Monteagudo v. Asociación De Empleados Del Estado Libre Asociado De Puerto Rico

United States Court of Appeals
For the First Circuit

No. 07-2341

MICHELLE MONTEAGUDO,

Plaintiff, Appellee,

v.

ASOCIACIÓN DE EMPLEADOS DEL ESTADO LIBRE ASOCIADO
DE PUERTO RICO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, U.S. District Judge]

Before

Torruella, Baldock,* and Howard,
Circuit Judges.

Jorge Martínez-Luciano, with whom Carmen Edith Torres-
Rodríguez and Law Offices of Pedro Ortiz-Álvarez, PSC, were on
brief for appellant.
Juan Rafael González-Muñoz, with whom González Muñoz Law
Offices, P.S.C., María E. Margarida-Franco, Margarida Franco Law
Office, and Carlos M. Vergne Law Offices, were on brief for
appellee.

January 26, 2009

*
Of the Tenth Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. Michelle Monteagudo brought

suit alleging sexual harassment claims under federal and Puerto

Rico law against her former employer, Asociación de Empleados del

Estado Libre Asociado de Puerto Rico ("AEELA"),1 in the United

States District Court for the District of Puerto Rico. On June 1,

2007, a jury found that Monteagudo was subjected to sexual

harassment in violation of Title VII of the Civil Rights Act and

Puerto Rico Laws 17, 69, and 100, and awarded her compensatory and

punitive damages. AEELA moved for judgment as a matter of law on

the Faragher-Ellerth affirmative defense pursuant to Federal Rule

of Civil Procedure 50 and also moved for a new trial and remittitur

of the damages award pursuant to Federal Rule of Civil Procedure

59. AEELA appeals the district court's denial of both these

motions as well as certain evidentiary and discovery rulings made

during trial. After careful consideration, we affirm.

I. Background

A. Monteagudo's Experience at AEELA

Monteagudo started working at AEELA in 1999 as a

secretary in the Human Resources department. At that time, she was

a non-permanent employee, substituting for the permanent secretary

who was out on maternity leave. Monteagudo was supervised by Juan

Francisco Arce-Díaz ("Arce"), a payroll, fringe benefits, and

compensation manager for AEELA. At trial, Monteagudo testified

1
AEELA is a non-profit savings and loans organization.

-2-
that during her time as a substitute, Arce "would look at [her] as

if he was appraising [her]." However, she "didn't give it much

importance" because she did not view Arce's conduct to be that

serious.

Monteagudo testified that Arce's conduct continued until

Arce's permanent secretary returned from maternity leave, at which

point Monteagudo stopped working in the Human Resources department.

On October 2, 2000, after stints in AEELA's legal collections and

legal affairs divisions, Monteagudo returned to the Human Resources

department as a permanent employee. Once there, Monteagudo claimed

that Arce engaged in inappropriate conduct towards her. For

example, she remarked that Arce would come to her work station at

least once a day where "he would stop and touch [her] on the

shoulder." Monteagudo stated that she resisted Arce's advances by

"throw[ing] his hand backwards so he'd leave [her] alone." She

also complained that Arce would "invit[e] [her] constantly to go

out together" with co-workers on double dates.

Monteagudo testified to the unpleasantness she felt as a

result of Arce's conduct: "How can I feel except bad? They were

treating me like a piece of meat. I wouldn't like to go to work

. . . I didn't like to go into the office, because I knew what I

would be involved and engaged in every day there."

On one such day, José Francisco Figueroa-Cana

("Figueroa"), a messenger for AEELA since 1996, witnessed Arce

-3-
"plac[ing] his hand on [Monteagudo's] hip" in "an undesirable

action." When he discussed this incident with Monteagudo, she told

him that "that was something that normally took place . . . that

[Arce] would always try to seek a way so he could touch her."

Figueroa testified that he was uncertain about what recourse

Monteagudo should take because this was a matter that was

"extremely difficult and quite delicate" given the people involved.

Even though Figueroa was a union delegate, he decided against

bringing the matter up to the union president because "it was

extremely difficult to bring forth something like this dealing with

who we dealt with," the union was a "very weak institution within

AEELA," and because the union president had a "friendly

relationship" with Orlando Vargas-López ("Vargas"), AEELA's

Director of Human Resources and Labor Relations.

