Cham v. Station Operators, Inc.

United States Court of Appeals
For the First Circuit

No. 11-1988

OUSMAN CHAM,

Plaintiff, Appellant,

v.

STATION OPERATORS, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Lynch, Chief Judge,
Lipez and Thompson, Circuit Judges.

Mark P. Gagliardi for appellant.
Neal J. McNamara, with whom Nixon Peabody LLP was on brief,
for appellee.

July 16, 2012
 LYNCH, Chief Judge. In this employment discrimination

suit, Ousman Cham alleges that the defendant, Station Operators,

discriminated against him on the basis of race and national origin,

in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq., and retaliated against him for taking

medical leave, in violation of the Family and Medical Leave Act

(FMLA), 29 U.S.C. § 2601 et seq.

This appeal follows two trials. At the first trial, the

district court dismissed the Title VII claims before the case was

submitted to the jury, and the jury returned a verdict in favor of

Cham on the FMLA claim. The district court then granted Station

Operators's motion for a new trial. Only the FMLA retaliation

claim was at issue in the second trial, and the jury returned a

verdict for Station Operators on that claim.

Cham appeals, challenging (1) the dismissal of his

disparate treatment Title VII claim during the first trial, (2) the

grant of the defendant's motion for a new trial, and (3) the

exclusion of certain evidence during the second trial. We reject

Cham's claims of error and affirm.

I.

A. Factual Background

Ousman Cham was at the time of the second trial a thirty-

two year old Muslim and a native of The Gambia who had immigrated

to the United States in 2000. Cham worked for the defendant,

-2-
Station Operators, Inc. (a division of Exxon Mobil) from May 13,

2003, to May 20, 2005, at an Exxon Mobil gas station and

convenience store in Smithfield, Rhode Island.

Cham was hired by Station Operators as a sales associate,

a term for a cashier and clerk, and so remained for the duration of

his employment. Cham was hired as a part-time hourly employee and

shortly thereafter became a full-time hourly employee. Cham

testified that he was regularly scheduled to work forty hours per

week once he became a full-time employee. The undisputed testimony

at trial was that no employee was entitled to any particular shift

and that Cham did not have a contract with Station Operators

guaranteeing him any shifts or even forty hours per week. Full

benefits were provided at thirty-two hours a week.

In February 2004, Andrew Pelletier became the new

assistant manager at the Smithfield store and so became Cham's

supervisor. Pelletier took over scheduling responsibilities in

September of 2004, and became manager in December 2004. Cham

claims his hours began to be reduced when Pelletier took over

scheduling.

While under Pelletier's supervision, on December 20,

2004, Cham was scheduled to work an eight-hour shift, but did not

come in or inform the store that he would not be able to work.

Cham testified that his car broke down on the way back from New

York and he did not have access to a phone to call in to work.

-3-
Cham was placed on probation for violating company policy by

failing to notify the store that he would not be able to make it to

work.

A few weeks later, on January 17, 2005, Cham was injured

in a car accident. The next day, Cham informed Pelletier that he

was taking FMLA leave from January 18 to February 15, 2005, due to

a back injury sustained in the accident, on his doctor's

recommendation. At some point during this leave, Cham informed

Pelletier that his leave would need to be extended until March 14,

2005, and Cham remained out of work until March 14.1

When Cham returned to work, he was consistently scheduled

to work thirty-two hours per week, although his actual work hours

fluctuated. Sometimes he worked less than scheduled. For example,

Cham "called out" on two shifts; that is, he called to say he could

not work those shifts. Cham claimed this reduction in scheduled

hours was in retaliation for taking FMLA leave and in violation of

Title VII. Cham quit his employment at Station Operators on May

20, 2005, two days after suffering a panic attack at work that sent

him to a hospital emergency room for treatment.

1
While Cham's leave ended on March 14, Pelletier did not
schedule Cham for any hours during that week. Payroll records
indicate that Cham did in fact work 25.5 hours that week.

-4-
B. Procedural History

Cham filed suit against Station Operators on May 6, 2008,

in Rhode Island state court.2 Cham's initial complaint alleged

that Station Operators discriminated against him on account of

race, national origin, and religion, in violation of Title VII and

certain state-law provisions. The complaint pled disparate

treatment, failure to promote, and hostile work environment

theories under Title VII.

