Of the District of Massachusetts, sitting by designation. *

United States Court of Appeals

For the First Circuit

Nos. 04-2614; 04-2615

MIGUEL ARRIETA-COLON; NEREIDA OLIVENCIA-BADILLO;

CONJUGAL PARTNERSHIP ARRIETA-OLIVENCIA,

Plaintiffs, Appellees/Cross-Appellants,

v.

WAL-MART PUERTO RICO, INC. a/k/a WAL-MART STORE 1854,

Defendant, Appellant/Cross-Appellee.

WAL-MART STORES, INC.; BENJAMIN GOMEZ; JANE ROE 00CV1772;

CONJUGAL PARTNERSHIP GOMEZ-ROE; MARA MIELES; ROBERT ROE 00CV1772;

CONJUGAL PARTNERSHIP MIELES-ROE; JOSE MERCADO; JULIE DOE

00CV1772; CONJUGAL PARTNERSHIP MERCADO-BOSQUES; JOSE RAMOS;

ROBERTA DOE 00CV1772; CONJUGAL PARTNERSHIP RAMOS-DOE; A-Z INS.

CO.; WAL-MART ASSOC., INC.,

Defendants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

 Boudin, Chief Judge, 

Lynch, Circuit Judge,

and Gorton , District Judge. *
Rubén T. Nigaglioni, with whom Veronica Ferraiuoli, Rafael

J. Martínez, and Nigaglioni & Ferraiuoli Law Offices P.S.C. were

on brief, for Wal-Mart Puerto Rico, Inc. 

Mireya Baltazar-Suazo, with whom Orlando I. Martínez-García,

Nora Vargas-Acosta, and Abogados de América Law Offices, were on

brief, for Arrieta-Colon et al.

January 13, 2006
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LYNCH, Circuit Judge. A jury awarded Miguel ArrietaColon $76,000 in compensatory damages and $160,000 in punitive

damages against Wal-Mart Puerto Rico, Inc. ("Wal-Mart") on his

disability discrimination claim under the Americans With

Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213.

Specifically, the jury found Arrieta had proven that he

had an impairment or was regarded as having an impairment which

substantially limited his ability to perform a major life function.

Arrieta's claimed impairment was a penile implant used to correct

a sexual dysfunction: the implant itself left Arrieta with the

appearance of a constant semi-erection. The jury also found that

Arrieta was subjected to a hostile work environment because of his

disability. Arrieta's claim was that, due to his condition, he was

constantly harassed both by his supervisors and co-workers, and

that when he complained to his supervisors, no corrective actions

were taken. The jury found that Arrieta was constructively

discharged; that is, that he resigned from Wal-Mart due to the

intolerable working conditions. 

Wal-Mart appeals from the verdict, arguing that the

district court erred in failing to instruct the jury on an

affirmative defense under Burlington Industries, Inc. v. Ellerth,

524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S.

775 (1998). Wal-Mart also makes two insufficiency of the evidence

arguments as to liability: (1) that Arrieta was not disabled within
 The jury also concluded that Wal-Mart had not violated Law 1

44 of July 2, 1995, P.R. Laws Ann. tit. 1, §§ 501 et seq., the

Puerto Rico analogue to the federal ADA claim. Arrieta has not

appealed this determination.

-3-

the meaning of the ADA, in that his impairment neither affected a

major life activity nor was related to working conditions; and (2)

that the evidence was insufficient to support the existence of a

hostile work environment. Of these, the most difficult issue is

that of whether Arrieta was disabled within the meaning of the ADA.

But Wal-Mart did not preserve the issue at trial and does not

demonstrate circumstances that would warrant our taking the

extraordinary step of reaching the merits of that issue on appeal.

Wal-Mart also challenges the damages award, arguing (1)

that the district court erred in its punitive damages instruction

to the jury, (2) that there was insufficient evidence for the jury

to award punitive damages, and (3) that Arrieta failed to mitigate

his damages by taking advantage of Wal-Mart's open door policy. 

Arrieta, in turn, appeals, arguing that the district 1

court erred in denying his post-verdict motion seeking an

additional award of back pay and front pay, adjudicated by the

judge, not the jury.

In the end, we affirm on both appeals, leaving all

parties in the place the jury and the district court left them.
-4-

I.

We recount the facts in the light most favorable to

upholding the jury verdict as to the sufficiency challenge.

Torres-Rivera v. O'Neill-Cancel, 406 F.3d 43, 45 (1st Cir. 2005).

Arrieta began working at Wal-Mart in 1992. At the time,

he suffered from Peyronie's Disease, which made it impossible for

him to have sexual intercourse. Arrieta had undergone unsuccessful

surgery in 1992 to attempt to correct the problem. In February

1994 Arrieta underwent another surgery, during which the first

implant was removed and a new penile prosthesis was implanted. The

second procedure was successful, but had the side effect, common

with this procedure, that Arrieta had a constant semi-erection that

was apparent through his clothing. His doctor reported that

Arrieta had no physical or mental impairment before going back to

work. The complaints of harassment in this case concern the period

after the February 1994 surgery.

