Marrero v. Goya of Puerto Rico, Inc.

United States Court of Appeals

For the First Circuit

Nos. 01-1984

GINA MARRERO,

Plaintiff, Appellee,

v.

GOYA OF PUERTO RICO, INC.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gilberto Gierbolini-Ortiz, Senior U.S. District Judge]

Before

Boudin, Chief Judge,

Selya and Lipez, Circuit Judges.

Radamés A. Torruella, with whom Maggie Correa-Avilés and

McConnell Valdes were on brief, for appellant.

José F. Quetglas for appellee.

August 28, 2002

LIPEZ, Circuit Judge. Gina Marrero filed this employment

discrimination action against her former employer, Goya of Puerto

Rico, Inc. (Goya), under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq. Marrero alleged that sexual harassment

by her former supervisor, Ramón Cárdenas, created a hostile work

environment; that Goya retaliated against her when she complained

about Cárdenas's behavior; and that, as a result of the retaliation

and continuing harassment, she was forced to resign. She sought

compensatory damages, back pay, and punitive damages.

The case proceeded to trial, and at the close of the

evidence Goya moved for judgment as a matter of law under Rule 50

of the Federal Rules of Civil Procedure. Goya argued, first, that

much of the alleged harassment fell outside Title VII's statute of

limitations, leaving events within the limitations period that did

not rise to the level of a hostile work environment. Second, Goya

maintained that the evidence was insufficient as a matter of law to

support Marrero's claims of retaliation and constructive discharge,

and her request for punitive damages. Finally, it urged the court

to enter judgment in its favor on the basis of the affirmative

defense recognized in Faragher v. City of Boca Raton, 524 U.S. 775

(1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742

(1998), for cases involving sexual harassment by a supervisor.

The district court deferred judgment on the motion and

submitted the case to the jury. After several hours of

deliberations, the jury returned a verdict in Marrero's favor,

awarding her $175,000 in compensatory damages, $11,250 in back pay,

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and $75,000 in punitive damages. Goya duly renewed its Rule 50

motion for judgment as a matter of law or, in the alternative, a

new trial. This time, the district court rejected the motion,

concluding that Goya had forfeited the statute of limitations

defense; that there was ample evidence to support the jury's

findings of a hostile work environment and retaliation, its award

of back pay for constructive discharge, and the punitive damages;

and that the jury reasonably concluded that Goya had not

established the elements of the Faragher/Ellerth affirmative

defense.

We review de novo the court's denial of Goya's motion for

judgment as a matter of law. White v. N.H. Dep't of Corrections,

221 F.3d 254, 259 (1st Cir. 2000). Like the district court, we

examine the evidence presented at trial in the light most favorable

to Marrero. Id. We "may not consider the credibility of

witnesses, resolve conflicts in testimony, or evaluate the weight

of the evidence." Katz v. City Metal Co., 87 F.3d 26, 28 (1st Cir.

1996) (internal quotation marks omitted). We must affirm unless

"reasonable persons could not have reached the conclusion that the

jury embraced." Negron-Rivera v. Rivera-Claudio, 204 F.3d 287, 290

(1st Cir. 2000). We review the district court's denial of Goya's

request for a new trial for an abuse of discretion, recognizing

that "[a] new trial should be ordered only if the court believes

that the outcome is against the clear weight of the evidence such

that upholding the verdict will result in a miscarriage of

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justice." Ramos v. Davis & Geck, Inc., 167 F.3d 727, 731 (1st Cir.

1999) (internal quotation marks and alterations omitted).

We conclude that Marrero's hostile work environment claim

was supported by sufficient evidence and was not barred by the

statute of limitations. We also conclude that Goya was not

entitled to judgment as a matter of law on the Faragher/Ellerth

affirmative defense, or the issue of constructive discharge.

However, we hold that the district court erred in accepting the

verdict for Marrero on her claim of retaliation. Because it is

impossible to determine what portion (if any) of the compensatory

and punitive damages awards was based on the jury's erroneous

finding of retaliation, we remand for a new trial on damages.

I. BACKGROUND

The jury could have found the following facts.1 Marrero

began work at Goya in April of 1995, where she served as a

secretary in the Sales Department, under the supervision of Ramón

Cárdenas, the Vice President for sales. Marrero also had duties in

the Exports Department, where her supervisor was Wilberto Rivera

and -- later -- José Luis Diaz.

Marrero was subjected to sexual harassment by Cárdenas

throughout her tenure at Goya. The harassment consisted primarily

of sexual comments, often accompanied by lascivious looks and

offensive gestures. Cárdenas also would contrive to "bump into"

Marrero in the narrow hallway between their work spaces, and on

1

We provide a sense of the case here. We provide more detail

in the relevant sections of the opinion.

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several occasions rubbed his body against hers as she used the

photocopier machine.

In the summer of 1995, Marrero confronted Cárdenas about

his behavior. After a brief respite, the harassment began again,

now accompanied by more "vulgar" comments made "with a gross tone."

In addition, Cárdenas began to criticize Marrero for work-related

matters. He would scold her for no reason, sometimes yelling at

her in front of other employees. On other occasions Cárdenas would

startle Marrero by slapping her desk with his fist; he then would

ask, "Aren't you tough? Are you scared?"

Cárdenas also used his authority to "punish" Marrero in

several ways. He often gave her extra work just as she was leaving

for the day, making her stay extra hours without pay for overtime.

Although he was aware that she was hypoglycemic, Cárdenas changed

Marrero's lunch hour so that she was forced to work for more than

five hours without a break. He also used his power in more petty

ways, such as refusing Marrero's requests to leave her desk to use

the bathroom.

Cárdenas's conduct made Marrero feel "offended,

humiliated, embarrassed, depressed." By the fall of 1995, she had

become "very anxious, very nervous" at work. Marrero had

difficulty concentrating; she "had to make a super-human effort" in

order to perform her duties.

In December of 1995, Marrero suffered a nervous

breakdown. She "couldn't function the way [she] was feeling." Her

family physician prescribed antidepressants and tranquilizers, and

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referred her to a psychiatrist, Dr. Fernando Cabrera. Marrero met

with Dr. Cabrera several times during December, 1995, and January,

1996. During her first visit, she mentioned that Cárdenas was

bothering and pressuring her at work, but she did not provide any

details. Dr. Cabrera described Marrero as "disorganized, confused,

and unable to talk in a coherent and logical way" about what was

bothering her. He diagnosed a major depression with psychotic

features and a panic disorder, and recommended that Marrero take a

five-week medical leave from work. During that time, he treated

her aggressively with antidepressants, tranquilizers, and anti-

psychotic drugs.

Marrero returned to work on February 5, 1996. She did

not feel that she had recovered fully, but "needed the money" from

work. She was greeted by more of the same harassment by Cárdenas.

He continued to make sexual comments, and "was always getting on

[Marrero's] case."

