          United States Court of Appeals
                        For the First Circuit


No. 17-1169

                          MICHELLE DIMANCHE,

                         Plaintiff, Appellee,

                                  v.

              MASSACHUSETTS BAY TRANSPORTATION AUTHORITY,
                         Defendant, Appellant,

      WILLIAM MCCLELLAN; STEPHANIE BRADE; SHERYL REGISTER;
            MAXINE BELL; FRED OLSON; CHERYL ANDERSON,

                              Defendants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

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


                                Before

                      Lynch, Kayatta, and Barron,
                            Circuit Judges.


     Kevin P. Martin, with whom John C. Englander, Joshua Bone,
Brian T. Burgess, and Goodwin Procter LLP, were on brief, for
appellant.
     Christopher J. Trombetta, with whom Law Office of Christopher
J. Trombetta was on brief, for appellee.



                             June 18, 2018
            LYNCH,   Circuit   Judge.    The   Massachusetts   Bay

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

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

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

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

supervisors at the MBTA conspired to terminate her employment

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

compensatory damages on her discrimination claim and $1.3 million

in punitive damages.

            The MBTA makes three levels of argument on appeal.

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

insufficient to support either the compensatory or the punitive

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

the MBTA argues that the trial judge committed two types of

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

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

environment theory not explicitly pled in the complaint to go to

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

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

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

to dismiss this action.




                                - 2 -
          Like the proverb that a battle can be lost for want of

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

appropriate objections and offers of proof before the trial court.

The evidence was more than sufficient to support the compensatory

damages award for wrongful termination and to justify the punitive

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

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

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

prejudiced either by the default sanction order or by the hostile

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

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

                                      I.

                                 Background

          The plaintiff, Michelle Dimanche, is a black woman of

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




     1    The provenance of this proverb is the following rhyme:
          For   the   want of   a nail the shoe was lost,
          For   the   want of   a shoe the horse was lost,
          For   the   want of   a horse the rider was lost,
          For   the   want of   a rider the battle was lost,
          For   the   want of   a battle the kingdom was lost,
          And   all   for the   want of a horseshoe nail.
Oxford Dictionary of Nursery Rhymes 324 (Ioana & Peter Opie eds.,
1951). The first three lines were published by Benjamin Franklin
in the 1757 edition of Poor Richard's Almanac. He prefaced the
rhyme by saying, "A little neglect may breed great mischief."
Benjamin Franklin, Poor Richard's Almanac 3, 17 (H.M. Caldwell Co.
1900) (1757).



                                    - 3 -
Line from 2000 until 2013.          In 2015, she filed suit in federal

district court, alleging, among other things, wrongful termination

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

appeal.2

            Dimanche   had   an    unhappy   tenure   at   the   MBTA.   She

testified that, throughout her employment, she was repeatedly

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

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

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

terminated on March 20, 2013.

A.   Dimanche's Suspension and Termination

            The event triggering Dimanche's discharge occurred on

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

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

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

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

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

office into the lobby area.




     2    Because the MBTA raises a sufficiency of the evidence
challenge, we recount the events "in the light most favorable" to
Dimanche as to that claim -- drawing all factual inferences and
resolving all credibility determinations in her favor.        See
McMillan v. Mass. Soc'y for the Prevention of Cruelty to Animals,
140 F.3d 288, 299 (1st Cir. 1998) (quoting Morrison v. Carleton
Woolen Mills, Inc., 108 F.3d 429, 436 (1st Cir. 1997)).


                                     - 4 -
             Several MBTA employees witnessed the event.                           It is

undisputed     that    Pierre-Millien        reported      the     incident        to    a

supervisor    and     also   called    the     transit    police.        It   is    also

undisputed that both women were suspended during the pendency of

the investigation into the altercation.

             The    nighttime      supervisor,     Rico    Gomes,    initiated          an

investigation that same evening, and alerted the Director of Light

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

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

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

Dimanche had already received four disciplinary warnings3 and a

five-day suspension imposed by Tamieka Thibodeaux, the Division

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

infraction    could     lead    to    termination.         Based    on    Dimanche's

disciplinary       history   and     Gomes's    report,    Timmons       recommended

discharging Dimanche.          McClellan concurred in the decision before

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




     3    These included warnings for: (1) engaging in an overtime
dispute with a desk inspector, (2) engaging in a verbal
confrontation with a train inspector who reprimanded Dimanche for
bringing a cup of coffee onto the train, (3) failing to accommodate
train passengers, and (4) refusing to divert a streetcar as
requested by the Chief Inspector. As to the second infraction,
Dimanche said that MBTA staff commonly brought beverages onto the
train and were not disciplined for doing so. She also denied fault
as to the other incidents.