Station Operators removed the case to federal court on

August 29, 2008. Cham filed a second amended complaint on February

2, 2010, which added new claims of interference with FMLA rights

and retaliation in violation of the FMLA. The second amended

complaint also added sex discrimination as one of the bases of the

Title VII claim.

Cham's FMLA and Title VII theories were advanced in his

pretrial memorandum as pled in the second amended complaint, with

Cham additionally contending that the disparate treatment amounted

to a constructive discharge. At a January 18, 2011 pretrial

conference, Cham agreed to dismissal of his Title VII failure to

promote claim and his FMLA interference claim as time-barred.

2
Cham filed a charge of workplace discrimination with the
Rhode Island Commission For Human Rights and the Equal Employment
Opportunity Commission on February 8, 2006, and received notice of
his right to sue from both entities in February 2008.

-5-
 Cham's first jury trial, which lasted four days, began on

January 24, 2011, on his disparate treatment and hostile work

environment claims under Title VII, the FMLA retaliation claim, and

certain pendent state-law claims. At the close of plaintiff's

evidence, Station Operators moved for judgment on all claims under

Federal Rule of Civil Procedure 50(a). Cham's counsel agreed to

dismiss the hostile work environment claim. The remainder of the

motion was disputed. The court dismissed the hostile work

environment claim as agreed, and took the motion under advisement

as to the FMLA retaliation claim and the Title VII disparate

treatment claim.

At the close of all the evidence, Station Operators

renewed its Rule 50(a) motion as to all claims, which the court

took under advisement. At the start of the final day of trial,

Cham moved for judgment as a matter of law under Rule 50(a) on his

two remaining claims. Cham clarified that he was no longer

advancing a Title VII claim of on the basis of religion or sex,

leaving national origin and race as the bases of his disparate

treatment claim. The district court denied Cham's motion and

granted Station Operators's motion for judgment as a matter of law

as to the Title VII disparate treatment claim. Only the FMLA

retaliation claim went to the jury, and it returned a verdict in

favor of Cham and awarded $20,000 in damages. No final judgment

was entered.

-6-
 On February 25, 2011, Station Operators filed a motion

for judgment as a matter of law under Rule 50(b) or, in the

alternative, a new trial under Rule 59, as to the FMLA retaliation

claim, which Cham opposed.

On June 3, 2011, the district court denied the

defendant's request for judgment as a matter of law on the FMLA

retaliation claim but granted the request for a new trial on that

claim. Cham v. Station Operators Inc., 832 F. Supp. 2d 131 (D.R.I.

2011). The court explained that a great deal of prejudicial

evidence had been introduced which was relevant to the hostile work

environment claim but was irrelevant to the FMLA retaliation claim.

Id. at 139. The court noted that the hostile work environment

claim was voluntarily dismissed by plaintiff after the evidence was

introduced. Id. The court concluded this evidence "had great

potential to confuse the jury and to unfairly prejudice Station

Operators," and so granted the motion.3 Id.

Station Operators filed two motions in limine before the

second trial, the allowance of which are claimed to be error.

First, the court excluded evidence of Cham's work hours and

schedules for all time periods before September 2004. Second, the

3
On June 13, 2011, Cham moved for reconsideration of both
the district court's grant of the motion for a new trial as well as
the Rule 50 dismissal of his disparate treatment claim during the
first trial. The court denied both motions at the start of the
second trial.

-7-
court excluded the testimony of two health care providers who had

treated Cham for a panic attack on May 18, 2005.

The second trial, restricted to the FMLA retaliation

claim, lasted three days, and the jury returned a verdict in favor

of Station Operators. The district court entered judgment in favor

of Station Operators and Cham timely appealed.

II.

Cham argues that the district court erred (1) in granting

Station Operators's Rule 50 motion to dismiss his disparate

treatment claims, (2) in granting Station Operators's Rule 59

motion for a new trial, and (3) in granting the motions in limine

excluding evidence of his work hours before September 2004 and his

panic attack. We reject each challenge.