Eventually, the situation "became intolerable," and on

August 15, 1996, Marrero suffered another emotional breakdown. She

was taken by a Goya nurse to the emergency ward of a psychiatric

hospital, and from there to Dr. Cabrera's office. Marrero told Dr.

Cabrera "I cannot work anymore" and that Cárdenas was "making her

feel bad." Dr. Cabrera interviewed the Goya nurse, who confirmed

that it "was true, that [Marrero] was being harassed by . . . Mr.

Cárdenas." Dr. Cabrera issued a medical certificate to Goya

excusing Marrero from work for two weeks. The certificate stated

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that Marrero was suffering from "depression and anxiety caused by

work."

Marrero returned to work after two weeks of sick leave.

Again, she was subjected to continuing harassment by Cárdenas,

culminating in the events of October 31, 1996. Cárdenas told

Marrero that he was going out to buy Halloween presents. He gave

her "a direct penetrating look with lust," and said: "I have a

little present for you that you're never going to forget and if you

don't do the things I tell you and order you to do I am going to

fire you." Marrero interpreted that comment as a sexual

invitation, and a threat that if she did not submit, she would be

fired.

Marrero immediately reported the incident to Diaz (her

supervisor in the Exports Department). Marrero had discussed

Cárdenas's behavior with Diaz previously, as she had with his

predecessor, Rivera. She also had complained to Remigio Nieves,

the Vice President of the Human Resources Department. Following

the "Halloween presents" incident, Marrero sent a memo to Nieves,

requesting a copy of Goya's policy on discrimination and

harassment. When Nieves did not respond, Marrero decided to seek

advice from the Department of Labor for the Commonwealth of Puerto

Rico. She met with Nieves several days later and informed him that

she planned to file a formal grievance.

Marrero went on sick leave from November 13 to 20, 1996.

During that time, she filed a charge of sexual harassment with the

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Equal Employment Opportunity Commission (EEOC) against Cárdenas and

Goya. She also retained legal counsel.

Marrero returned to work on Wednesday, November 20. That

morning, she met with Nieves and Goya's in-house counsel, Horacio

Cabrera. The three discussed Marrero's problems with Cárdenas, and

Marrero confirmed that she had filed a charge with the EEOC.

Nieves then handed her a letter stating that she had been

transferred to the Human Resources Department, where she would

serve as his secretary. In that job, Marrero would no longer be

under Cárdenas's direct supervision; however, her new desk would be

approximately the same distance from Cárdenas's office as her

original location. She asked Nieves why she could not be

transferred to an available secretarial position in another

building, away from Cárdenas. Nieves responded that the decision

had been made; he urged her to view the transfer as a promotion.

In her new position as Nieves's secretary, Marrero would

perform largely the same duties as she had as secretary for the

Sales and Exports Departments. Nevertheless, Nieves told her that

she would have to undergo a probationary period "to see whether

[she] could perform the new duties." Marrero viewed the

probationary period as a threat to her job security.

Marrero remained at the new position for the final two

days of the work week. She was trained by Maritza Ramos, secretary

to the President of Goya. Marrero felt threatened by Ramos, who --

together with Nieves -- subjected her to "extreme supervision."

Moreover, Cárdenas continued to bother Marrero in her new position.

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He stared at her, made faces, and laughed at her. At one point he

said, "[you] thought [I] was going to be screwed," but "it was

[you] who ended up screwed."

As a result of the continuing harassment and the

hostility she felt in her new job, and acting on advice from Dr.

Cabrera, Marrero did not return to work after Friday, November 22.

She hoped that she would be able to go back to Goya once her

emotional condition improved. However, by March of 1997 -- after

continuous psychiatric treatment, and on the recommendation of Dr.

Cabrera -- Marrero decided she had no choice but to resign. She

gave notice of her retirement on March 24, 1997. Shortly

thereafter, she filed a second charge with the EEOC alleging

retaliation and constructive discharge.

II. HOSTILE WORK ENVIRONMENT

Marrero's complaint alleged, inter alia, that the

constant sexual harassment by Cárdenas created a hostile work

environment actionable under Title VII. In order to prevail on

that claim, she had to establish that the harassment was so "severe

or pervasive" as to alter the terms of her employment, creating a

work environment that was both objectively hostile and perceived as

hostile by Marrero herself. Faragher, 524 U.S. at 786 (internal

quotation marks omitted). As explained below, we conclude that

there was sufficient evidence to support the verdict. Before we

reach that issue, however, we first must address Goya's argument

that Marrero's hostile work environment claim is barred by the

statute of limitations.

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A. Statute of Limitations

Under Title VII, a plaintiff must file a charge with the

EEOC "within one hundred and eighty days after the alleged unlawful

employment practice occurred." 42 U.S.C. § 2000e-5(e). In a

"deferral jurisdiction" such as Puerto Rico, that period is

extended to 300 days. See id. § 2000e-5(e)(1); Mohasco Corp. v.

Silver, 447 U.S. 807, 814 n.16 (1980).2 Here, Marrero filed her

hostile work environment charge on November 13, 1996. Counting

back 300 days, Goya maintains that she can recover only for events

occurring on or after January 18, 1996.

The first time Goya presented that argument in any detail

was in its Rule 50 motion for judgment as a matter of law, filed at

the close of Marrero's case. Marrero responded on two fronts.

First, she argued that Goya had forfeited the statute of

limitations defense by failing to raise it earlier in the

2

As we have explained elsewhere:

The full story is more complicated, in part because

§ 2000e-5(e) interacts with § 2000e-5(c), which imposes

a sixty-day waiting period between the filing of a charge

with state or local authorities and the filing of a

charge with the EEOC[.] A complainant in a deferral

State . . . need only file his charge within 240 days of

the alleged discriminatory employment practice in order

to insure that his federal rights will be preserved. If

a complainant files later than that (but not more than

300 days after the practice complained of), his right to

seek relief under Title VII will nonetheless be preserved

if the State happens to complete its consideration of the

charge prior to the 300-day period.

Thomas v. Eastman Kodak Co., 183 F.3d 38, 47 n.5 (1st Cir. 1999)

(internal quotation marks and alterations omitted).

Those subtleties are of no import here. Marrero filed her

charge less than one month after one of the instances of harassment

that makes up her hostile work environment claim. As we explain

below, that is enough to satisfy the statute of limitations here.

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litigation. Second, she maintained that her hostile work

environment claim was governed by the so-called "continuing

violation doctrine," and therefore was immune from Title VII's time

bar. Under the continuing violation doctrine, Marrero argued, a

plaintiff may recover for events outside the 300-day limitations

period "if they are deemed part of an ongoing series of

discriminatory acts and there is some violation within the statute

of limitations period that anchors the earlier claims." O'Rourke

v. City of Providence, 235 F.3d 713, 730 (1st Cir. 2001) (internal

quotation marks omitted). Marrero contended that the "chain" of

harassment by Cárdenas, which continued into the limitations

period, satisfied that standard.

