Shervin v. Partners Healthcare System, Inc. ( 2015 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 14-1651
    NINA SHERVIN, M.D.,
    Plaintiff, Appellant,
    v.
    PARTNERS HEALTHCARE SYSTEM, INC., ET AL.,
    Defendants, Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Denise J. Casper, U.S. District Judge]
    Before
    Kayatta, Selya and Dyk,*
    Circuit Judges.
    ____________________
    Ellen Jane Zucker, with whom Burns & Levinson LLP was on
    brief, for appellant.
    Nancy Gertner, Emma Quinn-Judge, Zalkind Duncan & Bernstein
    LLP, Nina Joan Kimball, Kimball Brousseau LLP, Michaela May, and
    Law Office of Michaela C. May on brief for American Civil Liberties
    Union of Massachusetts, Charles Hamilton Houston Institute for
    Race and Justice, Massachusetts Employment Lawyers Association,
    Massachusetts Law Reform Institute, Jewish Alliance for Law and
    ____________________
    * Of the Federal Circuit, sitting by designation.
    Social Action, Union of Minority Neighborhoods, and Gay & Lesbian
    Advocates & Defenders, amici curiae.
    Thomas A. Reed, with whom Herbert L. Holtz, Eugene J. Sullivan
    III, and Holtz & Reed, LLP were on brief, for appellees Partners
    Healthcare System, Inc. and Massachusetts General Hospital
    Physicians Organization.
    John Patrick Coakley, with whom Stephen D. Coppolo and Murphy
    & Riley, P.C. were on brief, for appellee Harvard Medical School.
    Robert E. Burgess, with whom Edward F. Mahoney and Martin,
    Magnuson, McCarthy & Kenney were on brief, for appellee Harry E.
    Rubash, M.D.
    Rebecca J. Wilson, with whom Kiley M. Belliveau and Peabody
    & Arnold LLP were on brief, for appellee James H. Herndon, M.D.
    October 9, 2015
    SELYA, Circuit Judge. Plaintiff-appellant Nina Shervin,
    M.D., secured admission to one of the country's most prestigious
    orthopedic residency programs.         When she was placed on academic
    probation, she concluded that her superiors were discriminating
    against her based on her gender and thereafter began retaliating
    against her because she had dared to challenge the probation
    decision.     Bent on vindicating these suspicions, Dr. Shervin
    repaired to the federal district court and sued a gallimaufry of
    defendants, asserting claims under both state and federal law.
    The district court whittled down Dr. Shervin's suit
    during pretrial proceedings, and a 26-day jury trial ensued.               The
    jury returned an across-the-board verdict for the defendants.              Dr.
    Shervin     appeals,     asseverating      that   the     district        court
    miscalibrated     the   statute   of   limitations,     improperly    denied
    recusal, made several untoward evidentiary rulings, and committed
    instructional     errors.     After     careful   consideration      of    her
    asseverational array, we find no reversible error and, therefore,
    affirm the judgment below.
    I.   BACKGROUND
    We sketch the genesis and travel of the case, reserving
    a more exegetic discussion of the facts until our appraisal of the
    issues raised on appeal.
    - 3 -
    In 2003, Dr. Shervin began her post-graduate training in
    the Harvard Combined Orthopedics Residency Program (HCORP or the
    program).      The program is sponsored by Massachusetts General
    Hospital    (MGH),   and   training    takes    place   at   four    Harvard-
    affiliated teaching hospitals: MGH, Brigham and Women's Hospital
    (the Brigham), Children's Hospital, and Beth Israel Deaconess
    Medical Center (BIDMC).      MGH and the Brigham are both under the
    corporate umbrella of Partners HealthCare System, Inc. (Partners).
    During her five-year residency, Dr. Shervin was nominally an
    employee of Partners and worked under an employment contract with
    that entity.
    HCORP is governed by an executive committee comprised of
    its director and the chiefs of the orthopedics departments at the
    four participating hospitals.         During the times relevant hereto,
    Dr. James H. Herndon served as the program's director and Dr. Harry
    E. Rubash served as the chief of orthopedics at MGH.          Both of these
    physicians were employed at MGH through a private, non-profit
    corporation,      Massachusetts       General      Hospital         Physicians
    Organization (MGPO), and held faculty appointments at Harvard
    Medical School (Harvard).
    Mid-way through the fourth year of her residency, Dr.
    Herndon placed Dr. Shervin on academic probation — a decision Dr.
    Shervin soon came to regard as motivated by gender bias.                   She
    - 4 -
    asserts that, after she challenged the decision internally, she
    was   subjected   to    further     discrimination    and   an    onslaught   of
    retaliation that plagued her throughout her training and followed
    her as she pursued job opportunities throughout Massachusetts.
    On October 26, 2009, Dr. Shervin filed a charge of
    discrimination     with       the    Massachusetts     Commission      Against
    Discrimination (MCAD) against Partners, Harvard, Dr. Herndon, and
    Dr. Rubash.    The MCAD later dismissed the charge without prejudice
    upon receiving Dr. Shervin's notification that she had elected to
    pursue her claims in court.          See Mass. Gen. Laws ch. 151B, § 9.
    In April of 2010, she sued in the federal district court, asserting
    state-law     claims    of    unlawful   discrimination     and    retaliation
    against Partners, MGPO, Harvard, Dr. Herndon, and Dr. Rubash;
    federal-law    claims    of    discrimination   and    retaliation     against
    Partners, MGPO, and Harvard; and common-law claims of tortious
    interference with advantageous business relations against Partners
    and Drs. Herndon and Rubash.
    After extensive discovery, the defendants moved for
    summary judgment on all of the claims, arguing that many were time-
    barred and that the remainder were foreclosed on other grounds.
    The district court granted partial summary judgment with respect
    to the discrimination and retaliation claims, ruling that (for all
    defendants except Harvard) conduct occurring prior to June 5, 2008
    - 5 -
    could not serve as a basis for liability or damages.              See Shervin
    v. Partners Healthcare Sys., Inc., 
    2 F. Supp. 3d 50
    , 72 (D. Mass.
    2014).   The court fixed this date based on the applicable 300-day
    statute of limitations under federal and state discrimination
    laws, see 42 U.S.C. § 2000e-5(e)(1); Mass. Gen. Laws ch. 151B,
    § 5, and a tolling agreement establishing a constructive filing
    date for Dr. Shervin's suit of April 1, 2009.            Harvard was not
    bound by the tolling agreement, and the district court fixed its
    limitations date at December 30, 2008.        See 
    Shervin, 2 F. Supp. 3d at 72
    .      The court was quick to add, however, that "while the
    [d]efendants may not be found liable for conduct outside the
    limitations period," the "jury may still be permitted to consider
    untimely 'background evidence' in assessing the viability of the
    actionable discrimination and retaliation claims." 
    Id. at 71
    n.10.
    The   court    denied   the   summary   judgment   motions   in    all   other
    respects.     See 
    id. at 80.
    After a lengthy trial, the jury returned a take-nothing
    verdict.      This timely appeal followed.
    In this court, Dr. Shervin musters a plethora of claims
    of error.       We consider them in roughly the same order as the
    underlying events occurred below.
    - 6 -
    II.    THE SUMMARY JUDGMENT RULING
    Dr. Shervin's flagship claim is that the district court
    erred in its application of Massachusetts law, leading it to
    conclude    that      certain    alleged       acts    of   discrimination     and
    retaliation were time-barred.           We preface our discussion of this
    issue with a brief account of the pertinent facts, taking them in
    the light most favorable to the non-moving party (here, Dr.
    Shervin).    See Noviello v. City of Bos., 
    398 F.3d 76
    , 84 (1st Cir.
    2005).
    A.
    Dr. Shervin initially did well in her residency and
    received positive evaluations from her supervisors. In early 2007,
    however, Dr. Herndon received a complaint from an orthopedics
    fellow about Dr. Shervin's recent performance in the program.                  The
    fellow raised specific patient care issues and expressed concerns
    regarding Dr. Shervin's professionalism and technical competence.
    On    February   2,   2007,     Dr.   Herndon    met    with   Dr.   Shervin   and
    communicated these concerns to her.             At the end of the meeting, he
    placed her on academic probation, telling her that probation could
    - 7 -
    have a serious effect on her licensure, her upcoming fellowship,1
    and her ability to find a job.
    A follow-up letter, dated March 7, outlined the terms of
    the   probation,         including   monthly    performance   evaluations;
    increased monitoring; mandatory attendance at all educational
    components of the program; and a ban on moonlighting.          The letter
    warned that if Dr. Shervin's performance continued to deteriorate,
    she could be exposed to further discipline, including dismissal
    from the program.
    Around the same time, Dr. Herndon told Dr. Shervin's
    mentor, Dr. Dennis Burke, that the reason he (Dr. Herndon) had
    gone directly to probation without first issuing a warning or
    undertaking counseling was due to Dr. Shervin's stoic response to
    his concerns; he added that, in his 35 years of supervising
    residents, he had never before disciplined a woman resident and
    not seen her cry.           Based largely on this comment, and on her
    perception that immediate probation was not standard practice in
    HCORP, Dr. Shervin concluded that Dr. Herndon's rush to judgment
    had       been     motivated   by    gender    bias   (specifically,   his
    1In 2006, Dr. Shervin accepted a one-year arthroplasty
    fellowship at MGH, to commence shortly after the anticipated
    completion of her residency in June of 2008.
    - 8 -
    "stereotypical attitude" toward women and her failure to "behave
    in the way that Dr. Herndon expected [her] to behave").
    Dr. Shervin voiced her concerns to Dr. Rubash in March
    of 2007.   According to Dr. Shervin, Dr. Rubash expressed surprise
    at Dr. Herndon's decision to impose academic probation without
    consulting    HCORP's     executive    committee.       But   he   then     asked
    rhetorically if she wanted to graduate from the program and
    admonished her not to think of "ever filing" suit against him, Dr.
    Herndon, or the program because doing so would not be beneficial
    to her career.
    In   Dr.   Shervin's     view,    this   incident     marked    the
    beginning of a steady stream of retaliatory and discriminatory
    acts that clouded the remainder of her residency.                     These acts
    included the zealous solicitation of negative comments about her
    by Drs. Herndon and Rubash.
    In late March of 2007, Dr. Shervin requested a review of
    the probation decision by the executive committee.               The committee
    upheld the decision in early June.            Dr. Shervin contends that the
    review   process    was   incomplete,    biased,      and   lacking    in   basic
    procedural safeguards.       She also alleges that, shortly after this
    review concluded, a member of the executive committee (Dr. Mark
    Gebhardt) told Dr. Burke that Dr. Shervin "needs to get her head
    - 9 -
    screwed on and realize that she is a woman in a man's specialty"
    and "suck it up."
