of a code of silence would not preclude a reasonable

trier of fact from crediting Feeney's statements as evidence of a

custom. The jury could have found that Feeney's statements,

together with Baron's testimony that the harassment began almost

immediately after he reported Curtis, demonstrated a custom of

retaliation to enforce a code of silence.13 See Blair v. City of

13
As we explain below, a jury could have found not only that
this custom of retaliatory harassment existed, but also that it was
attributable to the Department. The evidence supporting such a
finding forecloses the Department's argument that Baron failed to
establish that a Department custom caused officers to harass him.
Baron's testimony also supported a finding that the harassment led
to his constructive discharge, given the heavy physical and
emotional toll that it inflicted on his personal and family life.
See infra Section E. Baron therefore established the requisite
"affirmative link" between a municipal custom and the
constitutional deprivation. See Bordanaro, 871 F.2d at 1157
(citing Okla. City v. Tuttle, 471 U.S. 808, 823 (1985)); see also
Tuttle, 471 U.S. at 824-25 & n.8.

-22-
Pomona, 223 F.3d 1074, 1079-80 (1st Cir. 2000) (former police

officer's charges that he suffered ongoing harassment after

reporting corruption on special police task force, if believed by

jury, were sufficient to establish "custom of chastising

whistleblowers"). Indeed, as the district court recognized, "the

jury could reasonably have inferred from the failure of numerous

defense witnesses (like corrections officers) to corroborate

Baron's testimony that such a custom would make it extremely

difficult to substantiate any allegations against it." As an

example, the court cited testimony by corrections officer Hubert

Holtzclaw, regarding the cafeteria confrontation between Hickey and

Baron, that "Hickey didn't slam cheese on the table in front of

Baron, but instead placed a handful of napkins on the table as a

gesture of good will." The court noted that "[t]he jury could

reasonably have inferred that this testimony was incredible (even

Hickey conceded that he bore no good will toward Baron), and was

prompted by a desire not to testify against a fellow officer." In

light of such difficulties in corroborating a code of silence,

Baron's testimony takes on additional weight and Feeney's admission

regarding his knowledge of the code is all the more significant.

The Department also challenges Baron's claim of a custom

by invoking the rule that a single unconstitutional incident is

insufficient to impose municipal liability under § 1983; instead,

a plaintiff has to offer "considerably more proof than a single

-23-
incident . . . to establish . . . the requisite fault on the part

of the municipality." Tuttle, 471 U.S. at 824. In considering

this issue, the district court stressed that the "single incident"

rule "is not immutable." It pointed to decisions recognizing that

"serial misconduct" directed at a single victim may be sufficient

to establish municipal liability, and concluded that this was such

a case. The Department asserts that these serial misconduct cases

are inapposite because this case involved only "one current

employee complaining to one investigator about his work

conditions."

This description of the case is not consistent with the

record. As the district court explained, the evidence makes this

case more akin to the serial misconduct cases than to cases

implicating the single incident rule:

Plaintiff presented evidence of a head-in-the-sand
attitude by the SID. . . . [T]he jury could reasonably
have found that SID made only a perfunctory inquiry,
failed to write a report or even keep a file, and declined
to impose any sanctions or take any proactive steps to
stop the harassment. The jury could find that Baron made
dozens or even scores of complaints . . . most of which
was [sic] in essence ignored or lost by supervising
officers in SID. Further, Neville Arthur, the SID officer
with whom Baron filed most of his complaints, testified
that he had no knowledge of derogatory "posters" ever
being hung around the Department. This testimony, in
light of the three such posters [targeting Baron] admitted
into evidence and other supervisors' unabashed
acknowledgment that such posters were a regular feature of
the workplace within the Department, may reasonably have
lent support to the finding that there was an unofficial
custom at the Department of turning a blind eye to
workplace harassment . . . .
. . .

