          United States Court of Appeals
                      For the First Circuit


No. 10-1655

                      JULISSA APONTE-RIVERA,

                       Plaintiff, Appellee,

                                v.

                    DHL SOLUTIONS (USA), INC.,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Harry D. Leinenweber, U.S. District Judge]


                              Before

           Lipez, Siler,* and Howard, Circuit Judges.


     Lourdes C. Hernández-Venegas, with whom Mariela Rexach-Rexach,
Shiara L. Diloné-Fernández, and Schuster Aguiló LLP were on brief,
for appellant.
     Rubén T. Nigaglioni-Mignucci, Sr., with whom Nigalioni &
Ferraiuoli was on brief, for appellee.



                           May 25, 2011


*Of the Sixth Circuit, sitting by designation.
      SILER, Circuit Judge.       Julissa Aponte-Rivera ("Aponte") sued

her   former   employer,   DHL    Solutions,    Inc.    ("DHL"),   claiming

gender-based     discrimination    and    hostile    work   environment   in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e et seq., and Puerto Rico law.       The jury returned a verdict

in favor of Aponte and awarded her emotional distress damages. The

district court upheld the jury's verdict, but remitted the damages

award.    On appeal, DHL disputes the sufficiency of the evidence

supporting the jury's verdict, the amount of the remitted damages

award, and evidentiary rulings.           For the following reasons, we

affirm.

                                     I.

A.    Facts

      Aponte began working at DHL in 2000.          By 2003, she worked as

a logistics operations manager, a role in which she supervised

employees, oversaw shipments and documentation, and interacted with

DHL's clients.

      In 2004, Enrique Frias was named regional manager and became

Aponte's supervisor.    In the months following his appointment, two

major clients of DHL's Puerto Rico operation complained about DHL's

performance. Frias and other management investigated the causes of

the customer problems and implemented plans to remedy them.

      In June 2004, Aponte filed a written complaint with DHL's

human resources department.        She complained that her supervisor


                                    -2-
created an "uncomfortable" work environment by giving her an

overwhelming workload and making several comments with sexual

connotations.      Blanca Hernandez, a DHL human resources manager,

interviewed    Aponte      and   Frias    in   response    to   the    complaint.

Hernandez told Frias, "don't get personal" and "focus in [sic] the

operation and in work."           Shortly after filing this complaint,

Aponte took a leave of absence that lasted approximately one month.

       A position for program manager became available in November

2004, and Aponte applied for the position.           Aponte testified that,

during her interview with Frias, he was aggressive and would not

allow her to fully answer questions. Rafael Camacho was eventually

chosen for the position.

       Aponte testified that Camacho, after he began working at DHL,

referred to a woman in an authority position as "jefecita" ("little

boss"), and stated that women were good for household chores.                   She

also   testified    that    Camacho      generally   referred     to    women    as

"brutas,"     or   "dumbies."         Aponte    worked     with   Camacho       for

approximately one month before leaving work for eleven months on a

second leave of absence.

       Aponte returned to DHL in November 2005 and was assigned to

report to Camacho. Frias and Camacho confronted Aponte, asking her

why she returned instead of resigning.            They also said the person

who ran the operation "had to have balls."                Aponte also reported

that Frias told her the logistics operation in Puerto Rico had its


                                         -3-
best year in 2005 because it was being run by a man.                          Joyce

Mercado, a co-employee, testified that she overheard this exchange

and it was "shameful," and the two men spoke to Aponte in very loud

tones.   She said that Frias and Camacho generally spoke to male

employees "appropriately," and would "treat them okay," which was

different from how they treated female employees.

     Over the next few months, Camacho gave Aponte a verbal warning

and a written warning regarding her performance at work.                   In March

2006, Aponte again complained to human resources, stating she felt

"discriminated       based   on    gender,    overwhelmed,       distressed    and

pressured    labor    wise."       Maude    Cesari,    a   DHL   human   resources

employee, went to the office later that month to resolve the

complaint.    Shortly after their meeting, Aponte thanked Cesari and

said she had noticed a positive change.

