Franchina v. Providence Fire Department , 881 F.3d 32 ( 2018 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 16-2401
    LORI FRANCHINA,
    Plaintiff, Appellee,
    v.
    CITY OF PROVIDENCE,
    Defendant, Appellant,
    PROVIDENCE FIRE DEPARTMENT;
    PROVIDENCE FIREFIGHTERS LOCAL 799,
    Defendants.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF RHODE ISLAND
    [Hon. John J. McConnell, Jr., U.S. District Judge]
    Before
    Torruella, Thompson, and Kayatta,
    Circuit Judges.
    Kevin F. McHugh, Senior Assistant City Solicitor, with whom
    Jeffrey Dana, City Solicitor, and Kathryn M. Sabatini, Associate
    City Solicitor, were on brief, for appellant.
    John Martin, with whom Benjamin H. Duggan, Kathy Jo Cook, and
    KJC Law Firm, LLC were on brief, for appellee.
    Mary L. Bonauto and Allison Wright, with GLBTQ Legal Advocates
    & Defenders, Ria Tabacco, with American Civil Liberties Union,
    Gregory R. Nevins, with Lambda Legal Defense & Education Fund,
    Inc., Shannon P. Minter and Christopher Stoll, with National Center
    for Lesbian Rights, on brief for American Civil Liberties Union,
    American Civil Liberties Union of Rhode Island, GLBTQ Legal
    Advocates & Defenders, Lambda Legal Defense & Education Fund, Inc.
    and National Center for Lesbian Rights, amici curiae.
    January 25, 2018
    THOMPSON, Circuit Judge.       Sticks and stones may break
    some bones, but harassment can hurt forever.           "Cunt," "bitch,"
    "lesbo": all are but a smattering of the vile verbal assaults the
    plaintiff in this gender discrimination case, Lori Franchina, a
    former   lieutenant   firefighter,   was   regularly   subjected   to   by
    members of the Providence Fire Department ("the Department").           She
    was also spit on, shoved, and--in one particularly horrifying
    incident--had the blood and brain matter of a suicide-attempt
    victim flung at her by a member of her own team.        After an eight-
    day trial, a jury in the District of Rhode Island concluded that
    Franchina had been discriminated against on the basis of her gender
    and retaliated against when she dared protest her treatment.            For
    her ordeal, she was awarded front pay1 as well as emotional
    damages.2   The City of Providence ("the City") now appeals, making
    numerous arguments as to why the jury verdict should be set aside
    or, in the alternative, why the judge's front pay award should be
    1 Front pay awards are essentially awards of future "damages
    for wages from the date of judgment to some specified date in the
    future." Scarfo v. Cabletron Sys., Inc., 
    54 F.3d 931
    , 953 (1st
    Cir. 1995). They serve to "mak[e] victims of discrimination whole
    in cases where the factfinder can reasonably predict that the
    plaintiff has no reasonable prospect of obtaining comparable
    alternative employment." Powers v. Grinnell Corp., 
    915 F.2d 34
    ,
    42–43 (1st Cir. 1990) (internal quotation marks omitted). A lot
    more on that later.
    2 The jury also awarded punitive damages but those were later
    eliminated.
    - 3 -
    stricken. Because we decline to put out flames of the Department's
    own making, we affirm.
    Getting Our Factual Bearings
    We begin, as we nearly always do, by outlining how this
    case came to be.      Though the City attempts to trivialize the abuse
    inflicted upon Franchina while working for the Department by giving
    it short shrift in its brief, we decline to be as pithy in reciting
    Franchina's plight in order to give context both to the jury's and
    the district court's ultimate determinations.3            In outlining the
    background in this case, we keep in mind that our recounting of
    the facts is done "in the light most favorable to the verdict,
    deferring    'to   the    jury's   discernible   resolution    of    disputed
    factual issues.'"        Ciolino v. Gikas, 
    861 F.3d 296
    , 299 (1st Cir.
    2017) (quoting Raiche v. Pietroski, 
    623 F.3d 30
    , 35 (1st Cir.
    2010)).
    Franchina testified for three days and recalled the
    following for the jury.       In or about 2002, Franchina was assigned
    to the North Main Street Fire Station in Providence, Rhode Island.
    Up   until    2006,   she    experienced    neither    discrimination     nor
    harassment by members of the Department.         In fact, in her lengthy
    testimony,    Franchina     recounted   numerous      kind-hearted    moments
    3 Indeed, doing so is especially necessary here where the
    district judge, in his discretion, imposed the equitable remedy of
    front pay.
    - 4 -
    during this timeframe where she felt comradery with her colleagues.
    She explained, for example, that at the beginning of her career--
    as a young female among a workforce consisting primarily of males-
    -she felt that some members of the Department took her under their
    wings and shielded her from individuals who sometimes got too drunk
    or unruly at work events.
    Far    from     worrying    about     discrimination,     Franchina
    testified that some of her biggest concerns during her early years
    had to do with Department leadership wanting to promote her too
    quickly.     That her superiors wanted to promote Franchina is
    unsurprising given her commendable professional record.               She was
    one   of   only   eighty     applicants       accepted   to   the   Providence
    Firefighter Academy out of 2,300 who applied her year and, once
    there, she graduated tenth in her class.             Throughout her career
    her superiors noted that she "did her job . . . the way we expected
    it to be done" and effused that she was "on her game and knows her
    stuff."    Franchina's Chief also regularly received compliments
    about her performance.       Franchina, however, worried that rising up
    the ranks too quickly could cause resentment among more senior
    firefighters and testified that she actively attempted to keep
    leadership from assigning her to officer roles at the beginning.
    Nonetheless, Franchina's superiors ultimately ordered that she be
    promoted from Rescue Technician to Acting Rescue Lieutenant to,
    eventually, Rescue Lieutenant.
    - 5 -
    Franchina's woes began in or about 2006 when she was
    assigned to work a shift with Andre Ferro ("Ferro"), a firefighter
    with a history of sexually harassing female colleagues in the
    Department.4     During that shift, Franchina and Ferro were assigned
    to the same rescue vehicle, with Franchina serving as an acting
    rescue lieutenant, and Ferro assigned to be her rescue tech
    chauffeur.     That is to say, Ferro was responsible for driving the
    rescue vehicle and Franchina served as his superior.                Franchina
    and Ferro had never worked with one another prior to this point,
    though Franchina was aware of Ferro's dubious reputation with women
    and was therefore apprehensive about having to spend the shift
    with him.
    Ferro's   notoriety   was    on   display   within   moments    of
    Franchina meeting him. After arriving at the station for her shift
    and   while    pouring    herself   a     cup   of   coffee,   Franchina     was
    immediately approached by Ferro who, without missing a beat, asked
    4This Court is familiar with Ferro. Over fifteen years ago,
    we encountered him in a separate Title VII action. In that case,
    the City was found to be liable under Title VII for, among other
    things, comments Ferro made toward the plaintiff, another female
    firefighter named Julia O'Rourke. Ferro commented on her breast
    size (which he referred to as "stacked") and suggested that if she
    had sex with him she would "never want another man." O'Rourke v.
    City of Providence, 
    235 F.3d 713
    , 718 (1st Cir. 2001). Ferro also
    forced O'Rourke to listen to his musings on different sexual
    positions he enjoyed and his love of oral sex, played videos of
    himself having sex with his girlfriend in front of her, and
    discussed his sexual prowess and stamina. 
    Id. Nonetheless, Ferro
    maintained his employment with the Department in spite of the
    O'Rourke outcome.
    - 6 -
    if she was a lesbian.           To repeat, this was their very first
    encounter.      After Franchina retorted that it was none of his
    business, Ferro followed up with the statement, "I don't normally
    like to work with women; but, you know, we like the same thing, so
    I think we're going to get along."              Franchina testified she was
    appalled by his comments and as his supervisor, instructed him not
    to say such things.         She then immediately left for her office to
    escape him.     Soon thereafter, however, an emergency call came in
    and Franchina and Ferro were jointly dispatched to respond in their
    rescue vehicle.
    During   the    emergency    run   Ferro    continued   with   his
    inappropriate prattle.        He asked, for example, if Franchina wanted
    to have children and quickly followed up with, "I could help you
    with   that,"   implying     that   he   wanted   to    impregnate   her.   So
    incessant was the unprofessional chatter that Franchina was forced
    to tell Ferro on multiple occasions to stop talking because she
    was    having   difficulty     hearing   the    dispatcher's    instructions.
    Franchina further testified that she refused to engage with Ferro's
    uncomfortable banter, instead riding in silence or telling him to
    be quiet as needed.
    During the same shift, Franchina and Ferro were also
    dispatched on a run that took them to the Rhode Island Hospital.
    When they arrived, two other rescue vehicles were on the scene,
    meaning that a total of six firefighters were present (two in each
    - 7 -
    vehicle).    The firefighters entered the hospital in order to pass
    along reports about their respective transports (patients that had
    been transported to the hospital) and, after doing so, Franchina
    and the other firefighters (with the exception of Ferro) waited in
    a holding area and chatted with one another.         At some point Ferro
    approached the group and began rubbing his nipples in a circular
    fashion, leapt up in the air, and screamed at Franchina, "My
    lesbian lover!      How are you doing?"     Nurses, doctors, patients,
    and patients' families were all present in the holding room to
    witness this display.     Franchina testified that she was horrified
    and felt belittled.    The other firefighters present were similarly
    appalled.
    Later that evening, after returning back to the station,
    Franchina went to her personal quarters and began changing out of
    her uniform.     Though she had closed the door, it was not locked.
    A rule, however, existed in the station requiring that if an
    officer's door was closed, anyone seeking permission to enter had
    to first knock three times and wait for the officer to respond.
    Nevertheless, without knocking, and while Franchina was changing,
    Ferro opened the door to her room wearing what appeared to be only
    his   boxers,   a   Providence   Fire   Department   shirt,   and   socks.
    Franchina, who was in her undergarments, quickly grabbed a sheet
    off her bed to cover herself. When Franchina asked Ferro to leave,
    he refused.     She asked a second time, and he refused yet again.
    - 8 -
    Only after telling him to "get the fuck out" of the room did Ferro
    finally depart.
    Franchina never reported this repulsive behavior.           She
    didn't have to.      Following the nipple-rubbing incident at the
    hospital, Chief Curt Varone, a high-level officer with authority
    over all of the stations within the Department, called her directly
    because he had "gotten wind" of what had transpired.        During the
    phone call, Chief Varone asked Franchina to recount the details of
    Ferro's actions.    Based on Franchina's explanation, Chief Varone
    filed a written complaint against Ferro charging him with sexual
    harassment and exposing him to employment termination.5         A hearing
    was scheduled to determine whether Ferro would retain his job.
    Once word spread about Ferro's disciplinary proceeding,
    firefighters in the North Main Street station began to treat
    Franchina with contempt and disdain.     Firefighter Andy McDougal,
    a subordinate to Franchina, approached her in the kitchen several
    weeks before Ferro's hearing and, in front of numerous other
    firefighters, yelled at her and asked, "What are you trying to get
    him   fucking   fired?"   Although   Captain   Alan   Horton,    the   top
    supervisor in the North Main Street station, was present during
    this exchange, he neither reprimanded McDougal nor reported the
    incident to Chief Varone.
    5Ferro was, in fact, ultimately fired in 2007, but, again,
    was allowed to subsequently return to the Department in 2008.
    - 9 -
    The day following McDougal's kitchen outburst, McDougal-
    -who was responsible for cooking at the station--also stated to
    Captain Horton that he would no longer prepare meals for Franchina.
    Captain Horton, however, overrode McDougal, which angered him.
    According to Franchina, from that point forward, the meals McDougal
    prepared for her made her severely ill.                 Following several bouts
    of    ensuing    illness,   Franchina,       who   never     had    a   history   of
    gastrointestinal problems, decided to swap her meal with that of
    a different rescue tech.          After that tech ate Franchina's meal,
    he, too, became ill and had to go home sick.6
    Starting in 2006, members of the North Main Street
    station also began to refer to Franchina using gendered epithets.
    For    example,    she    was   referred     to    openly      as   "Frangina,"   a
    combination of her last name and the word "vagina," which (as
    Franchina       testified   she    had     seen    on    the    popular    website
    UrbanDictionary.com) is also a slang term used to describe an
    unshaved        vagina.           See      Frangina,        Urban       Dictionary,
    https://www.urbandictionary.com/define.php?term=Frangina                     (last
    visited Jan. 25, 2017).           Additionally, Franchina explained she
    heard male firefighters in the station refer to her as a "bitch"
    with great regularity.          "Who does that fucking bitch think she
    is?"; "I'm not going to help that fucking bitch"; "That bitch can
    6
    The record does not tell us how this meal preparation debacle
    was ever resolved.
    - 10 -
    carry her own stretcher" were common derogatory remarks hurled at
    Franchina.
    The men of the North Main Street station did not limit
    their harassment of Franchina to verbal attacks.           Rather, at one
    point they began utilizing a group white board in one of the common
    areas to further taunt her.     Twenty-one total insults were written
    on the board including: "Be careful how you talk to her, she'll
    bark at you," "You get what you get, bitch," and "Frangina leads
    Team Lesbo to victory."      Franchina testified that she personally
    heard   Captain   Peter   Spedutti,    a   thirty-year    veteran    of   the
    Department, point at the white board and say, "I'll show her."
    She also later witnessed him boisterously brag to a younger
    firefighter about what was written on the white board.              The list
    remained up for over fourteen hours. Although Franchina complained
    to Chief Michael Crawford, a superior officer in the Department,
    about   what   was   being   written   about   her   on   the   board,    the
    perpetrators were not reprimanded.
    Based on trial testimony, Franchina also suggested that
    the actions of the North Main Street station put the lives of the
    people of Providence at risk, including, in one instance, that of
    an unborn child and the child's mother.         About a month prior to
    Franchina leaving the North Main Street station in 2007, Franchina
    was dispatched to a pre-natal facility in response to a pregnant
    mother experiencing fetal distress.          In order to get oxygen to
    - 11 -
    both the mother and baby, a device known as a non-rebreather was
    needed     because   the   fetal     heartrate   was   severely   elevated.
    Firefighter McDougal, who had already been avoiding eye contact
    with Franchina and who did not want to work with her (or, remember,
    cook for her), was also on the scene.            Though Franchina tasked
    McDougal with securing the re-breather around the patient’s nose
    and mouth, he continued to let the device slip off, thus preventing
    oxygen from properly being transported to the patient.            Franchina
    had to order him to get away from the patient so she could properly
    secure the device herself.         Such instances of insubordination with
    McDougal, Franchina recalled, were common and intentional.
    Franchina was eventually transferred in 2007 from the
    North Main Street station to the Branch Avenue station and,
    initially, her experiences at Branch Avenue were good.              Things,
    however, went south and her colleagues at that station began to
    display similar behaviors to those at the North Main Street
    station.    Franchina testified that the beginning of the bad times
    seemed to coincide with call-back shifts in which McDougal was
    assigned to work in the Branch Avenue station.7           During one call-
    back, McDougal walked into the kitchen where members of the Branch
    Avenue station were convening (including Franchina) and exclaimed
    7  Call-back shifts are additional overtime shifts that
    firefighters in the Department may pick up for additional
    compensation.
    - 12 -
    loudly, "affirmative action's killing this fucking job."                       An
    officer who was present did not reprimand him for this outburst.
    On another occasion, during a shift change, he purposely pushed
    Franchina       into    a   wall   when    nobody    was   looking.     Franchina
    complained about the incident to Chief Al Horton8 but nothing was
    done.
    Franchina explained at trial that following McDougal's
    call-backs at the Branch Avenue station, she regularly began to be
    called "bitch," "cunt," and "Frangina."                She also testified that
    a subordinate flicked her Lieutenant's insignia on her collar and
    whispered, "I will never take a fucking order from you."
    Franchina also testified to the inappropriate behavior
    that Branch Avenue station firefighters would exhibit on emergency
    runs to spite her. In one instance, a firefighter purposely failed
    to put a wheelchair on one of Franchina's rescue vehicles when she
    was responding to a patient with cerebral palsy who was wheel-
    chair       dependent    for   transportation.         Franchina    reported   the
    incident to Chief Horton but the firefighter was not reprimanded.
    In   another      run,      Franchina     and    a   number   of   Branch   Avenue
    firefighters responded to a car accident involving two individuals
    who were severely injured.          One of them had been decapped (meaning
    a portion of his scalp had been severed).                  Franchina was able to
    8
    While we referred to Horton as Captain Horton previously,
    by this point he had been promoted to Chief.
    - 13 -
    get this victim onto a stretcher and then into a rescue vehicle
    but,   while     treating   the    victim,       realized     that   none    of    the