Goya did not dispute that Marrero's allegations of sexual

harassment, if true, would satisfy the relatedness requirement of

the continuing violation doctrine. It emphasized, however, that we

had refused to apply the continuing violation doctrine in cases

where the plaintiff was "aware that [she] was being unlawfully

discriminated against while the earlier acts, now untimely, were

taking place." Provencher v. CVS Pharm., 145 F.3d 5, 14 (1st Cir.

1998). Goya insisted that Marrero was aware of the discrimination

at least as early as December of 1995, when -- according to her own

testimony -- she suffered a nervous breakdown as a result of

Cárdenas's behavior. Thus, Goya argued that Marrero was obligated

to file a charge within the next 300 days and, having failed to do

so, could not recover for the earlier (now untimely) events.

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The district court did not address the merits of

Marrero's continuing violation claim, or Goya's response. Instead,

it held that Goya had forfeited its statute of limitations defense

by failing to raise it earlier in the proceedings. We express no

view on the forfeiture issue because the Supreme Court's recent

decision in National Railroad Passenger Corp. v. Morgan, 122 S. Ct.

2061 (2002), makes clear that Goya's statute of limitations defense

fails on its merits.

In Morgan, the Court distinguished between hostile work

environment claims and claims involving discrete acts of

discrimination or retaliation, such as a discharge, failure to

promote, denial of transfer, or refusal to hire. Id. at 2070-72.

As noted, a Title VII plaintiff must file a charge with the EEOC

within 300 days "after the alleged unlawful employment practice

occurred." 42 U.S.C. § 2000e-5(e). The Court reasoned that "[a]

discrete retaliatory or discriminatory act 'occurred'" for purposes

of the statute of limitations "on the day that it 'happened.'"

Morgan, 122 S. Ct. at 2070. Therefore, the plaintiff must file a

charge within 300 days "of the date of the act or lose the ability

to recover for it." Id. at 2071.

Hostile work environment claims are different. A hostile

work environment, the Court explained, is created by "repeated

conduct" -- "a series of separate acts that collectively constitute

one 'unlawful employment practice.'" Id. at 2073-74 (quoting 42

U.S.C. § 2000e-5(e)(1)). As such, hostile work environment claims

do not "turn on single acts but on an aggregation of hostile acts

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extending over a period of time." Havercombe v. Dep't of Educ.,

250 F.3d 1, 6 (1st Cir. 2001). It follows that the "unlawful

employment practice" that triggers the statute of limitations

occurs, not "on any particular day," but "over a series of days or

perhaps years." Morgan, 122 S. Ct. at 2073. Thus, the Court

concluded, the statute of limitations is satisfied as long as the

plaintiff files a charge within 300 days of one of the many acts

that, taken together, created the hostile work environment.

In so holding, the Supreme Court explicitly rejected the

view -- advanced by Goya here -- that "the plaintiff may not base

a suit on individual acts that occurred outside the statute of

limitations unless it would have been unreasonable to expect the

plaintiff to sue before the statute ran on such conduct." Id. at

2075. Title VII, the Court explained, "does not separate

individual acts that are part of the hostile work environment claim

from the whole for purposes of timely filing and liability." Id.

Rather, the "incidents comprising a hostile work environment are

part of one unlawful employment practice" and, in order to comply

with the statute of limitations, "the employee need only file a

charge within [300] days of any act that is part of the hostile

work environment." Id. That standard clearly is satisfied here:

Marrero filed her charge on November 13, 1996, less than one month

after the "Halloween presents" incident.

B. Sufficiency of the Evidence

Goya argues that, even if the jury was entitled to

consider Cárdenas's conduct throughout the course of Marrero's

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employment, the evidence was insufficient to establish harassment

of the requisite severity or pervasiveness. Although it does not

dispute that Marrero subjectively perceived her work environment as

hostile and abusive, Goya insists that any harassment by Cárdenas,

while perhaps "inappropriate," was too "mild[]" to create an

objectively hostile work environment. We disagree.

There is no "mathematically precise test" for determining

when conduct in the workplace moves beyond the "merely offensive"

and enters the realm of unlawful discrimination. Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Rather, the question

whether the environment is objectively "hostile or abusive" must be

answered by reference to "all the circumstances," including the

"frequency of the discriminatory conduct; its severity; whether it

is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee's work performance." Id. at 23. "Subject to some

policing at the outer bounds," it is for the jury to weigh those

factors and decide whether the harassment was of a kind or to a

degree that a reasonable person would have felt that it affected

the conditions of her employment. Gorski v. N.H. Dep't of

Corrections, 290 F.3d 466, 474 (1st Cir. 2002).

Here, the jury reasonably could have found that Marrero

was subjected to harassment on a daily basis, including humiliating

sexual remarks and innuendos. For example, Cárdenas constantly

referred to Marrero as "the redhead" and frequently made comments

such as "the redhead is really hot," "the redhead is on fire," or

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"if this is what hell is like then the devil can take me with him."

Cárdenas also made repeated comments about Marrero's lips, legs,

and clothing. He even used Marrero's hypoglycemia as an avenue for

innuendo: making a reference to his diabetes, Cárdenas told her

"what goes down in you goes up in me," and asked her "are you sweet

to men?" At other times, Cárdenas was more explicit: he once asked

Marrero "what are you going to do with the thing you have between

your legs?" Finally, the jury could have found that Cárdenas's

"Halloween presents" comment was a sexual invitation, coupled with

a threat that Marrero would be fired if she did not accept.

Taken together, such comments support the jury's finding

of a hostile work environment. See O'Rourke, 235 F.3d at 729

("Evidence of sexual remarks, innuendoes, ridicule, and

intimidation may be sufficient to support a jury verdict for a

hostile work environment."); White, 221 F.3d at 260-61 (finding a

hostile work environment where, inter alia, "disgusting comments"

and conversations occurred "everyday"). It bears emphasis that the

harassment here was more or less constant from Marrero's first day

of work in April of 1995 until she left in November of 1996. Thus,

this case is easily distinguished from those in which courts have

refused to find a hostile work environment based solely on sexual

comments that are few and far between. See, e.g., Chamberlin v.

101 Realty, Inc., 915 F.2d 777, 783 (1st Cir. 1990) (expressing

doubt as to whether five sexual comments made over the course of a

four to five week period constituted harassment severe and

pervasive enough to create a hostile work environment). As we have

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observed elsewhere, "[t]he workplace is not a cocoon, and those who

labor in it are expected to have reasonably thick skins." Suarez

v. Pueblo Int'l, Inc., 229 F.3d 49, 54 (1st Cir. 2000). However,

it is one thing to say that employees must learn to tolerate

"simple teasing, offhand comments, and isolated incidents (unless

extremely serious)." Faragher, 524 U.S. at 778 (internal quotation

marks and citation omitted). It is quite another to require

employees to suffer the constant attentions of a lascivious

supervisor.