-24-
 . . . The harshness of the defendant's sanctions
against Baron for minor policy infractions was also
evidence of the Department's turning a cold shoulder to
his plight and affirmatively joining in the peer pressure
to force him out. Most significantly, the defendant
threatened termination when Baron reported an assault on
an inmate's girlfriend directly to the police rather than
immediately to supervisors whom he later informed. Even
though Baron was on probationary status, the jury could
have found that the threatened sanction was draconian,
under the circumstances, and forced him out.14

Baron reported multiple incidents of harassment,

including physical threats and property destruction, to his

superior officer, to SID investigator Arthur, and to Feeney. Baron

also met with union president Michael Powers and Deputy

Superintendent Marie Lockhart in January 1998 to report the ongoing

harassment. This is not a case, then, of attributing liability to

the municipality based on a single incident of isolated employee

conduct. Rather, the record demonstrates a pattern of ongoing

harassment that the jury could have found high-ranking Department

officials were aware of and did not stop. Compare Kibbe v. City of

Springfield, 777 F.2d 801, 805-06 (1st Cir. 1985) (actions of

multiple police officers in connection with the pursuit and arrest

of a single suspect were adequate basis for municipal liability

because "the widespread activity here is more likely to reflect the

operating procedures of the police department than would a single

14
This passage is also the basis of another challenge by the
Department, namely that the court erred in citing this point
regarding sanctions in denying the motion for a new trial. See
infra Section D.

-25-
incidence such as occurred in Tuttle") with Tuttle, 471 U.S. at

811, 823-24 (one shooting by a single police officer was

insufficient to establish municipal liability for inadequate

officer training). The Department was therefore not entitled to

judgment as a matter of law or a new trial on the basis of

insufficient evidence of the code of silence.

2. Policymaker determination

To establish municipal liability, a plaintiff must

demonstrate not only that a custom caused a deprivation of his

rights, but also that the challenged practices were "so widespread

or flagrant that in the proper exercise of [their] official

responsibilities the [municipal policymakers] should have known of

them." Bordanaro, 871 F.2d at 1157. The Department now argues

that the jury verdict cannot stand because Baron and the court

failed to identify a specific Department policymaker who knew of

the custom of a code of silence enforced by retaliatory harassment

and who condoned it or acquiesced in it.

The Department sought judgment as a matter of law at

multiple points during the trial. It did not, however,

specifically assert the claim now before us, as is indicated by the

court's response when the Department finally did raise the issue in

a post-trial motion: "The defendant argues that there was no

evidence with regard to who is a policymaker of the Sheriff's

Department. . . . This was not an issue pressed at trial." Baron

-26-
had presented evidence that Feeney, the Department deputy

superintendent and superintendent during the relevant period, was

aware of the code of silence and consequences for violating it, and

was also aware of Baron's harassment complaints. Feeney testified

that he was third-in-command in the Department and was responsible

for overseeing the day-to-day operations of the House of

Correction. This testimony suggested that Baron believed Feeney to

be the relevant policymaker for purposes of this litigation. The

Department gave no indication at trial that it disagreed with that

assessment.

The Department's proposed jury instructions were

similarly mute as to who it believed was the final policymaker for

purposes of establishing municipal liability. It failed to object

in the pre-charge conference or in open court to the court's

instruction to the jury that "for purposes of determining the

liability of the Sheriff's Department, the Department was the

official entity responsible for establishing final policy with

respect to investigating complaints of employee misconduct and

imposing appropriate discipline." It was not until after the jury

returned its verdict that the Department pressed the policymaker

issue for the first time, arguing that it was entitled to a new

trial on the basis of this jury instruction. Because the

Department forfeited its objection on this point by failing to

raise it in a timely manner, our review is only for plain error.

-27-
See Fed. R. Civ. P. 51(d)(2). Under this standard, we will notice

an error only if it is clear and prejudicial, and if "a miscarriage

of justice would otherwise result." Olano, 507 U.S. at 735-36

(internal quotation marks deleted).

The Department assigns error to the district court's

identification of "the Department" as the relevant policymaker,

arguing that the failure to identify a specific final policymaker

within the Department was erroneous because it allowed the jury to

find municipal liability if any Department employee knew of Baron's

harassment claims. This overstates the point. Although the

district court's instruction would be error if understood this way,

see Monell, 436 U.S. at 694 (concluding that "a municipality cannot

be held liable under § 1983 on a respondeat superior theory), it

must be read as qualified by the court's later statement that

liability could be imposed only if "Department policymakers" were

aware of the custom of retaliation and Baron's situation. It is

highly unlikely that the jury interpreted the phrase "Department

policymakers" to mean "any Department employee," particularly in

light of evidence that the Department superintendent, not just

"any" employee, was aware of Baron's complaints.