Arrieta filed paperwork with Wal-Mart's personnel

department detailing the February 1994 procedure in order to obtain

approval for medical coverage. Soon after returning to work after

the surgery, Arrieta became the subject of harassment by his coworkers and supervisors. Three co-workers, the plaintiff, and

supervisors all described the numerous incidents. On his first day

back at work, Jorge Ortiz, an assistant manager, asked Arrieta "how
 In fact, Arrieta did not have a "pump," but rather had a 2

flexible implant. Eventually, his wife sewed special underwear

which made the abnormality less visible.

-5-

it felt to have [his] new pump." When Arrieta confronted Ortiz 2

about where he got the information, the assistant manager told him

that he learned about Arrieta's surgery from the "girls in

personnel." Arrieta complained to Mara Mieles, the personnel

manager, about the release of information and the fact that Ortiz

had taunted him about it, but Mieles said, "I don't know what

you're talking about, this is nonsense between guys, these are

things between men."

Arrieta married his present wife on June 18, 1995. The

taunting about Arrieta's surgery continued for the remaining years

that Arrieta worked at Wal-Mart, and was constant. On the one

hand, much of the harassment expressed the view that Arrieta was

impotent, and that he needed to use a pump to get an erection. One

of Arrieta's co-workers testified that he thought Arrieta was

impotent "[b]ecause according to what I know, a person who has had

a little pump put in is because they are disabled as far as

achieving an erection." Another co-worker testified that the jokes

were "regarding his age, saying that he needed to have a pump in

order to have relations . . . . What they almost always used was

the part regarding the pump, that he needed to use a pump."

On the other hand, some harassing statements evidenced an

impression that Arrieta was unusually enabled because of the
-6-

implant. Assistant manager Ortiz once asked Arrieta, "old man, I'm

going to be going out with someone tomorrow, and I wanted to know

if you'll let me borrow your pump." Another time, Ortiz asked

Arrieta, "Miguelito, did it work with your wife[?]" On one

occasion, someone used the store's paging system to announce "that

if [Arrieta] was close by to ask [Arrieta] to come to the warehouse

to let him borrow a pump so that they could lift a pallet or a

box." On another occasion, when Arrieta was visiting the personnel

offices, a group of department managers in a meeting with personnel

manager Mieles "began making comments such as, there is Viagra Man.

No, he's got force power." As to this event, Arrieta testified, "I

looked over at Miss Mieles, and I said this was the nonsense I was

talking about four years ago." Mieles did not respond in any way.

In fact, with the implant, Arrieta was initially able to

engage in intercourse with his wife. Later psychological

depression, occasioned by the harassment, affected his sexual

functioning.

Assistant manager Ortiz and Jose Ramos, a support manager

under Ortiz, were initiators of the comments about Arrieta's

condition, according to the testimony of Rey Rodriguez, one of

Arrieta's co-workers. During meetings at the beginning of the

night shift, Ortiz "would come into the warehouse with a joke

regarding the pump." Rodriguez testified that Jose Ramos "would

use [the paging system] to make jokes regarding the pump . . . .
-7-

[Ramos] said . . . that Arrieta was ready with his baton." Another

co-worker, Eliezer Ramos, recounted an incident between Arrieta and

assistant manager Ortiz. Ortiz had been particularly offensive: 

[Arrieta] had been away [on] his honeymoon,

and two or three days later, . . . I heard

comments from [other employees] saying that

[Arrieta] was upset with Jorge, because . . .

[Jorge] had asked [Arrieta] if the pump had

not worked out with his wife, he should bring

her to him. 

Eliezer Ramos also testified that Dennis Baerga, another

assistant manager and yet a third supervisor of Arrieta, once said

"[L]ook, Miguel Arrieta's pump seems to be working" within the

presence of assistant manager Ortiz and Gilberto Rosa, who was a

department manager for cosmetics, but not Arrieta's supervisor.

Arrieta's former supervisors, Ortiz and Jose Ramos,

themselves admitted key facts. Support manager Jose Ramos admitted

participating in the taunting:

Well, about what could be heard and all the

fooling around they had going on in there,

. . . where I did participate in those jokes,

well, about a condition that was very

pronounced under his pants, then . . . like

everyone else, they started to make jokes with

him [saying] Miguel, what is it that you've

got there, come here . . . .

Assistant manager Ortiz acknowledged that he was aware of

the taunting, and that Arrieta had complained to him about it:

Q: Isn't it true that Mr. Arrieta also [on]

many occasions went to you to complain about

the jokes? 
As near as can be told based on the record, the hierarchy at 3

the Wal-Mart store is as follows: The store manager is the top

company official at the store. Assistant managers, such as Ortiz

and Baerga, report to the store manager. Support managers, like

Jose Ramos, report to an assistant manager. Department managers,

like Gilberto Rosa, fall below support managers, and have

supervisory duties. Arrieta testified that Rosa, although not his

supervisor, was nonetheless above him in Wal-Mart's hierarchy.

-8-

A: About the jokes, I remember only one time

. . . .

. . . .

Q: Isn't it true, Mr. Jorge Ortiz, that

employees would see Mr. Arrieta's erection and

would joke and laugh about his pump? 

A: That is correct, with him.

. . . .