Nor did Cárdenas limit himself to a purely private

dialogue. He also discussed Marrero's appearance with other

employees. For example, he told Marrero's co-workers that she

"would be the model that would be used for any future female

employees that Goya would hire." Another time, Cárdenas invited a

male employee to assess what sort of underwear Marrero was wearing

under her skirt. It was hardly unreasonable for Marrero to find

such behavior humiliating.

Marrero also testified that Cárdenas subjected her to

unwelcome physical touching. On approximately five occasions,

Cárdenas made full "body to body" contact with her in the hallway.

At other times, he would just "brush[] by" her, or would stand in

her way and -- when she tried to pass him -- pretend that they were

dancing. When Marrero had to use the photocopier machine, Cárdenas

often hovered over her with his hands on her shoulders, or stood

close by, rubbing the side of his body against her.

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On other occasions, Cárdenas harassed Marrero in ways

that were not explicitly sexual. Using his power as her

supervisor, he altered her work hours knowing that it would

exacerbate her hypoglycemia. He often stood at her desk and stared

angrily at her, and when she did not pay attention to him he would

pound her desk with his fist to startle her. He criticized her

work unfairly, sometimes embarrassing her by yelling at her in

front of her co-workers. Our cases make clear that, "where a

plaintiff endures harassing conduct, although not explicitly sexual

in nature, which undermines her ability to succeed at her job,

those acts should be considered along with overtly sexually abusive

conduct in assessing a hostile work environment claim." O'Rourke,

235 F.3d at 729.

Finally, there was evidence from which the jury could

have found that Marrero's work was adversely affected by the

harassment. She became anxious and depressed, and often found it

difficult to concentrate. Marrero's supervisors noticed the

change, and -- after the first few months of her employment -- her

performance evaluations dropped from "excellent" to "regular."

In sum, there was ample evidence to support the verdict

on Marrero's hostile work environment claim. As we noted at the

outset, "[o]verriding a jury verdict is warranted only if the

evidence is so one-sided that the movant is plainly entitled to

judgment, for reasonable minds could not differ as to the outcome."

Colasanto v. Life Ins. Co. of N. Am., 100 F.3d 203, 208 (1st Cir.

1996) (internal quotation marks omitted). That is not the state of

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the evidence in this case. Accordingly, we affirm the district

court's denial of Goya's motion for judgment as a matter of law on

the hostile work environment claim.

III. GOYA'S AFFIRMATIVE DEFENSE

Goya argues, next, that it cannot be held liable for

Cárdenas's behavior even if a hostile work environment existed. As

a general rule, an employer is vicariously liable for an actionable

hostile work environment created by a supervisor. See Faragher,

524 U.S. at 807; Ellerth, 524 U.S. at 765. However, the Supreme

Court has recognized an affirmative defense to employer liability

that "look[s] to the reasonableness of the employer's conduct as

well as that of [the] plaintiff victim." Faragher, 524 U.S. at

781; see also Ellerth, 524 U.S. at 765 (describing the affirmative

defense). Goya maintains that it established that affirmative

defense here, and that the district court erred in denying its

motion for judgment as a matter of law on that ground.

The Faragher/Ellerth affirmative defense has two

necessary elements, and the employer bears the burden of proof as

to both. Faragher, 524 U.S. at 807-08; Ellerth, 524 U.S. at 765.

First, the employer must show that it "exercised reasonable care to

prevent and correct promptly any sexually harassing behavior."

Ellerth, 524 U.S. at 765. That requirement typically is addressed

by proof that the employer "had promulgated an antiharassment

policy with [a] complaint procedure." Id. Second, the employer

must establish "that the plaintiff employee unreasonably failed to

take advantage of any preventive or corrective opportunities

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provided by the employer or to avoid harm otherwise." Id. That

prong is usually addressed by proof that the plaintiff unreasonably

ignored an established complaint procedure.3

Thus, the availability of the affirmative defense often

will turn on whether the employer had established and disseminated

an anti-discrimination policy, complete with a known complaint

procedure. Such was the case here. As the district court observed

in denying Goya's motion for judgment as a matter of law, "[o]ne of

the most hotly contested issues in [the] case, and which depended

entirely on the credibility of the witnesses, was precisely

whether . . . Goya had in effect a policy against discrimination

and whether it installed posters to that end."

3

The defense is not a bar to liability for a "tangible

employment action" (such as "hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits") that would be

actionable under Title VII independent of a hostile work

environment. Ellerth, 524 U.S. at 761. Citing that rule, Goya

argues that the district court erred in instructing the jury that

Marrero had alleged that an "adverse action" had been taken against

her. It maintains that, because of that instruction, the jury

might have thought that Goya was not entitled to the affirmative

defense. That argument need not detain us. Marrero did attempt to

prove that Goya took adverse action against her: she hoped to show

that Goya (not Cárdenas) retaliated against her and constructively

discharged her. But the jury instructions made clear that Goya

still could avoid liability for Marrero's hostile work environment

claim (which did not involve allegations of a tangible employment

action) if it proved the two elements described above. The verdict

form shows that the jury rejected the affirmative defense, not

because Marrero proved a "tangible employment action," but because,

in the words of the verdict form, Goya failed to prove that it had

"exercised reasonable care to prevent and promptly correct any

sexually harassing behavior" and that "Marrero unreasonably failed

to take advantage of any preventative or corrective opportunities

provided by Goya."

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On the one hand, Marrero and her co-worker Zelma Miranda-

Rivera testified that they did not receive any orientation

regarding sex discrimination; that they were not given any written

policy on sexual harassment or available grievance procedures; that

they were not aware of any complaint procedure; and that they never

saw any anti-harassment literature posted anywhere in the

workplace. Marrero also testified, without contradiction, that

Goya ignored her request -- first lodged on October 31, 1996 -- for

a copy of the company's anti-discrimination policy.

On the other hand, Nieves testified that Goya had asked

an outside law firm to draft a written policy on sexual harassment,

and that it received that policy in August or September of 1995.

The policy was not dated, however, and on cross-examination Marrero

established that Nieves had stated in his deposition that he used

the same policy during Marrero's orientation in April of 1995

(several months before he later claimed to have received it).

Moreover, although the policy had a signature line so that the

employee could certify that she had received it, Goya could not

produce a copy signed by Marrero. Nieves testified that Goya never

asked its employees to sign the policy.

Nieves also testified that Goya began to use anti-sexual

harassment posters in 1991, 1992, or 1993 -- he was not sure when.

Nieves stated that the posters were placed all around Goya's

facilities, including the glass doors of the entrance to the lobby

"so that anyone who would go to Goya would be able to see the

poster." However, in the film of Goya's facilities that was shown

-20-

to the jury, there were no posters to be seen anywhere on the

premises, including the glass doors of the lobby.