A. Rule 50 Dismissal of the Title VII Disparate Treatment
Claim

We review de novo a grant of judgment under Rule 50(a).

J.R. v. Gloria, 593 F.3d 73, 78 (1st Cir. 2010). A district court

may grant a Rule 50 motion before the case is submitted to the jury

if, after the party "has been fully heard on an issue," the court

"finds that a reasonable jury would not have a legally sufficient

evidentiary basis to find for the party on that issue." Fed. R.

Civ. P. 50(a)(1). The court considers "[a]ll of the evidence and

reasonable inferences drawn from the evidence . . . in the light

most favorable to the non-moving party," and may not evaluate the

credibility of the witnesses or the weight of the evidence. Malone

-8-
v. Lockheed Martin Corp., 610 F.3d 16, 20 (1st Cir. 2010)

(alteration in original) (quoting Espada v. Lugo, 312 F.3d 1, 2

(1st Cir. 2002)) (internal quotation marks omitted). However, "the

plaintiff is not entitled to inferences based on speculation and

conjecture." Id. (quoting Vázquez-Valentín v. Santiago Diaz, 385

F.3d 23, 30 (1st Cir. 2004), rev'd on other grounds, 546 U.S. 1163

(2006)) (internal quotation marks omitted).

The McDonnell Douglas burden-shifting framework, see

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), governs the

"allocation of the burden of production and an order for the

presentation of proof in Title VII discriminatory-treatment cases,"

as here, St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).

"First, the plaintiff must establish a prima facie case

of discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 142 (2000). "Generally, a plaintiff establishes a prima

facie case by showing that (1) he is a member of a protected class;

(2) he was qualified for the job; (3) the employer took an adverse

employment action against him; and (4) the position remained open

or was filled by a person with similar qualifications." Kosereis

v. Rhode Island, 331 F.3d 207, 212-13 (1st Cir. 2003). The last

two elements may "var[y] according to the nature of the plaintiff's

claim," but "require[], among other things, a showing of an adverse

employment action." Alvarado-Santos v. Dep't of Health, 619 F.3d

126, 132 (1st Cir. 2010), cert. denied, 132 S. Ct. 121 (2011).

-9-
 Once the plaintiff makes out a prima facie case, the

burden of production shifts to the defendant to produce evidence

"that the adverse employment actions were taken 'for a legitimate,

nondiscriminatory reason.'" St. Mary's, 509 U.S. at 507 (quoting

Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)).

If the defendant produces such evidence, the McDonnell Douglas

framework "disappear[s]" and the sole remaining issue is

"discrimination vel non." Reeves, 530 U.S. at 142-43 (quoting U.S.

Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983))

(internal quotation marks omitted). The ultimate burden of

persuasion always remains on the plaintiff, who must be afforded an

opportunity to show that the reasons offered by the defendant were

a pretext for discrimination. Id. at 143; see also Vélez v. Thermo

King de P.R., Inc., 585 F.3d 441, 447-48 (1st Cir. 2009).

Cham's theory of discrimination is that Pelletier

permanently reduced his scheduled weekly hours on account of race

or national origin several times after Pelletier assumed

responsibility over work schedules in September 2004: (1) from

forty hours to thirty-two hours during holiday weeks, as soon as

Pelletier took charge, (2) from forty to thirty-two hours following

Cham's return from FMLA leave on March 14, 2005, and (3) from

thirty-two hours to twenty-four hours in mid-May 2005.

That Cham established the first two elements of a prima

facie case is not disputed. The parties do dispute whether Cham's

-10-
hours were reduced and, if so, whether the reduction amounted to an

adverse employment action; whether Cham was treated less favorably

than employees outside of his protected class;4 and whether there

is sufficient evidence from Cham that Station Operators's proffered

non-discriminatory justification was pretextual.

We affirm the district court's rejection of Cham's

claims. The loss of a shift on holiday weeks fails because any

such loss does not rise to the level of an adverse employment

action. An adverse employment action "typically involves discrete

changes in the terms of employment, such as 'hiring, firing,

failing to promote, reassignment with significantly different

responsibilities, or a decision causing significant change in

benefits.'" Morales-Vallellanes v. Potter, 605 F.3d 27, 35 (1st

Cir. 2010) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S.

