United States Court of Appeals 

For the First Circuit 

No. 17-1169 

MICHELLE DIMANCHE, 

Plaintiff, Appellee, 

v. 

MASSACHUSETTS BAY TRANSPORTATION AUTHORITY, 

Defendant, Appellant, 

WILLIAM MCCLELLAN; STEPHANIE BRADE; SHERYL REGISTER; 

MAXINE BELL; FRED OLSON; CHERYL ANDERSON, 

Defendants. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. William G. Young, U.S. District Judge]

Before 

Lynch, Kayatta, and Barron, 

Circuit Judges. 

Kevin P. Martin, with whom John C. Englander, Joshua Bone, 

Brian T. Burgess, and Goodwin Procter LLP, were on brief, for 

appellant. 

Christopher J. Trombetta, with whom Law Office of Christopher 

J. Trombetta was on brief, for appellee. 

June 18, 2018 
- 2 - 

LYNCH, Circuit Judge. The Massachusetts Bay 

Transportation Authority ("MBTA") appeals from the entry of a jury 

verdict awarding over $2.6 million in damages to a black female 

former employee who brought suit under 42 U.S.C. § 1981 and Mass. 

Gen. Laws ch. 151B, § 4. She alleges, inter alia, that her 

supervisors at the MBTA conspired to terminate her employment 

because of her race. The jury awarded her over $1.3 million in 

compensatory damages on her discrimination claim and $1.3 million 

in punitive damages. 

The MBTA makes three levels of argument on appeal. 

First, the MBTA says that the evidence produced at trial was 

insufficient to support either the compensatory or the punitive 

damages awards comprising the over $2.6 million verdict. Second, 

the MBTA argues that the trial judge committed two types of 

reversible error in (a) imposing a draconian sanction as the price 

for removing the entry of default, and (b) allowing a hostile work 

environment theory not explicitly pled in the complaint to go to 

the jury. Third, the MBTA contends that it should be able to take 

advantage of Buntin v. City of Boston, 857 F.3d 69 (1st Cir. 2017), 

decided while this case was on appeal, to vacate the judgment and 

to dismiss this action. 
- 3 - 

Like the proverb that a battle can be lost for want of 

a nail,1 the MBTA loses its appeal largely for want of its making 

appropriate objections and offers of proof before the trial court. 

The evidence was more than sufficient to support the compensatory 

damages award for wrongful termination and to justify the punitive 

damages amount. We do agree that the trial judge committed clear 

error in imposing the default sanction order. But, reviewing for 

plain error, we do not agree that the MBTA has shown that it was 

prejudiced either by the default sanction order or by the hostile 

work environment charge. We also find the MBTA's belated Buntin 

argument waived. Accordingly, we affirm the entry of judgment. 

I. 

Background 

 The plaintiff, Michelle Dimanche, is a black woman of 

Haitian descent, who worked as a motor person on the MBTA Green 

 1 The provenance of this proverb is the following rhyme: 

For the want of a nail the shoe was lost, 

For the want of a shoe the horse was lost, 

For the want of a horse the rider was lost, 

For the want of a rider the battle was lost, 

For the want of a battle the kingdom was lost, 

And all for the want of a horseshoe nail. 

Oxford Dictionary of Nursery Rhymes 324 (Ioana & Peter Opie eds., 

1951). The first three lines were published by Benjamin Franklin 

in the 1757 edition of Poor Richard's Almanac. He prefaced the 

rhyme by saying, "A little neglect may breed great mischief." 

Benjamin Franklin, Poor Richard's Almanac 3, 17 (H.M. Caldwell Co. 

1900) (1757). 
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Line from 2000 until 2013. In 2015, she filed suit in federal 

district court, alleging, among other things, wrongful termination 

on the basis of her race. We trace the events leading up to this 

appeal.2

Dimanche had an unhappy tenure at the MBTA. She 

testified that, throughout her employment, she was repeatedly 

harassed by her colleagues -- often her supervisors -- because of 

her race. Following a disagreement with a co-worker on January 

25, 2013, Dimanche was suspended and then her employment was 

terminated on March 20, 2013. 

A. Dimanche's Suspension and Termination 

 The event triggering Dimanche's discharge occurred on 

the evening of January 25, 2013, at the MBTA Riverside Station 

office. During her night shift, Dimanche got into an argument 

with a co-worker, Gilberthe Pierre-Millien, who is also a black, 

Haitian woman. Both women allege that the other was the aggressor 

who yelled, cursed, spat, and continued the altercation from the 

office into the lobby area. 