Q: Isn't it true, Mr. Jorge Ortiz, that upon

the question of your attorney, you answered

that if an inappropriate conduct or a

disrespectful conduct was taken to you, you

had the duty to immediately report it to your

supervisor or store manager? 

A: Yes, that is correct. 

Q: And Mr. Arrieta did complain to you, didn't

he? 

A: Yes, that is correct.

Ortiz also admitted knowing that Arrieta went to department manager

Gilberto Rosa to complain. Neither Ortiz nor Rosa took action in

response to these complaints.

The evidence shows that Arrieta complained to superiors

in his chain of command at Wal-Mart, up to the level of store

manager. At no level was effective corrective action taken. As 3
-9-

Ortiz admitted, Arrieta complained to him about the taunting.

Arrieta asked Ortiz if he could work apart from the other employees

so he would not be subject to their taunting; Ortiz allowed this.

Working apart from the other employees improved the situation

somewhat. But Arrieta still was subject to harassment, especially

as his shift was starting and ending, at which time he was more

frequently in the presence of other workers. Arrieta also

complained about the taunting to Rey Font, who was store manager

from about 1995 to 1996, and asked if his shift could be changed.

Font denied Arrieta's request, saying, "look, Don Miguel, what do

you want me to do, these are things going on between men, and what

am I supposed to do; it's easier to get rid of one than to get rid

of all of them."

In 1997, Arrieta made another request that he be

transferred from the overnight shift to the morning shift. This

time, he directed his request to Benjamin Gomez, who was Font's

replacement as store manager. He told Gomez that he "was having

trouble with the jokes made by the guys." Gomez, rather than

transferring Arrieta to the morning shift, transferred him to the

afternoon shift, which exacerbated the problem. Arrieta said that

once the decision to transfer him was made, he could not decline.

According to Arrieta, the change to the afternoon shift only made

his problems worse -- he was still being harassed, only this time

the harassment occurred in front of customers in the store, rather
 Arrieta represented in his brief that he also contacted 4

Wal-Mart's telephone help line. The record citation he provides

does not reflect this assertion, and our own review of the record

shows no testimony about such a phone call.

-10-

than just fellow employees. He told Gomez this. In his

resignation letter, Arrieta noted that when he had complained to

Gomez about the change to the afternoon shift, Gomez responded "in

a mocking tone of voice and sarcastically" that "we are not here to

make accommodations for anyone."4

The harassment took an emotional toll on Arrieta. He had

trouble sleeping, lost weight, and experienced a loss of libido to

the point where he became unable to engage in sexual relations. On

May 19, 1998, Arrieta complained to his urologist that he had a

loss of sexual desire. The urologist found no physical reason for

Arrieta's loss of libido, and so recommended that Arrieta see a

psychiatrist or psychologist. On September 9 and October 5 of

1998, Arrieta consulted a psychiatrist, reporting loss of libido,

loss of weight, and a depressive mood. The psychiatrist diagnosed

Arrieta as having a dysthymic disorder with late onset. On

February 5, 1999, the psychologist certified that Arrieta was

disabled on account of dysthymic disorder and that such disability

was not work related. Arrieta's wife, Nereida Olivencia, testified

that when they got married they had plans to have children, but

after Arrieta's problems began, that was no longer possible.
-11-

Co-workers also noticed a change for the worse in

Arrieta. Rey Rodriguez testified, "[Y]ou could see that Mr. Miguel

Arrieta's emotional system wasn't working the same way anymore."

Delio Crespo testified, "At first, [Arrieta] used to share a lot

with us, and after [a while], he withdrew from the group to the

point where I had to ask about where he was, because I couldn't see

him."

Wal-Mart has an "open door policy," which, according to

Wal-Mart, "permits any employee that has a grievance or is the

object of illegal discrimination to complain[] to any supervisor,

manager, officer or the president of the Company." (emphasis

added). Wal-Mart admits that "[p]ursuant to the 'open door'

policy, the grievance need not be reduced to writing; if an oral

grievance is made, there is a duty to entertain it." The policy

was not put into practice and a jury could easily find it existed

only on paper.

No recording by the company was ever made of Arrieta's

complaints, including his complaints to the Personnel Department.

In fact, Mieles, the personnel manager, acknowledged that there

might not be any written record of an employee making use of the

open door policy and that she had never even seen such a recording

for any employee, much less one for Arrieta. 

Under the open door policy, the supervisors had

affirmative obligations as well. Benjamin Gomez, in response to a
-12-

question by Arrieta's counsel, agreed that "any manager who would

have heard or been present" during the harassment "would have had

an obligation to investigate." No investigation was ever

undertaken, although Arrieta had complained about the taunting to

at least three supervisors in his immediate chain of command

(assistant manager Ortiz, and store managers Font and Gomez), the

personnel manager Mieles, and Rosa, who was not Arrieta's immediate

supervisor but nonetheless a department manager. Arrieta had been

taunted by at least three of his supervisors -- assistant managers

Baerga and Ortiz, and support manager Jose Ramos.

Arrieta concluded it was futile to complain further to

the supervisors: "[T]hese jokes . . . had been begun by supervisors

themselves and had become commonplace. Who are you going to

complain to?" Delio Crespo, a co-worker, agreed. In reference to

the taunting of Arrieta, Crespo stated: "I didn't feel the need to

. . . contact any manager, because they were all present."