742, 761 (1998)), cert. denied, 131 S. Ct. 978 (2011). To be

adverse, an employment action "must materially change the

conditions of plaintiffs' employ." Id. (quoting Gu v. Bos. Police

Dep't, 312 F.3d 6, 14 (1st Cir. 2002)) (internal quotation marks

omitted).

4
"The time to consider comparative evidence in a disparate
treatment case is at the third step of the burden-shifting ritual,
when the need arises to test the pretextuality vel non of the
employer's articulated reason for having acted adversely to the
plaintiff's interests," as opposed to as part of a plaintiff's
prima facie case. Kosereis v. Rhode Island, 331 F.3d 208, 213 (1st
Cir. 2003) (quoting Conward v. Cambridge Sch. Comm., 171 F.3d 12,
19 (1st Cir. 1999)).

-11-
 Cham's claim is based on the purported loss of three

shifts during the weeks encompassing Labor Day, Thanksgiving, and

Christmas. Such a reduction simply does not rise to the level of

an adverse employment action in the context of a workplace where

schedules fluctuate and no employee is entitled to any given shift.

Further, the decision did not cause a "significant change in

benefits." Id. (quoting Burlington Indus., 524 U.S. at 761)

(internal quotation mark omitted). It is clear from the record

that the fluctuation in hours above thirty-two hours did not affect

Cham's benefits.

As to Cham being scheduled for a twenty-four hour shift

for one week in May 2005, that likewise does not amount to an

adverse employment action. Such a reduction for a single week is

not an adverse employment action. There is no evidence that such

a reduction was to last for longer than a week, nor that a one-week

reduction would lead to a loss of benefits provided to full-time

employees, such as health insurance. We also reject out of hand

Cham's extreme argument that a one-week reduction amounts to a

constructive discharge, as Cham's working conditions were not

rendered "so difficult or unpleasant that a reasonable person in

[his] shoes would have felt compelled to resign." Ahern v.

Shinseki, 629 F.3d 49, 59 (1st Cir. 2010) (quoting Marrero v. Goya

of P.R., Inc., 304 F.3d 7, 28 (1st Cir. 2002)) (internal quotation

mark omitted).

-12-
 Cham's final variant of his disparate treatment claim is

that his work schedule was reduced from forty to thirty-two hours

a week upon his return from FMLA leave. Cham's theory is that he

normally was scheduled to work, and did in fact work, five eight-

hour shifts per week, but that upon returning from FMLA leave his

Friday-night shift was taken away, reducing his scheduled hours to

thirty-two per week. Station Operators argues that Cham's work

hours fluctuated and his scheduling upon his return was within the

scope of this normal variation.

Whether Cham's evidence that there was a drop in

scheduled hours after his FMLA leave is sufficient to make a prima

facie case is questionable. Station Operators's records of

employees' scheduled hours for all of 2004, except for the last

week, were lost and so not in evidence. As a result, while the

evidence is undisputed that Cham was scheduled for thirty-two hours

a week from March 23, 2005 to May 25, 2005, and that he was

scheduled for forty hours from January 5, 2005, to February 2,

2005, there is no evidence as to Cham's scheduled hours during

2004. Given the lack of schedules, it is impossible to compare

Cham's scheduled hours from before the last week of December 2004

to the hours for which he was scheduled after his return from FMLA

leave. The undisputed testimony at trial was that no employee was

entitled to any particular shift and that Cham did not have a

contract with Station Operators guaranteeing him any shifts. In

-13-
terms of Cham's hours actually worked, there was substantial

fluctuation in Cham's weekly hours before he took FMLA leave.

Nevertheless, there was a drop in the hours that Cham

actually worked from the data available -- Cham worked an average

of approximately 40.83 hours per week before the FMLA leave

(averaged over the course of his employment), and an average of

approximately 30.38 after leave.