    In late June of 2007, Dr. Herndon and the executive
    committee extended Dr. Shervin's probation for three more months
    based on allegations of poor performance on a rotation at another
    hospital.      Dr.    Shervin    says       that   these   allegations    were
    unsubstantiated.      She adds that, throughout the summer of 2007,
    the defendants repeatedly tried to find fault with her performance
    and solicited negative evaluations of her work.            By September, she
    felt "threatened[,] unsafe[, and] harassed."
    About the time that Dr. Shervin's extended probation
    ended in September of 2007, Dr. Herndon was replaced as her
    residency program director (though he remained the director of the
    overall   residency    program   and    a    member   of   HCORP's   executive
    committee).   She nevertheless complains that retaliation persisted
    through her graduation from the program in June of 2008.2
    2 The claimed retaliation between September 2007 and June 2008
    appears to consist primarily of the executive committee's poor
    handling of her complaint regarding a pair of obscene e-mails
    circulating among HCORP residents and a "walk-out" of her
    graduation-day thesis presentation by her fellow residents. As to
    the latter event, Dr. Shervin claims that members of the executive
    committee were aware that a walk-out was planned and did nothing
    to prevent it.
    - 10 -
    There was more.    Dr. Shervin complains that, from July
    of 2007 to April of 2008, officials of both Harvard and Partners
    falsely assured her that her probation would not need to be
    reported   outside   the   program   (such   as    to   state   licensing
    authorities or prospective employers).            These assurances, she
    says, discouraged her from immediately pursuing her grievance
    rights within the program. Moreover, the assurances were not true;
    her probation resulted in both a delay in the issuance of her
    license to practice medicine and the issuance of only a limited
    license in her fellowship year.3
    According to Dr. Shervin, retaliatory acts continued
    even after her residency ended.      For one thing, she says that the
    formal grievance process that she undertook in 2008 and 2009 (which
    resulted in an affirmation of the probation decision) was marred
    by bias, falsehoods, and insufficient procedures.           For another
    thing, she says that the defendants deliberately blocked her from
    at least three job opportunities in Massachusetts hospitals during
    the 2009-2012 time frame.
    3 Although the delay in the issuance of her license to
    practice medicine resulted in a postponement of the start of her
    fellowship, she successfully completed the fellowship in 2009.
    - 11 -
    B.
    With this factual predicate in mind, we turn to the
    merits of the district court's summary judgment ruling.       We review
    that determination de novo.     See 
    Noviello, 398 F.3d at 84
    .        To
    avoid "the swing of the summary judgment scythe," Mulvihill v.
    Top-Flite Golf Co., 
    335 F.3d 15
    , 19 (1st Cir. 2003), the non-
    moving party (here, Dr. Shervin) bears the burden of pointing to
    admissible evidence showing the existence of a genuine issue of
    material fact, see Blackie v. Maine, 
    75 F.3d 716
    , 721 (1st Cir.
    1996).   The non-movant may not rely on "conclusory allegations,
    improbable inferences, and unsupported speculation." Medina-Munoz
    v. R.J. Reynolds Tobacco Co., 
    896 F.2d 5
    , 8 (1st Cir. 1990).
    In this case, the court below considered full briefing
    and heard protracted arguments on the motions for summary judgment.
    It concluded that all conduct predating June 5, 2008 (or December
    30, 2008 for Harvard) was time-barred as a basis for either finding
    liability    or   awarding   damages     on   the   discrimination   and
    retaliation claims.   See 
    Shervin, 2 F. Supp. 3d at 72
    ; see also 42
    U.S.C. § 2000e-5(e)(1) (setting forth applicable 300-day statute
    of limitations); Mass. Gen. Laws ch. 151B, § 5 (similar).            The
    court then entered partial summary judgment to this effect, leaving
    open Dr. Shervin's other claims.       The court's ruling allowed Dr.
    Shervin to introduce, as context evidence, proof about how she was
    - 12 -
    placed   on     probation    and   the    time-barred   acts   of    alleged
    retaliation.     See 
    id. at 71
    n.10.
    C.
    Before us, Dr. Shervin argues that the district court
    erred    in    calibrating   the   statute    of    limitations     for   her
    discrimination and retaliation claims.         As a threshold matter, she
    insists that her claims did not accrue until the probation hindered
    her ability to obtain a medical license in the summer of 2008.            We
    do not agree.
    Under both federal and state law, a cause of action for
    discrimination or retaliation accrues when it has a crystallized
    and tangible effect on the employee and the employee has notice of
    both the act and its invidious etiology.            See Thomas v. Eastman
    Kodak Co., 
    183 F.3d 38
    , 50 (1st Cir. 1999); Wheatley v. Am. Tel.
    & Tel. Co., 
    636 N.E.2d 265
    , 268 (Mass. 1994); Adamczyk v. Augat,
    Inc., 
    755 N.E.2d 824
    , 829 (Mass. App. Ct. 2001). Here, Dr. Shervin
    was convinced from the outset that discrimination and retaliation
    were at work.      Thus, her thesis boils down to a contention that
    the probation decision had no tangible, concrete effect either on
    her career or her employment as a medical resident until mid-2008.
    This contention is untenable.        As no less an authority
    than the Supreme Court has stated, "[t]he proper focus" for
    determining when a cause of action accrues for limitations purposes
    - 13 -
    "is upon the time of the discriminatory acts, not upon the time at
    which the consequences of the acts became most painful."                Del.
    State Coll. v. Ricks, 
    449 U.S. 250
    , 258 (1980) (emphasis omitted)
    (quoting Abramson v. Univ. of Haw., 
    594 F.2d 202
    , 209 (9th Cir.
    1979)); accord Sch. Comm. of Brockton v. MCAD, 
    666 N.E.2d 468
    , 472
    n.8 (Mass. 1996).
    It is nose-on-the-face plain that Dr. Shervin had notice
    almost immediately after being placed on probation that this
    disciplinary action was both tangible and concrete: her probation
    was unconditional and instantly resulted in the imposition of a
    series of burdensome conditions (such as heightened supervision,
    more   frequent   evaluations,   and   a   ban   on   any   outside   work).
    Moreover, context is always important — and it is significant that
    the probation here occurred in the course of a prestigious and
    highly competitive academic medicine residency at a world-famous
    group of teaching hospitals.     In that milieu, probation was not —
    as Dr. Shervin would now have us believe — akin to sending a high
    school student to after-class detention.         Rather, it was an ugly
    blot on an otherwise glittering record of accomplishment — and
    something to be taken quite seriously.
    Indeed, both Dr. Shervin and her mentor, Dr. Burke,
    recognized the gravity of the probation placement immediately.
    That was why, from the very outset, Dr. Shervin fought so hard to
    - 14 -
    reverse or expunge it.    Given the record in this case, it strains
    credulity to suggest that probation was something to be taken
    lightly.4
    Dr.   Shervin's   self-serving     averments   regarding
    assurances about the innocuous long-term effects of her probation
    do not alter our conclusion.      During the period of roughly 300
    days from the time her probation was imposed until November of
    2007, virtually all of the information that Dr. Shervin received
    about the reporting of probation pointed unerringly in the opposite
    direction.     For example, Dr. Herndon informed her from the very
    beginning (both orally and in writing) that probation could have
    a   significant     negative   impact    on   her   licensure,   board
    certification, and job prospects.       So, too, Dr. Burke — as early
    4 In support of her argument that she could not have
    successfully challenged her probation before August of 2008, Dr.
    Shervin relies heavily on an unpublished district court decision
    in which the court concluded that probation imposed on a medical
    resident did not amount to a materially adverse employment action.
    See Badgaiyan v. Principi, No. 04-12031, 
    2007 WL 1464604
    at *1 (D.
    Mass. May 21, 2007). The Badgaiyan decision turns on its own facts
    and idiosyncratic posture. For that reason, it cannot support the
    weight that Dr. Shervin piles upon it.      And in any event, the
    decision is of questionable validity. After all, this court has
    held that even a strongly worded warning letter placed in a
    personnel file, without more, was a sufficiently crystallized form
    of harm to start the running of the limitations period. See Miller
    v. N.H. Dep't of Corr., 
    296 F.3d 18
    , 22 (1st Cir. 2002).
    - 15 -
    as April of 2007 — expressed his deep concern about the long-term
    effects of probation, writing to HCORP's executive committee that
    "probation, if allowed to stand, is such a serious disciplinary
    action that it will be required to be reported on every job or
    fellowship application and on every state licensure renewal."   Dr.
    Shervin does not deny that she knew about this letter and its
    contents.   To round out the picture, the Director of the Office of
    Women's Careers at MGH warned Dr. Shervin in July of 2007 that
    probation "MAY need to be reported" depending on the specific
    questions asked on state or hospital licensing forms.
    To be sure, in November of 2007, MGH's chief medical
    officer (Dr. Britain Nicholson) asked Dr. Burke to advise Dr.
    Shervin that she should just "accept the probation" since it was
    an internal matter that did not need to be reported externally.
    He emphasized that her probation ought not to be the focus of
    future references. But that opinion, standing alone, did not erase
    the very real effects that probation already had wrought on the
    terms and conditions of Dr. Shervin's residency. See, e.g., Miller
    v. N.H. Dep't of Corr., 
    296 F.3d 18
    , 22 (1st Cir. 2002).   Nor was
    there a reasonable basis for believing that persons who might
    subsequently be tasked with writing references would see the matter
    the same way; there were simply too many contrary indications.
    Under these circumstances, the evidence about what was said to Dr.
    - 16 -
    Burke in November of 2007 was not significantly probative as to
    whether      the    alleged      discrimination       was    likely       to   cease    and,
    therefore, could not defeat summary judgment.                         See Anderson v.
    Liberty Lobby, Inc., 
    477 U.S. 242
    , 249 (1986).
    The short of it is that Dr. Shervin's knowledge of the
    probation and its immediate, tangible effects, together with her
    loudly bruited belief that the probation decision was a form of
    disparate discipline motivated by gender discrimination, is all
    that   was    needed       for   her   cause   of     action    to    accrue      and   the
    limitations clock to begin to tick.                 See 
    Miller, 296 F.3d at 22
    ;
    
    Wheatley, 636 N.E.2d at 268
    ; 
    Adamczyk, 755 N.E.2d at 829
    .
    D.
    Dr. Shervin next contends that the district court should
    have applied an exception to the statute of limitations known as
    the continuing violation doctrine.                    See 804 Mass. Code Regs.
    1.10(2) (stating that "the 300 day requirement shall not be a bar
    to filing in those instances where facts are alleged which indicate
    that   the    unlawful       conduct    complained      of     is    of    a   continuing
    nature").          Under   Massachusetts       law,    the     continuing       violation
    doctrine serves as an exception to the statute of limitations only
    if three prerequisites are satisfied.                   A plaintiff who seeks to
    derive the benefit of the continuing violation doctrine bears the
    burden of establishing all three of its elements.                         See Cuddyer v.