Yet, even this qualified version of the court's statement

might be too broad under the case law because it is only a policy

made by the final policymaker that exposes a municipality to

liability, see, e.g., Silva v. Worden, 130 F.3d 26, 31 (1st Cir.

-28-
1997) (explaining that municipal liability for acts taken pursuant

to a policy "attaches only where the decisionmaker possesses final

authority to establish municipal policy with respect to the action

ordered") (internal quotation marks and emphasis omitted).

Therefore, in a case alleging an affirmative wrongful policy (as

opposed to a custom acquiesced in), the court would have to

identify an individual or body as the final policymaker, and the

jury would have to determine whether the policy at issue could be

attributed to that policymaker. See Jett v. Dallas Indep. Sch.

Dist., 491 U.S. 701, 737 (1989).

However, Baron claims not that an individual or body

adopted an unconstitutional policy but that the Department had a

custom tolerated by policymakers who should have intervened to

correct it. In this custom context, our past language has

sometimes referred to policymakers in the plural, rather than to a

final policymaker. See, e.g., Silva, 130 F.3d at 32 (rejecting a

§ 1983 claim based on custom because there was not "sufficient

evidence that the City's policymaking officials could be said to

have had actual or constructive knowledge of the practice"). The

requirement in the affirmative policy cases that the district court

identify a final policymaker may therefore not apply in those cases

based on custom. See Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir.

2003) (explaining that in a § 1983 suit based on custom, the

plaintiff "must prove the existence of a longstanding practice or

-29-
policy to the satisfaction of the factfinder" but that in a suit

premised on an act by a person with final policymaking authority,

"the court must decide, as a matter of state law and before the

case may be submitted to the jury, whether the person who committed

the violation had final policymaking authority"); but see Jett, 491

U.S. at 737 (noting the requirement that the court identify a final

policymaker without distinguishing between § 1983 suits based on

custom and those based on policy). We need not resolve this

question here; under the plain error standard, it is enough that

any error in the district court's reference to "Department

policymakers" without identification of a specific final

policymaker is not clear.

Moreover, even if the district court should have

identified a final policymaker in this custom case, the Department

is not entitled to a new trial because it cannot show prejudice

resulting from the error. In a post-trial ruling, the district

court concluded without explanation that the superintendent and

deputy superintendent set policy for the jail in the relevant

areas, implying that it believed Feeney was the relevant

policymaker. See Praprotnik, 485 U.S. at 123 (policymaker is

official responsible for making policy "in that area of the

[municipal entity's] business"). If Feeney did set final policy

for the House of Correction, the Department was not prejudiced by

the verdict because he admitted that he knew that the code of

-30-
silence existed, that there could be consequences for violating it,

and that Baron had complained of harassment. In other words, the

jury could have found that Feeney had knowledge of the custom that

resulted in a deprivation of Baron's constitutional rights and that

he acquiesced in the custom by failing to take actions to stop it.

The Department asserts, however, that Sheriff Rouse, not

Feeney, was the final policymaker under state law. Although there

is no evidence on this issue in the record, it seems self-evident

that the sheriff is the final policymaker within the Department as

a matter of law. See Mass. Gen. Laws ch. 126, § 16;15 cf. Jeffes,

15
Under Massachusetts law,

The sheriff shall have custody and control of the jails
in his county, and, except in Suffolk county, of the
houses of correction therein, and of all prisoners
committed thereto, and shall keep the same himself or by
his deputy as jailer, superintendent or keeper, and shall
be responsible for them.

Mass. Gen. Laws ch. 126, § 16. The state legislature amended the
exception for the Suffolk County House of Correction in 1991,
conditioning a 1992 appropriation for county corrections on the
following basis:

[N]otwithstanding [Mass. Gen. Laws ch. 126] . . . the
current Suffolk County House of Correction and the new
Suffolk County House of Correction shall be under the
sole and exclusive control of the sheriff of Suffolk
County who shall administer the same in the same manner
and with the same authority as found in the statutes
which govern the administration of the Suffolk County
Jail.