     However, Aponte took another leave of absence a month later,

and ultimately resigned from DHL on June 17.                     Her resignation

letter stated that her resignation was involuntary but necessary

due to the gender discrimination she suffered at work that left her

"in an emotional deterioration."

B.   Procedural History

     Aponte    brought       a    hostile    work     environment    and    gender

discrimination claim against DHL, pursuant to Title VII of the

Civil Rights Act of 1964 and various laws of the Commonwealth of

Puerto Rico.    During trial, DHL moved for judgment as a matter of


                                       -4-
law,       which   was   granted   for    some   claims   but    denied   for   the

gender-based hostile work environment claim.                    After a four-day

trial, the jury rendered a verdict in favor of Aponte and awarded

her $350,000 in emotional distress damages.1

       DHL renewed its motion for judgment as a matter of law and

asked the district court to set aside the verdict.                        It also

requested, in the alternative, that a new trial or remittitur be

granted.       The district court found there was sufficient evidence

for a reasonable jury to find in Aponte's favor, and a new trial

was not warranted. However, the court determined that "[w]hile the

evidence produced at trial regarding Defendant's liability for a

hostile      work   environment     was     sufficient,   similar   evidence    is

lacking to support the damages awarded."                  After reviewing the

evidence      and   comparing      awards    from   similar   cases,   the   court

remitted the award from $350,000 to $200,000.2

       On appeal, DHL maintains that the evidence was insufficient to

support Aponte's hostile work environment claim, and alternatively,

that the award should be further remitted.                DHL also argues that




       1
        Pursuant to Puerto Rico law, the district court applied
mandatory doubling of damages provisions to the Commonwealth
claims, and awarded $1.00 to the Title VII claim, resulting in a
total award of $699,999.
       2
       After applying the doubling required by Puerto Rico law, as
well as attorneys' fees awarded separately, the remitted award
amounts to $449,998.75.

                                          -5-
the district court made evidentiary errors that require a new

trial.

                                             II.

A.   Sufficiency of the Evidence

     i.      Standard of Review

     When reviewing the sufficiency of the evidence, a jury's

verdict "must be upheld unless the facts and inferences, viewed in

the light most favorable to the verdict, point so strongly and

overwhelmingly in favor of the movant that a reasonable jury could

not have returned the verdict."                Astro-Med, Inc. v. Nihon Kohden

Am., Inc., 591 F.3d 1, 13 (1st Cir. 2009) (internal quotation

marks omitted).         Our analysis "is weighted toward preservation of

the jury verdict." Rodriguez-Torres v. Caribbean Forms Mfr., Inc.,

399 F.3d 52, 57 (1st Cir. 2005).

     ii.     Analysis

     Title     VII      of     the   Civil    Rights   Act   of   1964    prohibits

discrimination on the basis of sex with respect to the terms,

conditions,        or        privileges      of    employment.           42    U.S.C.

§ 2000e-2(a)(1).         The plaintiff must establish that (1) she is a

member of a protected class; (2) she was subjected to unwelcome

harassment; (3) the harassment was based upon gender; (4) the

harassment was sufficiently severe or pervasive that it altered the

conditions    of     her      employment     and   created   an   abusive     working

environment; (5) the offending conduct was both objectively and


                                             -6-
subjectively offensive; and (6) some basis for employer liability

has been established.   Douglas v. J.C. Penney Co., Inc., 474 F.3d

10, 15 (1st Cir. 2007).

     "When   the   workplace   is     permeated   with   discriminatory

intimidation, ridicule, and insult that is sufficiently severe or

pervasive to alter the conditions of the victim's employment and

create an abusive working environment, Title VII is violated."

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).               This

standard "takes a middle path between making actionable any conduct

that is merely offensive and requiring the conduct to cause a

tangible psychological injury."       Id.   The conduct must create an

objectively hostile work environment, as well as the plaintiff's

subjective perception that the environment is abusive.          Id. at

21-22.

