M a y 1 8 , 1 9 9 5
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
94-1929 GENEVIEVE SCARFO, ET AL.,
Plaintiffs - Appellees,
v.
CABLETRON SYSTEMS, INC., ET AL.,
Defendants - Appellants.
____________________
94-1982
GENEVIEVE SCARFO,
Plaintiff - Appellant,
v.
CABLETRON SYSTEMS, INC., ET AL.,
Defendants - Appellees.
____________________
BRIAN MILLER,
Plaintiff - Appellee.
____________________
94-1983
BRIAN MILLER,
Plaintiff - Appellant,
v.
CABLETRON SYSTEMS, INC., ET AL.,
Plaintiffs - Appellees.
____________________
ERRATA
The opinion released on May 12, 1995 should be amended
as follows:
Page 8, line 13: "(c)" should read "(d)", so that the
line reads "the Equal Pay Act, paragraph (d) below, in ...."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1929
GENEVIEVE SCARFO, ET AL.,
Plaintiffs - Appellees,
v.
CABLETRON SYSTEMS, INC., ET AL.,
Defendants - Appellants.
____________________
No. 94-1982
GENEVIEVE SCARFO,
Plaintiff - Appellant,
v.
CABLETRON SYSTEMS, INC., ET AL.,
Defendants - Appellees.
____________________
BRIAN MILLER,
Plaintiff - Appellee.
____________________
No. 94-1983
BRIAN MILLER,
Plaintiff - Appellant,
v.
CABLETRON SYSTEMS, INC., ET AL.,
Plaintiffs - Appellees.
____________________
GENEVIEVE A. SCARFO,
Defendant - Appellee.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge] __________________________
____________________
Before
Cyr and Boudin, Circuit Judges, ______________
and Keeton,* District Judge. ______________
_____________________
Anil Madan, with whom Madan and Madan, P.C. and Elizabeth __________ ______________________ _________
Bartholet were on brief for defendants. _________
Eleanor H. MacLellan, with whom Carol A. Fiore and Sulloway ____________________ ______________ ________
& Hollis were on brief for Genevieve A. Scarfo. ________
Andru H. Volinsky, with whom Michael J. Sheehan and Shaheen, _________________ __________________ ________
Cappiello, Stein & Gordon, P.A. were on brief for Brian Miller. _______________________________
____________________
May 11, 1995
____________________
____________________
* Of the District of Massachusetts, sitting by designation.
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KEETON, District Judge. Two plaintiffs and two KEETON, District Judge _______________
defendants cross-appeal from a final judgment after jury trial.
The plaintiffs Genevieve Scarfo and Brian Miller are former
employees of defendant Cabletron Systems, Inc. ("Cabletron").
Craig Benson and Robert Levine, supervisory employees of
Cabletron, were also defendants in the district court.
Plaintiff Scarfo claimed, inter alia, that defendants _____ ____
discriminated against her on the basis of her sex and terminated
her employment in violation of Title VII of the Civil Rights Act,
42 U.S.C. 2000e-5(f).
Plaintiff Miller claimed, inter alia, under Title VII _____ ____
for retaliatory discharge based on his alleged refusal, as
plaintiff Scarfo's immediate supervisor, to discriminate against
her by terminating her employment on the basis of her sex.
The principal claims of error asserted on appeal
challenge instructions to the jury. Each party opposing a claim
of error asserts that no timely objection or request was made in
the trial court.
Counsel representing defendants on appeal first came
into the case after completion of the jury trial. Not
surprisingly, they seek to present contentions substantially
different from those presented by defense counsel during and
before the jury trial. Whenever new counsel enter and raise new
contentions, opposing counsel may find irresistible the
temptation to counter with new contentions of their own. Almost
inevitably, then, the entry into a case of new counsel for one
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party increases litigation burdens for all parties. An award of
attorneys' fees to a prevailing party may offset this burden in
part. But unfairness may remain to opposing parties if the trial
or appellate court allows new grounds of claim or defense to be
asserted. For this reason, among others, we encounter a
threshold question in this case.