1991 Mass. Acts ch. 138, § 362 (line item 8910-0030); see also
Suffolk County Sheriff's Department, Sheriff Andrea J. Cabral, at
http://www.scsdma.org/sheriffOffice/sheriffBio.html (sheriff is
"responsible for the operation of the House of Correction") (last

-31-
208 F.3d at 58 (under New York law, the county sheriff is final

policymaker with respect to conduct of staff members toward fellow

officers). Emphasizing that Baron did not present any evidence

regarding the Sheriff's actual knowledge of the code of silence and

retaliatory harassment, the Department contends that a legal

determination that the Sheriff was the final policymaker

conclusively establishes prejudice. On this point, the Department

is wrong.

It is true that Baron did not demonstrate that the

Sheriff actually knew of the custom that led to his constructive

discharge. Although Rouse may not have had actual knowledge of the

custom, however, municipal liability can also be based on a

policymaker's constructive knowledge -- that is, if the custom is

so widespread that municipal policymakers should have known of it.

Bordanaro, 871 F.2d at 1157. If the jury had been instructed that

Rouse was the policymaker, it might have agreed that there was

insufficient evidence to establish that he acquiesced in or

condoned enforcement of the code of silence. On the other hand,

the jury might also have concluded that if Superintendent Feeney

was aware of the code of silence as third-in-command in the

Department, constructive knowledge was also attributable to Rouse.16

visited Mar. 3, 2005).
16
We do not view this conclusion as precluded by the district
court's award of qualified immunity to the Sheriff at the summary
judgment stage, nor does it appear that the Department has advanced
that argument. The court premised its qualified immunity ruling on

-32-
Prejudice in this case is far from clear. Pursuant to the plain

error standard, the Department has the burden of establishing

prejudice. The uncertainty of the prejudice is also fatal to its

claim. See Acevedo-Garcia v. Monroig, 351 F.3d 547, 571 (1st Cir.

2003) (declining to award a new trial where "prejudice to the

aggrieved party is not manifest on the face of the record").

Nor has the Department established that it would be a

miscarriage of justice to allow the verdict to stand. The Stern

Report urged an "aggressive attack on the code of silence,"

explaining that "[s]taff [in the Department] consistently expressed

concern that if they reported misconduct of fellow staff, they

could expect retaliation from their peers." The fact that this was

a consistent concern among Department employees demonstrates that

the existence of the code of silence and the possibility of

retaliatory harassment were well-known throughout the Department

during Rouse's tenure. In short, the code of silence charged by

Baron was real and pervasive. Viewing the verdict against this

background, we conclude that the jury instruction's failure to

identify a policymaker was not an error (if an error at all) that

the fact that Baron had not "shown any incident, report, complaint,
or testimony that demonstrates that the Sheriff was on notice of
the code of silence and the need to address it in 1997 and 1998."
Significantly, the court also acknowledged "evidence that the
Suffolk County House of Correction had a widespread custom and
practice of tolerating a code of silence." A jury could have
attributed constructive knowledge of this "widespread custom" to
the Sheriff despite the court's finding that he did not have
sufficient knowledge of it to incur personal liability.

-33-
"seriously affect[s] the fairness, integrity, or public reputation

of judicial proceedings." Olano, 507 U.S. at 736 (quotation marks

omitted).

C. Special verdict form

Question Five on the special verdict form asked the jury

whether Baron "prove[d] that the Suffolk County Sheriff's

Department had a custom, policy, or practice that caused a

violation of his civil rights," to which the jury answered "Yes."

The Department took issue with this question for the first time in

a post-trial motion, arguing that it was faulty because it did not

inquire whether the verdict rested on a violation of Baron's First

Amendment rights or his due process rights. Maintaining that there

was insufficient evidence to support a finding based on Baron's due

process theory, the Department emphasizes the rule that "[a] new

trial ordinarily is required when a special verdict finding

encompasses multiple facts and claims some of which should not have

been submitted to the jury . . . [because] it is impossible to tell

whether consideration of the improperly submitted claims may have

affected the verdict." Lattimore v. Polaroid Corp. 99 F.3d 456,

468 (1st Cir. 1996).

Although we have previously considered the possibility

that a party forfeited a claim based on this rule by failing to

request a special verdict, see Davis v. Rennie, 264 F.3d 86, 106-07

(1st Cir. 2001), we recently rejected the application of plain

-34-
error review in this context. See Gillespie v. Sears, Roebuck &

Co. 386 F.3d 21, 31 (1st Cir. 2004). Instead, we concluded that "a

uniform obligation to ask for a special verdict, or have relevant

claims of error forfeit by appellant, is not warranted." Id.