                                       - 5 -
MBTA's then-General Manager, Beverly Scott, decided to suspend

Dimanche for thirty days and then to terminate her employment.

            Dimanche alleges and maintains on appeal that all five

disciplinary events leading up to her dismissal were fabricated or

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

discharge her because of her race.

B.   MBTA Default

            On January 8, 2015, Dimanche filed suit in federal

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

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

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

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

Dimanche to racial discrimination as a means to humiliate and

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

supervisors as the perpetrators of the alleged racial harassment.4

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

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

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

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

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




     4    The complaint listed these individuals -- William
McClellan, Stephanie Brade, Sheryl Register, Maxine Bell, Fred
Olson, and Cheryl Anderson -- as co-defendants with the MBTA.
However, the trial only concerned the MBTA's liability.



                               - 6 -
meritorious defense.    The district court denied the motion without

prejudice.    The entirety of that order read:

             Motion denied without prejudice to it being
             refiled within 30 days from the date of this
             order supported by detailed evidentiary
             affidavits   setting  forth   the  so-called
             "meritorious" defense.    The MBTA will be
             limited to the information set forth therein
             at trial.

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

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

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

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

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

             Motion allowed.    The MBTA must understand,
             however, that its entire affirmative case is
             set forth in the data submitted in support of
             this motion.

(emphasis in original).

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

nearly five months after the district court had issued its order

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

the sanction.    Specifically, she asked the district court whether

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

were not attached to the affidavits, should be deemed inadmissible


     5    These included, inter alia, affidavits from individuals
who were involved in disciplining Dimanche and from witnesses to
the altercation. The MBTA also attached interview and discipline
slips that demonstrated Dimanche had already been placed on "final
warning" when her altercation with Pierre-Millien took place.


                                 - 7 -
at trial.      The MBTA opposed this motion, arguing that it should

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

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

district court denied Dimanche's motion for clarification in a

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

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

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

[sic] admissible . . . ."

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

the MBTA filed its own motion for clarification of the February

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

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

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

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

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

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

seek reconsideration.     It chose to proceed to trial.

C.    Trial Proceedings and Evidence

             The trial lasted four days, beginning on October 17,

2016.6    Dimanche took the stand and also presented three other


      6   Before trial, the MBTA filed a motion in limine to
exclude evidence of the harassment Dimanche endured before June
2011 because those allegations formed the basis for (1) a workers'
compensation claim she had filed before the Department of
Industrial Accidents and (2) a prior action she had filed in state



                                    - 8 -
witnesses:   two   former   co-workers,   Virginia   Davis   and   Perry

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

MBTA7 presented nine witnesses, including three eyewitnesses to

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

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

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

in disciplining and terminating Dimanche: Tamieka Thibodeaux,

William McClellan, and Edward Timmons.




court (which was dismissed with prejudice). At trial, the district
court judge agreed to exclude the workers' compensation decision
awarding Dimanche temporary incapacity benefits for her emotional
distress, stating, "We're not going to introduce the findings of
the hearing officer." However, the judge never ruled on whether
Dimanche could offer evidence as to the underlying instances of
harassment. Throughout the trial, the judge allowed Dimanche to
testify as to the racial harassment she experienced pre-June 2011,
and the MBTA did not object.
           On appeal, the MBTA argues that all of the pre-June 2011
evidence should have been excluded because it is barred by claim
preclusion and by Rule 403 of the Federal Rules of Evidence. We
decline to reach either issue because the MBTA failed to object at
the time of trial. Pretrial motions in limine in situations like
this need to be renewed and pressed at trial in order to be
preserved.    See Fed. R. Evid. 103 advisory committee's note to
2000 amendment (emphasizing "the obligation on counsel to clarify
whether an in limine or other evidentiary ruling is definitive
when there is doubt on that point"); Crowe v. Bolduc, 334 F.3d
124, 133 (1st Cir. 2003) ("Our rule as to motions in limine is
that a party must renew at trial its motion to . . . exclude
evidence if there has been an earlier provisional ruling by motion
in limine and a clear invitation to offer evidence at trial.").
     7    The MBTA was represented by its own in-house counsel at
trial; it has different counsel on appeal.


