Not for Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit

Nos. 02-2383, 02-2384, 02-2465, 02-2546

                         ANITA J. HORNEY,
               Plaintiff-Appellee\Cross-Appellant,

                                      v.

          WESTFIELD GAGE COMPANY, INC.; EDWARD WOODIS,
             Defendants-Appellants\Cross-Appellees,
                               and
                        RICHARD PATTERSON
                    Defendant\Cross-Appellee.


         APPEALS FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Kenneth P. Neiman, United States Magistrate Judge]


                              Before
                       Selya, Circuit Judge,
                Stapleton,* Senior Circuit Judge,
              and Baldock,** Senior Circuit Judge.


     Thomas E. Shirley, with whom Seth R. Aframe and Laurie A. Drew
were on the brief, for Defendants-Appellants\Cross-Appellees.
     Richard B. Klibaner, with whom Donna M. Cuipylo was on the
brief, for Plaintiff-Appellee\Cross-Appellant.




                             October 9, 2003



* Of the Third Circuit, sitting by designation.
** Of the Tenth Circuit, sitting by designation.
     STAPLETON, Circuit Judge.

                           I.   Overview.

     A jury trial before the United States District Court for the

District   of   Massachusetts   resulted    in   a   judgment   directing

Westfield Gage Co., Inc. (“Westfield”) to pay $582,225 to Anita J.

Horney (“Horney”) in damages and attorney’s fees on account of

various claims under Title VII (42 U.S.C. § 2000e, et seq.), the

Equal Pay Act (26 U.S.C. § 206(d)), and a Massachusetts employment

discrimination statute (Mass. Gen. L. ch. 151B).         A co-defendant,

Edward Woodis, was ordered to pay $25,000 in damages for sexually

harassing Horney. Following the jury’s verdict, the district court

reduced the jury’s $750,000 award on the gender discrimination

claim to $187,500 and denied Woodis’s request that his post-verdict

settlement agreement with Horney be invalidated.

     Westfield and Woodis, collectively “Appellants,” appeal the

district court’s disposition of their post-verdict motions for

judgment as a matter of law or, alternatively, a new trial.        Woodis

also appeals the denial of his motion concerning the settlement

agreement.   Horney cross-appeals, requesting that we find error in

the district court’s decision at trial to dismiss her claims for

punitive damages.

     We will uphold the jury’s verdict finding that Woodis and

Westfield had sexually harassed Horney by subjecting her to a

                                  -2-
hostile and abusive working environment in violation of Title VII

and Mass. Gen. L. ch. 151B.               We will also affirm the district

court’s refusal to invalidate the settlement agreement between

Horney and Woodis.       However, we will reverse the judgment against

Westfield    to    the    extent    it      is    based     on   Horney’s   gender

discrimination claim and will remand for a new trial on that claim.

Respecting Horney’s cross-appeal, we conclude that the district

court erred in dismissing Horney’s claims for punitive damages and

will    remand    the    matter    to    the     district    court   for    further

proceedings on those claims consistent with this opinion.

       The parties are familiar with the factual setting of this

matter and with the evidence submitted at trial.                   Since we write

only for them, we do not provide a narrative summary of that

evidence.    We will address in turn each of the assigned errors in

the appeals and the cross-appeal and will there refer to the

evidence where necessary to explain the court’s disposition.

                              II.       The Appeals.

1. The liability verdict on the hostile work environment claims is
not supported by the record.

       In order to be successful on a hostile work environment claim

under Title VII, a plaintiff must establish:

       (1) that she (or he) is a member of a protected class;
       (2) that she was subjected to unwelcome sexual
       harassment; (3) that the harassment was based upon sex;
       (4) that the harassment was sufficiently severe or

                                         -3-
     pervasive so as to alter the conditions of plaintiff's
     employment and create an abusive work environment; (5)
     that sexually objectionable conduct was both objectively
     and subjectively offensive, such that a reasonable person
     would find it hostile or abusive and the victim in fact
     did perceive it to be so; and (6) that some basis for
     employer liability has been established.

Crowley   v.    L.L.       Bean,    Inc.,    

,    395   (1st   Cir.

2002)(quotations omitted).