    firefighters at the scene were behind the driver’s wheel to
    transport the victim to the hospital.                After requesting a driver
    numerous times from the firefighters on scene, Franchina was
    addressed by Lieutenant Anthony Lancellotti who, in a sour tone,
    barked "You'll get a driver when you get your driver."                      The car
    crash victim later died.
    During another run, Franchina and several Branch Avenue
    firefighters--including           Lieutenant        Robert      Jackson,        Rescue
    Technician Paul Tang, and Firefighter Sean McGarty--responded to
    a   suicide-attempt    victim      who    had     shot     himself   in   the   head.
    Franchina was the officer in charge at the scene.                          Franchina
    ordered Jackson to assist in putting the body of the victim onto
    a stair chair so that he could be carried downstairs to the rescue
    vehicle.    Jackson, however, refused to comply, folded his arms,
    and    stated,    "That's   a     lot    of      blood."       McGarty    was     also
    insubordinate, and refused to comply with Franchina's directive to
    move the victim to the chair.             McGarty quipped, "if he wanted to
    kill himself, maybe we should just let him."                    Franchina ordered
    the men at least four times to move the victim onto the chair.
    None would comply.      Tang, in fact, took the chair and slammed it
    open, but would not help put the victim in it.                            Eventually
    - 14 -
    Franchina had to find a police officer to assist her since her own
    men remained insubordinate.
    Once    the    suicide-attempt         victim   was      in   the   rescue
    vehicle, Tang performed CPR on the victim.                  The gloves Tang wore
    became severely encrusted with blood and pieces of brain matter.
    After    Tang    completed    CPR,    he   sat   upright      with    his    hands   at
    Franchina's eye level.          He then removed the gloves, purposely
    snapping them off in such a way as to fling the bloody debris onto
    Franchina's face, nose, hair, neck, eyes, ears, and mouth.
    Immediately following this incident (and as a result of
    it), Franchina went out on disability leave for six months' time.
    She also confidentially reported the incident to Chief Crawford,
    and     though   Crawford     contacted      the     City's     Equal       Employment
    Opportunity ("EEO") Officer, the complaint form he completed noted
    that he believed Franchina was "blowing [the incident] out of
    proportion."         The     City's    EEO   officer,         however,       concluded
    differently:
    there appears to be AMPLE merit to [Franchina's] claim
    of MULTIPLE & REPEATED violations of [Providence Fire
    Department] RULES AND REGULATIONS.
    Even seems plausible that the pervasiveness of this
    behavior creates a HOSTILE WORK ENVIRONMENT for her.
    Also seems clear that [the Department] has FAILED to
    STOP the behavior.
    - 15 -
    Amended Joint App'x at 1046 (emphasis in original).                     The EEO
    officer testified at trial that she was unaware if anyone was ever
    ultimately disciplined for their actions toward Franchina.
    Following her return to the Department after the six-
    month leave, the abuse from her colleagues continued.                     At a
    December 2009 Christmas party in the Firefighter's Union Hall,
    Franchina was berated by McGarty (we will call this event the
    "Union Hall Incident").        He screamed obscenities at her, spit as
    he yelled at her, and, at a whopping 6'6", attempted to use his
    body to block her from leaving the hall so he could continue his
    bellowing.    He called her a "fucking doughnut," a "fucking zero,"
    and a "fucking loser."          Two senior officers, Lieutenant Elliot
    Murphy and Lieutenant Robert Jackson were both about fifteen to
    twenty feet away from where this harassment was occurring, yet
    said nothing.    In fact, when Franchina, seeking assistance, called
    out to Lieutenant Jackson--McGarty's direct supervisor--Jackson
    responded,     "I'm   not    your   fucking    baby-sitter"       and   allowed
    McGarty's tormenting to continue.
    In response to this incident, Franchina sought first a
    temporary restraining order ("TRO") against McGarty, which a Rhode
    Island   state-court        judge   granted,    and   then    a    preliminary
    injunction, which was also granted.            The injunction specifically
    restrained McGarty from "interfering with, molesting, harassing,
    annoying or contacting [Franchina] in any manner, directly or
    - 16 -
    indirectly."      The only exception to this injunctive relief was a
    carve-out allowing the two to interact with one another "on an
    emergency call, that is, specifically when [McGarty] is doing a
    call on behalf of the fire department and he is on the scene."
    Apart from that narrow exception, the superior court left it up to
    the Department to prevent Franchina and McGarty from encountering
    one another.   Chief Michael Dillon, Assistant Chief of Operations,
    subsequently issued an order barring McGarty from working any call-
    backs in stations that had a rescue unit, thus ensuring that
    Franchina   (as    a   rescue   lieutenant)      and   McGarty   would   never
    interact.    Nonetheless, Chief Scott Mello, who was in charge of
    scheduling, testified that he believed such an order was impossible
    to enforce and, moreover, that he viewed the order as "more of a
    suggestion."      No surprise, then, that the order was not actually
    followed and McGarty violated it at least four separate times.
    Franchina's    final    day     as    an    active-duty      rescue
    lieutenant was October 28, 2010.            That day, she arrived at the
    Branch Avenue Station only to discover that McGarty was on duty
    working there.     McGarty and various other firefighters, including
    Chief Mello (the scheduler discussed above), were on the second-
    floor landing of the station, talking negatively about Franchina
    in a raucous manner.      Franchina heard them making fun of her and
    loudly exclaiming, "Do you know who was in the fucking station
    today?   That bitch was in the station."          Franchina confronted the
    - 17 -
    group and then reported the incident to Chief Horton.                   Again, no
    disciplinary action was ever taken against anyone as a result of
    this incident.
    The    constant      ridicule        and   harassment      Franchina
    experienced caused her to be placed on injured-on-duty ("IOD")
    status.      Still, in order to remain an active member of the
    Department,        Franchina     was     required       to    perform     various
    administrative tasks at the Branch Avenue Station.               She testified
    that she performed these tasks "weekly" for a "good portion" of
    2011.     The abuse, however, did not stop even when Franchina was
    classified    as    IOD.       While   at   the    station,    she   would   hear
    firefighters make disparaging comments about her such as "[t]he
    bitch is in the house," and "F that bitch . . . thank God she's
    not here anymore."
    One of the Department chiefs eventually requested that
    Franchina no longer come into the station.              Thereafter, Franchina
    remained employed with IOD status (for a total of three more
    years), but she no longer physically reported in.               On November 30,
    2011, Franchina filed a Charge of Discrimination with the Rhode
    Island Commission for Human Rights ("RICHR") and with the Equal
    Employment    Opportunity       Commission      ("EEOC").      She   officially
    retired on disability on December 19, 2013, after being diagnosed
    with severe post-traumatic stress resulting from the numerous
    work-related incidents that occurred.              She testified that she can
    - 18 -
    never again work as a rescue lieutenant as a result of her
    permanent disability, which the City does not contest.                      By the
    time Franchina officially retired, she had submitted approximately
    forty different written statements complaining of harassment,
    discrimination, and retaliation to higher-ups in the Department.
    At      trial,    numerous    individuals     besides       Franchina
    testified    to     the   disparities    and   harassment      faced   by    female
    employees of the Department.        Lieutenant Danielle Masse testified,
    for example, that women were treated as "less competent" than men
    and were "spoken to as if they have no authority."                      She also
    testified that when women brought issues to the Department's chain
    of   command,     leadership    generally      didn't   take    the    complaints
    seriously or deal with them in an appropriate way.                 In fact, she
    stated that when a woman would voice a grievance, Department
    leadership often turned the problem around and blamed the female
    firefighter doing the complaining.
    There was also testimony that female employees who dated
    male firefighters were generally treated better than those who
    were not intimately involved with their male colleagues. And Chief
    Varone testified that there were men in the Department who openly
    treated     their    female    counterparts      with   contempt.           Another
    firefighter, Lieutenant Andrea Stuckus, explained at trial that
    she herself was followed into the women's restroom by a drunk male
    - 19 -
    firefighter who had to be physically removed by other male members
    of the Department.
    At the end of the trial the jury found in favor of
    Franchina   on   both       her   gender-based   hostile     work    environment
    discrimination claim, as well as her retaliation claim.                 It also
    awarded her punitive, emotional, and front pay damages.                    After
    judgment was entered for Franchina, the City filed a motion for
    judgment as a matter of law, a motion for a new trial, and, in the
    alternative, a motion to amend the judgment (by striking the
    punitive damages and front pay awards).               After a hearing, the
    district court denied the City's motion for judgment as a matter
    of law and motion for a new trial.              It did, however, strike the
    punitive damages award after reasoning that 42 U.S.C. § 1981a(b)(1)
    legally   precluded     a    plaintiff   like    Franchina    from    recovering
    punitive damages from a municipality like the City.                  Lastly, the
    district judge denied the City's motion to amend the judgment by
    striking the jury's front pay award. In doing so, the court stated
    that it had independently determined, in its equitable discretion,
    that front pay was an appropriate remedy and thus awarded the same
    amount that the jury had previously determined was fair.                      An
    amended judgment was then entered.
    With this background in place, we now turn to the issues
    presented on appeal, highlighting additional facts when needed to
    put the claims into proper perspective.
    - 20 -
    Analysis
    The City appeals from the denial of its motion for
    judgment as a matter of law, making numerous arguments as to why
    the decision in this case should not stand.          While the core issue
    on appeal involves the merits of Franchina's sex-discrimination
    claim, the City complains of other supposed reversible errors--
    such as timeliness concerns and evidentiary issues--that we will
    also address.   We review the district court's denial of the motion
    for judgment as a matter of law de novo.        Parker v. Gerrish, 
    547 F.3d 1
    , 8 (1st Cir. 2008).         In doing so, however, we do not
    "evaluate the credibility of the witnesses or weigh the evidence."
    Rodríguez-Marín v. Rivera-González, 
    438 F.3d 72
    , 75 (1st Cir.
    2006).   We will reverse "only if 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).
    A. Title VII: A Primer
    We begin with a brief introduction to Title VII of the
    Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq.,
    the anti-discrimination statute upon which Franchina's claims are
    based.   Under that statute, it is unlawful for an employer "to
    discriminate    against    any   individual   with    respect   to   [her]
    compensation, terms, conditions, or privileges of employment," 42
    U.S.C. § 2000e–2(a)(1), or "to limit, segregate, or classify [her]
    employees . . . in any way which would deprive or tend to deprive
    - 21 -
    any individual of employment opportunities or otherwise adversely
    affect [her] status as an employee," 42 U.S.C. § 2000e–2(a)(2),
    based on a protected characteristic such as sex. The Supreme Court
    has articulated that, pursuant to that language, plaintiffs may
    establish a violation of Title VII by demonstrating that an
    employer required them to work in a hostile or abusive environment.
    Harris v. Forklift Sys., Inc., 
    510 U.S. 17
    , 21 (1993) (explaining
    that   "[t]he       phrase    'terms,     conditions,   or    privileges     of
    employment' evinces a congressional intent to strike at the entire
    spectrum of disparate treatment of men and women in employment,
    which includes requiring people to work in a discriminatorily
    hostile     or   abusive      environment")    (internal     quotation   marks
    omitted).
    Title VII's anti-retaliation provision separately tells
    us that it is unlawful "for an employer to discriminate against
    any of his employees . . . because [the employee] has opposed any
    practice     made     an     unlawful     employment    practice    by     this
    subchapter[.]"        42     U.S.C.   §   2000e-3(a).   Because,    as   we've
    explained, the term "'oppose' . . . carries its ordinary meaning:
    to resist or antagonize . . .; to contend against; to confront;
    resist; withstand,"        Rodríguez-Vives v. P.R. Firefighters Corps of
    P.R., 
    743 F.3d 278
    , 284 (1st Cir. 2014) (quoting Crawford v. Metro.
    Gov't of Nashville & Davidson Cnty., 
    555 U.S. 271
    , 276 (2009)), we
    have interpreted the provision as casting a very broad "protective
    - 22 -
    cloak." See 
    id. at 283-84.
    That is to say, not only is it unlawful
    to retaliate against an employee for initiating formal legal
    actions pursuant to Title VII, see, e.g., Mariani–Colón v. Dep't
    of Homeland Sec. ex rel. Chertoff, 
    511 F.3d 216
    , 223 (1st Cir.
    2007) (complaining to human resource department and EEOC), but it
    is also unlawful for an employer to retaliate because an employee
    merely complains to a supervisor about conduct constituting sex
    discrimination.          See, e.g., Tuli v. Brigham & Women's Hosp., 
    656 F.3d 33
    ,   41–43   (1st   Cir.   2011).9      Retaliation   to   informal
    opposition of a discriminatory employment activity is, in sum,
    sufficient to violate Title VII.
    Franchina brought two claims under Title VII, asserting
    (1) that she was subjected to a hostile work environment, and (2)
    that she suffered retaliatory action for having reported sex-based
    discrimination to her superiors.                As we noted, she received a
    favorable jury verdict on each of her claims in the district court.
    On appeal, the City shines its spotlight solely on the hostile
    work environment cause of action.               In light of the City's focus,
    9
    Other examples of unlawful retaliation courts have found
    under Title VII include retaliation against an employee who
    involuntarily testified as a witness in a proceeding, see, e.g.,
    Deravin v. Kerik, 
    335 F.3d 195
    , 204 (2d Cir. 2003), as well as
    retaliation in response to an employee who aided a co-worker in
    asserting her rights. See e.g., Eichman v. Ind. State Univ. Bd.
    of Trs., 
    597 F.2d 1104
    , 1107 (7th Cir. 1979).
    - 23 -
    we linger not on the retaliation claim, giving our undivided
    attention instead to the issue with which the City takes umbrage.
    To succeed on a hostile work environment claim, six
    elements must generally be established:
    (1) that [the plaintiff] is a member of a protected
    class; (2) that [she] was subjected to unwelcome sexual
    harassment; (3) that the harassment was based upon sex;
    (4) that the harassment was sufficiently severe or
    pervasive so as to alter the conditions of [her]
    employment and create an abusive work environment; (5)
    that sexually objectionable conduct was both objectively
    and subjectively offensive, such that a reasonable
    person would find it hostile or abusive and that [s]he
    in fact did perceive it to be so; and (6) that some basis
    for employer liability has been demonstrated.
    Pérez-Cordero v. Wal-Mart P.R., Inc., 
    656 F.3d 19
    , 27 (1st Cir.
    2011).10   This standard, which "takes a middle path between making
    actionable any conduct that is merely offensive and requiring the
    conduct to cause a tangible psychological injury," Aponte-Rivera
    v. DHL Sols. (USA), Inc., 
    650 F.3d 803
    , 808 (1st Cir. 2011)
    (quoting   
    Harris, 510 U.S. at 21
      (1993)),   demands   that   we
    "distinguish between the ordinary, if occasionally unpleasant,
    vicissitudes of the workplace and actual harassment."        Noviello v.
    City of Boston, 
    398 F.3d 76
    , 92 (1st Cir. 2005).
    And determining whether alleged instances of offensive
    conduct reach the requisite level of pervasiveness and/or severity
    to constitute actual harassment is by no means a black-and-white
    10It is the third element in this standard that is the primary
    target of the City's appeal, which we will get into momentarily.
    - 24 -
    determination.      Indeed, we have explained time and again that
    "[t]here is no mathematically precise test that we employ to answer
    this question."     Gerald v. Univ. of P.R., 
    707 F.3d 7
    , 18 (1st Cir.
    2013).    We look, instead, to numerous factors (to which we assign
    no particular determinative weight) in order to guide us in our
    resolution    of    these   difficult   situations:   severity   of     the
    discriminatory conduct, its frequency, the extent to which the
    behavior is physically threatening or humiliating as opposed to a
    mere offensive utterance, and the extent to which it unreasonably
    interferes with an employee's work performance.       
    Id. Each hostile
    work environment claim, then, is necessarily evaluated on a case-
    by-case basis.
    Title VII also requires that the plaintiff file charges
    of discrimination within 180 days of the alleged act. 42 U.S.C.
    § 2000e-5(e)(1).      However, this period extends to 300 days where
    the plaintiff has "instituted proceedings with a State or local
    agency with authority to grant or seek relief from such practice."
    Id.; see also Velázquez-Pérez v. Developers Diversified Realty
    Corp., 
    753 F.3d 265
    , 276 (1st Cir. 2014).
    In fixing the applicable tolling time, we must keep in
    mind a key distinction the Supreme Court has articulated between
    the tolling of (1) discrete incidents of discrimination and (2)
    hostile    work    environment   claims.     "Discrete   acts    such    as
    termination, failure to promote, denial of transfer, or refusal to
    - 25 -
    hire are easy to identify,"       Nat'l R.R. Passenger Grp. v. Morgan,
    