Seizing upon this new trial prospect, the Department

argues that Baron's due process claim should not have been

submitted to the jury because Baron did not have a property

interest in his position when he was constructively discharged.

See Galloza v. Foy, 389 F.3d 26, 33 (1st Cir. 2004) (due process

rights extend only to public employees who have a property interest

in continued employment as determined by local law and terms of

employment). Specifically, the Department asserts that Baron lost

his property interest in his position when he was placed on

probation in December 1997 because one term of his probation was

that "any violation of Department policy . . . shall constitute

just cause for his immediate termination." The Department reasons

that Baron then violated Department policy during the probationary

period (resulting in the twenty-day suspension that was pending

when Baron resigned), and therefore was subject to immediate

termination at the time of his resignation. As such, the

Department contends, there was no process due and the jury should

not have been allowed to consider this as a basis for municipal

liability.

-35-
 We need not determine whether the due process claim

should have been put before the jury, however, because we are

reasonably sure that the verdict rested on the adequately supported

First Amendment theory rather than on the due process theory. See

Gillespie, 386 F.3d at 30 ("Recognizing that a jury is likely to

prefer a better supported theory to one less supported, we have

generously applied the harmless error concept to rescue verdicts

where we could be reasonably sure that the jury in fact relied upon

a theory with adequate evidentiary support."). This conclusion is

based on a review of the jury instructions and the special verdict

form as a whole. In explaining Question 5, the court offered the

following summary:

In order to prevail against the [Department] here, Mr.
Baron must prove that he was harassed during the course
of his employment by coworkers; two, that one substantial
reason for the harassment was because he reported another
officer's conduct . . . or because he reported coworker
harassment; three, that a practice of retaliating against
officers who breached a code of silence existed at the
House of Correction; four, that a practice of retaliation
against officers for breaching the code was so well
established and widespread that Department policymakers
must have known about it; five, that the Department
policymakers were aware of a widespread practice of
officer retaliation based on violation of a code of
silence and took no steps to end or discourage the
practice; six, that the failure of the Department
policymakers to eliminate employee retaliation caused the
harm suffered by Mr. Baron; seven, that the Department
policymakers were aware of the type and extent of the
harassment suffered by Mr. Baron and did nothing to end
it; eight, that the conditions were so intolerable that
they forced Baron to resign; and finally, that the
constructive termination caused him damages.

-36-
This instruction, which specifies that the harassment must have

resulted from Baron's protected speech, set forth the elements of

a claim based on the First Amendment; it did not suggest that the

jury could return a verdict for Baron based solely on a finding

that his due process rights had been violated. There is thus

little danger that the jury's answer to Question 5 rested on the

latter theory, and there is no need for a new trial on that basis.

D. Other trial issues

The Department also assails the district court's denial

of its motion for a new trial on the grounds that the ruling relied

on erroneous facts. Again, we review the court's denial of a

motion for a new trial for abuse of discretion. Rivera Castillo,

379 F.3d at 13.

The Department first challenges the district court's

statement that, "[T]he only time SID investigated [Baron's

complaints] was when [Lieutenant Robert] Pizzi, an officer, filed

a written report." It claims that, in fact, the SID had already

begun investigating in response to Baron's written complaint, and

it interviewed Pizzi in connection with that investigation. While

the court may have misstated this fact, that misstatement does not

remotely require a new trial because there was ample other evidence

to support the verdict that a custom of condoning retaliatory

harassment caused Baron's constructive discharge. See Johnson v.

Spencer Press of Me., Inc., 364 F.3d 368, 375 (1st Cir. 2004)

-37-
(noting that a court should grant a new trial only if the verdict

is "against the clear weight of the evidence") (internal quotation

marks omitted).