     Pursuant to Mass. Gen. L. ch. 151B § 4(16A), it is unlawful

“[f]or any employer, personally or through its agents, to sexually

harass any employee.”              Mass. Gen. L. ch. 151B § 1(18) defines

“sexual harassment” as:

     sexual advances, requests for sexual favors, and other
     verbal or physical conduct of a sexual nature when (a)
     submission to or rejection of such advances, requests or
     conduct is made either explicitly or implicitly a term or
     condition of employment or as a basis for employment
     decisions; (b) such advances, requests or conduct have
     the purpose or effect of unreasonably interfering with an
     individual's    work   performance    by   creating    an
     intimidating, hostile, humiliating or sexually offensive
     work environment. Discrimination on the basis of sex
     shall include, but not be limited to, sexual harassment.

To establish a claim based on this statute, a “plaintiff [is]

required to demonstrate that she worked in a sexually hostile

environment         that    unreasonably           interfered      with   her    work

performance.” Muzzy v. Cahillane Motors, Inc., 

, 694

(Mass. 2001).         To sustain this burden, the plaintiff needs to

“establish that the conduct alleged was sufficiently severe and

pervasive      to     interfere       with     a     reasonable      person’s    work

                                         -4-
performance.”       

actionable harassment, the

claimed       conduct    must   be   both     objectively      and     subjectively

offensive.’”       

n.2 (quoting Messina v. Araserve, Inc.,

, 36 (D. Mass. 1995)).

     Appellants attack the subjective element of the hostile work

environment      test.      They     assert    that   Horney     was    a   willful

participant in much of the complained of conduct and, therefore,

the conduct at Westfield was not unwelcome.              They also assert that

the conduct was not, as a matter of law, sufficiently severe or

pervasive to constitute a hostile environment.

        Based on our review of the evidence at trial, and drawing all

reasonable inferences in favor of the jury’s verdict, we find that

there    is    sufficient   evidence     to    sustain   the    verdict     against

Appellants on the hostile work environment claims.                   In particular,

we find that there is sufficient evidence for a reasonable jury to

conclude that the complained of conduct was both objectively and

subjectively offensive and that it was severe and pervasive.

        Testimony at trial indicated that her supervisor, Woodis,

regularly used such terms as “bitch” and “cunt.”                At trial, Horney

testified that Woodis repeatedly asked her, “[w]hose desk are you

under?” He had also asked her “[a]re you fucking him now?,” “[y]ou

blowing him?,” and while she was talking to a co-worker he asked

the co-worker “[w]hat, are you fucking her mother?”                     On another

                                       -5-
occasion, when she remarked that she was anal retentive, he asked

her “[i]s that what your mother taught you to do, lick ass?”

Evidence indicated that another Westfield employee remarked to her

that “[w]omen are only good at getting fucked up the ass at

Westfield Gage.”     Horney testified that on one occasion Woodis

remarked to her that “[t]hey should have never hired women in this

department,” and “[w]omen don’t belong in the work – machine

shops.”   The evidence further showed that lewd posters, pictures

and other explicit material were common place at Westfield.

     Appellants    argue   that,   because   Horney   concedes    that   she

engaged in some salacious conduct, used obscenities, and regarded

some of the provocative pictures as “funny,” she cannot, as a

matter of law, show that the sexually explicit conduct at Westfield

was subjectively offensive or unwelcome.         We find this argument

unpersuasive.     There was ample evidence that Horney found the

conduct she complained of unwelcome.         She testified, repeatedly,

that she felt offended      and “humiliated” by the sexual comments

made by her supervisor, Woodis, and other co-workers.            Judy Gutt,

the person charged with fielding sexual harassment complaints at

Westfield testified that on several occasions Horney had complained

-- usually informally -- about incidents at Westfield.                   Gutt

testified that Horney had complained when a co-worker told her that

“[w]omen were only good at getting fucked up the ass at Westfield

                                   -6-
Gage.”   She testified that Horney had complained that Woodis had

asked Horney whose desk she was under, and if she “was fucking [a

fellow employee] now.”         Gutt also testified that Horney complained

about the off-color comment Woodis made about her mother, and about

Woodis having asked her on a regular basis who she was blowing.

     Horney’s expert witness, Dr. Lloyd Price, testified that

Horney’s participation in some of the risque conduct “represented

an adaption to an environment in which the use of profanity was

rife.”   Horney’s use of profanity, he indicated, represented both

an   attempt    to   “fit      in”   and   to   adjust,    e.g.   survive    her

environment.”     Horney’s attorney asked Dr. Price whether “knowing

that . . . she would laugh at a joke that might have sexual

[content], does that change your opinion at all about whether or

not she would be distressed by the workplace?”              Dr. Price replied

that it would not.