    536 U.S. 101
    , 114 (2002), and, consequently, those "acts are not
    actionable if time barred, even when they are related to acts
    alleged in timely filed charges."           Campbell v. BankBoston, N.A.,
    
    327 F.3d 1
    , 11 (1st Cir. 2003) (citation omitted).               Hostile work
    environment claims, on the other hand, generally "do not 'turn on
    single acts but on an aggregation of hostile acts extending over
    a period of time.'"       Marrero v. Goya of P.R., Inc., 
    304 F.3d 7
    , 18
    (1st Cir. 2002) (quoting Havercombe v. Dep't of Educ., 
    250 F.3d 1
    ,
    6 (1st Cir. 2001)).11       For this reason, an equitable exception to
    the 300-day filing period is recognized under Title VII for the
    "ongoing pattern[s] of discrimination," that are part and parcel
    with    hostile   work    environment    claims.      O'Rourke    v.   City    of
    Providence, 
    235 F.3d 713
    , 726 (1st Cir. 2001) (citations omitted);
    see also Nat'l R.R. Passenger 
    Corp., 536 U.S. at 122
    .                         The
    continuing violation doctrine, in other words, allows plaintiffs
    to proceed on a hostile work environment claim "so long as all
    acts which constitute the claim are part of the same unlawful
    employment practice and at least one act falls within the time
    period."    Nat'l R.R. Passenger 
    Corp., 536 U.S. at 122
    (emphasis
    added).     Thus,    in    determining    liability    in   a    hostile   work
    11
    Of course, there are instances where a single incident can
    be so severe that it alone satisfies the "severe or pervasive"
    prong of a hostile work environment claim. See 
    Gerald, 707 F.3d at 18
    (1st Cir. 2013).
    - 26 -
    environment claim, all "component acts" of the claim that occurred
    outside of the limitations period may be considered.                   Tobin v.
    Liberty Mut. Ins. Co., 
    553 F.3d 121
    , 130 (1st Cir. 2009).
    With that legal landscape in mind, we address the City's
    various arguments, rejecting each one as we go along.
    B. Timeliness
    The City's first arrow in its effort to lampoon the
    district court proceedings is its claim that Franchina failed to
    present evidence establishing an instance of harassment falling
    within the applicable statute of limitations under Title VII.                The
    City contends that it was entitled to judgment as a matter of law
    on that issue and that the lower court erred in denying its motion.
    Having reviewed the issue de novo, see Cigna Ins. Co. v. Oy
    Saunatec,    Ltd.,   
    241 F.3d 1
    ,   8   (1st   Cir.   2001),   we   are   not
    persuaded.
    Both parties agree that Franchina filed her charge of
    discrimination with the RICHR on November 30, 2011.                    As such,
    Franchina extended her statute of limitations beyond the typical
    180-day limit and we therefore look to whether Franchina filed
    charges within 300 days of the alleged discrimination (i.e., on or
    after February 3, 2011).      See 
    Velázquez-Pérez, 753 F.3d at 276
    .
    The relevant inquiry here is whether Franchina anchored
    her hostile work environment claim by proving that some instance
    of harassment happened on or after February 3, 2011.              See Nat'l R.
    - 27 -
    R. Passenger 
    Corp., 536 U.S. at 117
    (where a plaintiff proves "that
    an act contributing to the claim occurs within the filing period,
    the entire time period of the hostile environment may be considered
    for the purposes of determining liability").         Here, Franchina
    testified that she was subject to vulgar obscenities and harassment
    on her weekly visits to the firehouse while she was out on
    disability.    She explicitly testified that these visits continued
    for a "good portion" of 2011.
    The City argues that because Franchina did not testify
    when specifically in 2011 the harassment occurred, she did not
    meet her burden of proving that some actionable conduct happened
    on or after February 3, 2011. Franchina counters that a jury could
    reasonably infer that a "good portion" of 2011 meant that Franchina
    returned for more than the first month of 2011 and therefore on or
    after February 3, 2011.   We agree with Franchina.
    We will reverse on appeal only if our review of the
    record reveals that the evidence required "one conclusion, namely,
    that the moving party was entitled to judgment." Travers v. Flight
    Servs. & Sys., Inc., 
    808 F.3d 525
    , 531 (1st Cir. 2015) (quoting
    Astro-Med, Inc. v. Nihon Kohden Am., Inc., 
    591 F.3d 1
    , 13 (1st
    Cir. 1999)).   Here, in order for the City to prevail, it must prove
    that the only reasonable conclusion one could draw from the
    evidence is that Franchina stopped returning to the firehouse (and
    therefore stopped experiencing harassment) before February 3,
    - 28 -
    2011.        We do not see the evidence in such stark a light.          Indeed,
    Franchina's testimony that she returned to the firehouse for a
    "good portion" of 2011 could certainly be understood to mean that
    she returned past February 3, 2011 (and logic reasonably suggests
    that the words "good portion" encompassed not merely the first
    thirty-three days of the year).                   Although we agree with the
    district court judge that more would have been better, we find the
    testimony presented to be at least minimally sufficient.                Viewing
    the "cold pages of the record" leaves little room for second
    guessing the district court's finding, Rodríquez v. Municipality
    of San Juan, 
    659 F.3d 168
    , 175 (1st Cir. 2011), and the City fails
    to provide us with a compelling reason to do so.
    C. Evidentiary Disputes
    Moving on, the City contends here as it did below that
    the district court erred in its admission of certain evidence,
    namely the allowance of testimony pertaining to the Union Hall
    Incident        and   the   admission    of   a    transcript   from   McGarty's
    preliminary injunction hearing that resulted from that incident.12
    In particular, the City argues first that all evidence of the Union
    Hall Incident was admitted in error because it is irrelevant to
    12
    The briefs refer to the hearing as a "TRO hearing," and
    call the relevant transcript a "TRO transcript," but that is
    incorrect. We take judicial notice that the hearing transcript in
    the record is from the preliminary injunction proceeding.     See
    United States v. Bello, 
    194 F.3d 18
    , 22-24 (1st Cir. 1999).
    - 29 -
    workplace harassment.       Second, it asserts that even if evidence of
    the Union Hall Incident were relevant, the transcript of the
    restraining order hearing was surely inadmissible hearsay. The
    admission of both, the City continues, so tainted the fairness of
    the trial by "engender[ing] a verdict based on sympathy, passion,
    and emotion."   These arguments do not hit the mark.
    We review a district court's admission of evidence for
    abuse of discretion,    Baker v. Goldman, Sachs & Co., 
    771 F.3d 37
    ,
    57 (1st Cir. 2014), a standard which is necessarily deferential.
    Shervin v. Partners Healthcare Sys. Inc., 
    804 F.3d 23
    , 44 (1st
    Cir. 2015) ("[O]nly rarely--and in extraordinarily compelling
    circumstances--will we, from the vista of a cold appellate record,
    reverse a district court's" evidentiary ruling.).              Even if a
    challenger passes this high hurdle, we will not reverse so long as
    "it is highly probable that the error did not affect the outcome
    of the case."   McDonough v. City of Quincy, 
    452 F.3d 8
    , 19-20 (1st
    Cir. 2006).
    1. The Incident as a Whole
    The City's first objection is to the admission of the
    evidence of the Union Hall Incident generally, which it lodges on
    relevancy grounds.     Specifically, it contends that the incident
    occurred outside the workplace and is therefore irrelevant to
    Franchina's workplace harassment claim.        Franchina counters that
    incidents   outside   the    workplace   involving   her   colleagues   and
    - 30 -
    supervisors     are    relevant    to   establish      the   severity     and/or
    pervasiveness of her hostile work environment claim.
    Making a relevancy-based argument, as the City does, is
    a rather tough sell.       For evidence to be relevant it "need only
    move the inquiry forward to some degree" on a fact of consequence.
    Bielunas v. F/V Misty Dawn, Inc., 
    621 F.3d 72
    , 76 (1st Cir. 2010)
    (citation omitted); see also Fed. R. Evid. 401 (relevant evidence
    has "any tendency to make a fact [that is of consequence] more or
    less probable").       And relevancy is determined "in light of the
    underlying substantive law."        
    Bielunas, 621 F.3d at 76
    .           In cases
    dealing with Title VII, we have previously held that evidence of
    non-workplace    conduct    is     admissible    "to    help   determine     the
    severity and pervasiveness of the hostility in the workplace."
    Crowley v. L.L. Bean, Inc., 
    303 F.3d 387
    , 409 (1st Cir. 2002).
    The City nonetheless seems to argue, without citation,
    that non-workplace conduct cannot be admitted as relevant unless
    the incident is directly tied to consequences suffered by the
    complainant in the workplace.           It maintains that as a result of
    the   Union     Hall    Incident     Franchina      suffered    no      material
    consequences (i.e. reduction of pay, change in work schedule,
    station relocation, or similar negative actions) at work and that,
    to the contrary, it was McGarty who was subject to work-based
    consequences given that his assignments had to be drastically
    restricted after the injunction issued.                We disagree with the
    - 31 -
    City's admissibility argument.         First, we have never mandated that
    evidence of non-workplace harassment have direct, formal workplace
    consequences (such as those listed above) for it to be relevant.
    And even if such an explicit connection were required, which it is
    not,    Franchina        testified    she     did     experience      workplace
    consequences, in the form of removal from the firehouse, following
    the Union Hall Incident.
    Second--and not to belabor the point--we have explained
    that non-workplace incidences are admissible if they cast light on
    the motivations, pervasiveness, and/or severity of the harassment.
    See 
    Crowley, 303 F.3d at 409
    ; see also 
    O'Rourke, 235 F.3d at 724
    ,
    727 (affirming a verdict in favor of a sexual harassment victim
    who offered evidence of prank phone calls taking place outside the
    workplace).    Both McCarty, the alleged harasser in the Union Hall
    Incident, and Lieutenant Jackson, one of the supervisors who failed
    to intervene, were players in Franchina’s workplace harassment
    claim as each had been insubordinate in a previous rescue attempt
    episode.     Just as testimony that a firefighter on duty refused to
    cook   for   her   or    made   Franchina   sick    helps   to   establish   the
    pervasiveness      and    severity    of    the     hostility    in   her    work
    environment, so too does off-duty evidence demonstrating Franchina
    was berated, spit at, and otherwise assaulted by a co-worker while
    a supervising officer stood by. Therefore, the Union Hall Incident
    was not isolated, non-work related conduct, but rather evidence
    - 32 -
    supporting the magnitude of the workplace harassment Franchina
    endured; a permissible means.            See 
    Crowley, 303 F.3d at 409
    .
    Because the City's relevancy argument cannot withstand
    our   scrutiny    we     turn    next    to   the    City's       challenge    to     the
    transcript's admissibility specifically.
    2. The Preliminary Injunction Hearing Transcript
    As noted above, after the Union Hall Incident Franchina
    sought   and     then    received       injunctive      relief      against    McGarty
    following a multi-witness hearing before the Rhode Island Superior
    Court.   At Franchina's Title VII trial, the district court, over
    the   City's     objection,        admitted      into    evidence      the     hearing
    transcript from the superior court proceeding.                    The City contends
    the   admission         was     erroneous     because       the     transcript        was
    inadmissible      hearsay.       Franchina    disagrees,          arguing    that    the
    transcript was not admitted to prove what happened at the Union
    Hall, but rather for the non-hearsay purpose of demonstrating (as
    the   trial     court    explained      in    its    jury    instructions)          "that
    management-level employees of the City [ ] knew or should have
    known of the harassment, and that those management-level employees
    failed to implement prompt and appropriate remedial actions that
    [we]re reasonably calculated to stop the harassment and remedy the
    situation."      We agree with Franchina.
    Out-of-court statements are considered "nonhearsay" when
    they are offered not for the truth of the matter but for some other
    - 33 -
    purpose.      United States v. Murphy, 
    193 F.3d 1
    , 5 (1st Cir. 1999)
    ("So long as out-of-court statements are not offered for their
    truth,      they    are      not   hearsay.").         The    transcript,        then,    was
    admissible as non-hearsay if, as Franchina argues, it was offered
    for the purpose of establishing that the City was, or should have
    been, on notice of Franchina’s alleged workplace harassment.                             See
    Kelley v. Airborne Freight Corp., 
    140 F.3d 335
    , 346 (1st Cir. 1998)
    (hearsay rule does not bar out-of-court statement offered to prove
    notice);     
    Tuli, 656 F.3d at 41
       (out-of-court       statements       were
    permissibly        introduced      as    non-hearsay          because    they     "remained
    relevant for purposes of showing notice to the [employer] and
    toleration         of   a     general    climate       of     offensive        remarks    and
    displays").        And the transcript did just that.
    Here,         multiple    employees        of     the     Fire     Department
    testified at the superior court hearing about the altercation
    between McGarty and Franchina.13                   Those who testified included not
    just    Franchina       and    McGarty,       but     also    two     higher-ups    in   the
    13Lieutenant Murphy (who was testifying in support of
    McGarty) noted on the record his awareness that during the Union
    Hall Incident "an argument ensued, a heated discussion amongst
    [Franchina and McGarty]."        He also explained that while
    firefighters generally "settle[d] their differences" in the Union
    Hall (that is, they didn't bring their work problems home with
    them and dealt with them amongst themselves), this incident was
    the first time in his twenty-two years on the job that he could
    remember "anything leaving the union hall." Lieutenant Jackson
    (who was also testifying in support of McGarty) similarly explained
    that an argument between Franchina and McGarty had occurred, though
    he was unable to hear what it was about.
    - 34 -
    Department's leadership, Lieutenant Robert Jackson and Lieutenant
    Elliot Murphy.14   Testimony from senior officers (i.e. those in
    positions of power) concerning what happened at the union hall,
    regardless of its truth, could be understood as lending credence
    to the inference that the Department should have been on notice of
    the hostile work environment with which Franchina contended.   See
    Forrest v. Brinker Int'l Payroll Co., LP, 
    511 F.3d 225
    , 231 (1st
    Cir. 2007) (harassment open and known by management level employees
    evidenced that the employer knew of the harassment).     Moreover,
    the transcript evidences a larger knowledge about the alleged
    harassment among the employees of the Department.     For example,
    Lieutenant Murphy testified that he filed a report with the
    Department about the Union Hall Incident and that he knew of the
    previous alleged incident of insubordination between Franchina,
    McGarty, and Lieutenant Jackson.   And Lieutenant Jackson testified
    that he had heard rumors that Franchina was filing a lawsuit
    against the Department related to his alleged insubordination
    during a rescue. Such evidence of widespread knowledge among
    employees can be probative of an employer's notice and, therefore,
    14 Firefighter Michael Evora also testified about the fact
    that he witnessed the argument, but was unable to determine what
    had caused it and did not hear what they were arguing over. He
    did note, however, that he noticed Franchina trying to ask for
    help from a senior officer during the incident.
    - 35 -
    was properly admitted for this purpose.      
    Crowley, 303 F.3d at 402
    -
    03 (evidence that managers, team leaders, and superiors were aware
    of harassment evidenced that the employer knew or should have
    known); White v. N.H. Dept. of Corr., 
    221 F.3d 254
    , 261 (1st Cir.
    2000) (Title VII requires proving that the supervisors "knew or
    should have known" of the workplace harassment but "failed to
    implement prompt and appropriate corrective action").15
    The events following the preliminary injunction hearing
    further support the fact that leadership was on notice that the
    hearing occurred and about what had transpired at the hearing.
    Indeed, immediately following the superior court's grant of the
    injunctive    relief,   Chief   Michael   Dillon,   Assistant   Chief   of
    Operations, issued an order barring McGarty from working any call-
    15 In what appears to be part of its broader admissibility
    argument, the City seems to tell us that admission of the
    transcript was unduly prejudicial and should have been excluded.
    We've held that when statements "potentially qualif[y] as both
    hearsay and nonhearsay, the district court may admit it if it is
    relevant, and if the probative value of its intended nonhearsay
    use is not substantially outweighed by the risk of the jury
    considering it for the truth of the matter asserted."        United
    States v. Colón-Díaz, 
    521 F.3d 29
    , 33 (1st Cir. 2008); see also
    Fed. R. Evid. 403.       Here, the City's contention that the
    transcript's probative value is substantially outweighed by the
    prejudicial effect is made in conclusory terms and without citation
    or persuasive reasoning.    We see no reason to make the City's
    argument for it, and consider it waived. United States v. Zannino,
    