Arrieta explained that he decided not to escalate his

complaints about the harassment to the Wal-Mart home office because

of his prior experience with that office. He never received a

response to a letter he had written to the home office in 1993

about how his work experience was not meeting his expectations.

Arrieta wrote this letter "because when you're given all the

orientation and you're given all the chats, what would happen was

actually totally opposite of the way it was supposed to be."
-13-

Arrieta said, "Since that letter was never answered, I never heard

anything else about it. Then it seemed to me that with any other

small incidents, it would just be wasting my time."

On October 19, 1998, Arrieta filed a charge of

discrimination before the Equal Employment Opportunity Commission

(EEOC) and the Department of Labor and Human Resources of Puerto

Rico, alleging he had been subjected to a hostile work environment

as a result of his age and medical condition. In his charge,

Arrieta stated: "Often, allusions are made to my medical record,

and I am the object of jokes and remarks on the part of my

[s]upervisors and coworkers. I am told that I am already old, that

I need a new operation because the pump does not work and other

remarks that allude to an operation that I underwent approximately

4 years ago. Mocking is continuous on the part of my coworkers and

[s]upervisors . . . ."

Arrieta received two written reprimands after this date.

On October 23, 1998, Arrieta was reprimanded for failing to secure

keys which could be used to access and steal merchandise. Then, on

November 2, 1998, Arrieta was reprimanded for working twenty-four

minutes of overtime without the prior authorization of an assistant

manager. Arrieta considered the reprimands to have been

unwarranted and given in retaliation for his having filed a

discrimination complaint with the EEOC.
 Wal-Mart asserts that Arrieta requested the November leave 5

of absence, and that in his request he did not mention the

harassment he had suffered. In support, Wal-Mart points to a

letter in the record written by Arrieta to the Cooperativa de

Seguros de Vida (COSVI), a Puerto Rico governmental agency. That

letter does not make mention of harassment. But there is nothing

in this document itself or in the transcript of the trial

proceedings to connect this letter to a request for a leave of

absence. Also in evidence was a request for a leave of absence

filled out by Arrieta in August 1998, in which Arrieta requested a

personal leave of absence for "[h]ealth problems in the family."

According to Arrieta, he was given this leave of absence in

September 1998 for his own illness. Thus, this particular document

also seems unrelated to any leave of absence commencing in

November, and Wal-Mart does not assert that it is related.

-14-

An undated document in evidence titled "Exit Interview"

indicates that Arrieta's last day of work was November 2, 1998.

While the record is not clear about the details of Arrieta's

departure from Wal-Mart, Wal-Mart claims that Arrieta was given a

leave of absence on that date. Arrieta formally resigned on May 5

12, 1999. He left "because of [his] emotional state and . . . the

emotional state it was causing in [his] wife, and the fact that

[he] had already submitted documentation and filed a complaint

because of discrimination, and the fact that back in October when

[he] had returned, they had begun planning or orchestrating a way

to provide me with warnings." At his exit interview at Wal-Mart,

Arrieta noted that he was resigning because he was "constantly

harrass[ed] by supervisor [and] co-workers."

II.

On March 22, 2000, the EEOC issued Arrieta a Notice of

Right to Sue. Arrieta filed suit on June 21, 2000 against Wal-
-15-

Mart, alleging violations of the ADA, the Age Discrimination in

Employment Act (ADEA), and several provisions of Puerto Rico law.

On January 14, 2004, the district court granted Wal-Mart's motion

for summary judgment as to Arrieta's claims under the ADEA, but

allowed Arrieta's hostile work environment and constructive

discharge claims under the ADA and state law to go to jury trial.

During the trial, both Arrieta and Wal-Mart submitted

proposed jury instructions. Wal-Mart proposed the following

instruction regarding its anti-discrimination policy, as part of a

broader instruction on the required elements of a hostile work

environment claim: 

Defendant, however, has what it calls the Open

Doors Policy as part of the

anti-discrimination policy of Wal-Mart; this

procedure has been instituted to vent any

serious grievance. In furthering this policy,

Wal-Mart submitted evidence that it has

implemented continuous training procedures

wherein it emphasizes the respect for the

individual, the illegality of discrimination

and the importance for Associates of utilizing

the Open Doors Policy when such recourse is

necessary. The defendant claims that the

plaintiff employee unreasonably failed to take

advantage of any preventive or corrective

opportunities provided by the employer or to

avoid harm otherwise. If you find that such

is the case, in this regard you must find for

the defendant, because the plaintiff failed to

place the defendant on notice of any grievance

that he may have had, and therefore did not

place the defendant in a position to do

anything on the subject of this litigation. 

At the end of the eighth day of trial, counsel for both sides

convened with the judge in his conference room to review the
-16-

instructions. Later, when the judge instructed the jury, WalMart's requested instruction regarding the open door policy was not

given. Wal-Mart, which has raised on appeal the issues regarding

the jury instructions, has not provided us a transcript of the precharge discussions. Wal-Mart has pointed us to two instances in

the record where it made clear its objections to the instructions,

and both occurred after the jury had heard the instructions. The

first objection was made immediately after the charge to the jury.