     Horney admits that during her employment at Westfield she used

obscenities and participated in conduct relating to certain sexual

jokes and      pictures   at    Westfield.      However,   the    evidence   she

submitted supports a finding of threatening and offensive conduct

by Woodis and other co-workers which is distinguishable from the

conduct in which she engaged.              The jury could reasonably have

distinguished between joking references to sexual material made by

Horney, and her supervisor’s screamed obscenities, offensive and

                                       -7-
derogatory comments regarding whether she or her mother were

engaging in sex acts with particular co-workers, and statements

about women’s role at Westfield. See Garcez v. Freightliner Corp.,

, 86 (Ore. App. 2003) (finding that a reasonable jury

could     conclude   that   racially    motivated      conduct   and   comments

directed at the plaintiff were subjectively unwelcome even though

plaintiff     had    engaged   in   some     similar   conduct   as    a   coping

mechanism). Because a reasonable jury could have found the alleged

conduct at issue to be both subjectively offensive/unwelcome and

severe and pervasive, we will decline to disturb the jury’s verdict

regarding the sexual harassment claim.1

2.   The jury’s award of $250,000 for emotional harm was excessive.



      1
      Appellants also argue that they are entitled to a new trial
on the sexual harassment charge because the district court
improperly excluded evidence.      Appellants sought to introduce
testimony that, in 1993, Horney lifted her shirt, exposing her
breasts to the male witness while she was working at the Maple Leaf
Restaurant. The district court excluded the evidence as being only
mildly relevant under Federal Rule of Evidence 401 and unduly
prejudicial under Federal Rule of Evidence 403. This was not an
abuse of its considerable discretion under Rule 403.
     Appellants also urge that the court committed reversible error
by failing to instruct the jury that neither Title VII nor its
Massachusetts equivalent mandate clean language.      The district
court fully and accurately explained to the jury what was required
by Title VII and the Massachusetts statute in a sexual harassment
case. It was not required to do more. See Poulin v. Greer, 

, 983 n.3 (1st Cir. 1994) (“In reviewing a court’s decision
not to give a particular instruction, our duty is to determine
whether the instructions as given tend to confuse or mislead the
jury with regard to the applicable principles of law.”).

                                       -8-
     “We     rarely   will    override      the    jury’s         judgment    on   the

appropriate amount of damages awarded.                  [T]he jury’s otherwise

supportable verdict stands unless [it is] grossly excessive or

shocking to the conscience.”          Brown v. Freedman Baking Co., 

, 11 (1st Cir. 1987) (alterations in original) (internal

quotations omitted).         “We will not disturb an award of damages

because it is extremely generous or because we think the damages

are considerably less. . . .         We will only reverse an award if it

is so grossly disproportionate to any injury established by the

evidence as to be unconscionable as a matter of law.”                        Koster v.

Trans World Airlines, Inc., 

, 34 (1st Cir. 1999).

     Here, Horney submitted evidence from an expert psychiatrist

describing Horney’s symptoms of sleep disturbances, withdrawal,

nausea and vomiting.          He diagnosed Horney as suffering major

depression    resulting      from   harassment         in   the    workplace.       He

testified that she was still significantly symptomatic three-and-

one-half years after her employment ended.

     This evidence is similar to other cases where courts have

upheld similar jury awards.         See 

(finding

that $250,000 was the maximum recovery for emotional damages in a

case where the plaintiff had lost his job of 25 years and had

trouble sleeping, was anxious, and his family life had suffered);

Westinghouse     Elec.    Supply     Corp.        v.    Mass.      Comm’n      Against

                                      -9-
Discrimination, 

. Rep. 661 (Mass. Super. Ct. Mar. 5, 1999)

(affirming an award of $250,000 for emotional distress where a

plaintiff suffered exacerbated insomnia, constant diarrhea, and

stomach pain (all of which were present to a lesser degree because

of a physical ailment that resulted in his termination)).                      We

decline to disturb the award of compensatory damages for Horney’s

emotional distress.

3. There is insufficient evidence to support a verdict against
Westfield on the gender discrimination claim.

       Westfield argues that Horney failed to provide sufficient

evidence of actionable gender discrimination and, therefore, we

must   direct      that    judgment     be   entered    in   Westfield’s    favor.