    895 F.2d 1
    , 17 (1st Cir. 1990) ("It is not enough merely to mention
    a possible argument in the most skeletal way, leaving the court to
    do counsel's work, create the ossature for the argument, and put
    flesh on its bones."). Additionally, we note that the City never
    asked the court to issue a limiting instruction to the jury
    regarding the extent to which the transcript could be considered.
    - 36 -
    backs with Franchina and Chief Scott Mello, a scheduler in the
    Department, testified about receiving and attempting to implement
    Mello's order.              In light of all of this, we espy no abuse of
    discretion on the part of the district court.
    But, even if the district court erred by admitting
    evidence of either the Union Hall Incident or the preliminary
    injunction hearing transcript or both (and by no means do we
    suggest it did), any such error would necessarily be harmless.
    There was a plethora of other, independent evidence introduced at
    trial that more than supports the verdict that Franchina was
    discriminated against on the basis of her gender.                Indeed, in our
    next section below we outline that evidence in further detail.
    D. Sufficiency of the Evidence: Title VII
    The City next maintains that it was entitled to judgment
    as   a        matter   of   law   on   Franchina's   hostile   work   environment
    discrimination claim because she failed, in its opinion, to present
    sufficient evidence under a sex-plus theory of discrimination as
    required by our Title VII jurisprudence.16              Our de novo review "is
    16
    We note here that Franchina argues that the City lacks
    standing to appeal the hostile work environment discrimination
    claim. Specifically, she points out that the jury awarded lump
    sum damages on both her hostile work environment and retaliation
    claims, but the City did not appeal the retaliation claim. So the
    argument goes, the City never objected to damages being awarded in
    a lump sum and so even if they prevail on their appeal with respect
    to the discrimination claim, lump sum damages are joint and several
    and therefore fully attributable to the retaliation claim which is
    - 37 -
    weighted toward preservation of the jury verdict; 'we must affirm
    unless   the   evidence   was   so     strongly   and   overwhelmingly
    inconsistent with the verdict[] that no reasonable jury could have
    returned [it].'"   Rodowicz v. Mass. Mut. Life Ins. Co., 
    279 F.3d 36
    , 41-42 (1st Cir. 2002) (quoting Walton v. Nalco Chem. Co., 
    272 F.3d 13
    , 23 (1st Cir. 2001)).        For the reasons that follow, we
    conclude the City's charge overshoots its target.
    1.   What's Required to Prove a Sex-Plus Claim under Title VII?
    Before delving into the heart of the City's argument, we
    briefly pause to shed some light on what we perceive to be a
    misapprehension by the City over what is required to prove a
    hostile work environment claim when a plaintiff (like Franchina)
    premises her claim on a "sex-plus theory."        In short, "sex-plus
    claims" are a flavor of gender discrimination claims where "an
    employer classifies employees on the basis of sex plus another
    not up for appeal. Franchina thus maintains that there is no live
    case and controversy and the discrimination claim is moot.
    But the City's notice of appeal was all encompassing.      It
    specifically stated that it was appealing "all adverse orders and
    rulings made by the District Court in this action," including "all
    judgments and amended judgments."    Thus, at the very least, it
    certainly had standing to challenge the retaliation claim. While
    it is true that the City provided no argumentation on the merits
    of the retaliation claim, we will assume (favorably to the City)
    that the argument was not waived. See De Jesús v. LTT Card Servs.,
    Inc., 
    474 F.3d 16
    , 20 n.6 (1st Cir. 2007). That said, we see no
    need to delve deep into the retaliation issue. Indeed, much of
    the same evidence that supports the discrimination claim alleged
    by Franchina similarly supports her retaliation cause of action.
    - 38 -
    characteristic."         Chadwick v. WellPoint, Inc., 
    561 F.3d 38
    , 43
    (1st Cir. 2009) (quoting 1 Barbara Lindemann & Paul Grossman,
    Employment Discrimination Law 456 (3d ed. 1996) (emphasis in
    original)).      The City contends, as best we can tell, that for a
    plaintiff to be successful under a sex-plus theory, a separate,
    more   stringent      evidentiary      standard     exists    than    for    straight
    claims of sex discrimination.            The City, it seems, believes that
    under a sex-plus theory, plaintiffs are required to identify a
    corresponding sub-class of the opposite gender and show that the
    corresponding class was not subject to similar harassment or
    discrimination.       Thus, for Franchina to succeed, the City tells us
    she    is   required     to    have    presented    evidence     at   trial        of   a
    comparative      class    of     gay    male     firefighters     who       were    not
    discriminated against.          Without such a showing, the City contends,
    it would not be possible to prove that any sort of differential
    treatment a plaintiff experiences is necessarily predicated on his
    or her gender.
    This approach--one that we have never endorsed--has some
    rather      obvious   flaws.      Indeed,      at   oral     argument,      the    City
    recognized one of them in its concession that such a standard would
    permit employers to discriminate free from Title VII recourse so
    long as they do not employ any subclass member of the opposite
    gender.      But, of course, that cannot be.           Under such an approach,
    for example, discrimination against women with children would be
    - 39 -
    unactionable as long as the employer employed no fathers.              But see
    