The transcript of this post-charge discussion is fairly sparse, and

refers to pre-charge discussions that are not in the record. The

next objection was made in Wal-Mart's post-verdict motion. Those

objections are described later. 

Arrieta, for his part, requested only one additional

instruction, which sought to avoid having the jury draw a negative

inference from the fact that the EEOC did not make any

determination on Arrieta's complaint; this proposed instruction was

denied. Arrieta made no other objections to the instructions.

At the end of Arrieta's case in chief, Wal-Mart moved for

judgment as a matter of law under Fed. R. Civ. P. 50 on the grounds

that Arrieta had failed to establish that he was disabled within

the meaning of the ADA. However, Wal-Mart failed to renew its

motion at the close of all the evidence. On January 30, 2004, the

jury returned a verdict in Arrieta's favor on the ADA claims and in
We note that this circuit has never squarely answered the 6

question of whether hostile work environment claims are cognizable

under the ADA. Wal-Mart addressed the issue before the district

court, but does not press the issue here, and so we proceed on the

assumption that such a claim is cognizable. See Rocafort v. IBM

Corp., 334 F.3d 115, 120-22 (1st Cir. 2003).

-17-

Walmart's favor on the state law claims, and awarded Arrieta

compensatory damages of $76,000 and punitive damages of $160,000.

Both Wal-Mart and Arrieta made post-judgment motions.

Wal-Mart sought judgment as a matter of law under Fed. R. Civ. P.

50 (this time, raising the claim that Arrieta had not established

that he was disabled under the ADA), a new trial under Fed. R. Civ.

P. 59, or vacation of the judgment under Fed. R. Civ. P. 60(b)(6).

Arrieta sought an award of back pay and front pay. The district

court denied both parties' motions for reasons discussed below.6

III.

Wal-Mart's Appeal

A. Jury Instruction on Ellerth-Faragher Defense

This case involves evidence of both harassment by

supervisors and harassment by co-workers. In two companion cases

decided in 1998, the Supreme Court addressed the question of an

employer's vicarious liability for actionable discrimination by a

supervisor with immediate or successively higher authority over the

plaintiff employee. Ellerth, 524 U.S. 742; Faragher, 524 U.S. 775.

Prior to Ellerth and Faragher, cases had established the

standard for employer liability for co-worker harassment of the
-18-

plaintiff employee. Ordinarily, where the harassment is by a nonsupervisory co-worker, the employer is liable only if the plaintiff

can show that the employer "knew or should have known of the

charged . . . harassment and failed to implement prompt and

appropriate action." Crowley v. L.L. Bean, Inc., 303 F.3d 387, 401

(1st Cir. 2002) (quoting White v. N.H. Dep't of Corr., 221 F.3d

253, 261 (1st Cir. 2000)). 

As to actionable discrimination by supervisors, Faragher

articulated some clear lines:

(1) "An employer is subject to vicarious liability to a victimized

employee for an actionable hostile environment created by a

supervisor with immediate (or successively higher) authority over

the employee." Faragher, 524 U.S. at 807. 

(2) Where "no tangible employment action is taken, a defending

employer may raise an affirmative defense to liability or damages,

subject to proof by a preponderance of the evidence." Id.

(3) "No affirmative defense is available . . . when the

supervisor's harassment culminates in a tangible employment action,

such as discharge, demotion, or undesirable reassignment." Id. at

808. 

(4) The affirmative defense, when available, "comprises two

necessary elements: (a) that the employer exercised reasonable care

to prevent and correct promptly any . . . harassing behavior, and

(b)that the plaintiff employee unreasonably failed to take
-19-

advantage of any preventive or corrective opportunities provided by

the employer or to avoid harm otherwise." Id. at 807. The

employer bears the burden of proof as to both elements. Id. at

807-08.

(5) As to the first element of the defense, proof of an antiharassment policy with a complaint procedure available to

employees, while not necessarily dispositive, is relevant. Id. at

807.

(6) As to the second element of the defense, proof that the

employee failed to meet his obligation of using reasonable care is

not limited to an unreasonable failure to use such a procedure,

although such proof will normally suffice to meet the employer's

burden. Id. at 807-08. See also Reed v. MBNA Mktg. Sys., Inc.,

333 F.3d 27, 32 (1st Cir. 2003); Marrero v. Goya of P.R., Inc., 304

F.3d 7, 20 (1st Cir. 2002).

After Ellerth and Faragher, the question that arose was

whether a constructive discharge, occasioned by supervisor

harassment so severe it was intolerable, constituted a per se

tangible employment action so as to preclude the assertion of the

Faragher affirmative defense. This court addressed the question in

Reed. See 333 F.3d at 32-33. As is often our wont, we said that

while other circuits had adopted hard and fast per se rules as to

whether a constructive discharge was or was not a tangible

employment action, we would not adopt such a rule. Id. at 33
-20-

("[W]e see no reason to adopt a blanket rule one way or the other.