Even assuming that this reduction for a non-regularly

scheduled employee amounted to an adverse employment action for

Title VII disparate treatment purposes, Cham failed to provide

sufficient evidence that Station Operators's proffered explanation

was pretextual. The court did not err in granting Station

Operators's Rule 50 motion. We may "bypass the prima facie case

issue because it is clear that plaintiff has not mustered enough

evidence for a reasonable jury to conclude that [the defendant's]

stated reason" for the employment action was pretextual. Freadman

v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 100 (1st Cir. 2007);

see also Reeves, 530 U.S. at 148 ("[A] plaintiff's prima facie

case, combined with sufficient evidence to find that the employer's

asserted justification is false, may permit the trier of fact to

conclude that the employer unlawfully discriminated." (emphasis

added)); Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 471 (1st

Cir. 2010); Rathbun v. Autozone, Inc., 361 F.3d 62, 72 (1st Cir.

2004). This reasoning applies to Rule 50 motions to dismiss at

-14-
trial. See Reeves, 530 U.S. at 150 ("[T]he standard for granting

summary judgment 'mirrors' the standard for judgment as a matter of

law, such that 'the inquiry under each is the same.'" (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986))); see

also Dance v. Ripley, 776 F.2d 370, 373-74 (1st Cir. 1985)

(affirming dismissal of plaintiff's claim at the close of

plaintiff's evidence because the defendant put forth a legitimate,

nondiscriminatory reason during plaintiff's case and the plaintiff

presented no evidence demonstrating pretext).

The legitimate explanation, through Pelletier's

testimony, was that he had to hire two extra employees and needed

to give them hours. One was hired to cover Cham's shifts when Cham

was on FMLA leave.5 Further, Cham had, before the leave, received

overtime hours and Station Operators's policy was to avoid

employees working overtime. When Cham returned to work, Pelletier

kept the new hire to cover some shifts, including the hours Cham

complains about, and Pelletier testified that this hiring, rather

than any racial animus, motivated the scheduling decisions. One of

the reasons the court gave for granting the motion was that "while

Mr. Cham was on leave, someone was hired to cover his shifts," and

5
Pelletier admitted on cross-examination that one of the
employees was not hired until after Cham returned from medical
leave. It is undisputed that the second employee was hired while
Cham was on FMLA leave to cover Cham's shifts.

-15-
that this was a legitimate reason for Cham's scheduling when he

returned from leave.

There is no evidence of pretext. Pelletier, the

supervisor Cham claims was racially motivated to reduce his hours

after the FMLA leave, did not materially reduce Cham's hours from

September 2004, when Pelletier took charge of scheduling, to

January 2005, just before Cham's FMLA leave. Cham's own testimony

was that his particular forty hour schedule began in November 2004,

under Pelletier. Under Pelletier, Cham was the highest paid sales

associate during the relevant time period. Moreover, upon his

returning from FMLA leave, Cham's scheduled hours were equal to or

greater than most of the other employees at the Station Operators

location. This included the employee who was hired to cover some

of Cham's shifts while he was on leave as well as the employee who

was hired shortly after his return from leave.

Further, there is little evidence of racial animus.

While Cham testified that Pelletier made certain remarks, Cham's

voluntary dismissal of his hostile work environment claim is

indicative of the fleeting nature of any such comments. Moreover,

such "'stray workplace remarks' . . . normally are insufficient,

standing alone, to establish either pretext or the requisite

discriminatory animus." Gonzalez v. El Dia, Inc., 304 F.3d 63, 69

(1st Cir. 2002).

-16-
 Cham offers two arguments as to why Station Operators's

explanation was pretextual. First, Cham claims that a Caucasian

employee, Joe Parker, was similarly situated and did not have his

scheduled hours reduced from forty to thirty-two. However, Cham

introduced no evidence as to Parker's schedule before January 2005,

and instead compares his schedule to Parker's only over the course

of a few months in 2005. Further, Cham introduced no evidence as

to any hours Parker actually worked at any point in time. Finally,

Cham and Parker worked different shifts (Parker worked the night

shift), reducing any similarity between the two. These

considerations undermine Cham's comparison to Parker. See García

v. Bristol-Myers Squibb Co., 535 F.3d 23, 31 (1st Cir. 2008) (to

demonstrate pretext by "producing evidence that plaintiff was

treated differently from similarly situated employees," a plaintiff

"must show that others similarly situated to [him] in all relevant

respects were treated differently by the employer" (emphasis added)

(quoting Kosereis, 331 F.3d at 214) (internal quotation marks

omitted)).

