Aponte-Rivera v. DHL Solutions (USA), Inc. , 650 F.3d 803 ( 2011 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 10-1655
    JULISSA APONTE-RIVERA,
    Plaintiff, Appellee,
    v.
    DHL SOLUTIONS (USA), INC.,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Harry D. Leinenweber, U.S. District Judge]
    Before
    Lipez, Siler,* and Howard, Circuit Judges.
    Lourdes C. Hernández-Venegas, with whom Mariela Rexach-Rexach,
    Shiara L. Diloné-Fernández, and Schuster Aguiló LLP were on brief,
    for appellant.
    Rubén T. Nigaglioni-Mignucci, Sr., with whom Nigalioni &
    Ferraiuoli was on brief, for appellee.
    May 25, 2011
    *Of the Sixth Circuit, sitting by designation.
    SILER, Circuit Judge.       Julissa Aponte-Rivera ("Aponte") sued
    her   former   employer,   DHL    Solutions,    Inc.    ("DHL"),   claiming
    gender-based     discrimination    and    hostile    work   environment   in
    violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
    §§ 2000e et seq., and Puerto Rico law.       The jury returned a verdict
    in favor of Aponte and awarded her emotional distress damages. The
    district court upheld the jury's verdict, but remitted the damages
    award.    On appeal, DHL disputes the sufficiency of the evidence
    supporting the jury's verdict, the amount of the remitted damages
    award, and evidentiary rulings.           For the following reasons, we
    affirm.
    I.
    A.    Facts
    Aponte began working at DHL in 2000.          By 2003, she worked as
    a logistics operations manager, a role in which she supervised
    employees, oversaw shipments and documentation, and interacted with
    DHL's clients.
    In 2004, Enrique Frias was named regional manager and became
    Aponte's supervisor.    In the months following his appointment, two
    major clients of DHL's Puerto Rico operation complained about DHL's
    performance. Frias and other management investigated the causes of
    the customer problems and implemented plans to remedy them.
    In June 2004, Aponte filed a written complaint with DHL's
    human resources department.        She complained that her supervisor
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    created an "uncomfortable" work environment by giving her an
    overwhelming workload and making several comments with sexual
    connotations.      Blanca Hernandez, a DHL human resources manager,
    interviewed    Aponte      and   Frias    in   response    to   the    complaint.
    Hernandez told Frias, "don't get personal" and "focus in [sic] the
    operation and in work."           Shortly after filing this complaint,
    Aponte took a leave of absence that lasted approximately one month.
    A position for program manager became available in November
    2004, and Aponte applied for the position.           Aponte testified that,
    during her interview with Frias, he was aggressive and would not
    allow her to fully answer questions. Rafael Camacho was eventually
    chosen for the position.
    Aponte testified that Camacho, after he began working at DHL,
    referred to a woman in an authority position as "jefecita" ("little
    boss"), and stated that women were good for household chores.                   She
    also   testified    that    Camacho      generally   referred     to    women    as
    "brutas,"     or   "dumbies."         Aponte    worked     with   Camacho       for
    approximately one month before leaving work for eleven months on a
    second leave of absence.
    Aponte returned to DHL in November 2005 and was assigned to
    report to Camacho. Frias and Camacho confronted Aponte, asking her
    why she returned instead of resigning.            They also said the person
    who ran the operation "had to have balls."                Aponte also reported
    that Frias told her the logistics operation in Puerto Rico had its
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    best year in 2005 because it was being run by a man.                          Joyce
    Mercado, a co-employee, testified that she overheard this exchange
    and it was "shameful," and the two men spoke to Aponte in very loud
    tones.   She said that Frias and Camacho generally spoke to male
    employees "appropriately," and would "treat them okay," which was
    different from how they treated female employees.
    Over the next few months, Camacho gave Aponte a verbal warning
    and a written warning regarding her performance at work.                   In March
    2006, Aponte again complained to human resources, stating she felt
    "discriminated       based   on    gender,    overwhelmed,       distressed    and
    pressured    labor    wise."       Maude    Cesari,    a   DHL   human   resources
    employee, went to the office later that month to resolve the
    complaint.    Shortly after their meeting, Aponte thanked Cesari and
    said she had noticed a positive change.