 2 Because the MBTA raises a sufficiency of the evidence 

challenge, we recount the events "in the light most favorable" to 

Dimanche as to that claim -- drawing all factual inferences and 

resolving all credibility determinations in her favor. See 

McMillan v. Mass. Soc'y for the Prevention of Cruelty to Animals, 

140 F.3d 288, 299 (1st Cir. 1998) (quoting Morrison v. Carleton 

Woolen Mills, Inc., 108 F.3d 429, 436 (1st Cir. 1997)). 
- 5 - 

 Several MBTA employees witnessed the event. It is 

undisputed that Pierre-Millien reported the incident to a 

supervisor and also called the transit police. It is also 

undisputed that both women were suspended during the pendency of 

the investigation into the altercation. 

The nighttime supervisor, Rico Gomes, initiated an 

investigation that same evening, and alerted the Director of Light 

Rail Operations, William McClellan, of the incident. The next 

day, the Deputy Director of Light Rail Operations, Edward Timmons, 

took over the investigation. At the time of the altercation, 

Dimanche had already received four disciplinary warnings3 and a 

five-day suspension imposed by Tamieka Thibodeaux, the Division 

Chief of Light Rail Operations. Under the MBTA's policies, a fifth 

infraction could lead to termination. Based on Dimanche's 

disciplinary history and Gomes's report, Timmons recommended 

discharging Dimanche. McClellan concurred in the decision before 

passing it up the disciplinary chain of command. Ultimately, the 

 3 These included warnings for: (1) engaging in an overtime 

dispute with a desk inspector, (2) engaging in a verbal 

confrontation with a train inspector who reprimanded Dimanche for 

bringing a cup of coffee onto the train, (3) failing to accommodate 

train passengers, and (4) refusing to divert a streetcar as 

requested by the Chief Inspector. As to the second infraction, 

Dimanche said that MBTA staff commonly brought beverages onto the 

train and were not disciplined for doing so. She also denied fault 

as to the other incidents. 
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MBTA's then-General Manager, Beverly Scott, decided to suspend 

Dimanche for thirty days and then to terminate her employment. 

Dimanche alleges and maintains on appeal that all five 

disciplinary events leading up to her dismissal were fabricated or 

blown out of proportion as part of the MBTA's concerted effort to 

discharge her because of her race. 

B. MBTA Default 

 On January 8, 2015, Dimanche filed suit in federal 

district court, alleging three counts: (1) racial discrimination 

under 42 U.S.C. § 1981; (2) racial discrimination under Mass. Gen. 

Laws ch. 151B, § 4; and (3) intentional infliction of emotional 

distress. The complaint alleged that the MBTA "subjected Ms. 

Dimanche to racial discrimination as a means to humiliate and 

ultimately terminate her," and pointed to six co-workers and 

supervisors as the perpetrators of the alleged racial harassment.4 

The MBTA was properly served on February 20, 2015, but 

failed to file a timely answer due to a clerical error. The 

district court entered default for Dimanche on June 2, 2015. The 

MBTA filed a motion to set aside the default one week later, 

arguing that the default was inadvertent, and that the MBTA had a 

 4 The complaint listed these individuals -- William 

McClellan, Stephanie Brade, Sheryl Register, Maxine Bell, Fred 

Olson, and Cheryl Anderson -- as co-defendants with the MBTA. 

However, the trial only concerned the MBTA's liability.
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meritorious defense. The district court denied the motion without 

prejudice. The entirety of that order read: 

Motion denied without prejudice to it being 

refiled within 30 days from the date of this 

order supported by detailed evidentiary 

affidavits setting forth the so-called 

"meritorious" defense. The MBTA will be 

limited to the information set forth therein 

at trial. 

 The MBTA did not object to the order. Instead, on July 

31, it refiled the motion to set aside default, attaching thirteen 

affidavits and two exhibits.5 Six weeks later, the district court 

lifted the default (over Dimanche's objection) and reiterated the 

condition for its vacatur. The entirety of this order read: 

Motion allowed. The MBTA must understand, 

however, that its entire affirmative case is 

set forth in the data submitted in support of 

this motion. 

(emphasis in original). 

 The MBTA again did not object. On February 10, 2016 -- 

nearly five months after the district court had issued its order 

imposing the sanction –- Dimanche moved to clarify the scope of 

the sanction. Specifically, she asked the district court whether 

"documents" that were "referenced in the MBTA's affidavits," but 

were not attached to the affidavits, should be deemed inadmissible 

 5 These included, inter alia, affidavits from individuals 

who were involved in disciplining Dimanche and from witnesses to 

the altercation. The MBTA also attached interview and discipline 

slips that demonstrated Dimanche had already been placed on "final 

warning" when her altercation with Pierre-Millien took place.
- 8 - 

at trial. The MBTA opposed this motion, arguing that it should 

only be limited to the "information set forth in the affidavits at 

trial," not to the affidavits and attachments themselves. The 

district court denied Dimanche's motion for clarification in a 

February 26, 2016 order, stating, "No clarification is necessary." 