Second, Cham claims that he was disciplined more harshly

in December 2004 than a Caucasian employee for similar violations

of company policy. First, the form of discipline Cham received

(being placed on probation) imposed no additional tangible

consequences over the form of discipline the other employee

received (a written warning). Second, the two situations are not

-17-
comparable: while both Cham and the Caucasian employee were

disciplined for failure to appear for their scheduled shifts, Cham

had failed to provide any notice to Station Operators that he would

not be able to work, whereas the other employee informed Station

Operators that he would not be able to work thirty minutes after

his shift was supposed to begin.

The district court did not err in granting the Rule 50

motion.

B. Rule 59 Grant of a New Trial

We review the district court's grant of a new trial for

abuse of discretion. Jennings v. Jones, 587 F.3d 430, 435 (1st

Cir. 2009). A trial court may grant a new trial "on the basis that

the verdict is against the weight of the evidence." Id. at 436.

Moreover, "the district court has the power and duty to order a new

trial whenever, in its judgment, the action is required in order to

prevent injustice." Id. (quoting Kearns v. Keystone Shipping Co.,

863 F.2d 177, 181 (1st Cir. 1988)) (internal quotation marks

omitted). The district court may "independently weigh the

evidence" in deciding whether to grant a new trial. Id.

The district court's reason for granting a new trial here

was that because Cham's hostile work environment and disparate

treatment claims had been dismissed, the jury had been exposed to

much evidence that was irrelevant, and could be both prejudicial

and confusing, to Cham's FMLA retaliation claims. Cham, 832 F.

-18-
Supp. 2d at 139-40. The district court found that such "irrelevant

evidence had great potential to confuse the jury and to unfairly

prejudice Station Operators," particularly given that the

timeliness of Cham's FMLA retaliation claim depended on whether

Station Operators's violation was "willful" in nature. Id. at 139.

The district court did not abuse its discretion. The

admission of evidence that later becomes irrelevant when one or

more claims is rejected as a matter of law prior to submission to

the jury may be grounds for granting a new trial, if deemed unduly

prejudicial. See MacPherson v. Univ. of Montevallo, 922 F.2d 766,

777 (11th Cir. 1991); cf. SEC v. Happ, 392 F.3d 12, 28 (1st Cir.

2004) (an erroneous admission of evidence may be grounds for

granting a new trial, if refusing to grant a new trial "appears to

the court inconsistent with substantial justice" (quoting Fed. R.

Civ. P. 61) (internal quotation marks omitted)).

Here, it is beyond question that most of the prejudicial

evidence was introduced in support of Cham's hostile work

environment claim and was rendered irrelevant when Cham voluntarily

agreed to dismissal of the claim. To the extent any of it was

introduced solely as to the disparate treatment claim, it became

irrelevant when the court dismissed that claim under Rule 50.

Cham argues that the evidence was not sufficiently

prejudicial to warrant a new trial. Often, where evidence is

rendered irrelevant because certain claims are dismissed before the

-19-
case goes to the jury, the appropriate response is to instruct the

jury to disregard the evidence.6 See Guthrie v J.C. Penny Co., 803

F.2d 202, 208 (5th Cir. 1986) (declining to reverse district court

denial of a motion for a new trial where evidence as to pain and

suffering became irrelevant when certain claims were dismissed

before trial, and noting that there was a "less drastic remedy of

an explicit instruction to the jury" on the matter); see also Fed.

R. Evid. 105 ("If the court admits evidence that is admissible

against a party or for a purpose -- but not against another party

or for another purpose -- the court, on timely request, must

restrict the evidence to its proper scope and instruct the jury

accordingly."). Despite Station Operators's failure to request

such an instruction, it was within the court's discretion to grant

the more drastic remedy of a new trial.

There are times where such irrelevant evidence is

sufficiently prejudicial that a limiting instruction will not be

sufficient and a new trial is proper. See MacPherson, 922 F.2d at

777 (affirming district court's grant of a new trial in part

because evidence admitted in support of a disparate impact theory,

which was dismissed at the close of plaintiff's case, was no longer

relevant).