    - 17 -
    Stop & Shop Supermkt. Co., 
    750 N.E.2d 928
    , 941-42 (Mass. 2001);
    Ocean Spray Crans., Inc. v. MCAD, 
    808 N.E.2d 257
    , 266-67 (Mass.
    2004).
    First, the claim must be one that arises from "a series
    of related events that have to be viewed in their totality in order
    to assess adequately their discriminatory nature and impact."
    
    Cuddyer, 750 N.E.2d at 936
    .           Second, the claim must be "anchored"
    by   at   least    one     incident     of   discrimination       or   retaliation
    transpiring within the limitations period.                
    Noviello, 398 F.3d at 86
    ; see 
    Cuddyer, 750 N.E.2d at 938
    .              This anchoring event must be
    "substantially relate[d]" to earlier instances of discrimination
    or retaliation and must contribute to the continuation of the
    pattern of conduct that forms the basis of the claim.                      
    Cuddyer, 750 N.E.2d at 938
    ; see 
    Noviello, 398 F.3d at 86
    .                       Third, the
    plaintiff must show that a reasonable person in her circumstances
    would have refrained from filing a complaint within the limitations
    period.    See 
    Cuddyer, 750 N.E.2d at 942
    .            On this final element,
    the inquiry becomes whether the plaintiff knew or reasonably should
    have known within the limitations period both that her work
    environment       was     discriminatory     and    that    the    problems      she
    attributed to that discriminatory environment were unlikely to
    cease.     See     id.;    see   also    Ocean   
    Spray, 808 N.E.2d at 269
    (explaining that the limitations period begins when "the employee
    - 18 -
    knew or reasonably should have been aware that the employer was
    unlikely to afford him a reasonable accommodation").              As to the
    likelihood vel non of improvement, the question is whether the
    plaintiff's "delay in initiating the lawsuit, considered under an
    objective standard, was unreasonable," and summary judgment may be
    appropriate   on   this   element    "where   a   pattern   of   harassment,
    considered from the viewpoint of a reasonable person in the
    plaintiff's position, is so sufficiently known, pervasive, and
    uncorrectable" that it would be unreasonable to delay filing suit.
    
    Cuddyer, 750 N.E.2d at 941-42
    .
    In this instance, we can proceed directly to the third
    step of the continuing violation inquiry.         Even if the time-barred
    acts alleged by Dr. Shervin satisfy the first two elements — a
    matter on which we take no view — her claim falters at the third
    step.5
    5 In reaching this conclusion, we need not address Dr.
    Shervin's remonstrance that the district court misapplied
    Massachusetts law in concluding that her claim was not of the sort
    to which the continuing violation doctrine may apply. Our review
    is de novo, and we may affirm the entry of summary judgment on any
    basis made manifest by the record. See Gillen v. Fallon Ambul.
    Serv., Inc., 
    283 F.3d 11
    , 28 (1st Cir. 2002).
    - 19 -
    Dr. Shervin does not dispute — nor could she — that she
    knew of the alleged incidents of retaliation and discrimination
    and regarded them as pervasive.      It is undisputed on the summary
    judgment record that Dr. Shervin came to believe almost immediately
    after the February 2007 meeting that Dr. Herndon had discriminated
    against her based on gender and that she was experiencing a
    continuing stream of related discriminatory and retaliatory acts.
    Her own deposition testimony indicates that she expressed specific
    concerns about discrimination to Dr. Rubash as early as March of
    2007 and specific concerns about retaliation to the executive
    committee the following month.
    Of course, under the continuing violation doctrine as
    formulated by the Massachusetts courts and the MCAD, a person's
    "awareness and duty" to bring suit, Ocean 
    Spray, 808 N.E.2d at 267
    , arises only when the person has good reason to believe that
    her "problems would [not] cease," 
    Cuddyer, 750 N.E.2d at 942
    .
    Here, Dr. Shervin adduced no probative evidence that, during the
    300 days following either the February 2007 probation decision or
    Dr. Rubash's March 2007 comments, she thought it likely that her
    discriminatory   treatment   would   cease.   Indeed,   Dr.   Shervin's
    complaint characterized her experience after she challenged the
    probation decision as a "witch hunt and a campaign . . . waged
    hour to hour, day to day, weeks on end with no resolution in
    - 20 -
    sight."       She     further   declared       that    the       "retaliation    and
    discrimination continued unabated" even after both she and Dr.
    Burke reached out to Partners and Harvard for assistance.
    These    statements   make      pellucid      Dr.    Shervin's     early
    awareness of both her plight and its unrelenting nature.                         The
    record evidence tells the same tale.              It convincingly shows, as
    early as March of 2007, that Dr. Shervin was keenly aware that
    probation entailed immediate negative effects, had potentially
    deleterious long-term consequences, and was not likely to be
    rescinded.     And matters went downhill from there: by June, the
    executive committee had ratified the probation decision (using a
    process that Dr. Shervin at the time found fundamentally unfair)
    and Dr. Herndon — backed by the executive committee — had extended
    the probationary period by three months on the basis of complaints
    that   Dr.   Shervin    believed      were   trumped    up       and   inadequately
    investigated.
    A reasonable person in Dr. Shervin's shoes, knowing the
    immediate downside of probation and its potentially detrimental
    effects on her future career, could not plausibly have thought
    that her discriminatory treatment was likely to abate.                     This is
    especially     true    since    she    professed      to     believe     that    the
    decisionmakers who had the power to furnish a remedy were taking
    biased views of her evaluations, searching for fault, and "building
    - 21 -
    a case against [her]."        Though some modest ameliorations did occur
    (such as in September of 2007 when her probation was finally lifted
    and Dr. Herndon was replaced as her residency director), those
    ameliorations apparently did nothing to relieve Dr. Shervin's
    sense that she was under siege.                  Contemporaneously, Dr. Shervin
    complained to HCORP's administration about e-mails sent to the
    resident community from the e-mail accounts of other residents —
    e-mails that she perceived to be offensive to women.                           She had
    requested     confidentiality        for    her     report     and,   when     another
    resident accused Dr. Shervin of being the source of the complaint,
    she concluded that a leak had occurred as part of the ongoing
    campaign of retaliation.           Even when she met with Dr. James Kasser
    in September of 2007 and learned that she had been taken off
    probation,    she     told   him    of    her     continuing    feeling      of   being
    threatened, unsafe, and harassed in the program.                  Those fears were
    exacerbated when, according to Dr. Shervin, Dr. Kasser told her
    that the executive committee would "continue to probe at residents
    to find any fault with [her]" and expressed concerns about her
    professional behavior (which she thought made "no sense" in the
    context of her efforts while on probation).                     In the same time
    frame, she also was pointedly informed by one of her supervising
    physicians that "people were out to get [her]," so that she ought
    to   "watch   [her]    back."       In     Dr.    Shervin's    own    words,      "[t]he
    - 22 -
    retaliatory atmosphere continued" even after the lifting of her
    probation.
    An assertion that a situation seemed likely to improve
    must be grounded on more than rhetoric.             Here, nothing transpired
    that would have sufficed to ground an objectively reasonable belief
    that what Dr. Shervin regarded as a pattern of discrimination and
    retaliation would dissipate.
    Nor   are   the   assurances    that    Dr.   Shervin   allegedly
    received about the long-term effects of her probation adequate to
    create a genuine dispute as to the footing for a reasonable belief
    that her situation was likely to be "successfully remedied."                
    Id. at 942.
       In arguing for a contrary conclusion, Dr. Shervin points
    to at least two instances of supposedly equivocal or ultimately
    incorrect advice that she received throughout 2007 about the impact
    of probation on her medical licensure: the executive committee's
    statement in June that many other residents had resolved problems
    "without   any     negative    consequences,"   and    assurances    from   Dr.
    Nicholson in the fall that the probation was purely internal and
    not reportable to the licensing board.6         These statements, however,
    6 What Dr. Shervin suggests are other indications that her
    probation might be removed from her record occurred in 2008.
    Consequently, they could not have supported a reasonable belief
    - 23 -
    are not probative of whether Dr. Shervin reasonably could have
    believed that her work environment would improve.         Whether or not
    her probation was reportable would not affect the duration or
    conduct of the campaign of discrimination and retaliation which
    Dr. Shervin believed was afoot from and after the moment she was
    placed on probation. And in all events, Dr. Shervin does not claim
    that   these   assurances   were   products   of   a   discriminatory    or
    retaliatory animus as opposed to confusion, mistake, or subsequent
    changes in the licensing board's regulations.
    To sum up, Dr. Shervin knew, from the time her probation
    was imposed in February of 2007, that probation had materially
    adverse ramifications both for the rest of her residency and (at
    least potentially) for her future career.          She formed an almost
    immediate belief, never diluted, that her probation was sparked by
    gender bias; and she likewise came to believe, within a matter of
    weeks, that this change in her status was merely the beginning of
    a pervasive pattern of discriminatory and retaliatory acts.             Nor
    had she shown any reasonable basis for hoping that the situation
    would improve: the executive committee rebuffed her attempt to
    that Dr. Shervin's situation would improve within the 300-day
    limitations period following the February 2007 probation decision.
    - 24 -
    have the probation decision reversed in June of 2007, the term of
    her probation was extended shortly thereafter, and acts that she
    believed to be discriminatory and retaliatory continued to occur.
    The bottom line is that the record, even when taken in
    the light most hospitable to Dr. Shervin, does not support a
    finding that a reasonable person in Dr. Shervin's circumstances
    would   have   thought   her   situation   apt   to   improve   within   the
    limitations period.      See generally 
    Cuddyer, 750 N.E.2d at 941-42
    (setting forth the "guiding principles to be applied by a judge
    deciding a motion for summary judgment" with respect to the
    continuing violation doctrine).      While Dr. Shervin has pointed to
    bits and pieces of an extended dialogue that might, if taken in a
    vacuum, support her contrary position, we are obliged to view the
    summary judgment record as a whole.         See, e.g., Mesnick v. Gen.
    Elec. Co., 
    950 F.2d 816
    , 827 (1st Cir. 1991).         So viewed, there is
    no "significantly probative" evidence, 
    Anderson, 477 U.S. at 249
    -
    50, to underpin a finding that Dr. Shervin can satisfy the third
    element of the Massachusetts continuing violation framework.              It
    follows inexorably that the district court did not err in holding
    that Dr. Shervin's time-barred discrimination and retaliation
    - 25 -
    claims could not be rescued through the continuing violation
    doctrine.7
    E.
    In an effort to turn the tide, Dr. Shervin strives to
    convince us that there are two other grounds on which a jury might
    have found that her discrimination and retaliation claims avoided
    the limitations bar.     We are not persuaded.