Monteagudo, perhaps partly as a result of her

conversation with Figueroa, did not report Arce's conduct to her

superiors as required by AEELA's sexual harassment policy.2 This

policy was in effect and distributed to Monteagudo while she was a

2
Two provisions of AEELA's sexual harassment policy are relevant
to this appeal. Section 3.2 of the policy states: "An employee who
feels he has been sexually harassed at work in any way, should
present his complaint to the Human Resources Department. If the
alleged harasser should be this person, or anyone related or close
to him, then the complaint must be presented directly to the
Association's Executive Director." Section 3.3 of the policy
states: "It is the responsibility of any employee who witnesses a
sexual harassment act, or if any other employee has complained of
being a victim of sexual harassment, to immediately inform the
appropriate official."

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permanent employee. At trial, Monteagudo explained that she did

not report the sexual harassment "[b]ecause the person I needed to

complain with were all friends." She added: "Either it be the

executive director or the human resources director, they're all

friends amongst themselves. We're talking about some managerials

[sic] versus an employee who virtually had started working a few

days before." She claimed that the Executive Director, Pablo

Crespo-Claudio ("Crespo"), was friends with Vargas and Arce

"[b]ecause of conversations held by Orlando Vargas and Francisco

Arce themselves," noting that "I tend to understand that if some

people go out together to drink liquor, they're friends who go out

to be together." Crespo admitted in his testimony that he may have

gone out for drinks with Vargas and Arce.

Monteagudo testified that Arce's inappropriate behavior

towards her continued for several months leading up to an incident

during a group outing to a local bar, where in the parking lot,

Arce "pulled [her] towards him to try to kiss [her]." Monteagudo

pushed him away that evening, but testified that when she returned

to work the following Monday after the incident "the attitude

displayed towards [her] by Mr. Vargas and Mr. Arce" was "different"

and that the additional work given to her was excessive. Also,

when she complained to Vargas that she was performing two positions

simultaneously, in addition to assisting colleagues from other

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divisions, Vargas "slammed the desk very hard and told [her] that

if [she] filed a complaint, the next day [she] would be dismissed."

At trial, Monteagudo described her work conditions as

intolerable due to the fact that her superiors did not permit

"anyone at all to stop over to talk to [her], even to just say good

morning." Further, she explained the emotional toll AEELA's

actions took on her: "[E]very evening I'd be crying, I would leave

work crying, because there was a constant scolding for everything,

everything I did was wrong. Everything." Thus, Monteagudo stated

that she was left with no choice but to resign, resulting in what

the jury later found to be a constructive discharge: "Obviously, if

somebody is putting so much pressure on you and threatening to kick

you out if you complain before the union, obviously that person

doesn't want to have you there anymore. And that's why I

resigned."

B. AEELA's Motions

At the end of Monteagudo's presentation of her argument,

AEELA orally moved for judgment as a matter of law under Rule 50

stating the following: "At this time we want to move for judgment

as a matter of law, not on the merits of the case, which are

obviously subject to credibility issues for the jury, but on the

subject of [the] affirmative defense limited by the Supreme Court

in the case of Ellerth and Faragher regarding vicarious liability

by an employer." AEELA noted that its motion was based on this

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"single discrete issue." The district court denied AEELA's motion.

At the close of all evidence and before the case went to the jury,

AEELA renewed its motion under "the Faragher issue" stating that

"[p]retty much in our case in chief, nothing further was added, as

far as factually towards this defense. It would be the same

arguments of law and fact, but we need to raise it to preserve it."

The district court again denied AEELA's motion.

On June 1, 2007, the jury found Monteagudo was subjected

to sexual harassment in violation of Title VII and Puerto Rico Laws

17, 69, and 100,3 and awarded her compensatory and punitive

damages.4 On June 15, 2007, AEELA again filed a motion for

3
Law 17 prohibits sexual harassment in employment. 29 P.R. Laws
Ann. § 155. Law 69 prohibits employment discrimination on account
of gender. 29 P.R. Laws Ann. § 1321. Law 100 is analogous to Title
VII and prohibits discrimination on the basis of age, race, color,
sex, social or national origin, social condition, political
affiliation, political or religious ideology. 29 P.R. Laws Ann.
§ 146.
4
The jury found by a preponderance of evidence that (1)
"[Monteagudo] was constructively discharged from her employment at
AEELA specifically as a consequence of sexual harassment; (2)
"AEELA approved an anti-sexual harassment policy which provided the
procedure for employees to channel their claims and that the policy
was disseminated among the employees"; (3) Monteagudo was not
unreasonable in her "fail[ure] to use the procedure provided in the
anti-sexual harassment policy in effect at AEELA; and that (4) "she
was subjected to a sexually hostile work environment in violation
of Puerto Rico law."

