434 F.3d 75 (1st Cir. 2006), 04-2614, Arrieta-Colon v. Wal-Mart Puerto Rico, Inc.

Docket Nº:04-2614, 04-2615.
Citation:434 F.3d 75
Party Name:Miguel ARRIETA-COLON; Nereida Olivencia-Badillo; Conjugal Partnership Arrieta-Olivencia, Plaintiffs, Appellees/Cross-Appellants, v. WAL-MART PUERTO RICO, INC. a/k/a Wal-Mart Store 1854, Defendant, Appellant/Cross-Appellee. Wal-Mart Stores, Inc.; Benjamin Gomez; Jane Roe 00CV1772; Conjugal Partnership Gomez-Roe; Mara Mieles; Robert Roe 00CV1772; Con
Case Date:January 13, 2006
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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434 F.3d 75 (1st Cir. 2006)

Miguel ARRIETA-COLON; Nereida Olivencia-Badillo; Conjugal Partnership Arrieta-Olivencia, Plaintiffs, Appellees/Cross-Appellants,


WAL-MART PUERTO RICO, INC. a/k/a Wal-Mart Store 1854, Defendant, Appellant/Cross-Appellee.

Wal-Mart Stores, Inc.; Benjamin Gomez; Jane Roe 00CV1772; Conjugal Partnership Gomez-Roe; Mara Mieles; Robert Roe 00CV1772; Conjugal Partnership Mieles-Roe; Jose Mercado; Julie Doe 00CV1772; Conjugal Partnership Mercado-Bosques;Jose Ramos; Roberta Doe 00CV1772; Conjugal Partnership Ramos-Doe; A-Z Ins. Co.; Wal-Mart Assoc., Inc., Defendants.

Nos. 04-2614, 04-2615.

United States Court of Appeals, First Circuit.

January 13, 2006

Heard Dec. 6, 2005.


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Ruben T. Nigaglioni, with whom Veronica Ferraiuoli, Rafael J. Martinez, and Nigaglioni & Ferraiuoli Law Offices P.S.C. were on brief, for Wal-Mart Puerto Rico, Inc.

Mireya Baltazar-Suazo, with whom Orlando I. Martinez-GarcA­a, Nora Vargas-Acosta, and Abogados de America Law Offices, were on brief, for Arrieta-Colon et al.

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Before Boudin, Chief Judge, Lynch, Circuit Judge, and Gorton[*], District Judge.

LYNCH, Circuit Judge.

A jury awarded Miguel Arrieta-Colon $76,000 in compensatory damages and $160,000 in punitive damages against Wal-Mart Puerto Rico, Inc. ("Wal-Mart") on his disability discrimination claim under the Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213.

Specifically, the jury found Arrieta had proven that he had an impairment or was regarded as having an impairment which substantially limited his ability to perform a major life function. Arrieta's claimed impairment was a penile implant used to correct a sexual dysfunction: the implant itself left Arrieta with the appearance of a constant semi-erection. The jury also found that Arrieta was subjected to a hostile work environment because of his disability. Arrieta's claim was that, due to his condition, he was constantly harassed both by his supervisors and co-workers, and that when he complained to his supervisors, no corrective actions were taken. The jury found that Arrieta was constructively discharged; that is, that he resigned from Wal-Mart due to the intolerable working conditions.

Wal-Mart appeals from the verdict, arguing that the district court erred in failing to instruct the jury on an affirmative defense under Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Wal-Mart also makes two insufficiency of the evidence arguments as to liability: (1) that Arrieta was not disabled within the meaning of the ADA, in that his impairment neither affected a major life activity nor was related to working conditions; and (2) that the evidence was insufficient to support the existence of a hostile work environment. Of these, the most difficult issue is that of whether Arrieta was disabled within the meaning of the ADA. But Wal-Mart did not preserve the issue at trial and does not demonstrate circumstances that would warrant our taking the extraordinary step of reaching the merits of that issue on appeal.

Wal-Mart also challenges the damages award, arguing (1) that the district court erred in its punitive damages instruction to the jury, (2) that there was insufficient evidence for the jury to award punitive damages, and (3) that Arrieta failed to mitigate his damages by taking advantage of Wal-Mart's open door policy.

Arrieta, in turn, appeals, 1 arguing that the district court erred in denying his post-verdict motion seeking an additional award of back pay and front pay, adjudicated by the judge, not the jury.

In the end, we affirm on both appeals, leaving all parties in the place the jury and the district court left them.


We recount the facts in the light most favorable to upholding the jury verdict as to the sufficiency challenge. Torres-Rivera v. O'Neill-Cancel, 406 F.3d 43, 45 (1st Cir. 2005).