    However, Aponte took another leave of absence a month later,
    and ultimately resigned from DHL on June 17.                     Her resignation
    letter stated that her resignation was involuntary but necessary
    due to the gender discrimination she suffered at work that left her
    "in an emotional deterioration."
    B.   Procedural History
    Aponte    brought       a    hostile    work     environment    and    gender
    discrimination claim against DHL, pursuant to Title VII of the
    Civil Rights Act of 1964 and various laws of the Commonwealth of
    Puerto Rico.    During trial, DHL moved for judgment as a matter of
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    law,       which   was   granted   for    some   claims   but    denied   for   the
    gender-based hostile work environment claim.                    After a four-day
    trial, the jury rendered a verdict in favor of Aponte and awarded
    her $350,000 in emotional distress damages.1
    DHL renewed its motion for judgment as a matter of law and
    asked the district court to set aside the verdict.                        It also
    requested, in the alternative, that a new trial or remittitur be
    granted.       The district court found there was sufficient evidence
    for a reasonable jury to find in Aponte's favor, and a new trial
    was not warranted. However, the court determined that "[w]hile the
    evidence produced at trial regarding Defendant's liability for a
    hostile      work   environment     was     sufficient,   similar   evidence    is
    lacking to support the damages awarded."                  After reviewing the
    evidence      and   comparing      awards    from   similar   cases,   the   court
    remitted the award from $350,000 to $200,000.2
    On appeal, DHL maintains that the evidence was insufficient to
    support Aponte's hostile work environment claim, and alternatively,
    that the award should be further remitted.                DHL also argues that
    1
    Pursuant to Puerto Rico law, the district court applied
    mandatory doubling of damages provisions to the Commonwealth
    claims, and awarded $1.00 to the Title VII claim, resulting in a
    total award of $699,999.
    2
    After applying the doubling required by Puerto Rico law, as
    well as attorneys' fees awarded separately, the remitted award
    amounts to $449,998.75.
    -5-
    the district court made evidentiary errors that require a new
    trial.
    II.
    A.   Sufficiency of the Evidence
    i.      Standard of Review
    When reviewing the sufficiency of the evidence, a jury's
    verdict "must be upheld unless the facts and inferences, viewed in
    the light most favorable to the verdict, point so strongly and
    overwhelmingly in favor of the movant that a reasonable jury could
    not have returned the verdict."                Astro-Med, Inc. v. Nihon Kohden
    Am., Inc., 
    591 F.3d 1
    , 13 (1st Cir. 2009) (internal quotation
    marks omitted).         Our analysis "is weighted toward preservation of
    the jury verdict." Rodriguez-Torres v. Caribbean Forms Mfr., Inc.,
    
    399 F.3d 52
    , 57 (1st Cir. 2005).
    ii.     Analysis
    Title     VII      of     the   Civil    Rights   Act   of   1964    prohibits
    discrimination on the basis of sex with respect to the terms,
    conditions,        or        privileges      of    employment.           42    U.S.C.
    § 2000e-2(a)(1).         The plaintiff must establish that (1) she is a
    member of a protected class; (2) she was subjected to unwelcome
    harassment; (3) the harassment was based upon gender; (4) the
    harassment was sufficiently severe or pervasive that it altered the
    conditions    of     her      employment     and   created   an   abusive     working
    environment; (5) the offending conduct was both objectively and
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    subjectively offensive; and (6) some basis for employer liability
    has been established.   Douglas v. J.C. Penney Co., Inc., 
    474 F.3d 10
    , 15 (1st Cir. 2007).
    "When   the   workplace   is     permeated   with   discriminatory
    intimidation, ridicule, and insult that is sufficiently severe or
    pervasive to alter the conditions of the victim's employment and
    create an abusive working environment, Title VII is violated."
    Harris v. Forklift Sys., Inc., 
    510 U.S. 17
    , 21 (1993).               This
    standard "takes a middle path between making actionable any conduct
    that is merely offensive and requiring the conduct to cause a
    tangible psychological injury."       
    Id.
       The conduct must create an
    objectively hostile work environment, as well as the plaintiff's
    subjective perception that the environment is abusive.          
    Id. at 21-22
    .
    This is not a "mathematically precise test," and whether an
    environment is "hostile" or "abusive" is determined by looking at
    all the circumstances. 