    Chadwick, 561 F.3d at 41
    .17       The result that would follow from the
    City's approach would, thus, be inapposite to Title VII's mandate
    against sex-based discrimination.
    Indeed,   at   the   advent    of    sex-plus   claims,   courts
    recognized that "[t]he effect of [Title VII] is not to be diluted
    because discrimination adversely affects only a portion of the
    protected class."      Sprogis v. United Air Lines, Inc., 
    444 F.2d 1194
    , 1198 (7th Cir. 1971), cert denied, 
    404 U.S. 991
    (1971); see
    also 
    Chadwick, 561 F.3d at 42
    n.4 (explaining that "discrimination
    against      one   employee       cannot     be     remedied    solely     by
    nondiscrimination against another employee in that same group").
    Similarly, the effect of Title VII is not to be diluted because
    discrimination adversely affects a plaintiff who is unlucky enough
    to lack a comparator in his or her workplace.
    The City's position conflicts also with Title VII's text
    and jurisprudence.     Requiring a plaintiff to point to a comparator
    of the opposite gender implies the inquiry is that of "but-for"
    causation.    That is to say, the City's approach requires Franchina
    to make a showing that, all else being equal (the "plus" factors
    17 Sexual harassment against black women would also be
    unactionable as sex discrimination as long as the employer employed
    no black men.    But see Jefferies v. Harris Cnty. Cmty. Action
    Ass'n, 
    615 F.2d 1025
    , 1034 (5th Cir. 1980) ("It is clear from the
    foregoing cases that an employer may not single out black women
    for discriminatory treatment.").
    - 40 -
    being the same), the discrimination would not have occurred but
    for her gender.        Title VII requires no such proof.              The text bars
    discrimination        when   sex    is    "a    motivating   factor,"      not   "the
    motivating     factor."       42    U.S.C.      §   2000e-2(m)    ("[A]n   unlawful
    employment practice is established when the complaining party
    demonstrates that . . . sex . . . was a motivating factor for any
    employment practice, even though other factors also motivated the
    practice.").       And, moreover, the Supreme Court has explicitly
    rejected the "but for" standard.               See Price Waterhouse v. Hopkins,
    