We need not decide which party presented the most

persuasive testimony. "[I]t is for jurors, not judges, to weigh

the evidence and determine the credibility of witnesses." Ins. Co.

of N. Am. v. Musa, 785 F.2d 370, 372 (1st Cir. 1986). Thus, in

reviewing the district court's denial of Goya's Rule 50 motion, we

"cannot evaluate the credibility of witnesses, resolve conflicts in

testimony, or evaluate the weight of evidence." Criado v. IBM

Corp., 145 F.3d 437, 441 (1st Cir. 1998) (internal quotation marks

omitted). We can grant judgment as a matter of law only if "the

evidence, together with all reasonable inferences in favor of the

verdict, could lead a reasonable person to only one conclusion,

namely, that the moving party was entitled to judgment." Lama v.

Borras, 16 F.3d 473, 477 (1st Cir. 1994).

That standard is especially exacting where, as here, the

moving party bears the burden of proof on the issue in question.

See Serv. Auto Supply Co. v. Harte & Co., Inc., 533 F.2d 23, 24

(1st Cir. 1976). We have said that the party with the burden of

proof is entitled to judgment as a matter of law only if it has

established its case by "testimony that the jury is not at liberty

to disbelieve." Jordan v. United States Lines, Inc., 738 F.2d 48,

49 (1st Cir. 1984) (internal quotation marks omitted). In that

situation, relief under Rule 50 is warranted only if the moving

party's evidence is "'uncontradicted and unimpeached.'" Serv. Auto

-21-

Supply Co., 533 F.2d at 25 (quoting Fed. Ins. Co. v. Summers, 403

F.2d 971, 975-76 (1st Cir. 1968)).

Goya has not satisfied that strict standard here.

Although Goya's witnesses testified that the company had an anti-

discrimination policy in place during the relevant period and that

it disseminated the policy to its employees, that testimony was

contradicted by Marrero and her co-worker Miranda-Rivera and called

into question by the video tape and Nieves's conflicting statements

during his deposition. The jury was "at liberty to disbelieve"

Goya's witnesses, Jordan, 738 F.2d at 49, and to credit the

testimony by Marrero and Miranda-Rivera.

In order to qualify for judgment as a matter of law on

its affirmative defense, Goya had to show that a reasonable jury

was compelled to find in its favor on both elements of the defense.

We have concluded that Goya has not satisfied that standard with

respect to the first prong -- the existence of an antiharassment

policy with a known complaint procedure. Accordingly, we need not

consider whether the evidence presented at trial compelled a

finding in Goya's favor on the second prong.4 See Faragher, 524

U.S. at 808.

IV. RETALIATION

Goya argues that there was insufficient evidence to

support the jury's finding of retaliation. In order to make out a

4

Nor need we consider Goya's claim that the district court

erred in excluding certain evidence that, Goya insists, would have

strengthened its case under the second element of the affirmative

defense.

-22-

prima facie case of retaliation, Marrero had to prove that (1) she

engaged in protected conduct under Title VII; (2) she suffered an

adverse employment action; and (3) the adverse action was causally

connected to the protected activity. Hernandez-Torres v.

Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998).

Goya does not dispute that Marrero engaged in conduct that is

protected by Title VII when she filed her sexual harassment charge.

It maintains, however, that Marrero never suffered an "adverse

employment action" as a result of that conduct.

We have explained that "[a]dverse employment actions

include 'demotions, disadvantageous transfers or assignments,

refusals to promote, unwarranted negative job evaluations, and

toleration of harassment by other employees.'" White, 221 F.3d at

262 (quoting Hernandez-Torres, 158 F.3d at 47); accord Graham v.

State Farm Mut. Ins. Co., 193 F.3d 1274, 1283 (11th Cir. 1999).

Whether an employment action is "adverse" -- and therefore

actionable under Title VII -- is gauged by an objective standard.

Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996). "Work places

are rarely idyllic retreats, and the mere fact that an employee is

displeased by an employer's act or omission does not elevate that

act or omission to the level of a materially adverse employment

action." Id.

Here, Marrero's retaliation claim rests on two separate,

and allegedly adverse, employment actions: her transfer to the

Human Resources Department; and Goya's toleration of harassment by

other employees. We address those claims in turn.

-23-

A. Disadvantageous Transfer

Marrero filed a charge of employment discrimination with

the EEOC on November 13, 1996. She returned to work on Wednesday,

November 22, to find that she had been transferred to the Human

Resources Department, where she was to serve as Nieves's secretary.

Marrero concedes that the transfer was not, on its face, a

demotion. She continued to serve as secretary to a Vice President

in the company, and her general job description and salary remained

the same. Nevertheless, Marrero argues that the transfer was

"disadvantageous" because she was required to do more work,

subjected to "extreme supervision," and forced to undergo a period

of probation.

"The clear trend of authority is to hold that a

purely lateral transfer, that is, a transfer that does not involve

a demotion in form or substance, cannot rise to the level of a

materially adverse employment action." Ledergerber v. Stangler,

122 F.3d 1142, 1144 (8th Cir. 1997) (internal quotation marks

omitted); accord Kocsis v. Multi-Care Management, Inc., 97 F.3d

876, 885 (6th Cir. 1996) ("[R]eassignments without salary or work

hour changes do not ordinarily constitute adverse employment

decisions in employment discrimination claims."). Similarly, a

transfer or reassignment that involves only minor changes in

working conditions normally does not constitute an adverse

employment action. See Jones v. Fitzgerald, 285 F.3d 705, 714 (8th

Cir. 2002); Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d

132, 136 (7th Cir. 1993) ("[A] materially adverse change in the

-24-

terms and conditions of employment must be more disruptive than a

mere inconvenience or an alteration of job responsibilities.").

"Otherwise every trivial personnel action that an

irritable . . . employee did not like would form the basis of a

discrimination suit." Williams v. Bristol-Myers Squibb Co., 85

F.3d 270, 274 (7th Cir. 1996).

At the same time, however, "Title VII does not limit

adverse job action to strictly monetary considerations." Collins

v. Illinois, 830 F.2d 692, 703 (7th Cir. 1987). Congress

recognized that job discrimination can take many forms, and does

not always manifest itself in easily documentable sanctions such as

salary cuts or demotions. Accordingly, Congress "cast the

prohibitions of Title VII broadly" to encompass changes in working

conditions that are somewhat more subtle, but equally adverse.

Rodriguez v. Bd. of Educ., 620 F.2d 362, 364 (2d Cir. 1980).

Consistent with that broad statutory mandate, courts have rejected

any bright line rule that a transfer cannot qualify as an "adverse

employment action" unless it results in a diminution in salary or

a loss of benefits.