    Id. at 22-23
    . Relevant factors may include
    the frequency of the discriminatory conduct, its severity, whether
    it is physically threatening or humiliating as opposed to a mere
    offensive utterance, and whether it unreasonably interferes with an
    employee's work performance.   
    Id. at 23
    .     While psychological harm
    may be taken into account, no single factor is required.       
    Id.
    DHL argues that the evidence was insufficient to establish
    that any harassment Aponte experienced was severe and pervasive.
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    DHL further contends that Aponte fails to show she was treated
    differently because of her gender, and maintains that many of the
    comments made to Aponte could be interpreted in a way that does not
    refer to women.     It argues that "rudeness or ostracism, standing
    alone, usually is not enough to support a hostile work environment
    claim."   See Noviello v. City of Boston, 
    398 F.3d 76
    , 92 (1st Cir.
    2005).
    Aponte     testified    that    Frias    and   Camacho     made   several
    gender-based comments to her, including:            "that what he had been
    taught was that women were supposed to do [] household chores";
    "the person who ran this operation had to have balls to run the
    operation"; referring to a female executive as "jefecita," or
    "little boss"; stating that the operation had to be run by a man;
    generally referring to women as "brutas," or "dumbies"; and asking
    her if she was a "pendeja," a pejorative term used to refer to
    women. She also maintained that Frias and Camacho "didn't have any
    willingness" to train her on certain tasks. She testified that she
    took a leave of absence because of the emotional hardship she
    experienced.
    Aponte filed two internal complaints with DHL Human Resources.
    In the second complaint, she wrote that "the work environment has
    become completely hostile and without respect to my person, I feel
    discriminated     based     on   gender,     overwhelmed,     distressed   and
    pressured labor wise."           She felt "completely disoriented" and
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    "constantly deprived of authority by Rafael Camacho."     She also
    felt that there "really is no change as to my feelings since I
    reported ill [] January 10, 2005 and my return on November 21,
    2005.   On the contrary, I feel more discriminated than before[.]
    I feel at all times the discrimination for reasons of gender."
    Mercado testified that the way Camacho and Frias communicated
    with Aponte "was not very good," "shameful," and "[t]hey would
    speak to her in a very loud tone, and the way they treated her
    wasn't the best." She also overheard Frias and Camacho "screaming"
    at Aponte.   When Frias and Camacho spoke to Aponte, "the tones of
    voice would be very loud, they would be very disrespectful."     By
    contrast, Frias's and Camacho's communication with male employees
    was "normal," which "was different than how I saw that it was
    toward the women, the girls there."
    Both Frias and Camacho denied saying those comments, and DHL
    offered a different interpretation of the work situation.      They
    asserted that Aponte was treated differently because of her poor
    work performance, rather than gender.    They claimed that clients
    complained about Aponte's performance.
    Viewing the evidence presented in the light most favorable to
    Aponte, a reasonable jury could have determined that Frias and
    Camacho subjected Aponte to discriminatory intimidation, ridicule,
    and insult sufficiently pervasive to alter the condition of her
    employment and create a hostile work environment.   See Harris, 510
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    U.S. at 21; Astro-Med, 
    591 F.3d at 13
    .              It was the jury's role to
    determine witness credibility, and the verdict indicates that the
    jury believed Aponte's version of the work environment and its
    effect on her.    This case does not present a situation in which the
    evidence "so strongly and overwhelmingly" supports DHL's position
    that we should disturb the jury's verdict. See Astro-Med, 519 F.3d
    at 13; Rodriguez-Torres, 
    399 F.3d at 57
    ; cf. Alvarez-Fonseca v.
    Pepsi Cola, 
    152 F.3d 17
    , 25-26 (1st Cir. 1998).
    iii. DHL's Faragher Defense
    An    employer    is    vicariously      liable       for   a   supervisor's
    harassment of an employee. Burlington Indus., Inc. v. Ellerth, 
    524 U.S. 742
    , 745 (1998).       The Faragher affirmative defense shields an
    employer   from   such      liability   if    (1)    the    employer    exercised
    reasonable care to prevent and correct harassment, and (2) the
    employee unreasonably failed to take advantage of any preventive or
    corrective opportunities provided by the employer.                   Faragher v.
    City of Boca Raton, 
    524 U.S. 775
    , 807 (1998).