                                 - 9 -
             Dimanche and her witnesses testified that throughout

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

unrelenting racial harassment by MBTA staff.              For instance:

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

      let her use the restroom during her shift, commenting that

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

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

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

      interpreted as a threat.

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

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

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

      statements were heard by many people.              Napoli also blocked

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

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

      Dimanche testified that she felt so unsafe that she ended up

      filing a police report against Napoli based on this and on

      five other instances of harassment by him.

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

      Green Line officials often mimicked Dimanche's Haitian accent

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

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

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

      that . . . B-I-T-C-H."


                                    - 10 -
     Perry     Spencer,    another   former    co-worker,      corroborated

      Dimanche's     testimony.       He    stated     that   Napoli   mocked

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

      her country."

              Dimanche testified that she reported these instances to

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

Dimanche developed post-traumatic stress disorder as a result of

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

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

harassment persisted.       Specifically:

     Dimanche testified that Napoli and Foster continued their

      behavior.    Foster even wrote Dimanche up for an absence that

      he had previously excused.           Dimanche also testified that

      another Green Line supervisor, Fred Olson, refused to process

      her complaints.      Olson told her that McClellan instructed him

      not to speak to Dimanche without a witness present and

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

      out."


      8   Pre-trial filings contained the following information.
In April 2010, Dimanche filed a workers' compensation claim for
the emotional distress she suffered as a result of Napoli's
harassment.    The administrative law judge awarded Dimanche
temporary incapacity benefits. She appealed for double damages.
While the appeal was pending, the MBTA settled the case. Dimanche
also filed a racial discrimination suit in state court based on
the same allegations. That suit was dismissed with prejudice in
June 2011 after Dimanche's counsel filed a motion to withdraw the
matter.


                                  - 11 -
     Davis and Spencer corroborated Dimanche's testimony that the

      MBTA's management was targeting her for termination.                        Davis

      testified that she overheard McClellan tell another MBTA

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

      Dimanche.      Another inspector, Steve Nardona, also told Davis

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

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

      he was told the same in 2011 or 2012.

             As to the altercation on January 25, 2013, Dimanche

testified that Pierre-Millien was the aggressor, and complained

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

Further,   Dimanche        testified    that     each     of    her    previous    four

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

concerted effort to terminate her employment.

             In    turn,   the   MBTA     offered       testimony      regarding    its

disciplinary        policy,   the      details     of     the    altercation,       its

investigation, and its decision to terminate Dimanche.                     McClellan

and   Foster,       whom   Dimanche     accused     of     discrimination,         both

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

to address Dimanche's specific allegations of racial harassment.

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

testified, if asked.

             During the charge conference, the trial judge raised,

for the first time, the notion that he would instruct the jury on


                                       - 12 -
a hostile work environment theory.              The MBTA objected on the

grounds that a hostile work environment could not serve as a stand-

alone basis for the MBTA's liability.           The trial judge initially

agreed.      However, he apparently changed his mind because he

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

wrongful termination or hostile work environment grounds; the only

difference    was   the   amount   of   damages    to   which   Dimanche   was

entitled.

             The jury returned a general verdict for Dimanche on

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

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

its prior objection to the charge as to hostile work environment

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

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

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

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

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

                                    * * *

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

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

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

raises three bases for reversal/dismissal: there was insufficient

evidence to support the jury verdict; the district judge committed

reversible     error;     and   the     court     lacked   subject    matter


                                   - 13 -
jurisdiction.     We reject all three bases and affirm the entry of

judgment.

                                 II.