Here, it is clear to us that the constructive discharge label

cannot be used to preclude the affirmative defense."). Instead, we

focused on whether the supervisor's action was an "official action"

comprising the kind of tangible employment action (e.g., discharge,

reduction in pay) that the Supreme Court appeared to have in mind.

Id. Reed did allow for the possibility that, on other facts, the

affirmative defense as to supervisor harassment could be precluded

in a constructive discharge case.

The Supreme Court addressed the same issue in

Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), adopting

a test similar to that in Reed. Suders held that constructive

discharge is not a per se "tangible employment action." Rather, it

held that a "tangible employment action" was an "official act,"

that is, "an employer-sanctioned adverse action officially changing

[the employee's] employment status or situation, for example, a

humiliating demotion, extreme cut in pay, or transfer to a position

in which [the employee] would face unbearable working conditions."

Id. at 131, 134. Such an official act can both precipitate an

employee's constructive discharge and be a "tangible employment

action" that would preclude the employer's resort to the Faragher

defense. See id. at 148-49.

Where the evidence shows that the defendant cannot prove

an affirmative defense under the Faragher standard, there is no
-21-

reason to remand for the giving of a Faragher instruction. See

O'Rourke v. City of Providence, 235 F.3d 713, 736 (1st Cir. 2001).

Indeed, in Faragher itself, the Supreme Court declined to remand

because the factual findings made in the trial court demonstrated

that the employer was not, on the evidence, entitled to the

defense. 524 U.S. at 808-10.

In this case, the court instructed the jury on January

29, 2004, rejecting defendant's proposed Ellerth-Faragher

instruction. At that time, Suders had not yet been decided, but

Reed had been. Nonetheless, Wal-Mart did not ask for an

instruction on whether a tangible employment action, or a "tangible

event" as that term is defined by Reed, had taken place. Instead,

Wal-Mart's instruction assumed there was no tangible employment

action and that it was entitled to assert the Ellerth-Faragher

defense.

In its ruling on the post-judgment motion the court said

it had declined to give the proposed instruction because the

Ellerth-Faragher defense was not applicable. The court found, in

essence, that no reasonable jury could have concluded that either

element of the defense had been met. First, the court noted that

the open door policy existed on paper, but had not been put into

practice. Indeed, when Arrieta complained to the Personnel

Department and to several supervisors, no corrective actions were

taken and his complaints were not even recorded. Second, the
-22-

evidence was that Arrieta had reasonably availed himself of the

procedures and the company had more than sufficient notice of the

problems. We can find no reversible error; as in Faragher, the

evidence did not support giving the instruction, irrespective of

whether Wal-Mart's conduct amounted to a tangible employment

action.

On this record there is and can be no assertion the jury

was misled or that there has been a miscarriage of justice. The

instruction the court gave placed the burden on the plaintiff to

show not only that his work conditions were intolerable but also

that his employer knew or should have known about the intolerable

conditions and deliberately allowed them to recur. Thus, whether

or not the supervisors themselves engaged in harassment, the

supervisors, including Wal-Mart's own personnel department, were

well aware of the co-worker harassment and chose to let it occur,

providing another basis for Wal-Mart's liability.

B. Sufficiency of Evidence Challenges to Verdict

1. Sufficiency of Evidence to Support Finding Arrieta

Was Disabled Within the Meaning of ADA 

Were we forced to squarely confront it, the question of

whether Arrieta suffered from a disability or was regarded as

having a disability within the meaning of the ADA, as found by the

jury, would be a difficult one. However, Wal-Mart failed to

preserve appellate review of the issue by failing to renew its Rule

50 motion at the close of all the evidence. See Muniz v. Rovira,
-23-

373 F.3d 1, 5 & n.2 (1st Cir. 2004). Wal-Mart's "failure rendered

inutile [its] post-trial motion for judgment notwithstanding the

verdict and precluded ordinary appellate review of sufficiency of

the claim." Surprenant v. Rivas, 424 F.3d 5, 12 (1st Cir. 2005).

We have observed that "requiring the motion to be made at the close

of all the evidence gives the opposing party an opportunity to

respond to any evidentiary deficiencies noted by the motion by

seeking to reopen the evidence prior to submission of the case to

the jury." Keisling v. SER-Jobs for Progress, Inc., 19 F.3d 755,

758-59 (1st Cir. 1994). For that reason, "[a] party's failure to

move under Rule 50 at the close of all evidence 'cannot be taken

lightly.'" Castillo v. Autokirey, Inc., 379 F.3d 4, 9 (1st Cir.

2004) (quoting Jusino v. Zayas, 875 F.2d 986, 991 (1st Cir. 1989)).

Wal-Mart admits the procedural default, but argues that

nonetheless we have some room to review the claim, based on our

"modicum of residual discretion to inquire whether the record

reflects an absolute dearth of evidentiary support for the jury's

verdict." Faigin v. Kelly, 184 F.3d 67, 76 (1st Cir. 1999); see

also Surprenant, 424 F.3d at 13. This review is exceedingly

narrow, and "only very unusual circumstances will justify treating

a motion at the close of the plaintiff's case as a surrogate for a

motion at the close of all the evidence." Keisling, 19 F.3d at

759.
-24-

Such extraordinary review is not warranted in this

complicated case. Under Bragdon v. Abbott, 524 U.S. 624 (1998),

"reproduction is a major life activity for the purposes of the ADA"

and "[r]eproduction and the sexual dynamics surrounding it are

central to the life process itself." Id. at 638-39. But at the

same time, Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999)

held that "if a person is taking measures to correct for, or

mitigate, a physical or mental impairment, the effects of those

measures -- both positive and negative -- must be taken into

account when judging whether that person is 'substantially limited'

in a major life activity and thus 'disabled' under the Act." Id.

at 482. 