The jury also found that the amount of compensatory damages
that "Monteagudo suffered as a proximate result of the sexually
hostile work environment to which she was subjected by AEELA"
totaled $333,000 and that Monteagudo should be awarded $300,000 in
punitive damages.

-7-
judgment as a matter of law on the basis that Monteagudo was not

subjected to a "severe or pervasive" hostile work environment and

that AEELA met the burden of proof required in the Faragher-Ellerth

defense. AEELA argued that no reasonable jury could find that

Monteagudo's failure to use the procedures specified by AEELA's

sexual harassment policy was reasonable. AEELA also moved for a

new trial and for remittitur of the damages award.

The district court denied AEELA's motion for judgment as

a matter of law, noting first that AEELA did not object to the

court's instruction on the Faragher-Ellerth defense. The district

court then offered the following reasons for its denial of AEELA's

motion:

At trial, Plaintiff testified that her
supervisor, Arce, sexually harassed her by
repeatedly touching her on the shoulders,
asking her out, and one occasion trying to
kiss her. She also testified that Vargas,
Defendant's Human Resources Director, was
aware of Arce's unlawful behavior and was an
active participant in the harassment. Vargas,
on another occasion, had threatened to fire
Plaintiff if she complained about excessive
workload. Finally, Plaintiff testified that
Pablo Crespo, Defendant's Executive Director,
was friends with Arce and Vargas. Plaintiff's

On the same day, the district court entered an order modifying
the judgment because the jury did not apportion the compensatory
damage award between the Puerto Rico and federal Title VII claims.
Accordingly, the district court ruled that it "allocates $1 of the
compensatory damages to the Title VII claim and the remaining
$332,999.00 to the Commonwealth claims" and "[p]ursuant to the
damages provisions of Puerto Rico Laws 17, 69, and 100, the court
will double the compensatory damages under the Commonwealth
claims." As a result, Monteagudo's total award was $965,999.

-8-
 testimony was bolstered by Figueroa Cana,
another of Defendant's employee [sic], who
said during trial that he had told Plaintiff
that she did not have a real opportunity of
obtaining relief because of the high ranking
officers involved in the harassment and cover
up. In light of the above, the court cannot
conclude that no reasonable jury could have
found that Plaintiff acted reasonably when she
failed to follow Defendant's anti-sexual
harassment policy.

In a separate order, the district court denied AEELA's

motion for a new trial on damages noting that "the verdict of

$965,999.00 is in part the result of Puerto Rico Laws 17, 69, and

100, which double the plaintiff's compensation." AEELA appeals the

district court's ruling on these two motions as well as certain

discovery and evidentiary rulings at trial.

II. Discussion

A. AEELA's Motion for Judgment as a Matter of Law

1. Standard of Review

Our review of a denial of a motion for judgment as a

matter of law under Fed. R. Civ. P. 50 is de novo, "viewing the

evidence in the light most favorable to the nonmoving party."

Marcano Rivera v. Turabo Med. Ctr. P'ship, 415 F.3d 162, 167 (1st

Cir. 2005) (quoting Tapalian v. Tusino, 377 F.3d 1, 5 (1st Cir.

2004)). We note that "[a] party seeking to overturn a jury verdict

faces an uphill battle," id., and that our "review is weighted

toward preservation of the jury verdict . . . ." Crowe v. Bolduc,

334 F.3d 124, 134 (1st Cir. 2003). "Courts may only grant a

-9-
judgment contravening a jury's determination when the evidence

points so strongly and overwhelmingly in favor of the moving party

that no reasonable jury could have returned a verdict adverse to

that party." Marcano Rivera, 415 F.3d at 167 (quoting Rivera

Castillo v. Autokirey, Inc., 379 F.3d 4, 9 (1st Cir. 2004)).

Here, although AEELA makes several claims on appeal of

the denial of its Rule 50 motion,5 we consider preserved only its

claim regarding the Faragher-Ellerth affirmative defense. As we

recently reasoned:

A motion under Fed. R. Civ. P. 50(a) must
"specify the judgment sought and the law and
facts that entitle the movant to the
judgment." Fed. R. Civ. P. 50(a)(2). The
motion "must be sufficiently specific so as to
apprise the district court of the grounds
relied on in support of the motion." Zachar
v. Lee, 363 F.3d 70, 73 (1st Cir. 2004)
(citing Correa v. Hosp. San Francisco, 69 F.3d
1184, 1196 (1st Cir. 1995)). Such a motion
"preserves for review only those grounds
specified at the time, and no others." Id.
(quoting Correa, 69 F.3d at 1196) . . . But,
"[a]s the name implies, a renewed motion for
judgment as a matter of law under Fed. R. Civ.
P. 50(b) is bounded by the movant's earlier
Rule 50(a) motion." Correa, 69 F.3d at 1196.
"The movant cannot use such a motion as a
vehicle to introduce a legal theory not
distinctly articulated in its
close-of-evidence motion for a directed
verdict." Id.