     This is not a "mathematically precise test," and whether an

environment is "hostile" or "abusive" is determined by looking at

all the circumstances. Id. at 22-23. Relevant factors may include

the frequency of the discriminatory conduct, its severity, whether

it is physically threatening or humiliating as opposed to a mere

offensive utterance, and whether it unreasonably interferes with an

employee's work performance.   Id. at 23.     While psychological harm

may be taken into account, no single factor is required.       Id.

     DHL argues that the evidence was insufficient to establish

that any harassment Aponte experienced was severe and pervasive.


                                    -7-
DHL further contends that Aponte fails to show she was treated

differently because of her gender, and maintains that many of the

comments made to Aponte could be interpreted in a way that does not

refer to women.     It argues that "rudeness or ostracism, standing

alone, usually is not enough to support a hostile work environment

claim."   See Noviello v. City of Boston, 398 F.3d 76, 92 (1st Cir.

2005).

     Aponte     testified    that    Frias    and   Camacho     made   several

gender-based comments to her, including:            "that what he had been

taught was that women were supposed to do [] household chores";

"the person who ran this operation had to have balls to run the

operation"; referring to a female executive as "jefecita," or

"little boss"; stating that the operation had to be run by a man;

generally referring to women as "brutas," or "dumbies"; and asking

her if she was a "pendeja," a pejorative term used to refer to

women. She also maintained that Frias and Camacho "didn't have any

willingness" to train her on certain tasks. She testified that she

took a leave of absence because of the emotional hardship she

experienced.

     Aponte filed two internal complaints with DHL Human Resources.

In the second complaint, she wrote that "the work environment has

become completely hostile and without respect to my person, I feel

discriminated     based     on   gender,     overwhelmed,     distressed   and

pressured labor wise."           She felt "completely disoriented" and


                                     -8-
"constantly deprived of authority by Rafael Camacho."     She also

felt that there "really is no change as to my feelings since I

reported ill [] January 10, 2005 and my return on November 21,

2005.   On the contrary, I feel more discriminated than before[.]

I feel at all times the discrimination for reasons of gender."

     Mercado testified that the way Camacho and Frias communicated

with Aponte "was not very good," "shameful," and "[t]hey would

speak to her in a very loud tone, and the way they treated her

wasn't the best." She also overheard Frias and Camacho "screaming"

at Aponte.   When Frias and Camacho spoke to Aponte, "the tones of

voice would be very loud, they would be very disrespectful."     By

contrast, Frias's and Camacho's communication with male employees

was "normal," which "was different than how I saw that it was

toward the women, the girls there."

     Both Frias and Camacho denied saying those comments, and DHL

offered a different interpretation of the work situation.      They

asserted that Aponte was treated differently because of her poor

work performance, rather than gender.    They claimed that clients

complained about Aponte's performance.

     Viewing the evidence presented in the light most favorable to

Aponte, a reasonable jury could have determined that Frias and

Camacho subjected Aponte to discriminatory intimidation, ridicule,

and insult sufficiently pervasive to alter the condition of her

employment and create a hostile work environment.   See Harris, 510


                                -9-
U.S. at 21; Astro-Med, 591 F.3d at 13.              It was the jury's role to

determine witness credibility, and the verdict indicates that the

jury believed Aponte's version of the work environment and its

effect on her.    This case does not present a situation in which the

evidence "so strongly and overwhelmingly" supports DHL's position

that we should disturb the jury's verdict. See Astro-Med, 519 F.3d

at 13; Rodriguez-Torres, 399 F.3d at 57; cf. Alvarez-Fonseca v.

Pepsi Cola, 152 F.3d 17, 25-26 (1st Cir. 1998).

     iii. DHL's Faragher Defense

     An    employer    is    vicariously      liable       for   a   supervisor's

harassment of an employee. Burlington Indus., Inc. v. Ellerth, 524

U.S. 742, 745 (1998).       The Faragher affirmative defense shields an

employer   from   such      liability   if    (1)    the    employer    exercised

reasonable care to prevent and correct harassment, and (2) the

employee unreasonably failed to take advantage of any preventive or

corrective opportunities provided by the employer.                   Faragher v.

City of Boca Raton, 524 U.S. 775, 807 (1998).