Alternatively, Westfield argues that it is entitled to a new trial

because the district court failed to meaningfully limit what

conduct the jury could consider actionable gender discrimination.

Westfield    asserts       that   the   jury’s   general     verdict   of   gender

discrimination prevents this court from determining whether the

verdict rests on a proper foundation.                    We first turn to the

insufficiency of evidence argument.

       We   find    that    Horney      presented      sufficient   evidence    of

actionable gender discrimination for a jury to reasonably find in

her favor.      We will, therefore, reject Westfield’s demand that we

direct the district court to enter judgment in Westfield’s favor.



                                        -10-
     Viewing the evidence in the light most favorable to the non-

moving party, a jury could have reasonably concluded that Westfield

engaged in actionable gender discrimination.            At the very least,

Horney showed a prima facie case of gender discrimination regarding

her termination from Westfield.       Neither party disputes whether

Horney is a member of a protected class.            It is undisputed that

Horney offered evidence of at least two adverse employment actions.

Horney argues that she was fired, or, alternatively, that she was

constructively discharged.    Either action would constitute a well-

established adverse employment action under Title VII.            See Benoit

v. Tech. Mfg. Corp., 

, 173 n.2 (1st Cir. 2003);

Landrau-Romero v. Banco Popular De Puerto Rico, 

, 613

(1st Cir. 2000).       Additionally, the environment at Westfield,

including   specific   evidence   relating    to   Woodis’s    gender-based

treatment of Horney, shows that there was sufficient evidence for

Horney to show that she was constructively discharged.            Westfield

does not challenge the other elements of Horney’s prima facie case.

     Westfield also correctly contends that its articulation of a

legitimate, non-discriminatory reason for Horney’s termination,

i.e.,   insubordination,   required      Horney    to   come   forward   with

evidence from which the jury could find pretext.           While we agree,

we conclude that she met this burden.




                                  -11-
      Showing that similarly situated males were treated differently

is only one way in which a female plaintiff can prove pretext.

Kosereis v. Rhode Island, 

, 213 (1st Cir. 2003).

Another “method is to show that discriminatory comments were made

by the key decisionmaker or those in a position to influence the

decisionmaker.”     Santiago-Ramos v. Centenial P.R. Wireless Corp.,

, 55 (1st Cir. 2000).      See Mesnick v. General Elec. Co.,

, 824 (1st Cir. 1991) (stating that means to show

pretext and discrimination may include “but are by no means limited

to,   statistical   evidence     showing    disparate   treatment    by   the

employer of members of the protected class, [denigrating] comments

by decisionmakers . . . , [and] the incidence of differential

treatment in the workplace”) (citations omitted).                 The evidence

produced at trial was sufficient to permit a jury to conclude that

Westfield’s     proffered     explanation    for   Horney’s   discharge     –

insubordination – was pretextual and that gender discrimination

motivated Horney’s discharge.        As Horney’s immediate supervisor,

Woodis was either the decisionmaker regarding the termination or

one in   a    position   to   influence    the   decisionmaker.     Evidence

indicated that Woodis had stated that “[w]omen don’t belong in

machine shops,” and that “[t]hey should never have hired women in

this department.”        Evidence also included testimony that Woodis

treated women more harshly than men and would use derogatory terms

                                    -12-
that uniquely refer to the female gender, such as “bitch” and

“cunt.”

     Finally, when Horney went home, evidence at trial indicated

that Woodis directed Gutt to “call that drunk and drug crazed bitch

and tell her to get her ass back in here.”       (Emphasis added.)      See

Thomas v. Eastman Kodak Co., 

, 58 (1st Cir. 1999)

(stating that a finding that the plaintiff was treated differently

because of membership in a protected class can be made even if the

employer “simply did so because of unthinking stereotypes or

bias”).

4.   A retrial of the gender discrimination claim is required
because the verdict rendered by the jury may rest on an improper
foundation.

     Westfield insists that some of Horney’s gender discrimination

claims    did   not   involve   adverse   employment   actions   that   are

independently actionable under Title VII.         It asserts that these

non-actionable claims included, inter alia: (1) Horney’s claim that

Westfield failed to adequately train Horney, when such failure did

not result in an adverse consequence to the employee; (2) Horney

being required to work on New Year’s Eve, 1997; and (3) Horney’s

claim that male employees were allowed to get coffee during working

hours, while she was only allowed to get coffee during break-time.