    490 U.S. 228
    , 240 (1989) ("To construe the words 'because of' as
    colloquial      shorthand     for    'but-for       causation'    .    .   .   is   to
    misunderstand them.").
    In sum, the City advocates a standard for sex-plus claims
    that requires plaintiffs to allege more than what is required for
    traditional sex discrimination claims.               But we have held that sex-
    plus "does not mean that more than simple sex discrimination must
    be alleged."     
    Chadwick, 561 F.3d at 43
    .            Chadwick, in other words,
    made clear that the sex-plus label is no more than a "heuristic .
    . . , a judicial convenience developed in the context of Title VII
    to   affirm    that    plaintiffs        can,   under   certain       circumstances,
    survive summary judgment [and obtain a favorable verdict at trial]
    even when not all members of a disfavored class are discriminated
    against."      Back v. Hastings On Hudson Union Free Sch. Dist., 365
    - 41 -
    F.3d 107, 118 (2d Cir. 2004).               With these principles in mind we
    move on to the City's sufficiency of the evidence challenge.
    2.   Was there Sufficient Evidence to Support Franchina's Claim?
    At core, the City believes that Franchina has presented
    no    evidence      to     support   her    claim      that   the   harassment        she
    experienced was a result, at least in part, of her gender.18
    Rather, it contends Franchina inappropriately blurred the line
    between sex and sexual orientation discrimination under Title VII.
    According      to    the    City,    even   though,     arguendo,    she   may    have
    presented evidence demonstrating discrimination as a result of the
    latter      (her    sexual    orientation),      she    presented    little      to   no
    evidence of the former (her gender).                And such sexual orientation
    bigotry, the argument goes, does not enjoy Title VII protection
    under Higgins v. New Balance Athletic Shoe, Inc., a nearly twenty-
    year-old case in which we concluded that Title VII does not
    proscribe harassment based solely on one's sexual orientation.
    
    194 F.3d 252
    , 258-59 (1st Cir. 1999).19                  While that may be true,
    18
    In its brief, the City's argument here is primarily premised
    on Franchina's failure to present evidence showing that a
    comparator class (of gay male firefighters) was not subject to the
    same discriminatory actions alleged by Franchina. For the reasons
    discussed at length above, however, that argument cannot stand.
    19
    Though the tide may be turning when it comes to Title VII's
    protections, see Hively v. Ivy Tech Community College of Ind., 
    853 F.3d 339
    , 341 (7th Cir. 2017) (holding en banc that discrimination
    on the basis of sexual orientation is a form of sex
    discrimination), it is not our job here to posit whether Higgins
    should be reexamined.     Though Franchina originally brought a
    separate claim alleging sexual-orientation discrimination under
    - 42 -
    we do not believe that Higgins forecloses a plaintiff in our
    Circuit from bringing sex-plus claims under Title VII where, in
    addition   to   the   sex-based   charge,   the   "plus"   factor   is   the
    plaintiff's status as a gay or lesbian individual. Indeed, Higgins
    expressly disclaimed reaching a conclusion on that issue.           
    See 194 F.3d at 260
    (explaining that while appellant made a sex-plus
    argument on appeal, that claim "never surfaced in the district
    court" and, therefore, the court would not reach that issue on the
    merits).   In sex-plus claims brought under Title VII "the simple
    question posed . . . is whether the employer took an adverse
    employment action at least in part because of an employee's sex."
    
    Chadwick, 561 F.3d at 43
    (emphasis in original).            And we see no
    reason why claims where the "plus-factor" is sexual orientation
    would not be viable if the gay or lesbian plaintiff asserting the
    claim also demonstrates that he or she was discriminated at least
    in part because of his or her gender.
    Here, Franchina presented a plethora of evidence showing
    that the impetus for the discrimination she sustained was based in
    part on her being a female.           In gender discrimination cases
    premised on a hostile work environment, Title VII permits a
    plaintiff to prove unlawful discrimination by demonstrating that
    Title VII, the district court dismissed that count at the motion
    to dismiss stage of this case.     Franchina did not appeal that
    decision and so it is not before us.
    - 43 -
    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.'"          
    Harris, 510 U.S. at 21
    (citations
    omitted).     "Evidence of sexual remarks, innuendos, ridicule, and
    intimidation may be sufficient to support a jury verdict for a
    hostile work environment." 
    O'Rourke, 235 F.3d at 729
    . Here, there
    was repeated evidence that Franchina was called a "bitch," "cunt,"
    and "Frangina."       The use of these words is inherently "gender-
    specific"    and    their   "repeated   and   hostile    use   .   .   .    .   can
    reasonably     be    considered    evidence     of    sexual       harassment."
    Passananti v. Cook Cnty., 
    689 F.3d 655
    , 666 (7th Cir. 2012).                     In
    fact a "raft of case law . . . establishes that the use of sexually
    degrading,    gender-specific     epithets,    such     as   'slut,'       'cunt,'
    'whore,' and 'bitch' . . . , has been consistently held to
    constitute harassment based upon sex."          
    Forrest, 511 F.3d at 229
    ;
    see also State of Conn. v. Baccala, 
    163 A.3d 1
    , 13 (Conn. 2017)
    (explaining that "fat ugly bitch" and "cunt" are "one or more of
    the most vulgar terms known in our lexicon to refer to [the female]
    gender").    This case is no different.        In fact, there was more.
    There was also evidence that women were treated as less
    competent; a treatment barred by Title VII.             Oncale v. Sundowner
    Offshore Servs. Inc., 
    523 U.S. 75
    , 80 (1998) ("The critical issue,
    Title VII's text indicates, is whether members of one sex are
    - 44 -
    exposed to disadvantageous terms or conditions of employment to
    which members of the other sex are not exposed.") (quotation marks
    omitted).     There was evidence that men treated women better when
    they were perceived as willing to have sex with them.              There was
    evidence    that   Franchina   was    subjected    to    humiliating     sexual
    remarks and innuendos by Ferro, including asking the plaintiff if
    she wanted to have babies and if he could help her conceive.               This
    type of sexually based animus is a hallmark of Title VII.                  
    Id. (noting that
    "the inference of discrimination [is] easy to draw .
    . . [when] the challenged conduct typically involves explicit or
    implicit proposals of sexual activity"); 
    Marrero, 304 F.3d at 19
    (observing     that    repeated     "humiliating     sexual    remarks     and
    innuendos" are actionable under Title VII).
    In sum, the jury heard evidence of repeated hostile,
    gender-based epithets, ill treatment of women as workers, sexual
    innuendoes, and preferential treatment for women who were more
    likely to sleep with the men of the Department.            This sampling of
    evidence demonstrates that the "accumulated effect . . . taken
    together" constitutes a hostile work environment.              
    O'Rourke, 235 F.3d at 729
    .
    3. Did the Judge Accurately Convey to the Jury What was Required
    Under Title VII?
    Lastly,   the   City    quibbles     over   the   judge's    jury
    instructions--specifically as to how he conveyed to the jury what
    - 45 -
    elements were required in order to prove a sex-plus claim under
    Title VII. We review preserved claims of instructional error under
    a split standard.        Questions as to whether jury instructions
    capture the essence of the applicable law are reviewed de novo,
    while questions as to whether the court's choice of phraseology in
    crafting    its   jury   instructions   is    unfairly   prejudicial    are
    reviewed for abuse of discretion.          DeCaro v. Hasbro, Inc., 
    580 F.3d 55
    , 61 (1st Cir. 2009).      Because the question here is whether
    the applicable law was adequately conveyed, our review is de novo.
    The supposedly problematic instruction reads as follows:
    Element three requires that harassment must be based on
    gender.   The plaintiff need not prove that all women
    were discriminated against or were harassed, but she
    must prove that she was harassed at least in part because
    she is a woman.
    In other words, she may meet this element by proving
    that she was harassed because she is part of a subclass
    of women, in this case lesbians, if she also proves that
    this harassment was at least in part because of her sex
    or gender.
    The City argues that this instruction is inconsistent
    with the law, and states that the following sentence should have
    been added in order for the instruction to be legally sufficient:
    "If you find that Ms. Franchina faced harassment solely because of
    her sexual orientation, then she has not proven that she faced
    harassment because of her gender."
    Where "a party assigns error to the failure to give a
    requested   instruction,    the   threshold    inquiry   is   whether   the
    - 46 -
    requested instruction was correct as a matter of law."            
    Shervin, 804 F.3d at 47
    .      If that threshold is met, the challenger must
    make two subsequent showings: first that the proposed instruction
    is "not substantially incorporated into the charge as rendered"
    and second that it is "integral to an important point in the case."
    