It also emphasized: "This order is not a ruling that documents not 

disclosed in response to the Court's earlier order are some how 

[sic] admissible . . . ." 

 For the third time, the MBTA did not object. Instead, 

the MBTA filed its own motion for clarification of the February 

26, 2016 order. The MBTA suggested that the order had a 

"typographical error" and asked the district court to revise the 

order to read, "This is not a ruling that the documents not 

disclosed in response to the Court's earlier order are somehow 

inadmissible." (emphasis added). The district court denied the 

motion. The MBTA did not object, or make any offer of proof, or 

seek reconsideration. It chose to proceed to trial. 

C. Trial Proceedings and Evidence 

 The trial lasted four days, beginning on October 17, 

2016.6 Dimanche took the stand and also presented three other 

 6 Before trial, the MBTA filed a motion in limine to 

exclude evidence of the harassment Dimanche endured before June 

2011 because those allegations formed the basis for (1) a workers' 

compensation claim she had filed before the Department of 

Industrial Accidents and (2) a prior action she had filed in state 
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witnesses: two former co-workers, Virginia Davis and Perry 

Spencer, and her treating psychiatrist, Dr. Stephen Dubin. The 

MBTA7 presented nine witnesses, including three eyewitnesses to 

the altercation: Gilberthe Pierre-Millien (who Dimanche had said 

instigated the altercation on January 25, 2013), and James Civil 

and John Foster (who witnessed it); and three MBTA staff involved 

in disciplining and terminating Dimanche: Tamieka Thibodeaux, 

William McClellan, and Edward Timmons. 

 

court (which was dismissed with prejudice). At trial, the district 

court judge agreed to exclude the workers' compensation decision 

awarding Dimanche temporary incapacity benefits for her emotional 

distress, stating, "We're not going to introduce the findings of 

the hearing officer." However, the judge never ruled on whether 

Dimanche could offer evidence as to the underlying instances of 

harassment. Throughout the trial, the judge allowed Dimanche to 

testify as to the racial harassment she experienced pre-June 2011, 

and the MBTA did not object. 

On appeal, the MBTA argues that all of the pre-June 2011 

evidence should have been excluded because it is barred by claim 

preclusion and by Rule 403 of the Federal Rules of Evidence. We 

decline to reach either issue because the MBTA failed to object at 

the time of trial. Pretrial motions in limine in situations like 

this need to be renewed and pressed at trial in order to be 

preserved. See Fed. R. Evid. 103 advisory committee's note to 

2000 amendment (emphasizing "the obligation on counsel to clarify 

whether an in limine or other evidentiary ruling is definitive 

when there is doubt on that point"); Crowe v. Bolduc, 334 F.3d 

124, 133 (1st Cir. 2003) ("Our rule as to motions in limine is 

that a party must renew at trial its motion to . . . exclude 

evidence if there has been an earlier provisional ruling by motion 

in limine and a clear invitation to offer evidence at trial.").

7 The MBTA was represented by its own in-house counsel at 

trial; it has different counsel on appeal. 
- 10 - 

 Dimanche and her witnesses testified that throughout 

Dimanche's employment with the MBTA, she was subjected to 

unrelenting racial harassment by MBTA staff. For instance: 

 Dimanche said that John Foster, a white inspector, refused to 

let her use the restroom during her shift, commenting that 

Dimanche's "black ass always want to go to the bathroom every 

two second [sic]." She said Foster called her a "black 

bitch," and told her he was "going to pill [her]," which she 

interpreted as a threat. 

 Dimanche also testified that Joe Napoli, a white inspector, 

repeatedly called her "black bitch" to her face and referred 

to her as "cuckoo" over the Green Line radio. Those radio 

statements were heard by many people. Napoli also blocked 

Dimanche from entering a work building, and threatened, "I'll 

talk to my colleagues and see what they're going to do." 

Dimanche testified that she felt so unsafe that she ended up 

filing a police report against Napoli based on this and on 

five other instances of harassment by him. 

 Virginia Davis, Dimanche's former co-worker, testified that 

Green Line officials often mimicked Dimanche's Haitian accent 

and "ma[d]e noise[s] like animals at her" over the radio. 

Davis also testified that she heard "a lot of inspectors" say 

things about Dimanche like, "I'm going to get 

that . . . B-I-T-C-H." 
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 Perry Spencer, another former co-worker, corroborated 

Dimanche's testimony. He stated that Napoli mocked 

Dimanche's accent, "telling her that she needed to go back to 

her country." 