Westfield also argues that Horney failed to provide sufficient

evidence that, as a result of gender discrimination, Horney: (1)

                                   -13-
was denied raises; (2) did not receive adequate training; and (3)

was required to work on New Years Eve, 1997.        Westfield correctly

points out that consistent with the court’s charge the jury could

have based its verdict on one or more of these six grounds.

     Before us, Horney has not addressed or affirmatively contested

Westfield’s arguments that some of her claims were either: (1) not

independently   actionable   under   Title   VII,    or   (2)   were   not

adequately supported by evidence produced at trial to sustain the

jury’s verdict of gender discrimination.2


     2
      Horney does argue that Westfield has waived any objection to
the jury instruction by not specifically requesting special
findings as to each adverse employment action at trial. We do not
agree. Westfield Gage’s counsel argued the following at the close
of evidence:

     Westfield Gage’s Counsel: My understanding of the law, Judge,
     is you can use this kind of stuff to buttress evidence, but it
     can’t standing alone constitute discrimination and so –

     The Court:    Well, if somebody is denied overtime because
     they’re a woman, that would be an adverse action that’s taken,
     correct?

     Westfield Gage’s Counsel:    Then how is the question framed?
     Do you find discrimination   by reason of termination (A), do
     you find discrimination by   reason of overtime denied (B), do
     you find reason of failure   to support (C)?

     The Court: I was intending to give instructions which make
     clear that it could be one action alone or –any of those
     actions standing alone . . .

     Westfield Gage’s Counsel:       Note my objection, please, your
     Honor.


                                 -14-
     “It is settled law that, when multiple claims are submitted to

a jury and only a general verdict is returned, a new trial is

required if some of the claims should not have been submitted and

the jury’s consideration of those claims may have affected the

verdict.”   Lattimore v. Polaroid Corp., 

, 468 (1st Cir.

1996).

     “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.”    Blackie v. Maine, 

, 725

(1st Cir. 1996). “Typically, the employer must either . . . take

something of consequence from the employee, say, by discharging or



     Mr. Ryan: With respect to gender discrimination, your Honor,
     I’d ask for a breakdown by the Court as to whether the
     Plaintiff has proven by a preponderance of the evidence that
     she was intentionally discriminated against, and then break it
     down, A, was it constructive discharge.

     The Court:   Noted and overruled.

     ***
     Mr. Ryan: I’d ask that there be a second question asking the
     jury to determine whether they found discrimination by means
     of termination.

     The Court:   Overruled.

     We find that Westfield’s objection at the close of evidence
adequately preserved its argument that the district court failed to
remove from the jury’s consideration certain gender discrimination
claims that were insufficient as a matter of law.


                               -15-
demoting her, reducing her salary, or divesting her of significant

responsibilities” or “withhold from the employee an accouterment of

the employment relationship, say, by failing to follow a customary

practice of considering her for promotion after a particular period

of service.”   

Horney complained that she was denied raises on

account of her gender.   It is apparent that this claim fails as a

matter of law.   Horney attempted to support this claim by stating

that she was reprimanded by Woodis when she asked the company

president for a raise.   Woodis was upset that Horney circumvented

the line of authority in not asking him for the raise first.

Plaintiff also contends that she was not offered a raise when she

was promoted to inspector.     However, as Westfield points out,

Plaintiff received and kept the raise offered to her by the company

president despite Woodis’s verbal reprimand. Also, Horney does not

allege that she asked for a raise when she was transferred to

inspections, she does not identify a company policy to give a raise

when moving to inspector, nor does she identify any employee who

received such a raise on transfer.    We conclude that the evidence

produced at trial was insufficient to support a claim that gender

discrimination played a part in Horney being denied raises, or that

she was even denied a raise for that matter.     See Gorski v. New

Hampshire Dep’t of Corrs., 

, 475 (1st Cir. 2002)

                               -16-
(finding that plaintiff’s discrimination claim that she was denied

a job transfer failed as a matter of law, when there was no actual

denial of a job transfer and it was undisputed that the plaintiff

never actually applied for a transfer).