         The MBTA's Sufficiency of the Evidence Challenge

            The MBTA first argues that we must vacate the judgment

because there is insufficient evidence to support the jury's

compensatory and punitive damages awards.    The MBTA seeks judgment

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

            We assume the federal standard applies to the MBTA's

sufficiency challenge, absent any suggestion from the parties that

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

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

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

must affirm unless the evidence was so strongly and overwhelmingly

inconsistent with the verdicts that no reasonable jury could have

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

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

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

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

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

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


     9    We acknowledge the difference between the standards
governing a motion for judgment as a matter of law and a motion
for a new trial. See Jennings v. Jones, 587 F.3d 430, 438-39 (1st



                                - 14 -
A.   Liability for Wrongful Termination

            Although the trial judge charged the jury with two

theories of discrimination, and the jury rendered a general verdict

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

exactly matches the stipulated damages for Dimanche's wrongful

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

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

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

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

emotional harm.         We thus consider whether there was sufficient

evidence    for   the    jury   to    reasonably    conclude    that   the   MBTA

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

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

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

warranted if evidence is insufficient with respect to any one of

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

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

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

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

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




Cir. 2009). We nevertheless apply the standard set forth above
because, in reviewing the denial of a motion for a new trial, to
the extent it is predicated on a challenge to the sufficiency of
the evidence, the inquiries merge.


                                      - 15 -
Gen. Laws ch. 151B, § 4.           See Prescott v. Higgins, 538 F.3d 32, 40

(1st Cir. 2008).

               Here, assuming the jury credited Dimanche's testimony

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

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

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

the     investigation        of     the     January      25th    altercation,   had

demonstrated racial animus towards her.                  McClellan was reported to

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

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

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

retaliate      against      her    for    making   complaints.        Coupled   with

Dimanche's testimony that each of her four previous disciplinary

infractions was fabricated, a reasonable jury could have concluded

that the MBTA improperly terminated her employment because of her

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

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

"corporate liability can attach if neutral decisionmakers, when

deciding to terminate an employee, rely on information that is

inaccurate,       misleading,        or     incomplete      because     of   another

employee's discriminatory animus").

               We are reasonably sure, for the reasons stated earlier,

that    the    jury   did    not   rely     on   the   hostile   work   environment

assertion to enter the compensatory damages award.                      However, to


                                          - 16 -
cover all bases, we conclude that the evidence was more than

adequate to support damages on the hostile work environment theory

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

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

work environment . . . ."

B.   Punitive Damages Award

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

verdict as to punitive damages, with no specifications as to

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

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

damages governs here, absent any indication by the parties that

applying the federal standard would make any difference.       "We

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

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

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

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

2016).   The Supreme Judicial Court of Massachusetts has fashioned

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

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

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

(Mass. 2009).    These include:

           (1) whether there was a conscious or
           purposeful effort to demean or diminish the
           class of which the plaintiff is a part (or the
           plaintiff because he or she is a member of the
           class);


                                  - 17 -
           (2) whether the defendant was aware that the
           discriminatory conduct would likely cause
           serious harm, or recklessly disregarded the
           likelihood that serious harm would arise;
           (3) the actual harm to the plaintiff;
           (4) the defendant's conduct after learning
           that the initial conduct would likely cause
           harm; [and]
           (5) the duration of the wrongful conduct and
           any concealment of that conduct by defendant.

Id.

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

if believed, establishes numerous instances of notice to the MBTA

of    racially-based   and   racially-demeaning    comments   made   to

Dimanche, a failure to investigate her complaints to management,

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

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

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

damages award, especially because the ratio of punitive damages to

compensatory damages was less than 1:1.




      10  The MBTA also makes a convoluted argument that the
evidence is insufficient to support the jury verdict because much
of Dr. Dubin's testimony should have been excluded. Specifically,
the MBTA takes issue with Dr. Dubin's statements as to "alleged
incidents of harassment that Plaintiff herself never identified,"
and his "vouch[ing] for Plaintiff's credibility." We decline to
rule on the admissibility of Dr. Dubin's testimony as the argument
was not squarely raised in the MBTA's appellate briefing.      See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).


                                - 18 -
                                        III.

                The District Court's Alleged Trial Errors

              The MBTA next urges this court to vacate the jury verdict

because it says that the trial judge committed two fundamental

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

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

charge on the last day of trial.

              Ordinarily our review is for abuse of discretion, but

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

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

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

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

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

hostile   work     environment      charge     was        unfairly     prejudicial.

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

              The plain error standard has four prongs: "(1) an error

was committed; (2) the error was 'plain' (i.e. obvious and clear

under current law); (3) the error was prejudicial (i.e. affected

substantial     rights);    and   (4)    review      is    needed    to    prevent   a

miscarriage of justice."          Smith v. Kmart Corp., 177 F.3d 19, 26

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

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

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

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


                                    - 19 -
demonstrate prejudice.    We also find that the MBTA failed to meet

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

of the hostile work environment claim.