    DHL argues that, even taking Aponte's version of the facts as
    true, the jury unreasonably rejected DHL's Faragher defense.                  It
    maintains that the company acted promptly and appropriately, and
    the March 30 email shows that it improved Aponte's situation.
    Aponte    filed     her    initial      complaint      in   November    2004
    complaining of Frias's unprofessional behavior, which prompted
    Hernandez to interview both Aponte and Frias.               Two years later, in
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    March 2006, Aponte filed a second complaint with Cesari.                        Cesari
    met with Aponte and Camacho later that month.                On March 30, 2006,
    Aponte sent Cesari an email thanking her for intervening and
    reporting that the situation had improved.
    Aponte later testified that the harassment at work only
    temporarily improved after the meeting, and the situation soon
    "turned totally hostile."          Specifically, she felt "pressure" from
    the     work    tasks     given    her,    and     Camacho    and      Frias      were
    "underestimating"         her,     being   "disrespectful"        to      her,     and
    "constantly" pressuring her about backlogged work.                  Aponte took a
    leave of absence in April 2006, and eventually resigned from her
    position at DHL in June 2006.          She maintains that her decision not
    to    file     another    formal     complaint     prior     to   resigning       was
    understandable, given the fact that her prior complaints "had only
    resulted in a worsening of her circumstances."
    A reasonable jury could find that Aponte availed herself of
    DHL's    corrective      opportunities     without   experiencing         a   lasting
    improvement in her work situation.               She complained in writing on
    two separate occasions, and testified that she ultimately had to
    quit her job in order to avoid the hostile situation.                  See White v.
    N. H. Dep't of Corrections, 
    221 F.3d 254
    , 261-62 (1st Cir. 2000)
    ("The record contains evidence from which the jury could have
    concluded      that     the   [employer]    did    not   handle     the       internal
    -11-
    investigation properly or timely, and that the [employer] allowed
    the conduct and comments to continue.").
    A   juror   could   certainly   reach    the   opposite    conclusion,
    particularly given the conflicting content of Aponte's March 30
    letter.    However, "[d]etermining what constitutes a 'prompt and
    appropriate' employer response to allegations of sexual harassment
    often requires the sort of case-specific, fact-intensive analysis
    best left to a jury."        Forrest v. Brinker Int'l Payroll Co., 
    511 F.3d 225
    , 232 (1st Cir. 2007).         Moreover, it was DHL's burden to
    show its actions both corrected and prevented further harassment.
    See Burlington, 
    524 U.S. at 745
    .           Thus, DHL's entitlement to the
    Faragher defense is not "so clearly against the weight of the
    evidence as to amount to a manifest miscarriage of justice."               See
    Astro-Med, 
    591 F.3d at 13
    .
    B.    Remittitur
    We may overturn a damages award only if it is "grossly
    excessive or so high as to shock the conscience of this court."
    Rodriguez-Garcia v. Miranda-Marin, 
    610 F.3d 756
    , 773 (1st Cir.
    2010) (quoting Valentin-Almeyda v. Mun. of Aguadilla, 
    447 F.3d 85
    ,
    103 (1st Cir. 2006)).        We afford "broad discretion" to the trial
    court's decision, because of that court's "greater familiarity with
    local community standards and with the witnesses' demeanor at the
    trial."    
    Id.
        "We will not disturb an award of damages because it
    is   extremely    generous    or   because    we   think   the   damages   are
    -12-
    considerably less."   Koster v. Trans World Airlines, 
    181 F.3d 24
    ,
    34 (1st Cir. 1999).   "Where the trial court already has invoked its
    discretion in granting a remittitur, the scope of review is even
    narrower than usual."     Sanchez v. P.R. Oil Co., 
    37 F.3d 712
    , 724
    (1st Cir. 1994).
    Here, the district court remitted the jury's award from
    $350,000 to $200,000, explaining in length its reasons for doing
    so.   The court found that although the evidence produced at trial
    was sufficient to show a hostile work environment, the evidence did
    not support the amount of damages awarded. The court described the
    source of the emotional distress as "at best, mixed."               Aponte
    experienced    distress   due   to    mental   health   issues,   physical
    ailments, and general work stress in addition to the stress from
    her hostile work environment.         Moreover, Aponte suffered from a
    back problem, and DHL's business was expanding during the relevant
    time period.     Additionally, the court explained that economic
    damages such as claims for failure to promote, front pay, back pay,
    and constructive discharge were not part of the verdict.