For example, the Second Circuit held in Rodriguez that

the district court erred in dismissing the sex discrimination suit

of a junior high school art teacher who was transferred to an

elementary school in the same system, notwithstanding the fact that

the transfer did not entail a reduction of salary or other monetary

benefits. See id. It emphasized that the plaintiff had spent her

entire career teaching junior high school students, and in fact had

-25-

recently earned a doctoral degree in art education with a focus on

programs for such students. See id. The art programs at the

elementary level, the court explained, "were so profoundly

different from those in the junior high school as to render utterly

useless [the plaintiff's] twenty years of experience and study in

developing art programs for middle school children." Id. at 366.

Describing the transfer as "a severe professional trauma," the

court concluded that such a "radical change in the nature of the

work [the plaintiff] was called upon to perform" constituted an

adverse employment action. Id.

Similarly, the Seventh Circuit found adverse employment

action in Collins, where the plaintiff was transferred from her

post as a consultant in the "development group" at the Chicago

Public Library to a newly-created job in the library's reference

unit. 830 F.2d at 704. The court noted that the plaintiff's new

supervisors in the reference unit "seemed unsure of what

plaintiff's responsibility and authority would be." Id. Moreover,

although the plaintiff previously had her own office, a telephone

at her desk, printed business cards, and listings in professional

publications as a library consultant, she lost those benefits after

the transfer. See id. In her new position, the plaintiff was

placed at a desk "out in the open," where "a receptionist's desk

typically would be located." Id. She "had no telephone at her

desk with which she could conduct her business responsibilities."

Id. She "was not allowed to have business cards printed and she

was no longer listed in professional publications as a library

-26-

consultant." Id. Finally, rather than doing the consulting work

she enjoyed, the plaintiff "was relegated to doing reference work."

Id.

In contrast to cases such as Rodriguez and Collins, the

evidence presented here showed -- at most -- that the transfer

resulted in some minor, likely temporary, changes in Marrero's

working conditions. As we explained above, Marrero was transferred

from the Sales and Exports Departments to the Human Resources

Department, where she was to serve as Nieves's secretary. Although

Marrero's basic job description and duties remained the same, the

jury could have found that she would have been required to do more

work after the transfer. Marrero was the only employee who knew

how to prepare certain paper work for the Exports Department.

Therefore, as a practical matter, she was forced to do that work

even after she was transferred to the Human Resources Department

and assumed her new duties there. Marrero was not compensated for

that extra work.

Such a minor increase in work responsibilities is not

enough to render a lateral transfer materially adverse. That is

especially true where, as here, there is no indication that the

increase would have been permanent. Just as Marrero had to go

through a training period in her new position, the employee who

replaced her in the Sales and Exports Departments would need to be

trained before she could take over all of Marrero's duties.

However, Marrero testified that she could not remember whether she

had trained the employee who assumed her old post. She conceded,

-27-

moreover, that she never complained to Nieves or anyone else at

Goya regarding her continuing work in the Exports Department. Most

importantly, Marrero left work after spending no more than three

days in her new position. Given that short time span, she could

not show that the increase in work was anything other than an

unintended and temporary inconvenience caused by the transition.

Marrero also presented evidence regarding the less

tangible aspects of the transfer. She testified that, during the

three days she spent in the Human Resources Department, Maritza

Ramos "precluded [her] from performing some of the basic duties of

her position." Ramos told Marrero not to open Nieves's mail but to

pass it along to her, and not to handle any confidential phone

calls. Moreover, Nieves and Ramos subjected her to "extreme

supervision" -- watching her while she did her filing, and standing

behind her when she talked on the phone. Marrero felt that Nieves

and Ramos were "exerting pressure on [her]."

Finally, Marrero was forced to undergo a probationary

period in her new post, which she perceived as a loss of job

security. She did not feel that she was a real part of the

department; she believed her supervisors "hadn't taken [her] into

account." A departmental meeting was held while Marrero was there,

but she was not invited. She believed that the other members of

the department "had snubbed" her.

That evidence -- even when examined in the light most

favorable to Marrero -- "is insufficient to prove that, viewed

objectively, this transfer was an adverse personnel action." Serna

-28-

v. City of San Antonio, 244 F.3d 479, 484 (5th Cir. 2001) (emphasis

added). It is not enough that Marrero felt stigmatized and

punished by the transfer. A more "tangible change in duties or

working conditions" is needed before we can conclude that the

transfer was, in substance, a demotion. Phillips v. Collings, 256

F.3d 843, 848 (8th Cir. 2001). As the Eighth Circuit recently

explained, the sort of "intensified personal animus, hostility,

disrespect, and ostracism" that Marrero alleged here "fails to

constitute a material employment disadvantage" sufficient to

transform an ostensibly lateral transfer into an adverse employment

action. Jones, 285 F.3d at 714; see also Manning v. Metropolitan

Life Ins. Co., 127 F.3d 686, 693 (8th Cir. 1997) (holding that

evidence of "disrespect and ostracization by . . . supervisors" did

not establish an adverse employment action). Rather, in order to

prove that the transfer was materially adverse, Marrero had to show

that Goya "[took] something of consequence from [her], say,

by . . . reducing her salary, or divesting her of significant

responsibilities," or that it "withh[e]ld from [her] an

accouterment of the employment relationship, say, by failing to

follow a customary practice of considering her for promotion after

a particular period of service." Blackie, 75 F.3d at 725. Such

proof is wholly lacking here.5

5

We note that, on different facts, the imposition of a

probationary period could tip the scales in the employee's favor.

Job security is "something of consequence," Blackie, 75 F.3d at

725, the deprivation of which could constitute an adverse

employment action. Here, however, there was no evidence from which

the jury could have gauged the effect, if any, Marrero's

probationary status had on her job security. For example, Marrero

-29-

B. Toleration of Harassment

Marrero also alleges that Goya retaliated against her by

tolerating harassment by its employees. As we explained in the

previous section, "environmental" harm such as harassment by co-

workers or supervisors is actionable under Title VII if it is so

severe or pervasive that it alters the conditions of the

plaintiff's employment. Just as an employer will be liable for

discrimination if it tolerates a racially or sexually hostile work

environment, it will be liable for retaliation if it tolerates

severe or pervasive harassment motivated by the plaintiff's

protected conduct. See White, 221 F.3d at 262; Richardson v. N.Y.

State Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir.

1999).

Here, however, any suggestion that Marrero was subjected

to a retaliatory hostile work environment is belied by the

undisputed fact that she spent less than three days at Goya after

filing her complaint with the EEOC. See Conto v. Concord Hosp.,

Inc., 265 F.3d 79, 82 (1st Cir. 2001) (rejecting as a matter of law

a hostile work environment claim based on harassment occurring

during a four-day period on the ground, inter alia, that the

"greatly abbreviated" time period "substantially undermined

did not present any evidence that her one and a half years at Goya

gave her a particular kind or degree of security that dissolved

once she was placed on probation. Absent such evidence, the jury

could not reasonably have concluded that Goya took something of

consequence from Marrero, or withheld an accouterment of the

employment relationship from her, by forcing her to go through a

probationary period in her new position.