5
Although raised in an inartful manner on appeal, we consider
infra AEELA's challenges to the district court's rulings on certain
evidentiary and discovery issues at trial.

-10-
Parker v. Gerrish, 547 F.3d 1, 12 (1st Cir. 2008). AEELA stated

that it wished to preserve only one issue in its Rule 50(a) motion;

thus, the only issue that we consider pursuant to its renewed

motion is whether AEELA is entitled to the Faragher-Ellerth

defense.

2. AEELA's Affirmative Defense

We have explained the Faragher-Ellerth defense as

following:

Under Title VII, an employer is subject to
vicarious liability for sexual harassment by
an employee's supervisor which does not
constitute a tangible employment action. But
the employer may prevail if it demonstrates a
two-part affirmative defense: that its own
actions to prevent and correct harassment were
reasonable and that the employee's actions in
seeking to avoid harm were not reasonable.

Chaloult v. Interstate Brands Corp., 540 F.3d 64, 66 (1st Cir.

2008) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 807

(1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765

(1998)).6

The parties agree that the sexual harassment policy AEELA

had in place was sufficient for it to meet the first prong of the

defense. See Arrieta-Colón v. Wal-Mart P.R., Inc., 434 F.3d 75, 86

6
In the motion for judgment as a matter of law below there was
some dispute among the parties as to whether a constructive
discharge constitutes a "tangible employment action" for the
purposes of the Faragher-Ellerth defense. However, the district
court did not address this issue in its opinion and Monteagudo does
not raise this issue here.

-11-
(1st Cir. 2006) ("As to the first element of the defense, proof of

an anti-harassment policy with a complaint procedure available to

employees, while not necessarily dispositive, is relevant.");

Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 21 (1st Cir.

2002) ("[T]he 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."). Thus, Monteagudo concedes "that the only matter for

consideration under the [Faragher-Ellerth] defense is the second

prong of the defense."

Regarding the second prong, in Reed v. MBNA Marketing

Systems, Inc., we remarked that while "[t]here is no bright-line

rule as to when a failure to file a complaint becomes unreasonable

. . . more than ordinary fear or embarrassment is needed." 333

F.3d 27, 35 (1st Cir. 2003). As set forth above, AEELA's sexual

harassment policy states that an employee who is a victim of sexual

harassment should first present her complaint to the Human

Resources department, unless the alleged harasser is within or

close to someone within the department. If this is the case, as it

is here given our facts, the employee is required to report the

sexual harassment to AEELA's Executive Director. Thus, we must

determine whether a jury could conclude that Monteagudo's reasons

for failing to report Arce's conduct to her superiors was

unreasonable.

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 From our review of the record, Monteagudo presented

several reasons for not reporting the sexual harassment to Vargas.

Vargas admitted that he was friends with Arce. Monteagudo also

testified that Vargas and Arce would often go out drinking

together. Monteagudo was thus understandably reluctant to report

Arce's behavior to Vargas because of the closeness of Vargas's

relationship with Arce.

The more difficult question, however, is whether

Monteagudo's failure to report Arce's conduct to Crespo was

unreasonable on the basis of Crespo's alleged friendship with Arce

and Vargas. The only evidence that Monteagudo proffers for this

friendship are conversations she overheard by Vargas and Arce and

the fact that Crespo testified that he may have gone out with Arce

for drinks. Admittedly, Monteagudo did not establish Crespo's

relationship with Arce as clearly as she established Vargas's

relationship with Arce; however, as we acknowledged in Reed,

"juries are supposed to be good at detecting false claims and at

evaluating reasonable behavior in human situations." Id. at 37.

Further, other factors that the jury could have taken

into account in deciding that it was reasonable for Monteagudo not

to report to her superiors included Figueroa's advice to her that

the matter was "extremely difficult and quite delicate" given the

people involved, and the fact that witnesses to the alleged

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harassment failed to report the sexual harassment as well.7 In

addition, there was a significant age differential between

Monteagudo, 22, and Arce, 45, when the harassment occurred.