    The court also pointed out that Aponte "did not introduce any
    testimony by a medical expert," "presented no notable evidence of
    outward manifestations of emotional distress," and "presented no
    evidence of long term depression or medical treatment."           "Although
    testimony from a mental health expert is not required to sustain an
    award for emotional distress, the absence of such evidence is
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    useful in comparing the injury to the award of damages."                Koster,
    
    181 F.3d at 35
    .
    Awards in comparable cases are instructive.            The plaintiff in
    Sanchez,   who   was   discriminated       against    because   of    his   age,
    testified about the humiliation he suffered from losing his job and
    filing for bankruptcy, but failed to present any medical testimony
    regarding his mental condition.       
    37 F.3d at 724
    .       The jury awarded
    him $150,000 in emotional distress damages.                
    Id. at 723
    .       The
    district court reduced the award to $37,500, and we affirmed.                
    Id. at 726
    .    We held that, although emotional damages are warranted
    even without medical or psychiatric evidence, the lack of such
    evidence is relevant to the amount of the award.            
    Id.
     at 724 n.13.
    In Rodriguez-Garcia, the jury awarded the plaintiff $350,000
    for emotional pain and suffering related to a retaliatory demotion.
    
    610 F.3d at 760
    .       The plaintiff, as well as her psychiatrist,
    testified that she experienced depression.             
    Id. at 773
    .     We held
    that, "[a]lthough generous, the award of $350,000 was not grossly
    excessive or so high as to shock the conscience."                  
    Id. at 774
    .
    Additionally, the amount of the award was similar to noneconomic
    compensatory     damages   awards   we      upheld    in   other     employment
    discrimination and retaliation contexts.             
    Id.
    In Monteagudo v. Asociacion de Empleados del Estado Libre
    Asociado de Puerto Rico, 
    554 F.3d 164
     (1st Cir. 2009), we upheld a
    $333,000 damages award in a sexual harassment case. 
    Id. at 174-75
    .
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    The plaintiff testified that she was harassed by a male supervisor,
    making her work conditions intolerable.                  
    Id. at 168
    .     She stated
    that she suffered from depression, cried every evening, and was
    unable    to    sleep.      
    Id. at 174-75
    .      Although     we    wrote   that
    "[a]dmittedly the jury was generous in awarding this amount," we
    held that the district court did not abuse its discretion, given
    comparable awards and the highly deferential standard of review.
    
    Id. at 175
    .
    We have also upheld damages awards where the plaintiff did not
    seek medical treatment or have long-term physical symptoms.                      See
    McDonough v. City of Quincy, 
    452 F.3d 8
    , 22 (1st Cir. 2006)
    (upholding award of $300,000 in Title VII retaliation case, where
    "the bulk" of the award was for emotional distress in the form of
    humiliation and damage to reputation and family relationships);
    Rodriguez-Torres, 
    399 F.3d at 64
     (affirming a $250,000 emotional
    distress       award     where    plaintiff        testified   that      employment
    discrimination         caused    her    marriage    to    suffer   and    made   her
    depressed); Koster, 
    181 F.3d at 35-36
     (upholding $250,000 award
    where plaintiff testified that employer's conduct caused him to
    suffer anxiety and insomnia and damaged his family life).
    In light of these comparable cases, and given the court's
    lengthy explanation for its remittitur, the district court did not
    abuse its discretion in awarding Aponte the remitted amount.                     The
    court    noted   that     Aponte's      testimony    regarding     her   distressed
    -15-
    emotional state was corroborated by the emails she sent Human
    Resources, her resignation letter, and other testimony at trial.
    The court explained that it used the "maximum recovery rule" to
    remit her damages to the "maximum amount that is supported by the
    evidence."    See Marchant v. Dayton Tire & Rubber Co., 
    836 F.2d 695
    ,
    704 (1st Cir. 1988). Additionally, the court's decision to set the
    amount at $200,000 is supported by awards in comparable cases.
    Although the jury may have been "generous," the district court did
    not abuse its discretion. See Monteagudo, 554 F.3d at 175; Koster,
    
    181 F.3d at 34-35
    .
    C.   Motion for a New Trial Based on Evidentiary Rulings
    We   review    an     order    denying     a   new   trial   for   abuse   of
    discretion.    A new trial is warranted only "if the verdict, though
    rationally based in the evidence, was so clearly against the weight
    of the evidence as to amount to a manifest miscarriage of justice."