Dimanche testified that she reported these instances to 

management, but the harassment continued. According to Dr. Dubin, 

Dimanche developed post-traumatic stress disorder as a result of 

the hostile work environment and was forced to take a leave of 

absence.8 When she returned to work in late 2010, the racial 

harassment persisted. Specifically:

 Dimanche testified that Napoli and Foster continued their 

behavior. Foster even wrote Dimanche up for an absence that 

he had previously excused. Dimanche also testified that 

another Green Line supervisor, Fred Olson, refused to process 

her complaints. Olson told her that McClellan instructed him 

not to speak to Dimanche without a witness present and 

explained, "[e]verybody know[s] [Dimanche was] on the way 

out." 

 8 Pre-trial filings contained the following information. 

In April 2010, Dimanche filed a workers' compensation claim for 

the emotional distress she suffered as a result of Napoli's 

harassment. The administrative law judge awarded Dimanche 

temporary incapacity benefits. She appealed for double damages. 

While the appeal was pending, the MBTA settled the case. Dimanche 

also filed a racial discrimination suit in state court based on 

the same allegations. That suit was dismissed with prejudice in 

June 2011 after Dimanche's counsel filed a motion to withdraw the 

matter. 
- 12 - 

 Davis and Spencer corroborated Dimanche's testimony that the 

MBTA's management was targeting her for termination. Davis 

testified that she overheard McClellan tell another MBTA 

official, "I'll get her black ass," when referring to 

Dimanche. Another inspector, Steve Nardona, also told Davis 

to stay away from Dimanche because "she's trouble, they don't 

like her and they're going to fire her." Spencer stated that 

he was told the same in 2011 or 2012. 

As to the altercation on January 25, 2013, Dimanche 

testified that Pierre-Millien was the aggressor, and complained 

that MBTA officials told Pierre-Millien to lie about the event. 

Further, Dimanche testified that each of her previous four 

infractions had been fabricated and was part of the management's 

concerted effort to terminate her employment. 

In turn, the MBTA offered testimony regarding its 

disciplinary policy, the details of the altercation, its 

investigation, and its decision to terminate Dimanche. McClellan 

and Foster, whom Dimanche accused of discrimination, both 

testified. At no point, however, did the MBTA ask its witnesses 

to address Dimanche's specific allegations of racial harassment. 

Nor did it make any offer of proof as to what they would have 

testified, if asked. 

 During the charge conference, the trial judge raised, 

for the first time, the notion that he would instruct the jury on 
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a hostile work environment theory. The MBTA objected on the 

grounds that a hostile work environment could not serve as a standalone basis for the MBTA's liability. The trial judge initially 

agreed. However, he apparently changed his mind because he 

instructed the jury that they could find the MBTA liable on either 

wrongful termination or hostile work environment grounds; the only 

difference was the amount of damages to which Dimanche was 

entitled. 

 The jury returned a general verdict for Dimanche on 

October 20, 2016, assessing the MBTA $1,325,462.91 in compensatory 

damages and $1,300,000.00 in punitive damages. The MBTA renewed 

its prior objection to the charge as to hostile work environment 

being a stand-alone basis for liability. It did not, at either 

the charge conference or in its post-trial objection, make the 

argument, which it makes on appeal, that the theory caught it by 

surprise or came too late. Represented by new counsel, the MBTA 

also filed various post-trial motions, all of which were denied. 

* * * 

The MBTA now appeals from the district court's denial of 

its motion for judgment as a matter of law, motion for a new trial, 

and motion to vacate or reduce the punitive damages award. It 

raises three bases for reversal/dismissal: there was insufficient 

evidence to support the jury verdict; the district judge committed 

reversible error; and the court lacked subject matter 
- 14 - 

jurisdiction. We reject all three bases and affirm the entry of 

judgment. 

II. 

The MBTA's Sufficiency of the Evidence Challenge 

 The MBTA first argues that we must vacate the judgment 

because there is insufficient evidence to support the jury's 

compensatory and punitive damages awards. The MBTA seeks judgment 

as a matter of law, or, in the alternative, a new trial. 

We assume the federal standard applies to the MBTA's 

sufficiency challenge, absent any suggestion from the parties that 

it makes any difference in this case. Accordingly, "our review is 

weighted toward preservation of the jury verdict." Rodowicz v. 