    Dr. Shervin begins with a suggestion that the statute of
    limitations was tolled by her pursuit, starting in March of 2007,
    of an internal grievance under her employment contract.           We need
    not linger long over this suggestion.      Massachusetts recognizes an
    exception to the statute of limitations when an aggrieved party
    enters   into   grievance   proceedings   "pursuant   to   an   employment
    7 Although Dr. Shervin's briefing lacks crystalline clarity
    on this point, she appears to limit her attack on the district
    court's construction of the continuing violation doctrine to her
    state-law discrimination and retaliation claims. Even so, we note
    (for the sake of completeness) that where, as here, a claim
    involves a pattern of conduct which includes a discrete act that
    may itself be actionable, the continuing violation doctrine is
    arguably more accommodating under Massachusetts law than under
    federal law. See Tobin v. Liberty Mut. Ins. Co., 
    553 F.3d 121
    ,
    130, 131 n.8 (1st Cir. 2009) (comparing federal and Massachusetts
    law with respect to continuing violation doctrine). Accordingly,
    any challenge to the court's refusal to apply the continuing
    violation doctrine to Dr. Shervin's federal claims would perforce
    fail.
    - 26 -
    contract" within 300 days from the challenged conduct.            804 Mass.
    Code Regs. 1.10(2).     The district court ruled that this exception
    did not apply because the MCAD has interpreted the regulation as
    applying only to those grievance proceedings undertaken pursuant
    to collective bargaining agreements.        See 
    Shervin, 2 F. Supp. 3d at 62-64
    ; see also Hall v. FMR Corp., 
    559 F. Supp. 2d 120
    , 125 (D.
    Mass. 2008) (discussing underlying MCAD decision in which agency
    formally took this position); 
    Cuddyer, 750 N.E.2d at 938
    (noting
    Massachusetts courts' consistent deference to MCAD decisions and
    policies).    Dr. Shervin insists that this is an incorrect reading
    of Massachusetts law and that she properly invoked her grievance
    rights by a letter to the HCORP executive committee dated March
    27, 2007.
    We need not delve into the district court's rationale
    because Dr. Shervin did not invoke the grievance process in March
    of 2007.     We divide our explanatory comments into two segments,
    consistent with the fact that Dr. Shervin's employment contract
    incorporated both an adverse action process and a redress of
    grievance process.
    The adverse action process pertains only to certain
    enumerated    adverse   actions,   not   including   probation,    and   Dr.
    Shervin was told that probation was not considered an adverse
    action. Perhaps more importantly, that process sets out procedural
    - 27 -
    rules to be followed by the hospital in taking such an action
    against a trainee.   It does not provide a mechanism through which
    a resident or other employee can initiate complaints against her
    employer.    It is, therefore, impuissant as a means of accessing
    the grievance exception.
    The redress of grievance process is a different matter.
    That process applies to "[g]rievances pertaining to the training
    program, faculty, or work environment."      Thus, the redress of
    grievance process applies on its face to a person in Dr. Shervin's
    position.
    But there is a rub: under the redress of grievance
    process, grievances must "first be directed to the training program
    director in writing, and copied to the Service Chief and the
    Director of Graduate Medical Education."      The program director
    then has two weeks to respond.    If a response is not forthcoming
    or is unsatisfactory, the trainee may then request a hearing.
    Dr. Shervin's letter simply did not invoke this process
    — and it was never construed as invoking it.     The letter, which
    was addressed to the chair of HCORP's executive committee, was
    copied only to other committee members.   The redress of grievance
    process was not mentioned.     The ad hoc nature of Dr. Shervin's
    letter and her failure to initiate the redress of grievance process
    - 28 -
    were confirmed by her subsequent interactions with Partners' staff
    and HCORP.
    When Dr. Shervin's letter was received, HCORP undertook
    what it described as "an informal[] review."               In late April,
    Partners' vice president for graduate medical education, Dr. Debra
    Weinstein,    reminded   Dr.   Shervin   that   she    could   "utilize   the
    Partners resident grievance process at any time."               Dr. Shervin
    took no action in response to this reminder; for aught that
    appears, she neither sought to avail herself of the grievance
    process nor sought to go beyond the informal review that had been
    provided.
    The executive committee informed Dr. Shervin on June 6
    that it had completed its informal review. Thereafter, Dr. Shervin
    took no action anent grievance proceedings until the spring of
    2008, when she brought concerns about her medical licensure to
    officials at Partners.         Even at that stage, the record makes
    manifest that both she and Partners believed that she had not
    activated the redress of grievance process.           It was not until late
    March of 2008 that Dr. Shervin asked to meet with Partners'
    officials to learn about "options . . . for addressing grievances."
    She received a reply less than a week later, reminding her of the
    redress of grievance process.       In May of that year, Dr. Shervin
    - 29 -
    noted in an e-mail that she had not yet "initiate[d] a formal
    grievance process."
    In light of the consistent interpretation placed by both
    Partners and Dr. Shervin on her March 27 letter and the actions
    that ensued, we think it crystal clear that Dr. Shervin did not
    invoke the redress of grievance process by means of that letter.
    That is game, set, and match.    Even if we assume that
    the redress of grievance process, if properly invoked, would engage
    the gears of the grievance exception, Dr. Shervin cannot benefit
    from that exception.8
    Finally, we agree with the district court that there is
    no cognizable basis for equitable tolling here.   In Massachusetts,
    such an extraordinary remedy is applied "sparingly in employment
    discrimination cases."    
    Adamczyk, 755 N.E.2d at 830
    .    Invoking
    such a palliative is permitted when, say, "the plaintiff is
    excusably ignorant about the . . . statutory filing period, or
    where the defendant or the MCAD has affirmatively misled the
    plaintiff."   Andrews v. Arkwright Mut. Ins. Co., 
    673 N.E.2d 40
    , 41
    8 To be sure, Dr. Shervin did trigger the redress of grievance
    process by letter dated August 7, 2008. She has not relied on
    that letter; and in all events, any tolling effect attributable to
    that letter would come too late to sweep in Dr. Shervin's time-
    barred allegations.
    - 30 -
    (Mass. 1996) (citation omitted).     So, too, the doctrine can be
    employed where "the potential defendant encourages or cajoles the
    potential plaintiff into inaction."    Cherella v. Phoenix Techs.
    Ltd., 
    586 N.E.2d 29
    , 31 (Mass. App. Ct. 1992).       None of these
    scenarios is present in this case — and as we explain below,
    nothing of comparable magnitude transpired here.
    To begin, Dr. Shervin does not plead ignorance about the
    filing period.   Second, though Dr. Shervin maintains that she was
    misled about the impact of her probation on her future licensure,
    she does not suggest that she relied on any such misrepresentations
    in considering whether or when to file her complaint.     The mere
    fact that Dr. Shervin may have relied on some misrepresentations
    by the defendants for other purposes does not establish the
    necessary linkage between those misrepresentations and her delay
    in bringing her complaint.   See English v. Pabst Brewing Co., 
    828 F.2d 1047
    , 1049 (4th Cir. 1987) ("To invoke equitable tolling, the
    plaintiff must therefore show that the defendant attempted to
    mislead him and that the plaintiff reasonably relied on the
    misrepresentation by neglecting to file a timely charge.").   Given
    this record, we discern no plausible basis for a claim of equitable
    tolling.   See, e.g., Rivera-Díaz v. Humana Ins. of P.R., Inc., 
    748 F.3d 387
    , 390 (1st Cir. 2014).
    - 31 -
    F.
    That ends this aspect of the matter.            Because all the
    broadsides that Dr. Shervin aims at the district court's entry of
    partial summary judgment miss the mark, we uphold the district
    court's calibration of the limitations period and, thus, its
    summary judgment ruling.
    III.    RECUSAL
    Dr. Shervin argues that a new trial is necessary because
    the district judge failed to recuse herself when an appearance of
    partiality arose. See 28 U.S.C. § 455(a). This argument is doubly
    waived.
    A.
    We set the stage.     Dr. George Dyer was a resident in
    orthopedics at MGH during Dr. Shervin's residency (one year ahead
    of her) and, in early 2007, reported to Dr. Herndon concerns about
    Dr.    Shervin's   performance.    In    ruling   on   a   motion   to   quash
    discovery subpoenas, the district judge noticed that documents
    relating to Dr. Dyer were included among the requests.                    The
    district judge promptly disclosed that Dr. Dyer is her first
    cousin.    She added that she did not consider this relationship to
    be a basis for recusal, but she nonetheless invited the parties to
    register any concerns that they might have with the court.                Dr.
    Shervin did not voice any objections, nor did she urge the judge's
    - 32 -
    recusal at any point.   She likewise remained silent when Dr. Dyer
    was identified to the jury as a fact witness in the opening
    statements of two of the defendants (Partners and Dr. Herndon),
    which were delivered before the first witness was sworn.
    Near the end of her case in chief, Dr. Shervin called
    Dr. Dyer as a hostile witness.     During direct examination, the
    district judge sustained defense objections to several questions
    aimed at developing an ostensible inconsistency in Dr. Herndon's
    testimony — an inconsistency that purportedly arose because Dr.
    Herndon testified that Dr. Dyer reported his concerns in a meeting
    where another resident was present, while Dr. Dyer said in his
    deposition that he and Dr. Herndon had met alone.
    After declining to undertake redirect examination and
    releasing the witness, Dr. Shervin's counsel requested a sidebar
    conference.   At sidebar, she stated that she was "concerned about
    the way in which this witness was handled by the court" and asked
    the judge to inform the jury of her relationship with the witness
    and/or to read Dr. Dyer's deposition testimony into the record.
    She did not, however, ask the judge to recuse herself.
    When defense counsel pointed out that the judge had
    previously disclosed her relationship to Dr. Dyer and no objection
    had been forthcoming, Dr. Shervin's counsel responded: "I withdraw
    my request," presumably referring to both of her curative requests.
    - 33 -
    To dispel any further doubt on this issue, the district judge
    formally denied the remedies sought by Dr. Shervin's counsel,
    noting for the record the "nature of the examination" of Dr. Dyer
    and her "prior disclosure on the record" of her relationship to
    Dr. Dyer.    The judge added that she had sustained the defendants'
    objections because the questions were improper in form, and the
    statements       sought    to     be   introduced      as   prior       inconsistent
    statements did not appear to be inconsistent with Dr. Dyer's
    deposition testimony.
    B.
    Against       this    backdrop,     Dr.   Shervin   argues     that    the
    judge's   obligation       to     recuse    herself    blossomed    when       counsel
    pointed out that the judge, knowing that Dr. Dyer's deposition
    testimony    was    inconsistent         with   his   testimony    on    the   stand,
    foreclosed "efforts to impeach Dyer with his prior deposition
    testimony and did not permit explanation of counsel's concerns
    until the witness was excused."                 This argument stumbles at the
    starting gate.