    White, 221 F.3d at 263
    (quoting United States v. DeStefano, 
    59 F.3d 1
    , 2 (1995)).
    While the City's requested jury instruction is, in fact,
    legally correct (thus passing the threshold question), we fail to
    see what supposed deficiency in the instructions the judge actually
    gave to the jury would be cured by the City's requested insert.
    We have made clear that the inquiry in sex-plus claims is whether
    the   harassment   was   caused   "at   least   in   part   because   of   an
    employee's sex," 
    Chadwick, 561 F.3d at 43
    (emphasis in original),
    which is exactly what the district court instructed.          As such, the
    instruction was "in substance, legally correct," 
    Shervin, 804 F.3d at 47
    , and the City's requested instruction would have been mere
    superfluity.   Failure to include superfluous language is not an
    error.   Having addressed each of the City’s Title VII disputes, we
    move on.
    E. Front Pay
    Even if we decline to invalidate the entire jury verdict-
    -which, for the reasons discussed at length above, we just have--
    the City argues that at the very least we must still strike the
    - 47 -
    judge's award of front pay to Franchina.      That is so, the City
    contends, because the district court erred post-trial when it
    failed to grant the City's motion to alter or amend the judgment
    pursuant to Fed. R. Civ. P. 59(e).      The City's argument on this
    point is three-fold.    First, the City contends that there was no
    competent evidence to support any award of front pay damages.
    Second, the City argues that the judge erred in failing to instruct
    the jury that any front pay award needed to be reduced to present
    value.    And third, the City takes issue with Franchina's failure
    to present expert testimony which it says was necessary to support
    a front pay claim.20
    We review a district court's ruling on a Rule 59(e)
    motion for abuse of discretion.    Guadalupe-Báez v. Pesquera, 
    819 F.3d 509
    , 518 (1st Cir. 2016).    In doing so, we keep in mind that
    "[s]uch a motion must either establish a clear error of law or
    point to newly discovered evidence of sufficient consequence to
    make a difference."    
    Id. 20While numerous
    other Circuits have explicitly stated front
    pay determinations are only to be made by a judge and should never
    go to a jury, see, e.g., Duke v. Uniroyal Inc., 
    928 F.2d 1413
    ,
    1424 (4th Cir. 1991); Fortino v. Quasar Co., A Div. of Matsushita
    Elec. Corp. of Am., 
    950 F.2d 389
    , 398 (7th Cir. 1991); Newhouse v.
    McCormick & Co., Inc., 
    110 F.3d 635
    , 643 (8th Cir. 1997), and
    though we have previously noted that there may be some question
    concerning the propriety of a jury making front pay calculations
    in our Circuit, see Johnson v. Spencer Press of Me., Inc., 
    364 F.3d 368
    , 380 n.8 (1st Cir. 2004) (citing Lindemann & Grossman,
    Employment Discrimination Law 640–41 (Cane, Jr. et al. eds., 3d
    ed. 1996)), this issue is not before us today.
    - 48 -
    "[F]ront   pay,    within      the   employment       discrimination
    universe, is generally equitable in nature.           It follows a fortiori
    from the equitable nature of the remedy that the decision to award
    or withhold front pay is, at the outset, within the equitable
    discretion of the trial court."           Lussier v. Runyon, 
    50 F.3d 1103
    ,
    1108 (1st Cir. 1995) (citations omitted) (emphasis in original).
    And in a similar context (the equitable award of back pay) under
    Title VII, our abuse of discretion standard must necessarily be
    "measured against the purposes which inform Title VII."                Albemarle
    Paper Co. v. Moody, 
    422 U.S. 405
    , 417 (1975).           These purposes, our
    judicial superiors tell us, include "eradicating discrimination
    throughout the economy and making persons whole for injuries
    suffered through past discrimination."            
    Id. at 421.
         Further, our
    precedent   makes   plain     that   we    are   "flexible    .    .   .   in   the
    construction of remedial awards," Selgas v. Am. Airlines, Inc.,
    
    104 F.3d 9
    , 13 (1st Cir. 1997), and, therefore, we generally give
    district courts significant latitude in awarding front pay.                     See
    
    Lussier, 50 F.3d at 1110
    (explaining that "[b]ecause the hallmarks
    of equity have long been flexibility and particularity . . . . a
    rule that confers latitude upon the district court to handle the
    interface between [an issue related to] front pay differently in
    different cases is fully consistent with this storied heritage").
    This flexibility also derives in large part from the inherently
    imprecise nature of the award.            See Johnson v. Spencer Press of
    - 49 -
    Me., Inc., 
    364 F.3d 368
    , 380 (1st Cir. 2004) (explaining that
    awarding    of   front   pay   "necessarily   involve[s]   predictions   of
    events yet to come").          As such, "decisions as to front pay are
    generally afforded more deference than decisions as to back pay."
    
    Id. "After all,
    the dispensation of front pay--if only because of
    its relatively speculative nature--is necessarily less mechanical
    than back pay, and the amount of front pay--if only because of its
    predictive aspect--is necessarily less certain than back pay."
    
    Lussier, 50 F.3d at 1109
    (internal citation omitted).
    In requesting front pay, the burden is on the plaintiff-
    -here, Franchina--to present evidence in support of the award.
    Cf. Azimi v. Jordan's Meats, Inc., 
    456 F.3d 228
    , 236 (1st Cir.
    2006).     And while we have never before needed to explicitly spell
    out the factors a court may consider in determining whether front
    pay is justified, courts throughout the country have looked at a
    wide range of indices in the crafting of fair front pay awards,
    including (but certainly not limited to):
    (1) the plaintiff's age, (2) the length of time the
    plaintiff was employed by the defendant employer, (3)
    the likelihood the employment would have continued
    absent the discrimination, (4) the length of time it
    will take the plaintiff, using reasonable effort, to
    secure comparable employment, (5) the plaintiff's work
    and life expectancy, (6) the plaintiff's status as an
    at-will-employee, (7) the length of time other employees
    typically held the position lost, (8) the plaintiff's
    ability to work, (9) the plaintiff's ability to work for
    the defendant-employer, (10) the employee's efforts to
    mitigate damages, and (11) the amount of any liquidated
    or punitive damage award made to the plaintiff.
    - 50 -
    Ogden v. Wax Works, Inc., 
    29 F. Supp. 2d 1003
    , 1015 (N.D. Iowa
    1998) (internal citations omitted) (collecting cases from our
    Circuit as well as our sisters in the Second, Third, Fourth, Sixth,
    Seventh,     Eighth,   Ninth,    Tenth,   Eleventh,   and   D.C.   Circuits).
    Finally, we note that "when future payment or other pecuniary
    benefits are to be anticipated, the [award] should be made up on
    the basis of their present value only."           St. Louis Sw. Ry. Co. v.
    Dickerson, 
    470 U.S. 409
    , 411 (1985).           And failure to instruct the
    jury to reduce an award of future payment to present day value
    ordinarily requires a new trial.             See Conway v. Electro Switch
    Corp., 
    825 F.2d 593
    , 603 n.5 (1st Cir. 1987) ("We note, as a final
    matter, that the jury was not instructed to reduce its award of
    front pay to present value, thus . . . the district court must
    order a new trial on the front pay question.").
    1. Exploring the Arguments
    Because the City's second argument does not cause us to
    tarry, we begin there.          The City contends that the judge's front
    pay   jury   instruction   constituted       reversible   error    because   it
    failed to instruct the jury that any award needed to be reduced to
    present day value.      Given our clear case law, ordinarily we would
    agree.21     However, we ask the reader to recall that, although the
    21
    Had the district court not made an independent award, our
    standard of review would be de novo rather than abuse of
    - 51 -
    district court did initially submit the front pay issue to the
    jury, it went a step further and exercised its equitable discretion
    to independently (and alternatively) award Franchina front pay
    (and at the same time clearly stated the award had been reduced to
    present day value).   And the City is in agreement that a judge may
    fashion a front pay award--at the charge conference, the City's
    counsel argued that the front pay question should not be given to
    the jury because "front pay is an equitable matter to be determined
    by the Court."   Therefore, because the City makes no challenge to
    the district judge's ability to make front pay determinations, we
    move on to discuss the City's more substantive attacks, the essence
    of both being the City's contention that "[Franchina] presented
    virtually zero evidence upon which a jury or the Court could
    fashion an appropriate award on front pay."
    The City challenges the sufficiency of Franchina's front
    pay award claiming she failed to meet her burden of presenting the
    "essential data" needed to calculate such an award.   Relying on a
    D.C. Circuit case, the City tells us "essential data" constitutes
    "the amount of the proposed award, the length of time the plaintiff
    expects to work for the defendant, and the applicable discount
    discretion. See DeCaro v. Hasbro, Inc., 
    580 F.3d 55
    , 61 (1st Cir.
    2009) (explaining that we review de novo questions as to whether
    jury instructions capture the essence of the applicable law).
    - 52 -
    rate." See Barbour v. Merrill, 
    48 F.3d 1270
    , 1279 (D.C. Cir. 1995)
    (citation omitted).
    We agree that Franchina bore the burden of proving her
    entitlement to front pay in the amount awarded.                We disagree,
    though, that she failed to produce any evidence in support of the
    district court's determination. In deciding on a request for front
    pay, a district court can consider an array of issues.                A non-
    exhaustive list includes the following: Is the plaintiff able and
    allowed to return to work with the employer? What pay and benefits
    was she receiving?     What other work can and will she likely obtain
    to offset the loss?      What pay increases might she have obtained
    had she remained employed?        For how long would she have worked?
    What will be the effects of inflation?            What will be the rate of
    return on any award?
    Franchina's evidence covered most but not all of these
    factors (for instance she did not propose a discount rate).               In
    terms   of    the   evidence    she     did    present,   though,   Franchina
    demonstrated the following:             She had been earning $98,000 to
    $130,000 per year while employed with the Department; she is
    permanently disabled from continuing a career as a first responder
    in the Department; and she is receiving $25,000 per year in
    disability benefits.     There was also testimony that she possessed
    excellent    professional      skills    and    leadership   qualities,   and
    although she started in the Department as an entry-level Rescue
    - 53 -
    Technician, she quickly moved through the ranks and reached the
    level of Rescue Lieutenant (a leadership position).                Furthermore,
    Franchina had worked for ten years in the Department, yet was only
    44 years old at the time she left her job.                  The Department's
    pension structure also encouraged Department employees to maintain
    employment for great lengths of time.               Indeed, future benefits
    were linked with longevity of service.              And she put on evidence
    that numerous other employees spent upwards of 30-35 years with
    the Department.
    Given all of this, the crucial factor in estimating
    future   lost   wages    was    the   number   of   years   that    her   annual
    unadjusted loss of $73,000 to $105,000 would have continued.
    Twenty years would have generated a figure of $1.4 million to $2
    million.   Adding in for inflation and lost pension would have
    bumped this number up.         Reducing to present value may have reduced
    it as much, or perhaps more.          On this record, we see no reason to
    conclude that the record's omission of a discount rate rendered an
    award of $545,000 improper as a matter of law, at least where the
    adjudicator is a trial judge likely well familiar with the concept
    of present value.       Clearly the judge assumed that the future was
    uncertain, and an award for over $1 million unwarranted. Its ample
    discretion to discount for uncertainty dwarfed as a practical
    matter any loss of precision in discounting for a reasonable rate
    of return where the likely duration was perhaps five years.
    - 54 -
    Certainly the court could have awarded much less.   But its failure
    to insist that Franchina provide it with more precise information
    provides no reason to set aside the award.
    Nonetheless, the City posits that even if we conclude
    Franchina presented significant (and relevant) evidence going to
    "essential data" for crafting a front pay award, it says her damage
    claim is still doomed because she failed to produce an expert
    witness who could provide the fact finder with a proper methodology
    for reducing any award to present day value.22
    The City's primary contention is that it is "standard
    practice" for plaintiffs in employment discrimination suits to
    present expert testimony on future earnings.        Based on this
    supposed norm, the City tells us that it thus follows that expert
    testimony must always be a requirement for calculating front pay.
    To support its argument, the City directs us to Virgo v. Riviera
    Beach Assoc., Ltd., 
    30 F.3d 1350
    (11th Cir. 1994), and Lussier, 
    50 F.3d 1103
    , two cases where expert testimony was, in fact, presented
    at trial.   But those cases do not assist the City because neither
    22 And even though the district court, in making its
    independent front pay determination, expressly indicated that it
    had discounted the award to present day value, the City argues
    there is no indication it actually did so. Rather, as the City
    accuses, the district court "did not make its own determination,
    equitable or otherwise . . .     but merely accepted the jury's
    [unsupported] front pay award." Given the considerable discretion
    afforded the district court in fashioning an equitable remedy, we
    have no reason to believe the court didn't do what it said it had
    done.
    - 55 -
    Virgo nor Lussier tackled the issue we are confronted with here--
    whether expert testimony is a precondition for the calculation of
    any front pay award.
    The City points to no First Circuit case in which we
    reached the conclusion the City now advocates for (and we have
    found none in our independent search).23   However, several of our
    sister circuits have had occasion to opine on this issue.     None
    have concluded that expert testimony on reduction to present day
    value is a mandatory prerequisite for an award of future earnings.
    See Maxfield v. Sinclair Int'l, 
    766 F.2d 788
    , 797 (3d Cir. 1985)
    ("Nor do we believe that expert testimony was needed to reduce the
    damage award to present value."); Bonura v. Sea Land Serv., Inc.,
    