Mass. Mut. Life Ins. Co., 279 F.3d 36, 41 (1st Cir. 2002). "[W]e 

must affirm unless the evidence was so strongly and overwhelmingly 

inconsistent with the verdicts that no reasonable jury could have 

returned them." Id. at 41-42 (alteration in original) (internal 

quotation marks omitted) (quoting Walton v. Nalco Chem. Co., 272 

F.3d 13, 23 (1st Cir. 2001)). "[V]iew[ing] the evidence 'in the 

light most favorable to [Dimanche, and] drawing all reasonable 

inferences in [her] favor,'" McMillan, 140 F.3d at 299 (quoting 

Morrison, 108 F.3d at 436), we conclude the verdict must stand.9

 9 We acknowledge the difference between the standards 

governing a motion for judgment as a matter of law and a motion 

for a new trial. See Jennings v. Jones, 587 F.3d 430, 438-39 (1st 
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A. Liability for Wrongful Termination 

 Although the trial judge charged the jury with two 

theories of discrimination, and the jury rendered a general verdict 

as to compensatory damages, the award amount –- $1,325,462.91 –- 

exactly matches the stipulated damages for Dimanche's wrongful 

termination claim. The judge also made clear to the jurors that 

if they based their verdict only on a finding of a hostile work 

environment, Dimanche would not be entitled to receive front pay, 

back pay, or retirement pay, but rather would be limited to 

emotional harm. We thus consider whether there was sufficient 

evidence for the jury to reasonably conclude that the MBTA 

terminated Dimanche because of her race. See Gillespie v. Sears, 

Roebuck & Co., 386 F.3d 21, 29-30 (1st Cir. 2004) (noting an 

exception to the general rule that "a new trial is usually 

warranted if evidence is insufficient with respect to any one of 

multiple claims covered by a general verdict" when the court "could 

be reasonably sure that the jury in fact relied upon a theory with 

adequate evidentiary support" (internal quotation marks omitted)). 

The parties agree that the standard is the same for Dimanche's 

wrongful termination claim under both 42 U.S.C. § 1981 and Mass. 

 

Cir. 2009). We nevertheless apply the standard set forth above 

because, in reviewing the denial of a motion for a new trial, to 

the extent it is predicated on a challenge to the sufficiency of 

the evidence, the inquiries merge. 
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Gen. Laws ch. 151B, § 4. See Prescott v. Higgins, 538 F.3d 32, 40 

(1st Cir. 2008). 

 Here, assuming the jury credited Dimanche's testimony 

and the testimony of her witnesses, there is ample, direct evidence 

of racial discrimination. Three of the MBTA's supervisory staff 

who either concurred in Dimanche's dismissal or were involved in 

the investigation of the January 25th altercation, had 

demonstrated racial animus towards her. McClellan was reported to 

have said that he wanted to "get her black ass." And Foster and 

Napoli had a long history of mocking Dimanche's Haitian accent, 

calling her "black bitch," threatening her, and attempting to 

retaliate against her for making complaints. Coupled with 

Dimanche's testimony that each of her four previous disciplinary 

infractions was fabricated, a reasonable jury could have concluded 

that the MBTA improperly terminated her employment because of her 

race. See Cariglia v. Hertz Equip. Rental Corp., 363 F.3d 77, 83 

(1st Cir. 2004) (holding that under certain circumstances, 

"corporate liability can attach if neutral decisionmakers, when 

deciding to terminate an employee, rely on information that is 

inaccurate, misleading, or incomplete because of another 

employee's discriminatory animus"). 

 We are reasonably sure, for the reasons stated earlier, 

that the jury did not rely on the hostile work environment 

assertion to enter the compensatory damages award. However, to 
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cover all bases, we conclude that the evidence was more than 

adequate to support damages on the hostile work environment theory 

as well. We agree with and quote the trial judge: "there's 

extensive evidence here, if [the jurors] believe it, of a hostile 

work environment . . . ." 

B. Punitive Damages Award 

 The MBTA also did not object to the use of a general 

verdict as to punitive damages, with no specifications as to 

whether the damages were awarded under § 1981 or under Mass. Gen. 

Laws ch. 151B, § 4. We assume the state law standard for punitive 

damages governs here, absent any indication by the parties that 

applying the federal standard would make any difference. "We 

consider first whether the [MBTA] was on notice of the harassment 

and failed to take steps to investigate and remedy the situation; 

and, second, whether that failure was outrageous or egregious." 

Gyulakian v. Lexus of Watertown, Inc., 56 N.E.3d 785, 794 (Mass. 

2016). The Supreme Judicial Court of Massachusetts has fashioned 

a list of factors to determine "whether the defendant's conduct 

was so outrageous or egregious that punitive damages . . . are 

warranted." Haddad v. Wal-Mart Stores, Inc., 914 N.E.2d 59, 75 

(Mass. 2009). These include: 

(1) whether there was a conscious or 

purposeful effort to demean or diminish the 

class of which the plaintiff is a part (or the 

plaintiff because he or she is a member of the 

class); 
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(2) whether the defendant was aware that the 

discriminatory conduct would likely cause 

serious harm, or recklessly disregarded the 

likelihood that serious harm would arise; 

(3) the actual harm to the plaintiff; 

(4) the defendant's conduct after learning 

that the initial conduct would likely cause 

harm; [and] 

(5) the duration of the wrongful conduct and 

any concealment of that conduct by defendant. 