-30-

[plaintiff's] contention that the [harassing] conduct was either

sufficiently frequent or severe" (footnote omitted)). Her

retaliation claim is, by definition, based on the events that

occurred within that three-day period. Obviously, no one at Goya

could have harassed Marrero in retaliation for her protected

conduct until after she engaged in that conduct.

That said, the preceding year and a half of sexual

harassment undoubtedly colored Marrero's perception of the events

in her last three days at Goya, as it would for any reasonable

employee in her position. Thus, we do not view those three days in

a vacuum, but consider them in light of all that came before. To

that limited extent, Marrero's experiences before engaging in the

protected conduct are relevant to her retaliation claim.

Even when examined in that light, however, the evidence

of retaliatory harassment falls far short of the mark. Marrero

testified that, during the time she spent in the Human Resources

Department, Nieves and Ramos "pressured" and "snubbed" her.

Moreover, Cárdenas continued to bother her in her new position.

The jury reasonably could have found that some of that harassment

was motivated by Marrero's protected conduct. Cárdenas once said

to Marrero: "you thought that you were going to get me into hot

waters but you ended up being in hot waters." He also laughed at

her in a taunting fashion, indicating, "I got away with it."

A few incidents over the course of three days cannot

reasonably be deemed "pervasive" retaliatory harassment,

particularly when those incidents are of the same type and kind

-31-

that repeatedly occurred in the workplace before the plaintiff

engaged in the protected activity. Thus, it was incumbent on

Marrero to show that the retaliatory harassment was so severe that

it rendered her work environment objectively hostile and abusive

notwithstanding the extremely short time span. See Faragher, 524

U.S. at 788 (explaining that "isolated incidents" are not

sufficient to create actionable harassment "unless [they are]

extremely serious"). The conduct by Nieves and Ramos, while

certainly unpleasant, was not particularly severe. As such, it

does not support the imposition of liability under Title VII.

Cárdenas's comments present a slightly closer question.

Given that Marrero had endured a year and a half of harassment

while under his supervision, it would not be unreasonable for her

to find his taunting especially offensive. Moreover, Marrero

presented evidence from which the jury could have found that Nieves

was aware of Cárdenas's behavior. That fact surely contributed to

her feeling that the environment in the Human Resources Department

was hostile. But the question remains whether these acts were

severe enough, "without the added weight of repetition over time or

cumulation with other acts of [retaliatory] harassment, to stand

alone as the basis for a harassment claim." Hostetler v. Quality

Dining, Inc., 218 F.3d 798, 808 (7th Cir. 2000) (finding sufficient

severity based on two incidents of forcible sexual contact with

"overtones of . . . attempted sexual assault"). We conclude that

they were not. Title VII does not "guarantee[] a working

environment free from stress." Calhoun, 798 F.2d at 561 (internal

-32-

quotation marks omitted). Something more "egregious" than rudeness

and mockery is needed before we can permit a finding of a

retaliatory hostile work environment based on intermittent contact

over a three-day period.

In sum, we conclude that the district court erred in

denying Goya's motion for judgment as a matter of law on Marrero's

claim of retaliation. Even when viewed in the light most favorable

to the verdict, the evidence presented at trial was insufficient to

establish that Marrero was subjected to an adverse employment

action as a result of her protected conduct.

V. CONSTRUCTIVE DISCHARGE

Marrero left Goya on November 22, 1996, and -- after

several months of sick leave -- formally resigned in March of 1997.

She claims that she was forced to leave in order to escape the

intolerable working conditions at Goya. Thus, she sought "post

quit" damages in the form of back pay, on the ground that she was

constructively discharged. Barbara Lindeman & Paul Grossman,

Employment Discrimination Law ch. 21, at 838 (3d ed. 1996); see

Hernandez-Torres, 158 F.3d at 47 (explaining that a "discharge"

under Title VII "may be constructive as well as a direct firing").

Although the verdict form did not require the jury to state

explicitly its conclusion on Marrero's claim of constructive

discharge (as it did with respect to her hostile work environment

and retaliation claims), the jury apparently credited her version

of events, as it awarded her $11,250 in back pay.

-33-

Goya argues that Marrero's claim of constructive

discharge must stand or fall with her retaliation claim. It

maintains that if we find (as we have) that the evidence was

insufficient to support the jury's verdict on the issue of

retaliation, we must vacate the award of back pay as well.

However, the evidence presented at trial,6 the arguments by

counsel,7 and the district court's jury instructions8 all show that

Marrero claimed that two separate stressors forced her to retire:

severe and pervasive harassment by Cárdenas, and the retaliation by

Goya. Although we have concluded that Marrero failed to establish

that the events that occurred during the alleged period of

retaliation rose to the level of an adverse employment action, the

evidence drawn from that period remains relevant to her claim of

constructive discharge. Just as an act of harassment that is not

actionable in and of itself may form part of a hostile work

environment claim, see Morgan, 122 S. Ct. at 2073, Marrero's

experiences during her last week of work -- although insufficient

to establish liability on their own -- are properly part of her

6

For example, Marrero testified that she was forced to resign

"because of the retaliation and the hostile work environment."

7

Marrero's counsel stated in his closing argument that Marrero

"was forced to resign her employment because the sexual harassment

created intolerable working conditions" and that "she was

constructively discharged because she complained of the sexual

harassment to the Equal Employment Opportunity Commission."

8

The judge told the jurors that Marrero claimed "that she was

forced to resign because of defendant's discriminatory and

retaliatory conduct" and instructed them that they could award back

pay if they found that "she was exposed to sexual harassment and/or

retaliation."

-34-

constructive discharge claim. Therefore, we must examine that

claim in light of all the evidence presented at trial.

In order to establish that Goya should be held

responsible for the economic losses she suffered as a result of

quitting, Marrero had to show that her working conditions were "so

difficult or unpleasant that a reasonable person in [her] shoes

would have felt compelled to resign." Alicea Rosado v. Garcia

Santiago, 562 F.2d 114, 119 (1st Cir. 1977). The standard is an

objective one; it "cannot be triggered solely by the employee's

subjective beliefs, no matter how sincerely held." Suarez v.

Pueblo Int'l, Inc., 229 F.3d 49, 54 (1st Cir. 2000); see also

Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 561 (1st Cir. 1986)

("[T]he law does not permit an employee's subjective perceptions to

govern a claim of constructive discharge." (internal quotation

marks omitted)).

We conclude that the jury reasonably could have found

that Marrero's working conditions were objectively intolerable,

compelling her resignation. Marrero was subjected to constant

harassment by Cárdenas during the year and a half she spent at

Goya. To be sure, the fact that the plaintiff endured a hostile

work environment -- without more -- will not always support a

finding of constructive discharge. See Landgraf v. USI Film

Prods., 968 F.2d 427, 430 (5th Cir. 1992) ("To prove constructive

discharge, the plaintiff must demonstrate a greater severity or

pervasiveness of harassment than the minimum required to prove a

hostile working environment."). Rather, the jury must find that

-35-

the working conditions were so unpleasant that "staying on the job

while seeking redress [would have been] intolerable." Keeler v.