Both Sutton and Bragdon have to do with actual

disability. But here the jury explicitly found that Arrieta was

either disabled or "regarded as" disabled. Under the ADA, a

plaintiff is "regarded as" disabled if he: 

(1) Has a physical or mental impairment that

does not substantially limit major life

activities but is treated by a covered entity

as constituting such limitation;

(2) Has a physical or mental impairment that

substantially limits major life activities

only as a result of the attitudes of others

toward such impairment; or

(3) Has none of the impairments defined in

paragraph (h) (1) or (2) of this section but

is treated by a covered entity as having a

substantially limiting impairment.
 Wal-Mart raised the same argument in a Rule 60(b)(6) motion. 7

See Fed. R. Civ. P. 60(b)(6). The district court noted that "WalMart [did] not present an argument for relief under Rule 60(b)(6)

that is separate and distinct from its arguments under Rule 59."

Therefore, it recharacterized the motion under Rule 60(b)(6) as one

under Rule 59, noting that "even if Wal-Mart's arguments were

considered under the rubric of Rule 60(b)(6), the outcome would be

the same."

-25-

29 C.F.R. § 1630.2(l); see Rodriguez v. ConAgra Grocery Prods. Co.,

2005 WL 3036318 (5th Cir. Nov. 14, 2005) (discussing "regarded as"

basis for liability). Whether Arrieta met either the actual

disability or the "regarded as" test is not an easy issue.

Absent preservation of the issue, and any clear

explication of it even on appeal, we decline to address the issue.

2. Sufficiency of Evidence To Support Hostile Work

Environment

Wal-Mart argues that the evidence was insufficient to

support the jury's finding that there was a hostile work

environment that reasonably led to a constructive discharge. WalMart raised this challenge before the district court as part of its

post-verdict motion for a new trial. The district court denied 7

the motion. 

Wal-Mart faces a daunting appellate standard of review.

We review denials of motions for a new trial for abuse of

discretion, keeping in mind that "[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.'" Johnson v. Spencer Press of Me., Inc.,
 The court said it would reach the same outcome if the motion 8

were considered under Fed. R. Civ. P. 60.

-26-

364 F.3d 368, 375 (1st Cir. 2004) (quoting Ramos v. Davis & Geck,

Inc., 167 F.3d 727, 731 (1st Cir. 1999)). 

There is no abuse of discretion here. As the district

court correctly noted: 

[T]here was evidence presented as to the

constant mockery and harassment that Arrieta

was subjected to by fellow co-workers and

supervisors alike due to his condition; there

was evidence presented that this harassment

was constant and unbearable, leading to

Arrieta's resignation; and there was evidence

that Arrieta's supervisors knew about the

harassing conduct and rather than stop it,

participated in it.

As a result, the jury verdict as to the existence of a hostile work

environment is not "against the clear weight of the evidence."

C. Damages

1. Adequacy of Evidence to Support Punitive Damages

After the award of punitive damages, Wal-Mart asked that

the verdict of punitive damages be set aside, altered, or amended

under Fed. R. Civ. P. 59(e). The court denied the motion, saying 8

that it had given the proper instruction under Kolstad v. American

Dental Ass'n, 527 U.S. 526, 538, 545 (1999) (holding under Title

VII that punitive damages are available only upon a showing that

the employer acted with "reckless indifference" or "malice" and

that "an employer may not be vicariously liable for the

discriminatory employment decisions of managerial agents where
-27-

these decisions are contrary to the employer's good-faith efforts

to comply with Title VII" (internal quotation marks omitted)). The

court reasoned that it was up to the jury to weigh each side's

characterization of Wal-Mart's open door policy. The jury chose to

believe Arrieta. 

Our review of the denial of the motion to alter or amend

the judgment under Rule 59(e) is for abuse of discretion. McCord

v. Horace Mann Ins. Co., 390 F.3d 138, 144 (1st Cir. 2004). If the

district court committed an error of law, such as an improper

instruction harmful to the outcome of the case, that would be an

abuse of discretion. Even if an instruction was erroneous, we ask

whether we can say with fair assurance that the jury verdict was

likely unaffected. See Putnam Res. v. Pateman, 958 F.2d 448, 471

(1st Cir. 1992).

As to punitive damages, the district court instructed: 

In order to find punitive damages, you

must find that the acts of the Defendant which

proximately caused actual damages to the

Plaintiff were maliciously or wantonly done. 

If you so find, you may add to the

award of actual damages such amount as you

shall agree to be proper as punitive damages.