    In    this    case,    the     judge   forthrightly     disclosed      her
    relationship to the witness prior to trial and provided ample
    opportunity for the parties to move for recusal.                  Dr. Shervin did
    not seek the judge's disqualification but, rather, by her silence
    acquiesced in the judge's continued participation.                       That was a
    - 34 -
    waiver, pure and simple.     See, e.g., In re Cargill, Inc., 
    66 F.3d 1256
    , 1261 (1st Cir. 1995) ("[W]aivers based on silence are
    standard fare.").    Where, as here, the putative ground for recusal
    involves only an asserted appearance of partiality and thus rests
    solely on 28 U.S.C. § 455(a), a judge is permitted to accept a
    party's waiver as long as that waiver is preceded by a full
    disclosure of the alleged basis for disqualification.                  See 28
    U.S.C. § 455(e); see also 
    Cargill, 66 F.3d at 1261
    ; El Fenix de
    P.R. v. M/Y JOHANNY, 
    36 F.3d 136
    , 141 (1st Cir. 1994).            It follows
    that Dr. Shervin cannot now be heard to complain that the judge
    should   have    recused   herself     despite   the   parties'    informed
    willingness to have her preside.
    Nor did subsequent developments in the trial mandate the
    judge's recusal.     To begin, Dr. Shervin's counsel never asked the
    judge to step down, even when she expressed her concerns about the
    judge's handling of Dr. Dyer.        And with respect to the relief that
    she did request, there was a second waiver.               At the sidebar
    conference     following   Dr.   Dyer's    direct   examination    —    which
    occurred near the end of trial — Dr. Shervin's counsel was reminded
    of her earlier acquiescence, and she then withdrew her request for
    any curative action.       That, too, was a waiver — an intentional
    relinquishment of a known right.           See, e.g., United States v.
    Rodriguez, 
    311 F.3d 435
    , 437 (1st Cir. 2002) (explaining that "[a]
    - 35 -
    party who identifies an issue, and then explicitly withdraws it,
    has waived the issue").
    We   need   not    tarry.    The    district   judge     performed
    admirably in managing a highly contentious trial.             There is no
    claim of any actual bias on her part — and the record reveals no
    footing for any such claim.         As a general rule, a party is not
    entitled to relief on appeal that she did not seek below.                See,
    e.g., Cahoon v. Shelton, 
    647 F.3d 18
    , 29 (1st Cir. 2011); Beaulieu
    v. IRS, 
    865 F.2d 1351
    , 1352 (1st Cir. 1989).              This case falls
    comfortably within this general rule, not within the long-odds
    exception to it.       We find, without serious question, that the
    district judge did not err by failing to recuse herself sua sponte
    despite the parties' tacit agreement that she continue to preside.
    IV.   EVIDENTIARY RULINGS
    Dr. Shervin takes issue with a host of evidentiary
    rulings that she says deprived her of the ability to present
    critical evidence of discrimination and retaliation.               We review
    rulings admitting or excluding evidence for abuse of discretion.
    See Torres-Arroyo v. Rullán, 
    436 F.3d 1
    , 7 (1st Cir. 2006); Gomez
    v. Rivera Rodríguez, 
    344 F.3d 103
    , 114 (1st Cir. 2003).             Here, we
    have examined all of Dr. Shervin's claims with care.              Many relate
    to    rulings   limiting     evidence   of    the   experiences    of   other
    individuals who had allegedly faced gender-based discrimination or
    - 36 -
    retaliation at the hands of one or more of the defendants.   Others
    relate to the exclusion of evidence that Dr. Shervin hoped would
    show differential treatment in disciplinary or hiring contexts or,
    alternatively, would provide additional background information on
    the culture at MGH and its department of orthopedics.
    It would serve no useful purpose to plow through all of
    these claimed bevues one by one.   Here, it suffices for the most
    part to say that after perscrutation of the record and the parties'
    arguments, we are satisfied that the district court did not abuse
    its discretion in excluding this evidence, particularly since much
    of it was either cumulative, attenuated from the issues underlying
    the litigated claims, peripheral, overly conducive to creating
    juror confusion, or unfairly prejudicial to one or more of the
    defendants.
    This omnibus ruling reflects our awareness that trial
    courts enjoy a superior "coign of vantage" in undertaking the
    "delicate balancing" required to make these kinds of evidentiary
    determinations.   Fitzgerald v. Expressway Sewerage Constr., Inc.,
    
    177 F.3d 71
    , 75 (1st Cir. 1999).       Given the district court's
    evident solicitude for policing the bounds of relevancy and keeping
    the jury focused on the issues in the case, we are unwilling to
    disturb the district court's first-hand assessment of much of the
    proffered evidence.
    - 37 -
    There are, however, three evidentiary rulings that —
    though supportable — deserve more exegetic treatment.                 Each of
    these three rulings excluded an out-of-court statement offered by
    Dr. Shervin as evidence of retaliatory animus.            She asserts that
    these statements qualify as non-hearsay under various exceptions
    to the hearsay rule, and that the court's exclusionary rulings
    were so uniquely important and so egregiously wrong that they
    eroded the foundation of her case.
    Before turning to these three challenges, we summarize
    a few first principles.    Out-of-court statements, not made under
    oath, are generally regarded as hearsay evidence and, thus, are
    presumptively   inadmissible   to   prove   the   truth    of   the    matter
    asserted.    See Fed. R. Evid. 801(c), 802.          There are several
    circumstances, however, in which such statements can shed their
    hearsay character and become eligible for admission into evidence
    to prove the truth of the matter asserted.        See 
    id. 801(d). Yet
    even then, out-of-court statements — like other pieces of evidence
    — must pass through further screens: they may be excluded on, say,
    relevancy grounds, see 
    id. 401, or
    on grounds of undue prejudice,
    waste of time, potential for jury confusion, and the like, see 
    id. 403. It
    is against this backdrop that we approach the task at
    hand.
    - 38 -
    A.
    Dr. Shervin sought to elicit through the testimony of
    Partners' former board chair that MGH's CEO, Dr. Peter Slavin, had
    once told him that "there's not a court in the land that could
    force me to hire Dr. Shervin back."        Dr. Shervin sought to admit
    this hearsay statement to show bias against her in the upper
    echelons of MGH and to explain Partners' interference with a
    potential job at Cooley Dickinson Hospital (Cooley).
    The relevant facts are as follows.       Cooley — a hospital
    not then affiliated with Partners — offered Dr. Shervin a position
    in the spring of 2012.       The offer was withdrawn, however, before
    she could accept it.    In the same time frame, Cooley was in merger
    talks with MGH.   Building on this foundation, Dr. Shervin contends
    that Dr. Slavin's comment could have supported an inference that
    he (or others following his orders) used the relationship with
    Cooley officials to stifle her job offer.               This led to Dr.
    Shervin's attempt to introduce evidence of Dr. Slavin's hearsay
    statement, but when defense counsel objected to the questioning of
    the board chair about this statement, the district court sustained
    the objection.
    Although     the    challenged   statement,    if   viewed    in
    isolation, may seem to boost Dr. Shervin's theory of the case, the
    evidence as it unfolded at trial tells a more nuanced tale.            Dr.
    - 39 -
    Shervin did not establish through either evidence or proffer when
    the statement was alleged to have been made by Dr. Slavin, nor did
    she connect this statement in any way to Cooley's withdrawal of
    the job offer.   What is more, Dr. Shervin did not adduce a shred
    of evidence showing that Dr. Slavin was himself a decisionmaker
    with regard to the Cooley job offer or that he in any way influenced
    or attempted to influence Cooley's decision not to hire Dr.
    Shervin.   Indeed, there is no evidence that Dr. Slavin ever spoke
    to or otherwise communicated with anyone at Cooley.
    In excluding the challenged statement, the district
    court relied on Federal Rule of Evidence 403.    That rule requires
    a court to balance the probative value of particular evidence
    against the unfairly prejudicial effect of that evidence.       See
    United States v. Mehanna, 
    735 F.3d 32
    , 59 (1st Cir. 2013), cert.
    denied, 
    135 S. Ct. 49
    (2014).   Without more meat on the bones, this
    lone remark was hardly probative of any actual influence by the
    defendants on the withdrawal of the job offer from Cooley.     See,
    e.g., Lewis v. City of Chi. Police Dep't, 
    590 F.3d 427
    , 441-43
    (7th Cir. 2009) (noting, in employment discrimination case, that
    comments of non-decisionmakers had little probative value as to
    the intent or mindset of the decisionmakers).
    To be sure, we explained in Travers v. Flight Services
    & Systems, Inc., 
    737 F.3d 144
    (1st Cir. 2013), that even without
    - 40 -
    direct evidence of causation a jury may reasonably infer that the
    wishes of a "king" often will be carried out by his "courtiers"
    when other evidence shows that retaliatory animus resides at the
    "apex of the organizational hierarchy."            
    Id. at 147.
        But Travers
    is distinguishable in many respects. First, the excluded statement
    here was much more like the (nonprobative) "stray," "stale," or
    "ambiguous" comments contrasted by the Travers court with the
    (probative) "strongly held," "repeatedly voiced," and precise
    directives of the CEO.        
    Id. It is
    only the latter that Travers
    said   may    permit   an   inference    that     animus    was    communicated
    throughout the organization.        Second, Dr. Slavin's comment was not
    made to an underling who might have been inclined to curry favor
    by carrying out his directives.         See 
    id. Last —
    but far from least
    — Dr. Slavin did not occupy the apex of Cooley's organizational
    hierarchy (indeed, he was not part of that hierarchy).                      And
    although one can speculate that the pendency of merger negotiations
    may have accorded Dr. Slavin's views some weight if made known to
    the prospective merger partner, there is nothing in the record
    that   suggests   he   ever   communicated        those    views   to   Cooley's
    decisionmakers (or, for that matter, to anyone associated with
    Cooley).
    When, as in this instance, highly charged evidence is of
    doubtful probative value, it may be excluded.              See, e.g., Williams
    - 41 -
    v. Drake, 
    146 F.3d 44
    , 48-49 (1st Cir. 1998).               The case for
    exclusion is stronger, of course, "where, as here, the evidence
    has a high potential for unfair prejudice."        Downey v. Bob's Disc.
    Furniture Holdings, Inc., 
    633 F.3d 1
    , 9 (1st Cir. 2011).              These
    tenets are controlling.      Given that the challenged statement was
    both incendiary in nature and offered without any supporting
    evidence that would have tethered it to the situation that played
    out at Cooley, we cannot say that the court below abused its
    discretion in striking the Rule 403 balance in favor of exclusion.
    After all, "[o]nly rarely — and in extraordinarily compelling
    circumstances — will we, from the vista of a cold appellate record,
    reverse a district court's on-the-spot judgment concerning the
    relative weighing of probative value and unfair effect."            Freeman
    v. Package Mach. Co., 
    865 F.2d 1331
    , 1340 (1st Cir. 1988).