    Astro-Med,    
    591 F.3d at 13
    .    We    review    the   district   court's
    evidentiary rulings for abuse of discretion.               Blinzler v. Marriott
    Int'l, Inc., 
    81 F.3d 1148
    , 1158 (1st Cir. 1996).
    DHL argues that Aponte introduced irrelevant and hearsay
    statements under the guise of refreshed recollections.                      While
    Aponte testified, her lawyer sought to establish that she received
    commendations at work prior to Frias's supervision beginning in
    2004. To refresh her recollection of the commendations, her lawyer
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    showed her documents dating from 2001 to 2004.              See Fed. R. Evid.
    612.
    The district court did not abuse its discretion in allowing
    the documents to refresh Aponte's recollections.               Consistent with
    the requirements of Fed R. Evid. 612, the court ensured that DHL
    had copies of the documents, assured the documents were relevant to
    the    case,    allowed   DHL   to   cross-examine    Aponte      regarding   the
    recollections recorded, and instructed Aponte to testify to her own
    recollections and not hearsay.           Aponte's counsel instructed her,
    "Don't read the documents.           Just read the documents for yourself,
    and if that refreshes your recollection, tell the jury what . . . .
    did you do to receive the commendations?"             Aponte then described
    what she did to receive a commendation in each instance.
    DHL next argues that the court erred by failing to give a
    curative instruction regarding certain comments Frias made to
    Aponte in 2004.         Aponte testified that Frias made two sexually
    suggestive comments that year:           (1) asking her "where one could
    party in San Juan"; and (2) inquiring whether she had not yet
    married because she was waiting for a man like him.               Because there
    was an 11-month period between these two comments and her remaining
    allegations of hostile work environment, the court determined the
    comments       were   sufficiently    removed   in   time   and    sufficiently
    different in nature to sever them from her hostile work environment
    claim.     The court therefore instructed the jury:            "Yesterday the
    -17-
    plaintiff rested.        After the plaintiff rested, I removed from the
    case the allegations of sexual statements.                  So the issue for you to
    decide is whether or not the . . . plaintiff was subjected to
    harassment in the work place."
    Although the court could have been more specific about the
    "sexual statements" it was referring to, the curative instruction
    does       not   constitute       an   abuse   of    discretion.        Even   if    the
    instruction should have been more specific, the error was harmless.
    See Moulton v. Rival Co., 
    116 F.3d 22
    , 26 (1st Cir. 1997).                      Aponte
    presented sufficient evidence of Frias's statements to support the
    jury's ultimate verdict regarding her hostile work environment
    claim.
    Finally, DHL argues that the jury was confused by Aponte's
    testimony that she did not receive a promotion. Aponte's complaint
    originally       included     a    claim   for    failure    to    promote,    but   the
    district court found that it was time-barred.                     Nonetheless, Aponte
    introduced evidence at trial that she was denied a promotion and
    that she felt compelled to resign due to the harassment she
    experienced.         On appeal, DHL contends that this evidence was
    introduced in support of a constructive discharge claim that Aponte
    withdrew before the jury retired.3                  DHL claims that this sequence
    3
    It is unclear whether Aponte brought a constructive
    discharge claim. Pre-trial rulings suggest that the district court
    considered constructive discharge to have been pled, but at trial,
    Aponte denied bringing such a claim. In an excess of caution, the
    trial court agreed to "grant the directed verdict as to the claim
    -18-
    allowed Aponte to bring her time-barred claim before the jury
    through a back door, and contends that the court should have
    provided a curative instruction.
    The court did not abuse its discretion in refusing DHL's
    requests to provide a curative instruction on this point.   At the
    close of Aponte's case, the court stated:
    Members of the jury, this testimony concerning the
    promotion . . . is not part of the case for damages
    purposes. We're just going into the history of . . . the
    plaintiff with the company. So she's testifying that she
    did not get a promotion. That is not part of her case
    for which she's asking damages.
    The court also told the jury that the case involved a claim of
    hostile work environment based on sex discrimination, and not
    constructive discharge.   The court's statements to the jury belie
    DHL's claim that the jury was "undoubtedly confused."
    AFFIRMED.
    if there was one."
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