Arrieta began working at Wal-Mart in 1992. At the time, he suffered from Peyronie's Disease, which made it impossible

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for him to have sexual intercourse. Arrieta had undergone unsuccessful surgery in 1992 to attempt to correct the problem. In February 1994 Arrieta underwent another surgery, during which the first implant was removed and a new penile prosthesis was implanted. The second procedure was successful, but had the side effect, common with this procedure, that Arrieta had a constant semi-erection that was apparent through his clothing. His doctor reported that Arrieta had no physical or mental impairment before going back to work. The complaints of harassment in this case concern the period after the February 1994 surgery.

Arrieta filed paperwork with Wal-Mart's personnel department detailing the February 1994 procedure in order to obtain approval for medical coverage. Soon after returning to work after the surgery, Arrieta became the subject of harassment by his co-workers and supervisors. Three co-workers, the plaintiff, and supervisors all described the numerous incidents. On his first day back at work, Jorge Ortiz, an assistant manager, asked Arrieta "how it felt to have [his] new pump."2 When Arrieta confronted Ortiz about where he got the information, the assistant manager told him that he learned about Arrieta's surgery from the "girls in personnel." Arrieta complained to Mara Mieles, the personnel manager, about the release of information and the fact that Ortiz had taunted him about it, but Mieles said, "I don't know what you're talking about, this is nonsense between guys, these are things between men."

Arrieta married his present wife on June 18, 1995. The taunting about Arrieta's surgery continued for the remaining years that Arrieta worked at Wal-Mart, and was constant. On the one hand, much of the harassment expressed the view that Arrieta was impotent, and that he needed to use a pump to get an erection. One of Arrieta's co-workers testified that he thought Arrieta was impotent "[b]ecause according to what I know, a person who has had a little pump put in is because they are disabled as far as achieving an erection." Another co-worker testified that the jokes were "regarding his age, saying that he needed to have a pump in order to have relations . . . . What they almost always used was the part regarding the pump, that he needed to use a pump."

On the other hand, some harassing statements evidenced an impression that Arrieta was unusually enabled because of the implant. Assistant manager Ortiz once asked Arrieta, "old man, I'm going to be going out with someone tomorrow, and I wanted to know if you'll let me borrow your pump." Another time, Ortiz asked Arrieta, "Miguelito, did it work with your wife[?]" On one occasion, someone used the store's paging system to announce "that if [Arrieta] was close by to ask [Arrieta] to come to the warehouse to let him borrow a pump so that they could lift a pallet or a box." On another occasion, when Arrieta was visiting the personnel offices, a group of department managers in a meeting with personnel manager Mieles "began making comments such as, there is Viagra Man. No, he's got force power." As to this event, Arrieta testified, "I looked over at Miss Mieles, and I said this was the nonsense I was talking about four years ago." Mieles did not respond in any way.

In fact, with the implant, Arrieta was initially able to engage in intercourse with his wife. Later psychological depression,

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occasioned by the harassment, affected his sexual functioning.

Assistant manager Ortiz and Jose Ramos, a support manager under Ortiz, were initiators of the comments about Arrieta's condition, according to the testimony of Rey Rodriguez, one of Arrieta's co-workers. During meetings at the beginning of the night shift, Ortiz "would come into the warehouse with a joke regarding the pump." Rodriguez testified that Jose Ramos "would use [the paging system] to make jokes regarding the pump . . . . [Ramos] said . . . that Arrieta was ready with his baton." Another co-worker, Eliezer Ramos, recounted an incident between Arrieta and assistant manager Ortiz. Ortiz had been particularly offensive:

[Arrieta] had been away [on] his honeymoon, and two or three days later, . . . I heard comments from [other employees] saying that [Arrieta] was upset with Jorge, because . . . [Jorge] had asked [Arrieta] if the pump had not worked out with his wife, he should bring her to him.

Eliezer Ramos also testified that Dennis Baerga, another assistant manager and yet a third supervisor of Arrieta, once said "[L]ook, Miguel Arrieta's pump seems to be working" within the presence of assistant manager Ortiz and Gilberto Rosa, who was a department manager for cosmetics, but not Arrieta's supervisor.

Arrieta's former supervisors, Ortiz and Jose Ramos, themselves admitted key facts. Support manager Jose Ramos admitted participating in the taunting:

Well, about what could be heard and all the fooling around they had going on in there, . . . where I did participate in those jokes, well, about a condition that was very pronounced under his pants, then . . . like everyone else, they started to make jokes with him [saying] Miguel, what is it that you've got there, come here . . . .

Assistant manager Ortiz acknowledged that he was aware of the taunting, and that Arrieta had complained to him about it:

Q: Isn't it true that Mr. Arrieta also [on] many occasions went to you to complain about the jokes?

A: About the jokes, I remember only one time . . . .

. . . .

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

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