    505 F.2d 665
    , 668–69 (5th Cir. 1974) (explaining that actuarial
    and mathematical evidence are not prerequisites for recovery of
    lost future wages); Pa. R.R. Co. v. McKinley, 
    288 F.2d 262
    , 265
    (6th Cir. 1961); Heater v. Chesapeake & Ohio Ry. Co., 
    497 F.2d 1243
    , 1250 (7th Cir. 1974); Duncan v. St. Louis-San Francisco Ry.
    Co., 
    480 F.2d 79
    , 87 (8th Cir. 1973); Cassino v. Reichhold Chems.,
    Inc., 
    817 F.2d 1338
    , 1348 (9th Cir. 1987).
    Moreover, we have at least once before implied that no
    expert testimony is needed in situations like this.   In McDonald
    v. Federal Laboratories, Inc., 
    724 F.2d 243
    (1st Cir. 1984), we
    23The City also fails to point us to a single case from any
    of our sister circuits reaching such a conclusion.
    - 56 -
    upheld a district court's jury instruction that failed "to specify
    a particular present value discount rate [and] fail[ed] to set
    forth a formula for the jury to reduce to present value any damages
    awarded for future diminution of earning capacity."               
    Id. at 247.
    Instead, the district court there merely instructed the jury to
    reduce the award to present value, using a "reasonable rate of
    interest."    
    Id. We recognized
       that    this   rather    simplistic
    instruction was the result of the "the parties' own failure to
    provide probative evidence of an appropriate discount rate," but
    nevertheless, we found no error in the court's instruction.               
    Id. (emphasis added).
         To accept the City's argument that Franchina's
    future earnings damages should be thrown out for lack of expert
    testimony would be odd in light of our upholding of the front pay
    award in McDonald (where we specifically acknowledged the lack of
    probative evidence on discount rate and left the factfinder to its
    own devices in properly discounting for present value).              See 
    id. Additionally, we
    have found that at least some district
    courts in our Circuit have assumed this rule for years.                   See
    McKeown v. Woods Hole, 
    9 F. Supp. 2d 32
    , 48 n.16 (D. Mass. 1998)
    (explaining that "[t]he majority of courts also do not require
    evidence,    whether   by   expert    testimony   and/or   annuity    tables,
    suggesting to the jury a method to reduce future loss of earnings
    to its present value"); Worden v. Consol. Rail Corp., 
    689 F. Supp. 35
    , 37–38 (D. Mass. 1988) ("[P]laintiff's failure to come forth
    - 57 -
    with expert or other evidence regarding methods of present value
    computation is not fatal.").
    And we note that over fifty years ago the Sixth Circuit
    explicated in Pennsylvania R. Co. v. 
    McKinley, 288 F.2d at 265
    ,
    that "[j]urors are presumed to be intelligent people, generally
    aware, from today's economy and their own experience with it, of
    the earning value of money when placed in safe investments."    In
    other words, because the effect of inflation and interest rates on
    the value of money is otherwise self-evident (and assumed to be
    common knowledge), "a jury, unaided by specific testimony as to
    money values, could themselves, being told that the award should
    be only money value, properly apply the applicable rule."      
    Id. This logic
    applies with even greater force to judges given, as we
    mentioned earlier, that they are routinely called upon to make
    front pay calculations and are presumed to be more knowledgeable
    about necessary reductions to present day value and how to make
    them.     See Monessen Sw. Ry. Co. v. Morgan, 
    486 U.S. 330
    , 341-42
    (1988).
    Given all of this, we decline to adopt an absolute rule
    mandating the presentation of expert testimony in every instance
    in determining future pay.   Moreover, based upon our review of the
    entire record, we find no evidentiary insufficiency and no abuse
    - 58 -
    of discretion in the district court's front pay call.24    We thus
    leave Franchina's award of damages undisturbed.25
    Conclusion
    The abuse Lori Franchina suffered at the hands of the
    Providence Fire Department is nothing short of abhorrent and, as
    24The City suggests that because Franchina's proposed witness
    list did not designate an expert to calculate the discount rate,
    it assumed she was not seeking a front pay award. Had it known
    she was, in fact, asking for future earnings, it might have
    retained an expert of its own on this topic.          While it is
    unfortunate that the City made this dubious assumption, it in no
    way impacts our outcome here. In the complaint, Franchina clearly
    stated in her Title VII claim against the City that she "suffered
    and continues to suffer damages."     The City, then, should have
    been on notice that she was seeking damages and could certainly
    have posed in an interrogatory (which is meant to clarify the scope
    of the allegations in the complaint) a question to ascertain
    precisely   what   types  of   damages   Franchina   was   seeking.
    Furthermore, in the City's pre-trial memorandum (filed a month and
    a half before trial), it included proposed jury instructions on
    the topic of damages stating: "You may determine the amount of any
    wages and fringe benefits plaintiff would have earned in his [sic]
    employment with defendant were it not for defendant's wrongful
    conduct." (Emphasis added). Such language clearly suggests that
    the City was aware that Franchina could seek front pay.
    25 We pause to note that while both parties also point us to
    our recent decision in Travers v. Flight Servs. & Sys., Inc., 
    808 F.3d 525
    (1st Cir. 2015), to support their respective arguments,
    we are not convinced it is relevant to our analysis. In Travers
    we were tasked with determining the validity of a front pay award
    (for purported loss of wages spanning a twenty-year time frame)
    supported by only non-expert testimony. 
    Id. at 545.
    Unlike here,
    however, the award in that case was based on both federal and
    Massachusetts law and "the damages were not apportioned between
    them." 
    Id. at 546
    n.15. We noted that the crux of our analysis
    in Travers "considered only Massachusetts law." 
    Id. at 545
    n.14.
    Thus it is not fully clear how transferable the holding in Travers
    is to the case at hand and so we do not rely on it. Still, for
    the reasons explained above, any consideration of Travers--even
    assuming it were relevant--would result in the same outcome.
    - 59 -
    this case demonstrates, employers should be cautioned that turning
    a blind eye to blatant discrimination does not generally fare well
    under anti-discrimination laws like Title VII.
    Affirmed.   Costs awarded to appellee.
    - 60 -
    

Document Info

Docket Number: 16-2401P

Citation Numbers: 881 F.3d 32

Judges: Torruella, Thompson, Kayatta

Filed Date: 1/25/2018

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (59)

Forrest v. Brinker International Payroll Co. , 511 F.3d 225 ( 2007 )

McKeown v. Woods Hole , 9 F. Supp. 2d 32 ( 1998 )

Higgins v. New Balance Athletic Shoe, Inc. , 194 F.3d 252 ( 1999 )

Monessen Southwestern Railway Co. v. Morgan , 108 S. Ct. 1837 ( 1988 )

Crawford v. Metropolitan Government of Nashville and ... , 129 S. Ct. 846 ( 2009 )

Worden v. Consolidated Rail Corp. , 689 F. Supp. 35 ( 1988 )

john-fortino-carl-meyers-and-f-william-schulz-cross-appellants-v , 950 F.2d 389 ( 1991 )

Rodriguez v. Municipality of San Juan , 659 F.3d 168 ( 2011 )

William D. McDonald v. Federal Laboratories, Inc. , 724 F.2d 243 ( 1984 )

53 Fair empl.prac.cas. 1814, 54 Empl. Prac. Dec. P 40,262 C.... , 915 F.2d 34 ( 1990 )

Campbell v. BankBoston , 327 F.3d 1 ( 2003 )

Scarfo v. Cabletron Systems, Inc. , 54 F.3d 931 ( 1995 )

United States v. Bello , 194 F.3d 18 ( 1999 )

Harris v. Forklift Systems, Inc. , 114 S. Ct. 367 ( 1993 )

Parker v. Gerrish , 547 F.3d 1 ( 2008 )

Thomas R. Lussier v. Marvin Runyon, United States ... , 50 F.3d 1103 ( 1995 )

Mary Jane Kerr SELGAS, Plaintiff, Appellee, v. AMERICAN ... , 104 F.3d 9 ( 1997 )

Noviello v. City of Boston , 398 F.3d 76 ( 2005 )

Tuli v. Brigham & Women's Hospital , 656 F.3d 33 ( 2011 )

47-fair-emplpraccas-865-43-empl-prac-dec-p-37062-23-fed-r-evid , 817 F.2d 1338 ( 1987 )

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