    B.
    Dr. Shervin attempted to introduce evidence, through the
    testimony of the former CEO of Milton Hospital (Milton), that Dr.
    Gebhardt, the chief of the orthopedics department at BIDMC, blocked
    Dr. Shervin's hiring at Milton (a BIDMC affiliate) in the summer
    of 2012.   This evidence comprised out-of-court statements that Dr.
    Gebhardt would "find it difficult" to work with "a person who was
    suing him" and that if Dr. Shervin was permitted to work at the
    new   orthopedics   center   at   Milton,   he   would   withdraw   BIDMC's
    - 42 -
    involvement there.         Dr. Shervin sought to admit Dr. Gebhardt's
    statements in support of her retaliation claims against Harvard
    and Partners, insisting that the statements were non-hearsay under
    Federal Rule of Evidence 801(d)(2)(D), which covers admissions of
    a party-opponent.
    Prior to trial, Partners and other defendants (but not
    Harvard) moved in limine to exclude Dr. Gebhardt's statements,
    arguing that they were made while Dr. Gebhardt was acting under
    the authority of a non-party, namely, Harvard Medical Faculty
    Physicians, a non-profit corporation consisting of physicians
    employed at BIDMC.         Dr. Shervin opposed this motion, postulating
    that Dr. Gebhardt's statements were made in his capacity as a
    member    of    HCORP's   executive     committee     and   that   Partners   was
    ultimately responsible for HCORP.          The district court granted the
    motion    in    limine,    concluding    that   the    challenged    statements
    concerned an "independent decision" by Dr. Gebhardt, which broke
    the causal chain needed to establish a connection to Partners.
    See Mole v. Univ. of Mass., 
    814 N.E.2d 329
    , 343 (Mass. 2004).                  Dr.
    Shervin    provides       no   justification    for     second-guessing       this
    determination.
    During the trial, the district court carefully sifted
    through evidence involving statements of Dr. Gebhardt that Dr.
    Shervin was attempting to attribute to Partners.                      The court
    - 43 -
    admitted some statements that were made within the scope of Dr.
    Gebhardt's executive committee position (such as his statement to
    Dr. Burke that Dr. Shervin needed to get her head "screwed on"
    because she was "a woman in a man's specialty").         However, the
    court   excluded    other   statements.   We   discern   no   abuse    of
    discretion: given the evidence that Dr. Gebhardt's statements
    regarding Dr. Shervin's potential employment at Milton were not
    within the scope of his role on HCORP's executive committee, the
    court had sufficient reason to exclude those statements.
    Alternatively, Dr. Shervin theorizes that the excluded
    statements were imputable to Harvard by virtue of Dr. Gebhardt's
    faculty appointment and his seat on HCORP's executive committee.
    The district court rejected this proffer, concluding that these
    hearsay statements were not admissible against Harvard and that
    any probative value was substantially outweighed by the risk of
    unfair prejudice.
    Once again, we find no abuse of discretion.                Rule
    801(d)(2)(D) exempts from the definition of hearsay statements
    "offered against an opposing party and . . . made by the party's
    agent or employee on a matter within the scope of that relationship
    and while it existed."      Here, though, Dr. Shervin utterly failed
    to lay a foundation for showing that the challenged statements,
    any of the staffing decisions at Milton, or any purported threat
    - 44 -
    to withdraw BIDMC's medical faculty support fell within the scope
    of Dr. Gebhardt's Harvard faculty appointment.      Thus, the excluded
    statements did not qualify as a party opponent's statements within
    the purview of Rule 801(d)(2)(D).        See, e.g., Vazquez v. Lopez-
    Rosario, 
    134 F.3d 28
    , 34-35 (1st Cir. 1998).
    Dr. Shervin has a fallback position with respect to the
    admissibility   of   these   statements.     She   suggests   that   the
    statements should have been admitted as to Harvard for the limited
    purpose of impeaching Dr. Gebhardt's denial that he ever said he
    would not support the new center if Dr. Shervin were brought on
    board.   See Fed. R. Evid. 613(b).   But as the district court noted,
    the probative value of this impeachment evidence was greatly
    overshadowed by the fact that Dr. Shervin failed to introduce any
    competent evidence to prove retaliation by Harvard with respect to
    the position at Milton.      Indeed, Dr. Shervin failed to dredge up
    even a scintilla of evidence showing Harvard's involvement in the
    selection process for this position.9      Because there was too great
    9 The strongest evidence that Dr. Shervin has on this point
    is a posting for the position that recites that the successful
    applicant will receive a clinical appointment to the Harvard
    medical faculty and notes that Harvard is an equal opportunity
    employer. This evidence standing alone does not take Dr. Shervin
    very far.
    - 45 -
    a risk under the circumstances that the jury would consider the
    challenged evidence as substantive evidence against Harvard, the
    district court acted well within the encincture of its discretion
    in sustaining Harvard's objection to this evidence.          See United
    States v. Hudson, 
    970 F.2d 948
    , 956 n.2 (1st Cir. 1992) (upholding
    exclusion   of   evidence   under   Rule   403   even   though   evidence
    admissible under Rule 613(b)); see also Faigin v. Kelly, 
    184 F.3d 67
    , 80 (1st Cir. 1999) ("We are extremely reluctant to second-
    guess the district court's battlefield determination that the
    scenario at hand presented a worrisome potential for [unfair
    prejudice].")
    C.
    The next bone of contention involves an out-of-court
    statement made to Dr. Burke by Dr. Joseph McCarthy, a vice-chair
    in the MGH orthopedics department and the director of the center
    for joint reconstruction at Newton-Wellesley Hospital (NWH), a
    Partners affiliate.   This statement was contained in an April 2009
    e-mail exchange between the two doctors about the possibility of
    finding Dr. Shervin a position at NWH upon the completion of her
    fellowship.   In relevant part, Dr. Burke wrote "I am glad that you
    are on board with [Dr. Shervin's] NWH/MGH staff position," and Dr.
    McCarthy responded, "I'm glad we're on the same page with this.
    I'll do my part out here."     Dr. Shervin proffered this evidence,
    - 46 -
    too, as non-hearsay under Rule 801(d)(2)(D).                       Its purpose, she
    asserts, was to refute claims that she had not been hired at NWH
    either because she had not formally applied for such a position or
    because no positions were available.
    The   district       court    excluded    the     statement,      and   Dr.
    Shervin assails the court's exclusionary ruling.                       Some further
    facts are needed to put her assignment of error in perspective.
    Prior to trial, Harvard moved in limine to bar the
    introduction      of    this    evidence,       arguing     that    Dr.    McCarthy's
    statement was hearsay and that it was not admissible as a vicarious
    admission   since      Dr.     McCarthy    held    only   a   clinical       associate
    position at Harvard and, thus, Dr. Shervin could not show that any
    statements Dr. McCarthy made regarding hiring at MGH or NWH were
    within the scope of his Harvard faculty appointment.                      The district
    court granted Harvard's motion. When Dr. Shervin brought the issue
    up again at trial, the district court sustained the defendants'
    objections.
    With respect to Harvard, there was no hint of abuse of
    discretion in excluding Dr. McCarthy's statement as inadmissible
    hearsay.    The record is bereft of any evidence that the statements
    fell   within     the    scope     of     Dr.     McCarthy's       Harvard     faculty
    appointment.      See, e.g., 
    Lopez-Rosario, 134 F.3d at 34-35
    .
    - 47 -
    Switching    gears,   Dr.   Shervin   suggests    that   Dr.
    McCarthy's statement was admissible against Partners.      But even if
    this were so — a matter on which we take no view — the statement
    demonstrated at most that an individual in a leadership role in
    orthopedics at MGH and NWH was "on the same page" as Dr. Burke
    about a "staff position" for Dr. Shervin.10      What that means is
    amorphous.   What is clear, however, is that the statement does not
    show that Dr. Shervin had a firm offer at NWH. Nor does it directly
    contradict Dr. Rubash's testimony that there were no open positions
    at NWH at that time.
    Seen in this light, the exclusion of Dr. McCarthy's
    statement plainly did not have "a substantial or injurious effect
    on the jury's verdict."    
    Gomez, 344 F.3d at 118
    .      Any error in
    this regard was, therefore, harmless.
    At the expense of carting coal to Newcastle, we add that
    the harmlessness of any error was ensured by the district court's
    10While this evidence also may have tended to bolster Dr.
    Shervin's contention that informal applications were routinely
    accepted at MGH even when no positions were posted, that point was
    made by other evidence introduced by Dr. Shervin. The exclusion
    of cumulative evidence is ordinarily harmless. See U.S. ex rel.
    Ondis v. City of Woonsocket, 
    587 F.3d 49
    , 60 (1st Cir. 2009). So
    it is here.
    - 48 -
    prophylactic actions.      When the court refused to allow Dr. Burke
    to testify about Dr. McCarthy's statement on the twentieth day of
    trial, it gave Dr. Shervin explicit permission to call Dr. McCarthy
    as a witness even though final witness lists (which did not name
    Dr. McCarthy) had long since been submitted.           Yet Dr. Shervin
    elected not to call Dr. McCarthy before she rested on the twenty-
    third trial day.    This was a strategic litigation choice — and a
    party normally is bound by such choices.          Cf. Paul Revere Var.
    Annuity Ins. Co. v. Zang, 
    248 F.3d 1
    , 6 (1st Cir. 2001) (stating,
    in different context, that "[w]here a party makes a considered
    choice, though it may involve some calculated risk, he 'cannot be
    relieved of such a choice'" even if in hindsight the decision might
    have been improvident (quoting Ackermann v. United States, 
    340 U.S. 193
    , 198 (1950))).
    D.
    The short of it is that the challenged evidentiary
    rulings, whether taken singly or in the aggregate, furnish no
    founded basis for setting aside the jury verdict.
    V.   JURY INSTRUCTIONS
    Dr.   Shervin    serves    up   a   smorgasbord   of   claimed
    instructional errors — five related to instructions actually given
    and one related to a forgone instruction.       All six of these claims
    - 49 -
    are adequately preserved.   We preface our discussion of them with
    a précis of the applicable standards of review.
    A.
    The standard governing an appellate court's review of a
    preserved claim of instructional error varies depending on the
    nature of the asserted error.     We review de novo questions about
    whether a given instruction is, in substance, legally correct.
    See DeCaro v. Hasbro, Inc., 
    580 F.3d 55
    , 61 (1st Cir. 2009).      We
    review for abuse of discretion the particular wording chosen to
    convey a concept to the jury.   See Testa v. Wal-Mart Stores, Inc.,
    
    144 F.3d 173
    , 175 (1st Cir. 1998). That inquiry focuses on whether
    the instruction "adequately illuminate[d] the law applicable to
    the controverted issues in the case without unduly complicating
    matters or misleading the jury."       Id.; see Davis v. Rennie, 
    264 F.3d 86
    , 108 (1st Cir. 2001).