A.   Default Sanction Order

            This circuit has never addressed whether district courts

can impose evidentiary sanctions on a defaulting party as a

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

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

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

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

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

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

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

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

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

However, it was entirely unreasonable for the district court to

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

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

sanction.

            We recognize that some of our sister circuits have held

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

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

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

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


                               - 20 -
case law across four circuits).    But in those cases, the plaintiff

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

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

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

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

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

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

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

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

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

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

penalties in no way limited the defendants' ability to fully

litigate the case and to defend themselves at trial.

          The trial court here failed to provide any factual or

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

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

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

sanction on its face was calibrated not to ameliorate any prejudice

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

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

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

justifying the order.    This is unsurprising.       The only precedent

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

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


                                - 21 -
(rejecting non-defaulting party's proposal to impose an identical

sanction).

             Further, the punitive aspect of the order was plainly

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

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

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

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

Smith, 177 F.3d at 26.

             Because plain error review requires more than just an

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

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

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

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

absent the sanction.        The prejudice prong of the plain error

standard    requires   "a   stringent    demonstration   of   causation,"

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

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

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

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

             The MBTA cannot make such a showing.        The transcript

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

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

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

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


                                 - 22 -
limit testimony, the MBTA failed to protest or provide an offer of

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

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

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

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

would have presented a targeted defense to Dimanche's allegations

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

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

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

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

The MBTA could have easily sought to question McClellan and Foster

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

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

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

the bounds of the sanction when soliciting witness testimony on

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

           And while the lack of an effective objection at trial

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

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

where it was prevented from introducing evidence that would have




                              - 23 -
affected the outcome of the trial.11       Accordingly, we find no

reversible error.

B.   Hostile Work Environment Charge

             The MBTA, ignoring in its appellate briefing the issue

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

that it was unfairly prejudiced "when the District Court allowed

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

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

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

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

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

objection.

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

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

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

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




     11   The MBTA did reference several instances of when the
trial judge enforced the sanction. However, none of the excluded
testimony countered McClellan's or Foster's alleged harassment.
The best example the MBTA can point to is that McClellan was
prevented from answering whether he "consider[ed] the plaintiff's
past history of making any complaints against [him] or against
anyone else when [he] made the decision to concur [in her
dismissal]." But even if the MBTA had made an offer of proof of
McClellan's answer, it is highly unlikely that this would have
affected the outcome of the trial in light of the record as a
whole.


                                - 24 -
and find that the MBTA has not satisfied either the third or fourth

prongs of the plain error standard.

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

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

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

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

alleged harassment from before June 2011.      But the MBTA already

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

evidence the MBTA says it could have introduced regarding "the

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

would have "gathered evidence and presented witnesses to rebut

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

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

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

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

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

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

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

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

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

has not shown prejudice.

          Our earlier discussion also requires a finding of no

miscarriage of justice.




                              - 25 -
                                  IV.

                           The Buntin Issue

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

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

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

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

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

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

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

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

§ 1981 against state actors, including defendants sued in their

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

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

reply brief.

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

argument.

 (1) The    only   basis   for   federal   jurisdiction   asserted   in

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

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

   brought against a state agency was an open question in this

   circuit long before and during the trial;

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

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

   extend to private rights of action against state actors;


                                 - 26 -
 (4) The argument was readily available to counsel for the MBTA,

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

   that there was no jurisdiction;

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

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

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

   is a state agency for the purposes of § 1981;

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

   lacked subject matter jurisdiction to hear the case; and

 (7) Dimanche has also raised pendent state law discrimination

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

   in her favor was a general verdict.

          The MBTA argues that Buntin requires us to vacate the

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

jurisdiction.   Specifically, the MBTA says that Buntin held the

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

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

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

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

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

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

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

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




                                 - 27 -
dismiss the case even where pendent state claims are also asserted;

it does not require dismissal.

             The MBTA does not attempt to excuse its failure to even

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

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

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

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

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

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

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

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

defendants could not have raised the issue before appeal.

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

a cause of action against state actors for damages was easily

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

even before the date the complaint was filed through its initial

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

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

mistakes.      To hold otherwise would cause severe prejudice to

plaintiff.

                                  V.

                              Conclusion

             We affirm the entry of judgment against the MBTA.




                                - 28 -