Putnam Fid. Trust Co., 238 F.3d 5, 10 (1st Cir. 2001). In

addressing that question, however, the jury reasonably can take

into account how the employer responded to the plaintiff's

complaints, if any. An employee's assessment of whether she can

remain at work while pursuing remedies for the harassment she has

endured obviously will be affected by the likelihood that the

harassment will continue unabated.

Here, Marrero repeatedly complained about the harassment

to her supervisors Rivera and Diaz, and to Nieves in the Human

Resources Department. Nothing was done until she filed a charge of

sexual harassment with the EEOC. Even then, Goya took no action

against Cárdenas. Instead, it transferred Marrero to a new post as

Nieves's secretary.

Although Marrero was no longer under Cárdenas's

supervision, she was still stationed near his office. Goya knew

that Cárdenas would continue to interact with Marrero in her new

position because Cárdenas's duties required him to go to her work

area, and Marrero's desk was near the office of Cárdenas's

supervisor. Yet Goya refused Marrero's request that she be moved

to another building, away from Cárdenas. Not surprisingly,

therefore, Cárdenas continued to harass her even after the

transfer.

Based on that evidence, the jury reasonably could have

found that "a reasonable person in [Marrero's] shoes would have

-36-

felt compelled to resign." Alicea-Rosado, 562 F.2d at 119. Given

the inadequacy of the transfer after a long history of hostility

and frequent complaints, Marrero reasonably believed that her

working conditions at Goya would not change and that she could only

anticipate more of the same intolerable harassment. If she wanted

to avoid further harm, she would have to leave work entirely. See

Cortes v. Maxus Exploration Co., 977 F.2d 195, 200-01 (5th Cir.

1992) (affirming finding of constructive discharge where employer

refused to take adequate corrective measures to protect employee

from future harassment).

Indeed, the jury could have found that the transfer

actually made things worse for Marrero. Not only did Cárdenas

continue to harass her sexually, but he also taunted her for her

(apparently unsuccessful) attempts to remedy the situation by

complaining to Goya officials. Nieves -- the official to whom

Marrero had brought her complaint -- was aware of Cárdenas's

behavior, but did nothing to stop it. Adding insult to injury,

Nieves made Marrero feel as if she were the problem employee. He

"pressured" her and subjected her to "extreme supervision,"

including listening to her phone calls.

As we explained in the previous section, absent some more

substantial and tangible changes in Marrero's duties or work

conditions, such personal unpleasantness is insufficient to

establish that the transfer was a materially adverse act of

retaliation. And, given the fact that Marrero remained in her new

position for less than three days, the harassment by Cárdenas and

-37-

the pressure from Nieves and Ramos were neither severe nor

pervasive enough to establish a retaliatory hostile work

environment. However, when combined with the harassment Marrero

endured during the previous year and a half, the events during

those final days provide further support for the jury's finding of

constructive discharge.

Unlike Marrero's retaliation claim -- which by definition

is confined to the three-day period she spent at work after filing

her charge of sexual harassment -- her claim of constructive

discharge is based on the totality of her experience at Goya.

Accordingly, in assessing that claim, the jurors were entitled to

draw on all the evidence of harassment, and Goya's response. In

order to override the verdict, we must conclude that all of that

evidence, together with all reasonable inferences in favor of the

verdict, is insufficient to support the jury's finding that a

reasonable employee in Marrero's position would have felt compelled

to quit. We see no basis for such a conclusion here. The jury

reasonably could have found that Marrero's working conditions,

hostile and abusive before the transfer, became even worse after

the transfer, and that a reasonable employee would have believed

that she had no choice but to resign.

VI. PUNITIVE DAMAGES

Goya argues, finally, that Marrero was not entitled to

punitive damages. It points out that, in cases involving

misconduct by a supervisor, the employer will not be liable for

punitive damages if it made a "good-faith effort to comply with the

-38-

requirements of Title VII." Romano v. U-Haul, Int'l, 233 F.3d 655,

669 (1st Cir. 2000). Based on the evidence presented at trial,

however, the jury reasonably could have found that Goya made no

such effort, but rather acted with "reckless disregard" for

Marrero's rights. Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 536

(1999). Marrero complained about Cárdenas's behavior to her

supervisors in the Exports Department -- first Rivera, and then

Diaz. Neither did anything. Indeed, on one occasion Rivera

cautioned Marrero that she should keep in mind that Cárdenas was a

vice president and had worked at Goya for many years, whereas she

was a relative newcomer. Marrero also complained to Nieves, who

simply advised her to "ignore" Cárdenas. It was not until Marrero

filed a sexual harassment charge with the EEOC that Goya took

action.

Moreover, as we explained with respect to Goya's

affirmative defense, the jury was justified in finding that Goya

did not have a sexual harassment policy in effect during the

relevant events. Even if such a policy existed, Goya did not

present any evidence that it had implemented it, either through

educating its employees or enforcing its mandate. See Romano, 233

F.3d at 670 (holding that the defendant employer is responsible for

proving that it made good faith efforts to comply with the

requirements of Title VII, and that the mere existence of an

antidiscrimination policy was insufficient absent proof that the

employer actually implemented the policy). Thus, we see no merit

-39-

to Goya's claim that the punitive damages award should be set

aside.

VII. CONCLUSION

We affirm the judgment of the district court with respect

to Marrero's hostile work environment and constructive discharge

claims, her entitlement to punitive damages, and Goya's attempt to

establish the Faragher/Ellerth affirmative defense. We reverse the

district court's judgment with respect to Marrero's claim of

retaliation, concluding that Goya was entitled to judgment as a

matter of law on that claim.

That leaves the matter of damages. As noted, the jury

awarded Marrero $175,000 in compensatory damages, $11,250 in back

pay, and $75,000 in punitive damages. We have no way of knowing

what portion, if any, of the compensatory and punitive damages

awards was based on the jury's erroneous finding of retaliation.

Accordingly, we have no choice but to remand for a new trial as to

damages for the hostile work environment and the constructive

discharge.

Finally, based on its finding that Marrero was the

"prevailing party" in this action, the district court awarded her

attorney's fees and the costs of litigation. See 42 U.S.C.

§ 2000e-5(k). On remand, the court should consider whether an

adjustment in that award is appropriate in light of our holding

with respect to Marrero's claim of retaliation. See Andrade v.

Jamestown Hous. Auth., 82 F.3d 1179, 1191 (1st Cir. 1996)

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(explaining that "a court should award only that amount of fees

that is reasonable in relation to the results obtained").

Affirmed in part, reversed in part, and remanded. No

costs are awarded.

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