    When a party assigns error not to the substance of a
    jury instruction but to the court's decision to give a requested
    instruction at all, our review is de novo.          See Butynski v.
    Springfield Term. Ry. Co., 
    592 F.3d 272
    , 276 (1st Cir. 2010).    The
    ultimate inquiry is "whether the evidence, viewed in the light
    most favorable to the proponent of the instruction, justifies jury
    consideration of the underlying issue."       
    Id. When, however,
    a
    party assigns error to the failure to give a requested instruction,
    - 50 -
    the threshold inquiry is whether the requested instruction was
    correct as a matter of law.    See Elliott v. S.D. Warren Co., 
    134 F.3d 1
    , 6 (1st Cir. 1998).   If the answer to that threshold inquiry
    is in the negative, appellate review is at an end.       See United
    States v. DeStefano, 
    59 F.3d 1
    , 2 (1st Cir. 1995).       But if the
    answer is in the affirmative, we will normally find reversible
    error if the omitted instruction is integral to an important part
    of the case and its content is not otherwise substantially covered
    by the instructions as given.         See 
    Elliott, 134 F.3d at 6
    ;
    
    DeStefano, 59 F.3d at 2
    .
    In mounting all of these inquiries, we examine the
    court's instructions as a whole, rather than reviewing fragments
    in isolation.   See 
    Testa, 144 F.3d at 175
    .
    B.
    Dr. Shervin complains bitterly that the district court's
    statute of limitations instruction confused and misled the jury by
    overstating the effect of the limitations bar on her timely claims.
    This plaint is easily dispatched.
    Mid-trial jury instructions can be a useful tool in a
    trial court's effort to acquaint the jury with the governing law.
    See, e.g., United States v. Mare, 
    668 F.3d 35
    , 40 (1st Cir. 2012).
    Of particular pertinence here, the district court instructed the
    jury on the third day of trial that:
    - 51 -
    In this case, certain conduct is time barred
    as a matter of law from being the basis of any
    liability . . . . the plaintiff, Dr. Shervin,
    is still allowed to introduce evidence of
    certain conduct that occurred prior to those
    dates. She may do so as background evidence
    to support her timely discrimination and
    retaliation claims.
    In its end-of-case charge, the court reiterated this
    instruction and expanded on it, stating:
    While the [d]efendants cannot be liable to Dr.
    Shervin for any such alleged conduct before
    the respective dates I have just mentioned as
    to the discrimination and retaliation claims,
    you may, if you choose, consider such alleged
    conduct for the limited purpose of background
    evidence (i.e. as it may, for example, bear
    upon motive, intent or context) as to her
    timely discrimination and retaliation claims
    . . . .
    These instructions were free from error.                 In light of
    the    district    court's   accurate   calibration      of   the    statute   of
    limitations       at   summary   judgment,    see   supra     Part    II,    these
    instructions were proper as a matter of both federal and state
    law.    See Nat'l R.R. Pass. Corp. v. Morgan, 
    536 U.S. 101
    , 113
    (2002); 
    Cuddyer, 750 N.E.2d at 935
    n.10, 943.            Moreover, there was
    no abuse of discretion in the district court's word choices: trial
    courts must be accorded substantial latitude about how to distill
    complicated       legal   concepts   into     language   that       jurors   will
    understand.
    - 52 -
    Contrary to Dr. Shervin's importunings, the court's
    instructions made it sufficiently clear that the jury could take
    the   time-barred    evidence   into   account   for    such   purposes   as
    evaluating motive, intent, or context.
    The instructions also precluded the jury from taking
    that evidence into account for the improper purpose of assessing
    liability or damages.     That was an accurate reflection of the law.
    See, e.g., Tobin v. Liberty Mut. Ins. Co., 
    553 F.3d 121
    , 142 (1st
    Cir. 2009); 
    Cuddyer, 750 N.E.2d at 943
    .                The fact that the
    limitations instructions did not go as far as Dr. Shervin would
    have liked is of no consequence: a district court is not obliged
    to parrot the precise turn of phrase requested by a litigant. See,
    e.g., Zimmerman v. Direct Fed. Credit Union, 
    262 F.3d 70
    , 79 (1st
    Cir. 2001). The court here adroitly threaded the needle, selecting
    language that did not run the risk of misleading the jury into
    overlooking the limitations period while still leaving open the
    consideration of time-barred evidence as context for Dr. Shervin's
    timely claims.      No more was exigible.11      See 
    Morgan, 536 U.S. at 11
    Relatedly, Dr. Shervin suggests that the court's
    instructions on the statute of limitations and the aiding and
    abetting    and   interference  theories    of   liability   under
    Massachusetts law, together with the verdict form, somehow removed
    from the jury's consideration the 2009 grievance process as a
    - 53 -
    113; 
    Cuddyer, 750 N.E.2d at 935
    n.10, 943; see also 
    Elliott, 134 F.3d at 7
    .
    C.
    Dr. Shervin calumnizes the district court's instruction
    on "material adverse action" in the discrimination context.                She
    maintains that this instruction was both incorrect and apt to
    mislead the jury into disregarding the time-barred background
    evidence entirely.     She specifically targets the portion of the
    instruction stating that "an 'adverse employment action' is one
    that,   standing    alone,     actually     causes   damage,    tangible    or
    intangible, to an employee," positing that the phrase "standing
    alone" foreclosed the jury from considering the totality of the
    circumstances     (including    time-barred     evidence)      in   evaluating
    whether an adverse action took place.
    After careful scrutiny of the challenged instruction and
    the charge as a whole, we decline Dr. Shervin's invitation to hold
    potential basis for liability. We see no basis in the record for
    this suggestion. The district court properly instructed the jury
    on both aiding and abetting and interference under Massachusetts
    law.   See Mass. Gen. Laws ch. 151B, § 4(4A), (5); Lopez v.
    Commonwealth, 
    978 N.E.2d 67
    , 78-79, 82 (Mass. 2012); Melnychenko
    v. 84 Lumber Co., 
    676 N.E.2d 45
    , 51 & n.8 (Mass. 1997). These
    instructions   in  no   way  conflicted  with   the  limitations
    instructions.
    - 54 -
    that the instruction was incorrect as a matter of law.                        The
    district   court     did   not    use   the   phrase   "standing    alone"     in
    connection    with   the   limitations        instruction    but,   rather,    in
    explaining what may or may not amount to an adverse employment
    action.    After explaining that an adverse action is one that
    "standing alone, actually causes damage," the court went on to
    distinguish between acts that might rise to the level of an adverse
    action (such as a decision to discharge or materially disadvantage
    an employee) and those acts that merely cause "subjective feelings
    of disappointment or disillusionment." This is a correct statement
    of the applicable law.       See, e.g., 
    Blackie, 75 F.3d at 725
    ("Work
    places are rarely idyllic retreats, and the mere fact that an
    employee is displeased by an employer's act or omission does not
    elevate that act or omission to the level of a materially adverse
    employment action.").            And since Dr. Shervin's discrimination
    claims were not tried on a hostile work environment theory, there
    was no error in instructing the jury that an adverse action is one
    that "standing alone" causes harm.            See, e.g., Johnson v. Univ. of
    P.R., 
    714 F.3d 48
    , 53 (1st Cir. 2013) (discussing distinction
    between hostile work environment and discrete act claims).
    We add that this instruction in no way diluted the force
    of the statute of limitations instruction.                  The discrimination
    instruction followed the court's limitations instruction, which
    - 55 -
    had informed the jury that it was allowed to consider time-barred
    evidence for such purposes as motive, intent, and context.                  In
    later describing the prima facie elements of a discrimination claim
    and what constitutes proof of pretext, the court placed no temporal
    restrictions on the evidence that could or could not inform this
    evaluation.      In sum, the discrimination instruction was legally
    correct, and the court's use of the phrase "standing alone" in
    defining a materially adverse employment action was not an abuse
    of discretion.
    D.
    Dr. Shervin asserts that the district court's definition
    of    "adverse   action"   in    its   instruction      on   retaliation    was
    misleading because it failed to convey to the jury that the
    standard for adverse action in the retaliation context is broader
    than in the discrimination context.             But that assertion is belied
    by the text of the district court's instructions.                   The court
    defined    "adverse   action"      more     broadly    in    the   retaliation
    instruction than in the discrimination instruction.
    The discrimination instruction stated, inter alia, "[a]n
    employer takes an adverse action against an employee if it takes
    something of consequence away from the employee or fails to give
    the   employee    something     that   is   a    customary   benefit   of   the
    employment relationship."        The court went on to explain that "[a]n
    - 56 -
    adverse action may include a decision to terminate or discharge an
    employee or materially disadvantage her in respect to her salary,
    grade or other terms, conditions or privileges of employment."                 By
    contrast, the retaliation instruction explained that an adverse
    action in the retaliation context must be "materially adverse such
    that it could deter a reasonable person from complaining about
    discrimination."        The court then stated, "[i]n the context of a
    retaliation claim, the [p]laintiff must show that she was subject
    to an employment action that materially disadvantaged her" and
    added that "an employer can retaliate against an employee by taking
    actions not directly related to her employment or by causing her
    harm outside the workplace."
    These contrasting instructions were not only legally
    sound but also adequately articulated.              See, e.g., Burlington N.
    & Santa Fe Ry. Co. v. White, 
    548 U.S. 53
    , 64 (2006) (holding under
    Title      VII   that   "the   antiretaliation       provision,    unlike     the
    substantive provision, is not limited to discriminatory actions
    that affect the terms and conditions of employment"); Psy-Ed Corp.
    v. Klein, 
    947 N.E.2d 520
    , 530 n.25 (Mass. 2011) (similar, under
    Massachusetts law).       The court made pellucid that "adverse action"
    in   the    retaliation    context      is   more   expansive     than   in    the
    discrimination context, stating that a retaliatory adverse action
    includes     conduct    that   "could   deter   a   reasonable     person     from
    - 57 -
    complaining about discrimination" and could encompass conduct
    entirely unrelated to the workplace.              While the court elected not
    to provide certain specific examples of retaliation that Dr.
    Shervin had requested, this refusal was well within the ambit of
    its discretion.      See, e.g., 
    DeCaro, 580 F.3d at 62
    ("[A] trial
    court is not obliged either to embellish legally correct statements
    or to cover every factual permutation."); see also 
    Elliott, 134 F.3d at 6
    ; 
    DeStefano, 59 F.3d at 2
    .           What counts is that the court
    crafted   instructions       that   adequately      conveyed    these    distinct
    concepts to the jury.
    E.