One way of framing the threshold question neutrally,
abjuring "plain error," United States v. Marder, No. 93-1882, _____________ ______
slip op. at 11-17 (1st Cir. Feb. 2, 1995), "waiver," id. (citing ___
United States v. Olano, 113 S. Ct. 1770 (1993)), "forfeiture," _____________ _____
id., "invited error," id., "abandon[ment]," United States v. ___ ___ ______________
Smith, Nos. 94-1326, 94-1327, 94-1328, slip op. at 22 (1st Cir. _____
Feb. 10, 1995), and other terminology freighted with
connotations, is to ask: Should we hold that the appellant (or
cross-appellant) on each claim of error now before us is not
entitled to be heard on the merits of that contention in the
circumstances of this appeal?
Searching for the answer requires that we consider
procedures for deciding mixed law-fact issues that involve
unsettled law, genuine disputes of fact, and the exercise of
discretion by jury, or judge, or both. The search requires also
that we take account of Supreme Court and circuit decisions
handed down after this case was argued, including O'Neal v. ______
McAninch, 115 S. Ct. 992 (1995); Lebr n v. National Railroad ________ ______ __________________
Passenger Corp., 115 S. Ct. 961 (1995); United States v. Smith, _______________ _____________ _____
Nos. 94-1326, 94-1327, 94-1328, slip op. (1st Cir. Feb. 10,
-4-
1995); and United States v. Marder, No. 93-1882, slip op. (1st _____________ ______
Cir. Feb. 2, 1995).
In describing the tasks of trial and appellate courts
in circumstances of this degree of complexity, commentators and
opinion writers have invoked imagery of the almost impenetrable.
They have spoken, for example, of the "esoteric," Marder, slip ______
op. at 13, "The Bramble Bush," Karl N. Llewellyn, The Bramble ____________
Bush (1930), or -- in a more venerable and ominous allusion -- a ____
"Serbonian Bog," Landress v. Phoenix Mut. Life Ins. Co., 291 U.S. ________ __________________________
491, 499 (1934) (Cardozo, J., dissenting) ("The attempted
distinction between accidental results and accidental means will
plunge this branch of the law into a Serbonian Bog.").
The imagery, even if hyperbole in the classic sense of
a figure of speech rather than an assertion to be taken
literally, may nevertheless aptly call attention to the
increasing intricacy of a rapidly evolving jurisprudence of
procedural preclusion.
We conclude that we need enter only a little way into
this maze of precedents, and on a well-marked path, to decide the
case now before us. This is so because rules and precedents have
erected a gate at the point of entry upon each potentially
promising path through the maze, and each gate is closed to
appellants whose contentions have the particular characteristics
of those before us in this appeal. Thus, we affirm in substance,
though with minor exceptions, and with some modification of
amounts of awards, and on condition that a judgment amended as to
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form be entered in the district court.
We first explain the terms of the judgment that was
ordered in the district court and the nature of the claims of
error. Then we explain why, in the interests of justice, we hold
that each claim of error asserted in this appeal is either
harmless error or is raised too late for review under the
harmless error standard and cannot be sustained under the more
rigorous requirement that relief is to be granted only to avoid a
miscarriage of justice.
I. I.
The first error we address is one not raised by the
parties. We consider it because it might be thought to have
jurisdictional implications. The "final judgment" entered in
this case was, in its form, not literally in compliance with the
requirement that "[e]very judgment shall be set forth on a
separate document." Fed. R. Civ. P. 58.
The district court made not one but a series of orders.
In most instances, the order is not self-explanatory. Instead,
it refers to an opinion or memorandum of the court to which one
must go to understand precisely the meaning of the order. In
these circumstances, if, for example, a party seeks enforcement
of the judgment -- perhaps even after the case is closed and the
file is sent to storage -- the parties and any other person
required to act will have great difficulty finding out what
exactly were the terms of the "final judgment."
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In support of our jurisdiction, however, we conclude
that the district court ordered the functional equivalent of a
"final judgment" in a sequence of orders that includes:
the "Judgment" of May 10, 1994
(incorporating, first, the Order of June 2,
1993 granting in part and denying in part
defendants' Motion to Dismiss; second, the
Endorsed Order of November 17, 1993
concerning the defendants' Motion for Summary
Judgment; third, the Special Verdicts of May
4, 1994; fourth, the Order of May 9, 1994,
concerning the Court's Calculation of Title
VII Damages);
the Order of July 19, 1994 on Miller's
Motion for Prejudgment Interest;
the Order of July 19, 1994 on Miller's
Motion for Attorneys' Fees;
the Order of July 19, 1994 on Scarfo's
Motion for Attorneys' Fees; and
the Order of July 20, 1994 on Scarfo's
Motion for Prejudgment and Postjudgment
Interest.