     DHL argues that, even taking Aponte's version of the facts as

true, the jury unreasonably rejected DHL's Faragher defense.                  It

maintains that the company acted promptly and appropriately, and

the March 30 email shows that it improved Aponte's situation.

     Aponte    filed     her    initial      complaint      in   November    2004

complaining of Frias's unprofessional behavior, which prompted

Hernandez to interview both Aponte and Frias.               Two years later, in


                                    -10-
March 2006, Aponte filed a second complaint with Cesari.                        Cesari

met with Aponte and Camacho later that month.                On March 30, 2006,

Aponte sent Cesari an email thanking her for intervening and

reporting that the situation had improved.

      Aponte later testified that the harassment at work only

temporarily improved after the meeting, and the situation soon

"turned totally hostile."          Specifically, she felt "pressure" from

the     work    tasks     given    her,    and     Camacho    and      Frias      were

"underestimating"         her,     being   "disrespectful"        to      her,     and

"constantly" pressuring her about backlogged work.                  Aponte took a

leave of absence in April 2006, and eventually resigned from her

position at DHL in June 2006.          She maintains that her decision not

to    file     another    formal     complaint     prior     to   resigning       was

understandable, given the fact that her prior complaints "had only

resulted in a worsening of her circumstances."

      A reasonable jury could find that Aponte availed herself of

DHL's    corrective      opportunities     without   experiencing         a   lasting

improvement in her work situation.               She complained in writing on

two separate occasions, and testified that she ultimately had to

quit her job in order to avoid the hostile situation.                  See White v.

N. H. Dep't of Corrections, 221 F.3d 254, 261-62 (1st Cir. 2000)

("The record contains evidence from which the jury could have

concluded      that     the   [employer]    did    not   handle     the       internal




                                       -11-
investigation properly or timely, and that the [employer] allowed

the conduct and comments to continue.").

      A   juror   could   certainly   reach    the   opposite    conclusion,

particularly given the conflicting content of Aponte's March 30

letter.    However, "[d]etermining what constitutes a 'prompt and

appropriate' employer response to allegations of sexual harassment

often requires the sort of case-specific, fact-intensive analysis

best left to a jury."        Forrest v. Brinker Int'l Payroll Co., 511

F.3d 225, 232 (1st Cir. 2007).         Moreover, it was DHL's burden to

show its actions both corrected and prevented further harassment.

See Burlington, 524 U.S. at 745.           Thus, DHL's entitlement to the

Faragher defense is not "so clearly against the weight of the

evidence as to amount to a manifest miscarriage of justice."               See

Astro-Med, 591 F.3d at 13.

B.    Remittitur

      We may overturn a damages award only if it is "grossly

excessive or so high as to shock the conscience of this court."

Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756, 773 (1st Cir.

2010) (quoting Valentin-Almeyda v. Mun. of Aguadilla, 447 F.3d 85,

103 (1st Cir. 2006)).        We afford "broad discretion" to the trial

court's decision, because of that court's "greater familiarity with

local community standards and with the witnesses' demeanor at the

trial."    Id.    "We will not disturb an award of damages because it

is   extremely    generous    or   because    we   think   the   damages   are


                                    -12-
considerably less."   Koster v. Trans World Airlines, 181 F.3d 24,

34 (1st Cir. 1999).   "Where the trial court already has invoked its

discretion in granting a remittitur, the scope of review is even

narrower than usual."     Sanchez v. P.R. Oil Co., 37 F.3d 712, 724

(1st Cir. 1994).

      Here, the district court remitted the jury's award from

$350,000 to $200,000, explaining in length its reasons for doing

so.   The court found that although the evidence produced at trial

was sufficient to show a hostile work environment, the evidence did

not support the amount of damages awarded. The court described the

source of the emotional distress as "at best, mixed."               Aponte

experienced    distress   due   to    mental   health   issues,   physical

ailments, and general work stress in addition to the stress from

her hostile work environment.         Moreover, Aponte suffered from a

back problem, and DHL's business was expanding during the relevant

time period.     Additionally, the court explained that economic

damages such as claims for failure to promote, front pay, back pay,

and constructive discharge were not part of the verdict.