     Horney also insisted at trial that, as a result of gender

discrimination, she was denied equal pay when she was hired.                This

claim would seem to parallel her successful Federal Equal Pay Act

claim. Horney now concedes that the jury verdict finding Westfield

to have violated the Federal Equal Pay Act is not supported by the

evidence.    This concession would appear to be fatal to this aspect

of her gender discrimination claim.

     On    remand,    the    district    court    should   require    Horney    to

identify    the    adverse    employment       actions   she   believes   she   is

entitled to submit to the jury as independent bases for gender

discrimination liability.          To the extent Westfield contests the

legal sufficiency of any one or more of these theories of liability

or the sufficiency of the evidence supporting it, the court should

resolve    the    dispute    and   confine     the   jury’s    deliberations    to

permissible theories of recovery.




                                        -17-
5. The verdict on Horney’s Equal Pay Act claim is not supported by
the record.

       Horney’s     brief       concedes    this       point   and,   on   remand,   the

district court will vacate this portion of the judgment against

Westfield.

6. The post-verdict settlement agreement between Horney and Woodis
must be rescinded because Woodis entered it based upon a unilateral
mistake of fact.

       Woodis asserts that he entered into the settlement agreement

on the mistaken assumption that Westfield would pay the settlement

amount. He argues that enforcing the settlement agreement would be

oppressive and unconscionable because he would be personally liable

for a $25,000 obligation that he never intended to incur.                             He

insists      that   his     attorney       worked       diligently    to   secure    the

information necessary to enter the agreement; thus, he should not

be held responsible for the mistake.                      Finally, he argues that

voiding the agreement would not cause Horney or her attorney

substantial hardship.

       The   district       court    found      that,     pursuant    to   Restatement

(Second) of Contracts § 154(b), Woodis bore the risk of the mistake

because he entered into the agreement with “only limited knowledge

with   respect      to    the    facts     to   which    the   mistake     relates   but

treat[ed]     his    limited      knowledge       as    sufficient.”       Restatement

(Second) of Contracts § 154(b).                 The court found that Woodis, by



                                           -18-
relying on the statement from Ryan “that the settlement terms were

acceptable,” treated his limited knowledge as sufficient to enter

into the agreement with Horney.     The court also concluded that,

pursuant to § 154(c), it was reasonable to allocate the risk of the

mistake to Woodis.   We find no error here.

7.   The award of attorney’s fees must be revisited on remand.

     “[F]ee awards are appropriate only for successful claims;

unsuccessful claims warrant a fee award only if they are connected

to the successful ones.” McMillan v. Mass. Soc. for the Prevention

of Cruelty to Animals, 

, 311 (1st Cir. 1998).    Here,

attorney’s fees must be reviewed by the district court in light of

Horney’s withdrawal of her complaint under the Federal Equal Pay

Act and our decision to remand Horney’s gender discrimination claim

for retrial.   The district court should review the award once it

has determined the extent to which Horney is a prevailing party.

See Marrero v. Goya of Puerto Rico, Inc., 

, 30 (1st Cir.

2002); 42 U.S.C. § 2000e-5(k).

                      III.   The Cross-Appeal

1. The Distsrict Court erred in dismissing Horney’s claims for
punitive damages.

     Horney asserts that the district court erred in dismissing her

claims for punitive damages in connection with her hostile work

environment claims under Title VII and Mass. Gen. L. ch. 151B and



                                 -19-
her gender discrimination under Title VII.                See 42 U.S.C. §

1981a(b); Mass Gen. L. ch. 151B § 9.          All parties agree that the

district court dismissed Horney’s punitive damages claim because

she   had   failed   to   tender   evidence   of   the   net   worth   of   the

defendant.     During the trial, Horney asked the controller of

Westfield what the value of the company’s assets were at the time

of trial.    Westfield objected to this question and the objection

was sustained.

      Horney argues that it was error for the district court to

dismiss the claim for punitive damages because evidence of the net

worth of the defendant is not a necessary predicate for           a punitive

damages award.       Rather, it is the defendant’s burden to show its

net worth if it wishes to reduce a potential punitive damages

award.