Id. 

Those factors are amply met here. Dimanche's evidence, 

if believed, establishes numerous instances of notice to the MBTA 

of racially-based and racially-demeaning comments made to 

Dimanche, a failure to investigate her complaints to management, 

a failure to discipline the offenders or to remedy the situation, 

and a concerted effort to isolate her and to cause the termination 

of her employment.10 Nor do we see any reason to remit the punitive 

damages award, especially because the ratio of punitive damages to 

compensatory damages was less than 1:1. 

 10 The MBTA also makes a convoluted argument that the 

evidence is insufficient to support the jury verdict because much 

of Dr. Dubin's testimony should have been excluded. Specifically, 

the MBTA takes issue with Dr. Dubin's statements as to "alleged 

incidents of harassment that Plaintiff herself never identified," 

and his "vouch[ing] for Plaintiff's credibility." We decline to 

rule on the admissibility of Dr. Dubin's testimony as the argument 

was not squarely raised in the MBTA's appellate briefing. See 

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). 
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III. 

The District Court's Alleged Trial Errors 

 The MBTA next urges this court to vacate the jury verdict 

because it says that the trial judge committed two fundamental 

errors by (1) imposing a draconian punitive sanction for the MBTA's 

inadvertent default, and (2) adding a hostile work environment 

charge on the last day of trial. 

Ordinarily our review is for abuse of discretion, but 

not when the issues are unpreserved. See Chestnut v. City of 

Lowell, 305 F.3d 18, 20 (1st Cir. 2002). Here, the parties twice 

sought clarification of, and the MBTA did not object to, the 

district court's conditions for lifting the default. The MBTA 

also failed to object at trial that the belated addition of the 

hostile work environment charge was unfairly prejudicial. 

Accordingly, we review both only for plain error. Id. 

 The plain error standard has four prongs: "(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." Smith v. Kmart Corp., 177 F.3d 19, 26 

(1st Cir. 1999). This circuit has long expressed "marked 

reluctance to find plain error in civil cases." Acevedo-Garcia v. 

Monroig, 351 F.3d 547, 570 (1st Cir. 2003). While the district 

court's default sanction order was in error, the MBTA cannot 
- 20 - 

demonstrate prejudice. We also find that the MBTA failed to meet 

prongs three and four of the plain error test as to the addition 

of the hostile work environment claim. 

A. Default Sanction Order 

This circuit has never addressed whether district courts 

can impose evidentiary sanctions on a defaulting party as a 

condition for removal of default. However, we have long cautioned 

that entry of default judgment is a "drastic" measure that should 

only be employed in "extreme situation[s]." Stewart v. Astrue, 

552 F.3d 26, 28 (1st Cir. 2009) (quoting Affanato v. Merrill Bros., 

547 F.2d 138, 140 (1st Cir. 1977)). It may have been reasonable 

for the district court to make the MBTA file short affidavits, 

going to the point that it had a meritorious defense, before 

lifting its default. See Indigo Am., Inc. v. Big Impressions, 

LLC, 597 F.3d 1, 4 (1st Cir. 2010). We do not decide that here. 

However, it was entirely unreasonable for the district court to 

restrict the MBTA's proof at trial to what was said in those 

affidavits. Indeed, we have found no case approving of such a 

sanction. 

We recognize that some of our sister circuits have held 

that "a reasonable condition" may be imposed "in order to avoid 

undue prejudice to the opposing party." Powerserve Int’l, Inc. v. 

Lavi, 239 F.3d 508, 515 (2d Cir. 2001) (citing 10A Wright & Miller, 

Federal Practice and Procedure, § 2699, at 169 (3d ed. 1998), and 
- 21 - 

case law across four circuits). But in those cases, the plaintiff 

was actually prejudiced by the delay -- as found by the district 

court or the court of appeals -- and the proposed curative measure 

was that the defendant had to post a bond equal to all or part of 

the default judgment amount. See, e.g., id. at 514-15; see also 

Krause v. Featherston, 376 F.2d 832, 834 (1st Cir. 1967) (finding 

that "[t]he condition imposed by the district court for setting 

aside the default [was] not unreasonable, under the circumstances" 

where the court ordered the defendant to post a $500 bond); 

10A Wright & Miller, Federal Practice and Procedure, § 2700, at 

170-71, 170 n.4 (4th ed. 2018) (collecting cases). These financial 

penalties in no way limited the defendants' ability to fully 

litigate the case and to defend themselves at trial. 