Although Monteagudo was not a minor as was the plaintiff in Reed,

her relative youth compared to Arce bears at least some relevance.

See id. (noting that a jury could consider the trauma inflicted by

a supervisor who was more than double the age of a seventeen year

old whom the supervisor was alleged to have assaulted). While

Monteagudo's evidence is not overwhelming, we believe that a

reasonable jury could conclude that her failure to report was based

on "more than ordinary fear or embarrassment" and was therefore

reasonable.8

7
Monteagudo testified that Vargas and her colleague, Marilyn Del
Valle-Cruz ("Del Valle"), were aware of the sexual harassment.
Although Vargas and Del Valle deny knowledge of the sexual
harassment, the jury was entitled to believe Monteagudo's version
given the facts surrounding the case.
8
AEELA also maintains that a jury could not reasonably conclude
that Monteagudo's failure to file a complaint with her union
pursuant to the collective bargaining agreement was reasonable. We
disagree. Monteagudo was advised by Figueroa, a union delegate,
that filing a complaint would be futile because the matter involved
people that made it "extremely difficult and quite delicate"; that
the union was weak; and that the union president was friendly with
Vargas. Furthermore, Monteagudo stated that the union was
unresponsive to a prior complaint she had filed on an unrelated
matter.

We note here AEELA's claim that Monteagudo did not produce a
copy of this prior complaint during discovery, even though AEELA
had requested it. AEELA contends that the district court erred by
disallowing AEELA to pursue a line of questioning "directed towards
discrediting Monteagudo's testimony about supposedly having filed
the grievance at issue." Further, AEELA asserts that the district

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 B. AEELA's Evidentiary Claim

1. Standard of Review

We review a trial court's decision to admit or exclude

evidence for abuse of discretion. McDonough v. City of Quincy, 452

F.3d 8, 19 (1st Cir. 2006). "A district court has broad discretion

to make relevancy determinations . . . ." Richards v. Relentless,

Inc., 341 F.3d 35, 49 (1st Cir. 2003). Erroneous evidentiary

rulings are harmless "if it is highly probable that the error did

not affect the outcome of the case." McDonough, 452 F.3d at 19-20.

2. The Challenged Testimony

AEELA argues that the district court erred in disallowing

testimony from Blanca Medina, AEELA's Director of Administrative

and Legal Affairs, regarding whether AEELA had successfully

employed a corrective measure in 2005 pursuant to the sexual

harassment policy. Monteagudo had objected to this testimony,

stating that Medina's testimony on this issue was not "pertinent at

this time." Upon Monteagudo's objection, the parties approached

court erred by stating that AEELA had not previously moved to
compel the document. We agree with the district court that this
was a discovery issue that AEELA should have addressed earlier
either by way of a motion to compel or a request for sanctions
under Fed. R. Civ. P. 37(c). However, even if we were to decide
otherwise, any error would be harmless as the jury could have
concluded that Monteagudo was reasonable in her decision not to
file a complaint with the union based on the other reasons
articulated above. In any event, we are hard pressed to see how
AEELA was disadvantaged as the district court allowed AEELA to ask
Monteagudo a series of questions about the document and its
whereabouts for purposes of impeachment.

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the bench and a colloquy ensued between the parties and the

district court.9 This exchange resulted in the apparent agreement

by AEELA to the following instruction given to the jury immediately

after the bench conference:

The witness stated that in 2005, certain
procedures were followed in another case.
We're not going to go into that line of
questioning. And so that what she was saying,
we're not going to continue further, but let
me instruct the jury that the fact that

9
The transcript of the bench conference reads as follows:

The Court: I think I should instruct the jury -- she
already gave that answer. I should instruct the jury
that the fact that in 2005 corrective measures were taken
is not evidence of what happened in this case.

Mr. Martínez-Luciano [AEELA's counsel]: The reason why
I'm asking about this is because part of plaintiff's
theory as stated today in opening statements . . . [is]
that the proceedings in AEELA are not worth following,
that they're not effective.

Mr. González-Muñoz [Monteagudo's counsel]: No. What I
said during opening statement was that it was not
followed in Michelle's case, and limited myself to this
case. It's not that [AEELA's harassment policy] is
ineffective. In this case it was not followed. That's
what I said in opening statements.

Mr. Martínez-Luciano: It's not a theory you're going to
pursue in closing arguments?

Mr. González-Muñoz: No, no. I'm here for Michelle's
case.