    Dr.     Shervin    reproves      the    district    court's    "vacant
    position" instruction, which stated: "[t]o establish a failure to
    hire as an 'adverse employment action' for the purposes of a
    retaliation claim, [Dr. Shervin] must show by a preponderance of
    the evidence that: 1) she applied for a discrete, identifiable
    position; 2) the position was vacant; and 3) she was qualified for
    the   position."      She    submits   that       this   instruction     was   both
    incorrect as a matter of law and unwarranted on the facts.                      In
    support, she cites our decision in Velez v. Janssen Ortho, LLC,
    
    467 F.3d 802
    (1st Cir. 2006), in which we mapped out a three-part
    showing for claims of retaliatory failure to hire.                     See 
    id. at 807;
    see also Pina v. Children's Place, 
    740 F.3d 785
    , 800-01 (1st
    - 58 -
    Cir. 2014) (applying same standard to ch. 151B retaliation claim).
    Dr. Shervin's point is that, in her view, her case is more akin to
    the exception to this standard that Velez acknowledged in dictum.
    See 
    Velez, 467 F.3d at 808
    n.6 (suggesting that "if, as a matter
    of   standard   procedure,   a   company   never   advertises   specific
    [vacant] positions" it may be inappropriate to require plaintiff
    to show that she applied for a specific, posted position).
    Viewing the evidence in this case in the light most
    favorable to the defendants as the proponents of the instruction,
    see 
    Butynski, 592 F.3d at 276
    , it cannot be said that this case
    presented an exception to the Velez prescription.        The defendants
    adduced ample evidence that vacant positions at MGH and NWH were
    formally advertised in medical journals.           Because there was no
    evidence that MGH and NWH had a standard procedure of never
    formally posting employment vacancies, a Velez instruction was
    permissible.     See 
    Butynski, 592 F.3d at 276
    ; see also Brown v.
    Coach Stores, Inc., 
    163 F.3d 706
    , 710 (2d Cir. 1998) (requiring
    plaintiff to show that she applied for particular, open positions
    even though employer posted such positions "infrequently").
    F.
    Dr. Shervin complains about the district court's refusal
    to instruct the jury in accordance with Travers (discussed in Part
    
    IV(A.) supra
    ).     In an effort to avail herself of the Travers
    - 59 -
    court's suggestion that a claim of retaliation might survive
    summary judgment even without "direct evidence linking the person
    expressing animus to the allegedly retaliatory act" so long as the
    animus flowed from the "apex of the organizational hierarchy" such
    that the person displaying the animus was "a source with the formal
    authority to enforce compliance," 
    Travers, 737 F.3d at 147
    , she
    requested the following instruction:
    [Y]ou may assess whether any retaliatory or
    biased animus harbored and voiced by those at
    the top of the organization could have made
    its way through the organization and informed
    the decisions at issue here. You may consider
    whether   the   decision   made   reflects   a
    reluctance to frustrate the objectives of
    those high up in the organization. . . . even
    if there is no direct or admitted evidence, no
    testimony or communication or no chronicling
    of communications between those at the apex of
    the organization and those who made the
    decisions at issue.
    The district court denied this request, citing the "state of the
    evidence."
    In considering whether the failure to give a requested
    instruction is error, we must first determine whether the omitted
    instruction was correct as a matter of law.                See 
    DeStefano, 59 F.3d at 2
    .       Here, however, there is no evidence from which the
    jury reasonably could have concluded that the Travers criteria
    were   met:    the   record   is   simply    devoid   of   admitted   evidence
    - 60 -
    sufficient to ground a finding of animus in the higher reaches of
    the Partners organization.
    In all events, the jury was thoroughly instructed that
    it could consider circumstantial evidence, that it could draw
    reasonable    inferences   in   light    of   common   sense   and   personal
    experience, and that discriminatory or retaliatory animus could be
    established if a decisionmaker was shown either to have been
    influenced by, or to have ratified, another's animus.                Taken in
    the ensemble, these various instructions covered the waterfront
    and addressed in substance the heart of Dr. Shervin's requested
    instruction.    See, e.g., 
    Zimmerman, 262 F.3d at 79-80
    (concluding
    that omitted instruction was substantially covered where charge as
    a whole "sufficiently addressed the core concern" of proposed
    instruction); United States v. McGill, 
    953 F.2d 10
    , 13 (1st Cir.
    1992) (similar).        Consequently, the omission of the requested
    instruction did not constitute an abuse of discretion.
    G.
    Last, Dr. Shervin assigns error to a statute of frauds
    instruction given in relation to her state-law claims of tortious
    interference     with    advantageous      business    relations      against
    Partners, Dr. Rubash, and Dr. Herndon.         The defendants sought such
    an instruction with respect to Dr. Shervin's charge that Dr. Rubash
    had promised her a position at MGH in 2005 but withdrew that
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    commitment in 2009 (allegedly as a result of Dr. Shervin's pursuit
    of an internal grievance and this lawsuit).
    Under       Massachusetts        common   law    regarding      claims   of
    tortious interference with advantageous business relations, one
    way   in   which     a   plaintiff      can    establish     the    existence    of   an
    advantageous relation is to prove the existence of an enforceable
    contract.     See Blackstone v. Cashman, 
    860 N.E.2d 7
    , 12 (Mass.
    2007); Powers v. Leno, 
    509 N.E.2d 46
    , 49 (Mass. App. Ct. 1987).
    But the Massachusetts statute of frauds bars the enforcement of an
    oral contract that cannot be performed within one year from the
    date of its making.             See Mass. Gen. Laws ch. 259, § 1.                 This
    stricture    extends       to   employment       agreements.         See     Irving   v.
    Goodimate Co., 
    70 N.E.2d 414
    , 416 (Mass. 1946).                       As Dr. Shervin
    claimed that Dr. Rubash had offered her a position at MGH in 2005
    to commence after the conclusion of her residency in 2008 (and
    which, therefore, was not to be performed within one year from the
    date of its making), this purported oral contract would have been
    unenforceable as a matter of law and could not serve as a basis
    for   a    claim    of     tortious     interference         with   an   advantageous
    relationship in the nature of a contract.
    Dr. Shervin objected to the requested instruction on the
    ground that no defendant had pleaded the statute of frauds as an
    affirmative        defense.       The     district      court,      citing    Conjugal
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    Partnership Comprised by Jones & Jones v. Conjugal Partnership
    Comprised of Pineda & Pineda (Jones), 
    22 F.3d 391
    , 400 (1st Cir.
    1994), overruled this objection; exercised its equitable power to
    bypass the raise-or-waive rule, see FDIC v. Ramirez-Rivera, 
    869 F.2d 624
    , 626 (1st Cir. 1989); and instructed the jury on the
    effect of the statute of frauds.
    As a general matter, unpleaded affirmative defenses are
    deemed waived.      See 
    id. But even
    though the defendants never
    pleaded the statute of frauds as an affirmative defense, the
    district    court   did   not    abuse   its   discretion   in   giving   the
    challenged instruction.         We explain briefly.
    A district court may relax the raise-or-waive rule when
    equity so dictates and there is no unfair prejudice to any opposing
    party.     See 
    Jones, 22 F.3d at 400
    .        In this case, Dr. Shervin did
    not assert any breach of contract claims and, thus, the defendants'
    duty to plead an affirmative defense based on the statute of frauds
    was arguable at best.      See Mass. Gen. Laws ch. 259, § 1 (applying
    statute of frauds to actions in the nature of contract).            In such
    a situation, principles of fundamental fairness counsel in favor
    of giving the trial court broad discretion as to whether to allow
    the defense.    See, e.g., Pane v. RCA Corp., 
    868 F.2d 631
    , 637 (3d
    Cir. 1989) (concluding that when unpleaded issue was not an
    affirmative defense but a standard of liability under applicable
    - 63 -
    statute, duty to plead not triggered and relaxation of raise-or-
    waive rule warranted).
    By the same token, there was no unfair surprise: Dr.
    Shervin had ample notice prior to trial that the defendants
    envisioned the statute of frauds as an issue in the case.        For one
    thing,   Dr.   Rubash's   summary    judgment   motion   referenced   the
    applicability of the statute of frauds in the context of the
    tortious interference claims.       For another thing, the defendants'
    proposed jury instructions, filed prior to the start of trial,
    included the very type of instruction at issue here.         Hence, the
    district court did not abuse its discretion in sanctioning the
    statute of frauds defense.     See, e.g., Agri-mark, Inc. v. Niro,
    Inc., 
    214 F. Supp. 2d 33
    , 43 (D. Mass. 2002).
    Dr. Shervin's further argument is equally unavailing.
    Taking the evidence in the light most favorable to the proponents
    of the instruction (here, the defendants), see 
    Butynski, 592 F.3d at 276
    , we see no substantive error in the challenged instruction.
    To the extent that Dr. Shervin sought to prove that she
    and Dr. Rubash had entered into an agreement in 2005 that she would
    work at MGH after the completion of her residency in 2008, the
    court was entitled to tell the jury that such an employment
    contract would be unenforceable if not in writing.           See, e.g.,
    - 64 -
    Powers v. Bos. Cooper Corp., 
    926 F.2d 109
    , 110 (1st Cir. 1991)
    (applying Massachusetts law); 
    Goodimate, 70 N.E.2d at 416
    .
    We add, moreover, that insofar as Dr. Shervin sought to
    prove not a contractual relationship but a different species of
    advantageous business relationship, see, e.g., 
    Leno, 509 N.E.2d at 49
    , any risk that the statute of frauds instruction would mislead
    the jury was minimal.          The court obviated such a risk by its
    further    instruction    that    "[a]   plaintiff     need     not    show   an
    advantageous        business     relationship    was        a     contractual
    relationship," but, rather, an advantageous business relationship
    may include a "probable prospective business relationship with a
    third party" from which she had "a reasonable expectation of future
    economic benefit."
    In this instance, all roads lead to Rome.             Taking into
    account the state of the evidence, the charge as a whole, and the
    applicable standards of review, we conclude that the court below
    did not abuse its discretion in giving the challenged instruction.
    VI.    CONCLUSION
    As this case illustrates, there is a certain rough-and-
    tumble quality to the high-stakes world of academic medicine.
    Here, however, the jury heard a welter of conflicting evidence
    presented by able lawyers and determined, after a fundamentally
    fair    trial,   that   the    defendants'   conduct    —     though    perhaps
    - 65 -
    insensitive in some respects — did not cross the border into the
    forbidden realms of discrimination and retaliation. In the absence
    of prejudicial error (and we have found none here), we have no
    license to substitute our judgment for that of the jurors.12
    We need go no further. For the reasons elucidated above,
    we affirm the judgment entered in the district court.
    Affirmed.
    12For the sake of completeness, we note that Dr. Shervin also
    has raised a claim of cumulative error. Because we have found no
    reversible error, this claim necessarily fizzles. See 
    Williams, 146 F.3d at 49
    ("Absent any particularized error, there can be no
    cumulative error.").
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