An act or failure to act is maliciously

done if prompted or accompanied by ill-will,

spite or grudge, either toward the injured

person individually or towards all persons in

one or more groups or categories of which the

injured person is a member. An act or failure

to act is wantonly done if done in reckless or

callous disregard of, or indifference to the

rights of one or more persons, including the

injured person.
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While this is not a precise Kolstad instruction, it is close. As

this court said in Romano v. U-Haul Int'l, 233 F.3d 655 (1st Cir.

2000), in Kolstad the Supreme Court held: 

[A]n employer may be liable for punitive

damages under Title VII in four instances: (1)

when the agent has been authorized by the

principal to commit the misconduct in

question; (2) when the principal recklessly

employed the unfit agent; (3) when the agent,

acting in a managerial capacity, committed the

misconduct within the scope of the employment;

or (4) when the agent's bad act was

subsequently approved by the principal. The

Court limited the reach of the third situation

by absolving an employer from liability for

punitive damages if a good-faith effort to

comply with the requirements of Title VII is

made.

Id. at 669 (citations omitted).

Wal-Mart's objection to the instruction, both before the

district court and on appeal, is unclear. Wal-Mart does not argue

that the district court's instruction was erroneous because it did

not mention the good-faith aspect of Kolstad. Rather, Wal-Mart

argues that because it had provided ample evidence of its open door

policy, "Arrieta's supervisors' misconduct could not be imputed to

Wal-Mart and the instructions to the jury should not have been

given." In sum, Wal-Mart's position appears to be that, as a

matter of law, punitive damages are unavailable if there is any

evidence of good-faith efforts by the employer to comply with the

law. Wal-Mart's position is wrong and would allow companies to pay

lip service to the law while blatantly violating it. 
-29-

The difficulty for Wal-Mart is that the Supreme Court did

not adopt a test that any evidence of a good-faith effort could

shield it from liability; rather, it required a finding of a goodfaith effort to comply with the law. On these facts, a jury could

easily conclude that the open door policy was a sham designed to

give the appearance, but not the reality, of an effort to comply

with the law, and that Wal-Mart acted with reckless disregard of

Arrieta's rights. Goya, 304 F.3d at 30; Romano, 233 F.3d at 670.

That leaves Wal-Mart's argument that there was

insufficient evidence for a jury to award punitive damages. WalMart argues that any conscious wrongdoing by supervisors could not

be imputed to Wal-Mart because there was a lack of evidence that

the managers who taunted Arrieta and ignored his complaints were

acting within the scope of their employment. We reject this

argument; we agree with the district court that, on these facts, a

reasonable jury could have found that the supervisors were acting

in the scope of their employment. We agree with the district court

that a reasonable jury could award punitive damages. 

2. Mitigation of Damages

Wal-Mart argues that Arrieta "failed to mitigate [his

damages] when he failed to avail himself of Wal-Mart's grievance

procedures against discrimination." Wal-Mart did not raise this

precise argument before the district court, and does not here

explain why the argument ought to change the outcome. Indeed, the
-30-

argument may be nothing more than an attempt by Wal-Mart to get in

through the back door that which will not fit in the front, namely,

the Ellerth-Faragher defense. The argument may also be that the

compensatory damages awarded by the jury were excessive. 

Whatever the argument may be, it must fail because the

factual underpinning -- that Arrieta failed to take advantage of

the open door policy -- is simply not supported by the record taken

in the light most favorable to upholding the jury verdict. Arrieta

made numerous complaints about the harassment to his immediate

supervisors and the Personnel Department, and Wal-Mart had ample

notice of Arrieta's complaints. 

IV.

Arrieta's Appeal

Arrieta appeals from the denial of his post-verdict

motion that he be awarded equitable remedies of nearly five years

of back pay and front pay. We affirm. Arrieta brought this

situation on himself.

As the district court correctly noted, in this circuit

when the jury is asked, as here, to resolve issues of liability and

compensatory damages, the issue of back pay is normally decided by

the jury as well. See Johnson, 364 F.3d at 379-80. Here, Arrieta

did not advise the court before the jury was instructed that he

wished to reserve the issue of back pay from the compensatory

damages calculation by the jury, nor did he object to the
-31-

instructions on compensatory damages. So the district court was

not put on notice that Arrieta wished to have the issue of back pay

decided by the court. We are not inclined to hold the plaintiff

harmless from the foreseeable consequences of his actions. See

Saldana Sanchez v. Vega Sosa, 175 F.3d 35, 37 (1st Cir. 1999)

(rejecting plaintiff's claim for back pay where the plaintiff

failed to request an explicit instruction). 

The district court went on to say that Arrieta had failed

to provide evidence that he had looked for work or was unable to

work, and so he had not met the mitigation requirement for an

equitable award of back pay. We cannot say this was plain error,

even giving plaintiff the benefit of plain error review rather than

finding that he had waived the issue. 

As to front pay, the district court held it would not, on

the evidence before it, exercise its discretion to make an award.

"Front pay should not be awarded unless reinstatement is

impracticable or impossible." Johnson, 364 F.3d at 380. The court

held that Arrieta did not request reinstatement, and had set forth

no evidence of impossibility or impracticability of reinstatement,

of inability to work, or of work life expectancy. There was no

abuse of discretion.

V.

We reject the appeals from both sides and affirm. No

costs are awarded.