      The court also pointed out that Aponte "did not introduce any

testimony by a medical expert," "presented no notable evidence of

outward manifestations of emotional distress," and "presented no

evidence of long term depression or medical treatment."           "Although

testimony from a mental health expert is not required to sustain an

award for emotional distress, the absence of such evidence is


                                     -13-
useful in comparing the injury to the award of damages."                Koster,

181 F.3d at 35.

     Awards in comparable cases are instructive.            The plaintiff in

Sanchez,   who   was   discriminated       against    because   of    his   age,

testified about the humiliation he suffered from losing his job and

filing for bankruptcy, but failed to present any medical testimony

regarding his mental condition.       37 F.3d at 724.       The jury awarded

him $150,000 in emotional distress damages.                Id. at 723.       The

district court reduced the award to $37,500, and we affirmed.                Id.

at 726.    We held that, although emotional damages are warranted

even without medical or psychiatric evidence, the lack of such

evidence is relevant to the amount of the award.            Id. at 724 n.13.

     In Rodriguez-Garcia, the jury awarded the plaintiff $350,000

for emotional pain and suffering related to a retaliatory demotion.

610 F.3d at 760.       The plaintiff, as well as her psychiatrist,

testified that she experienced depression.             Id. at 773.     We held

that, "[a]lthough generous, the award of $350,000 was not grossly

excessive or so high as to shock the conscience."                  Id. at 774.

Additionally, the amount of the award was similar to noneconomic

compensatory     damages   awards   we      upheld    in   other     employment

discrimination and retaliation contexts.             Id.

     In Monteagudo v. Asociacion de Empleados del Estado Libre

Asociado de Puerto Rico, 554 F.3d 164 (1st Cir. 2009), we upheld a

$333,000 damages award in a sexual harassment case. Id. at 174-75.


                                    -14-
The plaintiff testified that she was harassed by a male supervisor,

making her work conditions intolerable.                  Id. at 168.     She stated

that she suffered from depression, cried every evening, and was

unable    to    sleep.      Id.    at    174-75.      Although     we    wrote   that

"[a]dmittedly the jury was generous in awarding this amount," we

held that the district court did not abuse its discretion, given

comparable awards and the highly deferential standard of review.

Id. at 175.

     We have also upheld damages awards where the plaintiff did not

seek medical treatment or have long-term physical symptoms.                      See

McDonough v. City of Quincy, 452 F.3d 8, 22 (1st Cir. 2006)

(upholding award of $300,000 in Title VII retaliation case, where

"the bulk" of the award was for emotional distress in the form of

humiliation and damage to reputation and family relationships);

Rodriguez-Torres, 399 F.3d at 64 (affirming a $250,000 emotional

distress       award     where    plaintiff        testified   that      employment

discrimination         caused    her    marriage    to    suffer   and    made   her

depressed); Koster, 181 F.3d at 35-36 (upholding $250,000 award

where plaintiff testified that employer's conduct caused him to

suffer anxiety and insomnia and damaged his family life).

     In light of these comparable cases, and given the court's

lengthy explanation for its remittitur, the district court did not

abuse its discretion in awarding Aponte the remitted amount.                     The

court    noted   that     Aponte's      testimony    regarding     her   distressed


                                         -15-
emotional state was corroborated by the emails she sent Human

Resources, her resignation letter, and other testimony at trial.

The court explained that it used the "maximum recovery rule" to

remit her damages to the "maximum amount that is supported by the

evidence."    See Marchant v. Dayton Tire & Rubber Co., 836 F.2d 695,

704 (1st Cir. 1988). Additionally, the court's decision to set the

amount at $200,000 is supported by awards in comparable cases.

Although the jury may have been "generous," the district court did

not abuse its discretion. See Monteagudo, 554 F.3d at 175; Koster,

181 F.3d at 34-35.

C.   Motion for a New Trial Based on Evidentiary Rulings

     We   review    an     order    denying     a   new   trial   for   abuse   of

discretion.    A new trial is warranted only "if the verdict, though

rationally based in the evidence, was so clearly against the weight

of the evidence as to amount to a manifest miscarriage of justice."