The Court: I'm not going to strike the testimony at this
time. Careful with the question. Whatever she stated in
2005 is not probative of what may have happened or not
happened in 2002.

Mr. Martínez-Luciano: Okay.

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 certain procedures may have been followed in
2005, they're not conclusive, they're not
probative of whatever may have happened in
2002. So in that effect, in that regard,
you're not to consider that statement as
probative one way or the other of what may
have happened in 2002.

From this exchange, it is not clear whether AEELA

preserved its opposition to the court's evidentiary ruling because

AEELA consented to the court's decision to give a jury

instruction.10 Assuming that AEELA has preserved the issue for

appeal, however, the district court did not err by excluding the

testimony on relevance grounds. Unlike other circuits, we have not

required that in order to overcome the second prong of the

Faragher-Ellerth affirmative defense, plaintiffs must produce

evidence demonstrating "that the employer has ignored or resisted

similar complaints or has taken adverse action against employees in

response to such complaints." See, e.g., Leopold v. Baccarat,

Inc., 239 F.3d 243, 246 (2d Cir. 2001). Here, since Monteagudo

limited her argument to the application of AEELA's policy to her

case, the district court was within its discretion to exclude as

not relevant AEELA's attempt to show that it had taken corrective

measures pursuant to the policy in 2005.

10
At closing argument Monteagudo's counsel stated that AEELA's
sexual harassment policy "had been proven defective." Upon AEELA's
objection, the court directed Monteagudo's counsel to correct
himself by explaining to the jury that any argument regarding the
application of the policy's effectiveness pertains to Monteagudo
only.

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 C. AEELA's Motion for New Trial and Remittitur of
Damages

1. Standard of Review

AEELA also appeals the district court's denial of its

motion for new trial or remittitur under Fed. R. Civ. P. 59. "'A

district court should only grant such motions if the outcome is

against the clear weight of the evidence such that upholding the

verdict will result in a miscarriage of justice.'" Marcano Rivera,

415 F.3d at 171 (quoting Johnson v. Spencer Press of Me., Inc., 364

F.3d 368, 375 (1st Cir. 2004)). We review for abuse of discretion.

Id.

2. Damages

a. Compensatory Damages

"'[A] party seeking remittitur bears a heavy burden of

showing that an award is grossly excessive, inordinate, shocking to

the conscience of the court, or so high that it would be a denial

of justice to permit it to stand.'" Id. at 173 (alteration in

original) (quoting Currier v. United Techs. Corp., 393 F.3d 246,

256 (1st Cir. 2004)). "[T]he Supreme Court of Puerto Rico has

indicated that it 'will not intervene in the decision on the

estimation of damages issued by the lower courts, unless the

amounts granted are ridiculously low or exaggeratedly high.'" Id.

at 172 (quoting Nieves Cruz v. Universidad de Puerto Rico, 151 P.R.

Dec. 150 (2000) (certified translation)). Thus, "Puerto Rico's

'exaggeratedly high' standard echoes the federal 'grossly

-18-
excessive' standard." Id. We stress that "only infrequently --

and then, for compelling reasons -- will we, from the vantage point

of an algid appellate record, override the jury's judgment as to

the appropriate amount of non-economic damages to which a plaintiff

is entitled." Casillas-Díaz v. Palau, 463 F.3d 77, 82-83 (1st Cir.

2006).

Here, the jury awarded Monteagudo $333,000 in

compensatory damages without apportioning the award between the

Puerto Rico and the Title VII claims. The jury also awarded

Monteagudo $300,000 in punitive damages under Title VII. Upon

Monteagudo's motion, the district court issued an order allocating

$1 of the compensatory damages award to the Title VII claims and

the remaining $332,999 to the claims under Puerto Rico laws 17, 69,

and 100.11 The district court then doubled the amount awarded

pursuant to the Puerto Rico claims as required by Puerto Rico law,

resulting in a total award amount of $965,999. See P.R. Laws Ann.

tit. 29, § 155j(1); P.R. Laws Ann. tit. 29, § 146(a)(1); P.R. Laws

Ann. tit. 29, § 1341(a)(1).

With respect to compensatory damages, we hold that the

jury's award here of $333,000 was neither "grossly excessive" to

"shock the conscience" of this court, nor was it "exaggeratedly

11
"In this circuit, punitive damages may not be awarded under
Title VII without the award of at least nominal compensatory
damages." Rodríguez-Torres v. Caribbean Form Mfr., Inc., 399 F.3d
52, 65 (1st Cir. 2005).