The trial court here failed to provide any factual or 

legal basis for imposing an evidentiary sanction on the MBTA. Its 

order was only two sentences long, and the court twice declined to 

explain or justify the scope of the sanction. In fact, the 

sanction on its face was calibrated not to ameliorate any prejudice 

to Dimanche, but instead to punish the MBTA. Even Dimanche's own 

papers do not argue that excusing the MBTA's default would be 

unfair. The trial judge also failed to cite any case law 

justifying the order. This is unsurprising. The only precedent 

on point expressly rejects the imposition of such a sanction. See 

Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 53-54 (E.D.N.Y. 2008) 
- 22 - 

(rejecting non-defaulting party's proposal to impose an identical 

sanction). 

Further, the punitive aspect of the order was plainly 

excessive under any measure. Dimanche's complaint did not inform 

the MBTA of who her witnesses would be at trial or the specific 

proof she would offer. The MBTA could not have been reasonably 

expected to guess. As such, the error here is "obvious and clear." 

Smith, 177 F.3d at 26. 

Because plain error review requires more than just an 

error by the district judge, however, we decline to vacate the 

jury verdict. The MBTA has not shown that it was prejudiced by 

the imposition of the sanction. It failed to make any offers of 

proof at trial as to what it would have presented as evidence 

absent the sanction. The prejudice prong of the plain error 

standard requires "a stringent demonstration of causation," 

Acevedo-Garcia, 351 F.3d at 571; the MBTA must prove that it was 

"obvious" that the limitation "affect[ed] the final outcome" of 

the trial, id. (quoting Chestnut, 305 F.3d at 571). The causal 

link must be "manifest on the face of the record." Id. 

The MBTA cannot make such a showing. The transcript 

reveals that the default sanction order played out in two ways at 

trial. Often, the trial judge did not enforce the sanction and 

allowed the MBTA's witnesses to testify beyond the scope of their 

affidavits. In the dozen or so times when the trial judge did 
- 23 - 

limit testimony, the MBTA failed to protest or provide an offer of 

proof as to the excluded testimony. Without such offers of proof, 

it is nearly impossible for this court to find that the sanction 

resulted in prejudice "manifest on the face of the record." Id. 

The MBTA argues on appeal that, but for the sanction, it 

would have presented a targeted defense to Dimanche's allegations 

that McClellan and Foster -- two of the supervisors who were 

involved in her dismissal -- subjected her to racist comments. 

But the MBTA cannot point to an offer of proof as to what testimony 

its witnesses would have provided to undermine Dimanche's story. 

The MBTA could have easily sought to question McClellan and Foster 

(both called as witnesses at trial) about their alleged conduct, 

and asked the judge to modify the sanction order, but it chose not 

to. This omission is glaring, as the MBTA repeatedly went beyond 

the bounds of the sanction when soliciting witness testimony on 

other topics (without getting the court's prior consent). 

And while the lack of an effective objection at trial 

and proffer is fatal, it is noteworthy that even on appeal, with 

the benefit of hindsight, the MBTA cannot point to any instances 

where it was prevented from introducing evidence that would have 
- 24 - 

affected the outcome of the trial.11 Accordingly, we find no 

reversible error.

B. Hostile Work Environment Charge 

 The MBTA, ignoring in its appellate briefing the issue 

of the appropriate standard of review for this claim, also argues 

that it was unfairly prejudiced "when the District Court allowed 

[Dimanche] to add a hostile work environment theory on the last 

day of trial," and alleges that the theory was first raised at the 

charge conference. But nowhere does the MBTA's appellate brief 

say that it objected at trial on the basis that the theory was 

raised at the last minute or argue that it did not waive any such 

objection. 

 Once again, then, our standard of review is for plain 

error. We bypass the question of whether the trial judge erred in 

submitting this theory to the jury (and our own conclusion that it 

could not have been the basis for the compensatory damages award), 

 11 The MBTA did reference several instances of when the 

trial judge enforced the sanction. However, none of the excluded 

testimony countered McClellan's or Foster's alleged harassment. 

The best example the MBTA can point to is that McClellan was 

prevented from answering whether he "consider[ed] the plaintiff's 

past history of making any complaints against [him] or against 

anyone else when [he] made the decision to concur [in her 

dismissal]." But even if the MBTA had made an offer of proof of 

McClellan's answer, it is highly unlikely that this would have 

affected the outcome of the trial in light of the record as a 

whole. 
- 25 - 

and find that the MBTA has not satisfied either the third or fourth 

prongs of the plain error standard. 