Astro-Med,    591   F.3d    at     13.    We    review    the   district   court's

evidentiary rulings for abuse of discretion.               Blinzler v. Marriott

Int'l, Inc., 81 F.3d 1148, 1158 (1st Cir. 1996).

     DHL argues that Aponte introduced irrelevant and hearsay

statements under the guise of refreshed recollections.                      While

Aponte testified, her lawyer sought to establish that she received

commendations at work prior to Frias's supervision beginning in

2004. To refresh her recollection of the commendations, her lawyer




                                         -16-
showed her documents dating from 2001 to 2004.              See Fed. R. Evid.

612.

       The district court did not abuse its discretion in allowing

the documents to refresh Aponte's recollections.               Consistent with

the requirements of Fed R. Evid. 612, the court ensured that DHL

had copies of the documents, assured the documents were relevant to

the    case,    allowed   DHL   to   cross-examine    Aponte      regarding   the

recollections recorded, and instructed Aponte to testify to her own

recollections and not hearsay.           Aponte's counsel instructed her,

"Don't read the documents.           Just read the documents for yourself,

and if that refreshes your recollection, tell the jury what . . . .

did you do to receive the commendations?"             Aponte then described

what she did to receive a commendation in each instance.

       DHL next argues that the court erred by failing to give a

curative instruction regarding certain comments Frias made to

Aponte in 2004.         Aponte testified that Frias made two sexually

suggestive comments that year:           (1) asking her "where one could

party in San Juan"; and (2) inquiring whether she had not yet

married because she was waiting for a man like him.               Because there

was an 11-month period between these two comments and her remaining

allegations of hostile work environment, the court determined the

comments       were   sufficiently    removed   in   time   and    sufficiently

different in nature to sever them from her hostile work environment

claim.     The court therefore instructed the jury:            "Yesterday the


                                       -17-
plaintiff rested.        After the plaintiff rested, I removed from the

case the allegations of sexual statements.                  So the issue for you to

decide is whether or not the . . . plaintiff was subjected to

harassment in the work place."

       Although the court could have been more specific about the

"sexual statements" it was referring to, the curative instruction

does       not   constitute       an   abuse   of    discretion.        Even   if    the

instruction should have been more specific, the error was harmless.

See Moulton v. Rival Co., 116 F.3d 22, 26 (1st Cir. 1997).                      Aponte

presented sufficient evidence of Frias's statements to support the

jury's ultimate verdict regarding her hostile work environment

claim.

       Finally, DHL argues that the jury was confused by Aponte's

testimony that she did not receive a promotion. Aponte's complaint

originally       included     a    claim   for    failure    to    promote,    but   the

district court found that it was time-barred.                     Nonetheless, Aponte

introduced evidence at trial that she was denied a promotion and

that she felt compelled to resign due to the harassment she

experienced.         On appeal, DHL contends that this evidence was

introduced in support of a constructive discharge claim that Aponte

withdrew before the jury retired.3                  DHL claims that this sequence


       3
         It is unclear whether Aponte brought a constructive
discharge claim. Pre-trial rulings suggest that the district court
considered constructive discharge to have been pled, but at trial,
Aponte denied bringing such a claim. In an excess of caution, the
trial court agreed to "grant the directed verdict as to the claim

                                           -18-
allowed Aponte to bring her time-barred claim before the jury

through a back door, and contends that the court should have

provided a curative instruction.

     The court did not abuse its discretion in refusing DHL's

requests to provide a curative instruction on this point.   At the

close of Aponte's case, the court stated:

     Members of the jury, this testimony concerning the
     promotion . . . is not part of the case for damages
     purposes. We're just going into the history of . . . the
     plaintiff with the company. So she's testifying that she
     did not get a promotion. That is not part of her case
     for which she's asking damages.

The court also told the jury that the case involved a claim of

hostile work environment based on sex discrimination, and not

constructive discharge.   The court's statements to the jury belie

DHL's claim that the jury was "undoubtedly confused."

     AFFIRMED.




if there was one."

                               -19-