-19-
high." Admittedly the jury was generous in awarding this amount;

however, the district court did not abuse its discretion in

deciding that the award was proportionate to harm suffered by

Monteagudo. As we expressed above, as a result of the sexual

harassment she endured for several months, Monteagudo felt "like a

piece of meat" and wept every evening. After her constructive

discharge, she testified that she suffered from depression and an

inability to sleep. We note that a "verdict approved by both the

jurors and the trial judge will be pared 'only if it is shown to

exceed any rational appraisal or estimate of the damages that could

be based upon the evidence before the jury.'" Casillas-Díaz, 463

F.3d at 83 (quoting Dopp v. Pritzker, 38 F.3d 1239, 1249 (1st Cir.

1994)). Given our facts and the highly deferential standard we

must apply, this is not such a case. Moreover, the jury award here

is commensurate with non-economic compensatory damage awards we

have upheld in other Title VII and employment discrimination

contexts.12

12
See McDonough, 452 F.3d at 22 (upholding $300,000 compensatory
damages award where "bulk of the award" was for emotional distress
in the form of humiliation, damage to reputation, and strained
family relations); Valentín-Almeyda v. Municipality of Aguadilla,
447 F.3d 85, 103 (1st Cir. 2006) (upholding compensatory damages
award of $705,000 on the basis of harassment and threat of
reprisals where plaintiff suffered emotional damages and mental
anguish such as insomnia, anxiety, guilt, and depression as well as
serious economic damages); Rodríguez-Torres, 399 F.3d at 64
(upholding on plain error review emotional distress damages of
$250,000 in case involving claims under Title VII, Law 69, and Law
100 where Plaintiff "experienced financial difficulties, her
marriage suffered, she entered a deep depression which lasted 'for

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 b. Punitive Damages

We review a preserved challenge to a punitive damages

award de novo. Acevedo-García v. Monroig, 351 F.3d 547, 566 (1st

Cir. 2003). Where a challenge to a punitive damages award is not

preserved, as is the case here, we review for plain error.

Rodríguez-Torres, 399 F.3d at 64; Chestnut v. City of Lowell, 305

F.3d 18, 20 (1st Cir. 2002). AEELA can prevail on plain error

review if it demonstrates that:

(1) an error was committed; (2) the error was
plain (i.e.[,] obvious and clear under current
law); (3) the error was prejudicial (i.e.[,]
affected substantial rights); and (4) review
is needed to prevent a miscarriage of justice,
meaning that the error seriously impaired the
fairness, integrity, or public reputation of
judicial proceedings.

quite some time,' and, because of the depression, she had
difficulty finding subsequent employment"); Che v. Mass. Bay
Transp. Auth., 342 F.3d 31, 36-37 (1st Cir. 2003) (upholding
$125,000 compensatory damages award for emotional distress
including stress and anxiety disorders and irritable bowel
syndrome); Kerr-Selegas v. American Airlines, Inc., 69 F.3d 1205,
1214 (1st Cir. 1995) (upholding $300,000 compensatory damage award
on Title VII retaliation claim before doubling of award under
Puerto Rico law); see also Muñiz-Olivari v. Stiefel Labs., Inc.,
496 F.3d 29, 40-41 (1st Cir. 2007) (analogizing to Title VII law
and holding that pain and suffering damages of $100,000 to husband
and wife each was not excessive); cf. Soto-Lebrón v. Fed. Express
Corp., 538 F.3d 45, 70 (1st Cir. 2008) (holding that $1,800,000
emotional damages award on libel claim was excessive in part
because "there is an identifiable legal error that is at the heart
of the jury's inflated award"); Koster v. Trans World Airlines, 181
F.3d 24, 35-36 (1st Cir. 1999) (holding emotional damage award of
$716,000 as excessive and reducing it to $250,000 where employer's
conduct resulted in Plaintiff having trouble sleeping, anxiety, and
family suffering).

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Díaz-Fonseca v. Puerto Rico, 451 F.3d 13, 36 (1st Cir. 2006)

(internal quotation marks omitted).

Here, we disagree with AEELA's claim that it properly

preserved its challenge to the punitive damages award by filing a

timely motion under Rule 59(a). In its new trial and remittitur

motion, AEELA did not provide any developed argumentation as to why

Monteagudo should not be entitled to punitive damages. Further,

AEELA did not cite any cases for its proposition that punitive

damages are unwarranted. "[T]heories not raised squarely in the

district court cannot be surfaced for the first time on appeal."

McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991).

"This prophylactic rule requires litigants to spell out their legal

theories face-up and squarely in the trial court; if a claim is

'merely insinuated' rather than 'actually articulated,' that claim

ordinarily is deemed unpreserved for purposes of appellate review."

Iverson v. City of Boston, 452 F.3d 94, 102 (1st Cir. 2006)

(quoting McCoy, 950 F.2d at 22); see also In re Olympic Mills

Corp., 477 F.3d 1, 17 (1st Cir. 2007) (holding a claim against

damages award waived because "as presented to the district court

. . . the argument was fatally undeveloped, comprising only four

sentences, a citation to a district court opinion, and no analysis

whatsoever").

Applying the plain error standard, then, we must first

decide whether the district court committed an error. "Title VII

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authorizes punitive damages when a plaintiff demonstrates that the

defendant engaged in intentional discrimination 'with malice or

reckless indifference to the federally protected rights of an

aggrieved individual.'" Rodríguez-Torres, 399 F.3d at 64 (quoting

42 U.S.C. 1981a(b)(1)). In Kolstad v. American Dental Ass'n., 527

U.S. 526 (1999), the Supreme Court set forth a framework for

determining the appropriateness of punitive damages. Following

Kolstad, once a plaintiff has shown that "the employer acted with

malicious or reckless indifference to the plaintiff's federally

protected rights," "she then must establish a basis for imputing

liability to the employer." Rodríguez-Torres, 399 F.3d at 64. We

have stated that "the plaintiff may meet this burden by showing

that the employee who discriminated against her was a managerial

agent acting within the scope of his employment." Id. "[E]ven if

the plaintiff makes these showings, the employer still may avoid

punitive liability by showing that it engaged in good faith efforts

to implement an anti-discrimination policy." Id. "Demonstrating

good faith compliance is an affirmative defense, and the burden of

proof therefore rests with the employer." Id.

Here, a reasonable jury could conclude that Arce was

acting in a managerial capacity when engaging in the acts of sexual

harassment. Also, as a supervisor, Arce should have been aware

that his actions were against AEELA's sexual harassment policy and

federal law. A closer question is whether AEELA was entitled to

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its affirmative defense of good faith compliance, especially in

view of the jury's finding that AEELA had satisfied the first prong

of its Faragher-Ellerth defense. The question before us then is

whether the fact that AEELA had a sexual harassment policy in place

that was disseminated to its employees was sufficient to show "good

faith compliance" in order to avoid punitive damages.

We have stated that while "a written non-discrimination

policy is one indication of an employer's efforts to comply with

Title VII. . . . a written statement, without more, is

insufficient to insulate an employer from punitive damages

liability." Romano v. U-Haul Int'l, 233 F.3d 655, 670 (1st Cir.

2000). From our review of the record, AEELA has not provided

sufficient proof that it had in place an "active mechanism for

renewing employees' awareness of the policies through either

specific education programs or periodic re-dissemination or

revision of their written materials";13 "testimony by appellants'

witnesses that indicated that supervisors were trained to prevent

discrimination from occurring;" or "examples in which their

anti-discrimination policies were successfully followed."14 Id.

13
Notably, Monteagudo testified that she had never been offered
a seminar on sexual harassment and that she was unaware if any
sexual harassment seminars had been given to her supervisors.
14
We acknowledge that AEELA was rebuffed by the district court in
its attempt to show how its policy was successfully implemented in
2005. However, as we noted in assessing AEELA's evidentiary claim
above, this evidence was not proffered to show that AEELA should
not have been liable for punitive damages. Rather, AEELA attempted

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(providing a non-exhaustive list of ways an employer could

demonstrate good faith compliance). While having all of these

factors is not necessary to qualify for the defense, see id., AEELA

has not provided sufficient evidence that it fulfilled any of these

factors. Thus, the district court did not commit plain error in

upholding the punitive damages award and denying a new trial on

damages.

III. Conclusion

For the foregoing reasons, the district court judgment is

affirmed.

Affirmed.

to introduce Medina's testimony in order to bolster its Faragher-
Ellerth defense. This was evidence which the district court was
within its discretion to exclude. Even if the district court had
considered the 2005 corrective measure AEELA had employed pursuant
to its policy, the district court still did not commit plain error
in upholding the punitive damages award. This is because AEELA
failed to provide sufficient evidence of other indicators of good
faith compliance and because the 2005 corrective measure occurred
three years after the sexual harassment in this case. See id.

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