      Under Federal law, the burden of showing net worth is placed

on the defendant.      See Provost v. City of Newburgh, 

,

163 (2d Cir. 2001) (placing the burden on the defendant to show

evidence of financial condition warranting a limitation in a

punitive damages award); Mason v. Oklahoma Turnpike Authority, 

, 1214 (10th Cir. 1999);       Kemezy v. Peters, 

, 36

(7th Cir. 1996) (rejecting a claim that the plaintiff is required

to show evidence of net worth and placing the burden of producing

such evidence on the defendant); Fishman v. Clancy, 

,

                                    -20-
490 (1st Cir. 1985) (placing the burden of making a record of the

defendant’s financial condition on the defendant in order to

challenge a punitive damages award). Placing the burden of showing

evidence of financial condition on the defendant makes sense

because it is the defendant who is in the best position to show his

financial status.       Additionally, a rule requiring the plaintiff to

prove net worth “would . . . encourage plaintiffs to seek punitive

damages whether or not justified, in order to be able to put before

the   jury   evidence    that   the    defendant     has    a   deep   pocket   and

therefore should be made to pay a large judgment regardless of any

nice calculation of actual culpability.”              

.

      Appellants   cite    State      Farm    Mut.   Automobile    Ins.   Co.   v.

Campbell, 

(2003), for the proposition that the

plaintiff must prove the defendant’s financial condition in a

punitive damages case or otherwise the jury will be allowed to

award an arbitrary amount that would exceed the amount necessary to

achieve a reasonable level of punishment.                  Nothing in that case

stands for the proposition that the burden should not be placed on

the defendant to decide whether to submit evidence of its financial

condition so that it may limit the punitive damages award.

      The district court erred by placing the burden of showing

Westfield’s financial condition on Horney, and dismissing her

punitive damages claims. Accordingly, Horney is entitled to a jury

                                       -21-
resolution      of    her   punitive      damages    claims      based   on   sexual

harassment and gender discrimination.

      Westfield argues that if the punitive damages claims are

remanded to the district court, the issues relating to sexual

harassment liability and compensatory damages must be retried

because   the    punitive       damages    claims    are    so   intertwined    with

liability and emotional distress damages that Westfield cannot

receive a fair trial limited to punitive damages.                        Hardin v.

Catepillar, Inc., 

, 272 (5th Cir. 2000) (remanding for

a new trial on all issues because the award of punitive damages is

intertwined with the jury’s view of liability and its award of

damages for emotional injury), supports this proposition.                         As

Westfield stresses, the court there observed:

      A jury deciding whether to award punitive damages and
      their amount responds to the evidence of intentional acts
      essential here to the underlying finding of liability.
      But intentional acts span a range of intensity, purpose,
      and foreseeability, a range that oscillates with the
      perceived level of emotional injury and its appropriate
      compensation. Many legal systems reflect this linkage of
      actual and punitive damages in locating caps for punitive
      awards. It is no answer that liability and damages here
      come in distinct legal capsules, because it is equally
      true that their expression in a verdict is a meld, a
      phenomenon providing essential anchors and focus to the
      open-ended character of punitive damages.

Hardin court was explicit in stating that it

reached   its        decision     “without       deciding     that   [the     stated

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conclusions] are inseparable as a matter of law across all cases;

and we do not suggest that punitive damages may not walk alone in

other contexts.”      

     Other courts have allowed a

retrial on the issue of punitive damages alone.          See Jannotta v.

Subway Sandwich Shops, Inc., 

, 516-17 (7th Cir. 1997)

(vacating an award of punitive damages because of a faulty jury

instruction and remanding for a retrial on that issue only, despite

the fact that the jury had also awarded the plaintiff compensatory

damages); Defender Industries, Inc. v. Northwestern Mut. Life Ins.

Co., 

, 507 (4th Cir. 1991) (affirming a district court

decision to remand for a new trial on punitive damages if his

decision to grant a J.N.O.V. was reversed).

     We conclude that the district court is in the best position to

determine   whether    the   question    of   punitive   damages   is   so

intertwined with the finding of sexual harassment liability and the

subsequent award for damages based on emotional harm such that the

entire sexual harassment claim must be retried.          Accordingly, we

will leave this determination to the district court.               If the

district court decides that the punitive damages issue on the

sexual harassment claim should not be retried alone, the district

court should so indicate to Horney and        afford her an opportunity

to leave the jury’s verdict of $250,000 intact by not pressing her

request for punitive damages on that claim.

                                  -23-
                            IV.   Conclusion.

     The judgment of the district court is reversed and this matter

is   remanded   to   the   district   court   for   further   proceedings

consistent with this opinion.         All parties shall bear their own

costs.




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