Next, the Department takes aim at the district court's

statement that "[t]he harshness of the defendant's sanctions

against Baron for minor policy infractions was also evidence of the

Department's turning a cold shoulder to his plight and

affirmatively joining in the peer pressure to force him out." The

Department argues that Baron's policy infractions were not "minor"

and asserts that the district court prevented it from exploring the

severity of Baron's misconduct at trial. Specifically, the

Department emphasizes that the court cut off questioning of Captain

John Scaduto regarding the severity of Baron's infraction of giving

food to an inmate. The Department also attacks the court's

statement that "the defendant threatened termination when Baron

reported an assault on an inmate's girlfriend." It contends that

the court erred in attributing the threat of termination to the

Department, when in fact it came from the union representative

negotiating Baron's discipline settlement rather than from the

Department itself. The Department asserts that together, these

errors indicate that the district court abused its discretion in

denying the motion for a new trial.

In a post-verdict motion for a new trial, the evidence is

viewed in the light most favorable to the verdict. Stuart v.

-38-
United States, 337 F.3d 31, 37 (1st Cir. 2003). Regardless of who

threatened Baron with termination, Baron was given a ten-day

suspension for a policy infraction, and that suspension was

increased to twenty days when Baron refused to sign the ten-day

agreement because it contained inaccuracies. The policy infraction

leading to this suspension was Baron's decision to inform the

Boston Police Department of a reported sexual assault without first

telling his superiors. As the court recognized, the jury may have

viewed the Department's response to this infraction as draconian.

The denial of a new trial on this basis was not an abuse of

discretion.

E. Damages

In a post-trial motion, the Department asserted that it

was entitled to a new trial or remittitur because the $500,000

damages award was unsupported by the evidence. The court rejected

this motion, concluding that, "While Baron hardly put in any

evidence of economic damages at all, there was considerable

testimony from him concerning the stress and anguish induced by the

harassment. . . . In light of the length, extent, and viciousness

of the harassment Baron suffered, the jury award was not

unreasonable." The Department renews its claim before us.

Emphasizing that Baron presented little evidence of economic

damages and no evidence of medical consequences of the harassment,

-39-
the Department contends that allowing the $500,000 award to stand

would be a miscarriage of justice.

"Where defendants properly preserve a challenge to the

amount of compensatory damages awarded by the jury, our inquiry is

limited to determining whether the trial court abused its

discretion in refusing to set aside the verdict as excessive."

Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 102 (1st Cir. 2003)

(quotation marks omitted), cert. denied, 124 S. Ct. 1875 (2004).

"In reviewing an award of damages, the district court is obliged to

review the evidence in the light most favorable to the prevailing

party and to grant remittitur or a new trial on damages only when

the award 'exceeds any rational appraisal or estimate of the

damages that could be based upon the evidence before it.'" E.

Mountain Platform Tennis, Inc. v. Sherwin-Williams Co., 40 F.3d

492, 502 (1st Cir. 1994) (quoting Kolb v. Goldring, Inc., 694 F.2d

869, 872 (1st Cir. 1982)); see also Consolo v. George, 58 F.3d 791,

795 (1st Cir. 1995) (noting that damages award "cannot be disturbed

unless the award exceeded any rational appraisal or estimate of the

damages . . . or was grossly excessive, inordinate, shocking to the

conscious of the court, or so high it would be a denial of justice

to permit it to stand") (quotation marks omitted).

The district court instructed the jury that, "You can

award damages [against the Department] for pain and emotional

suffering, emotional distress, as well as economic damages."

-40-
Although Baron presented little evidence of economic damages, his

testimony demonstrated that the harassment had taken a heavy

emotional toll on him. Over the course of many months, Baron was

subjected to vicious threats and physical intimidation. He

received harassing phone calls that included taunts about his wife,

who suffered from multiple sclerosis and was confined to a

wheelchair. Posters displayed throughout the House of Correction

labeled him a rat and suggested that he was a child molester. His

car was smeared with feces and his tires were slashed. Other

officers refused to cover his post for restroom breaks, forcing

himself to relieve himself in a cup. This harassment affected his

health, requiring him to be taken to the hospital after collapsing

from stress. Baron testified that by the summer of 1998, he "was

doing terrible," suffering from headaches, and could not sleep. He

also testified that the harassment affected his family life,

causing him to be short-tempered with his children and with his

ailing wife. Ultimately, the harassment took such a serious toll

that he was forced to quit his job. In light of these facts, an

award of $500,000 does not "exceed[] any rational appraisal or

estimate of the damages" in this case, Sherwin Williams, 40 F.3d at

502 (quotation marks omitted), and we will not disturb it.

Affirmed.

-41-