6
The district court did inform the jury, prior to closing
argument, that the only claim they would hear argument on was the
FMLA retaliation claim, and that the jury "should not concern
yourselves with the reasons why you're not going to be hearing
about the other claims."

-20-
 This was a judgment call for the experienced trial judge

who sat through the first trial and was able to gauge the effect of

the evidence on the jury. See Correia v. Feeney, 620 F.3d 9, 11

(1st Cir. 2010) (noting that "we owe much deference to the trial

court's [new trial] determination"). The district court provided

a cogent explanation for its result, particularly given that Cham

had to prove that the FMLA violation was "willful" for his claim to

be timely,7 and the irrelevant evidence could have affected the

willfulness finding.

The district court concluded there would be a miscarriage

of justice if the verdict were to stand. Cham, 832 F. Supp. 2d at

139-40. In reaching that conclusion the court commented on the

vagueness of the hostile environment evidence as well as that

evidence's lack of connection to race. Id. at 139. The court

stated "[n]one of this evidence has any bearing on the FMLA

retaliation claim that ultimately went to the jury, and Cham's

counsel, recognizing the claim's lack of merit, voluntarily

withdrew the hostile environment claim but only after putting the

extraneous evidence before the jury." Id. (emphasis added).

7
See 29 U.S.C. § 2617(c) (providing a two-year statute of
limitations for FMLA violations and a three-year statute of
limitations for willful FMLA violations).

-21-
C. Evidentiary Rulings During the Second Trial

Cham appeals rulings on two motions in limine excluding

evidence before the second trial, where only the FMLA retaliation

claim was at issue.

"We review a district court's decision to admit or

exclude evidence for abuse of discretion." Portugues-Santana v.

Rekomdiv Int'l, 657 F.3d 56, 62-63 (1st Cir. 2011). Further, only

those evidentiary rulings that affect a party's "substantial

rights" might warrant overturning a verdict. Torres-Arroyo v.

Rullán, 436 F.3d 1, 8 (1st Cir. 2006); see also Fed. R. Civ. P. 61;

Fed. R. Evid. 103(a).

Cham's first argument is that it was error to grant

Station Operators's motion in limine to exclude evidence of Cham's

work hours and schedules prior to September 2004. The district

court excluded the evidence on the basis that "anything prior to

that time would be too attenuated from" the FMLA retaliation claim,

which "begins in May 2005."

We reject Cham's argument. The district court reasonably

determined that an appropriate cut-off date for evidence as to

Cham's weekly hours was September 2004, because that was when the

allegedly retaliatory supervisor, Pelletier, became responsible for

employee scheduling. While evidence of hours before September 2004

may have been marginally relevant under Rule 401, the district

court did not abuse its discretion in excluding the evidence under

-22-
Rule 403. See Fed. R. Evid. 403. Further, there was no prejudice

since the proffered evidence showed that Pelletier as of September

2004 continued to assign essentially the same hours. The point of

Cham's claim had to do not with September 2004 but with the claimed

reduction in hours beginning in March 2005, after his FMLA leave.

Cham also argues error in the exclusion of evidence of

his panic attack and trip to the hospital emergency room on his

final day of work at Station Operators, along with the

corresponding testimony of two medical providers. The district

court reasoned that compensatory damages were not available for

FMLA retaliation claims, as opposed to the first trial where the

hostile work environment claim was still pending, and so the

testimony of the medical providers was not relevant.

Cham argues that the evidence was relevant to prove that

the alleged FMLA retaliation he suffered amounted to a constructive

discharge, and the harm to Cham's health was relevant to whether

the working conditions amounted to a constructive discharge.

The district court did not abuse its discretion in

excluding the evidence as prejudicial or confusing under Rule 403.

The court had heard testimony during the first trial of the mental

health provider who treated Cham that the onset of depression and

anxiety was four or five months before the May 2005 panic attack --

before Cham returned from FMLA leave, and so necessarily before any

purported retaliation took place.

-23-
 III.

The judgment of the district court is affirmed.

-24-