 As to prejudice, the MBTA argues on appeal that if it 

had had notice of a "standalone" hostile work environment claim, 

it would have changed its trial strategy in three ways. First, 

the MBTA asserts it would have sought to exclude evidence of the 

alleged harassment from before June 2011. But the MBTA already 

had incentive (and failed) to do so. The same is true as to 

evidence the MBTA says it could have introduced regarding "the 

general nature of MBTA's workplace." Second, the MBTA says it 

would have "gathered evidence and presented witnesses to rebut 

[Dimanche's] allegations of harassment." But, as noted above, the 

MBTA never made an offer of proof as to what this evidence might 

be. Third, the MBTA contends it would have asked for a limiting 

jury instruction about "the irrelevance of the pre-June 2011 

evidence to the hostile work environment theory." It is far from 

clear such evidence would have been irrelevant. And the MBTA knew 

that the district court would instruct the jury on a hostile work 

environment theory, but it did not ask at the charge conference, 

or at any point thereafter, for a limiting instruction. The MBTA 

has not shown prejudice. 

 Our earlier discussion also requires a finding of no 

miscarriage of justice. 
- 26 - 

IV. 

The Buntin Issue 

 Finally, the MBTA asks us to relieve it of the jury 

verdict on the basis of our decision in Buntin, 857 F.3d 69. We 

decline to do so, finding that the MBTA has waived the issue. 

This court decided Buntin on May 15, 2017, after the 

jury rendered its verdict on this matter, and after the MBTA filed 

its initial brief on appeal. Buntin resolved an issue of first 

impression in this circuit, but not in other circuits, and held 

that "a plaintiff may not bring claims for damages under 42 U.S.C. 

§ 1981 against state actors, including defendants sued in their 

official capacities as government officials." Id. at 70. Dimanche 

briefed the effect of Buntin on appeal, as did the MBTA in its 

reply brief. 

 We outline the bases that lead us to reject the MBTA's 

argument. 

(1) The only basis for federal jurisdiction asserted in 

Dimanche's complaint was under 42 U.S.C. § 1981; 

(2) The question of whether a § 1981 cause of action could be 

brought against a state agency was an open question in this 

circuit long before and during the trial; 

(3) When the complaint was filed on January 8, 2015 in this 

action, eight circuit courts had ruled that § 1981 did not 

extend to private rights of action against state actors; 
- 27 - 

(4) The argument was readily available to counsel for the MBTA, 

should it have wished to argue the MBTA was a state agency and 

that there was no jurisdiction; 

(5) The MBTA, nonetheless, never moved in the district court to 

dismiss the § 1981 claim for failure to state a claim against 

it; it also did not argue for dismissal on the grounds that it 

is a state agency for the purposes of § 1981; 

(6) Nor did the MBTA ever suggest to the district court that it 

lacked subject matter jurisdiction to hear the case; and 

(7) Dimanche has also raised pendent state law discrimination 

claims in addition to her § 1981 claim, and the jury verdict 

in her favor was a general verdict. 

The MBTA argues that Buntin requires us to vacate the 

jury verdict and to dismiss the case for lack of subject matter 

jurisdiction. Specifically, the MBTA says that Buntin held the 

reach of § 1981 was a question of subject matter jurisdiction, 

which it was free to raise at any time. We disagree. Buntin held 

that no cause of action existed under § 1981 against the City of 

Boston because it is a state actor. Id. There, we affirmed the 

district court's remand of the remaining state law claims to state 

court after the court dismissed the § 1981 claim -- the only 

federal claim -- in that case. Id. at 70, 76. Buntin is unhelpful 

to the MBTA because it merely holds that a district court can 
- 28 - 

dismiss the case even where pendent state claims are also asserted; 

it does not require dismissal. 

The MBTA does not attempt to excuse its failure to even 

raise the issue of whether § 1981 extended to the MBTA until its 

reply brief on appeal. And in that reply brief, the MBTA, at most, 

refers to DSC Communications Corp. v. Next Level Communications, 

107 F.3d 322 (5th Cir. 1997), in a footnote, in an attempt to 

persuade us. But that case is of no help to the MBTA. Unlike the 

court in DSC, we would not be perpetuating "incorrect law," id. at 

326 n.2, by holding the MBTA to its waiver, given the state law 

basis for the jury's verdict. This is not an instance where 

defendants could not have raised the issue before appeal. 

In our view, the argument that § 1981 does not provide 

a cause of action against state actors for damages was easily 

available to the MBTA, if indeed the MBTA is a state actor, from 

even before the date the complaint was filed through its initial 

brief on appeal, well before Buntin was decided. The MBTA must 

live, as to the jury verdict, with the consequences of its own 

mistakes. To hold otherwise would cause severe prejudice to 

plaintiff. 

V. 

Conclusion 

We affirm the entry of judgment against the MBTA.