Were we to remand for entry of a "final judgment" that
is formally in full compliance with Rule 58, before deciding the
appeal that has now been briefed and argued, the case would in
due course be back before us again with precisely the same issues
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to be decided as those we perceive from the record now before us.
To avoid the delay and waste of resources incident to such a
remand, we proceed to consider the issues now and will direct
entry of an appropriate amended judgment on remand.
From close examination of the several orders and
memoranda identified above, we conclude that a final judgment of
the substance gleaned from all these orders would have recited
provisions in substance as follows:
(a) judgment for plaintiff Scarfo on
her claim under Title VII of the Civil Rights
Act for sex discrimination against defendants
Cabletron and Benson for the sum of
$1,187,901.07 (consisting of the sum of
$242,407.07 in back pay, $744,744 in front
pay, and $228,750 for the value of stock,
reduced by the jury's award of $28,000 under
the Equal Pay Act, paragraph (d) below, in
order to prevent duplicate recovery) without
prejudgment interest;
(b) judgment for defendant Levine on
Scarfo's Title VII claim for sex
discrimination against him;
(c) judgment for defendants Cabletron,
Benson, and Levine on plaintiff Scarfo's
claim under Title VII of the Civil Rights Act
for sexual harassment based on a hostile or
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abusive environment;
(d) judgment for plaintiff Scarfo
against Cabletron (but not against Benson or
Levine), on her claim under the Equal Pay
Act, in the sum of $28,000 without
prejudgment interest;
(e) judgment for defendants Benson and
Levine on plaintiff Scarfo's claim for
intentional or reckless infliction of
emotional distress;
(f) plaintiff Scarfo's claim of
intentional infliction of emotional distress
against defendant Cabletron is dismissed;
(g) plaintiff Scarfo's claims for
breach of contract and defamation are
dismissed;
(h) judgment for plaintiff Miller
against defendants Cabletron and Benson, on
his claim for retaliatory discharge in
violation of Title VII, in the sum of
$1,391,711.85 (consisting of $190,651.85 in
back pay, $995,000 in front pay, and $206,060
for the value of stock options) without
prejudgment interest;
(i) judgment for plaintiff Miller
against defendant Cabletron (but not against
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Benson) on his claim under New Hampshire
state law for wrongful termination, in the
sum of $995,000 with prejudgment interest at
a per annum rate of ten percent under New
Hampshire state law from the date of filing,
April 14, 1992, to the date of the verdict,
May 4, 1994;
(j) plaintiff Miller's claims of abuse
of process and intentional or reckless
infliction of emotional distress against
Benson, Levine, and Cabletron are dismissed;
(k) all claims by plaintiff Miller
against defendant Levine are dismissed;
(l) it is further ordered that
plaintiff Miller will not be allowed to
collect more than the larger of the two
awards in his favor against Cabletron as set
forth in paragraphs (h) and (i).
The substance of paragraph (l) is not explicitly stated
in any of the orders identified above. Implicit in those orders
and the basis on which they are explained in the memoranda
referred to, however, is an assumption that the awards to
plaintiff Miller overlap. Because duplicative collection would
be impermissible, we conclude it is appropriate to interpret the
trial court's orders as providing that Miller not be allowed to
collect more than the larger (i.e., the Title VII award) of the
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two awards against Cabletron. See Part XIV, infra. ___ _____
On July 19, 1994, the district court awarded attorneys'
fees and disbursements to plaintiffs. Thus, two more paragraphs,
as stated below, may be added to reflect the entire substance of
a final judgment that includes awards of attorneys' fees. These
provisions, we note, might have been made in a later order,
rather than in the "final judgment" itself. See Fed. R. Civ. P. ___
54(d)(2). These paragraphs are as follows:
(m) judgment for plaintiff Scarfo
against defendants Cabletron and Benson, for
attorneys' fees and disbursements, in the
amount of $244,255.13 (consisting of
$225,300.13 incurred for services of one and
$19,955 incurred for services of the other of
two firms that represented her);
(n) judgment for plaintiff Miller
against defendants Cabletron and Benson, for
attorneys' fees and disbursements, in the
amount of $117,510.97.
The Order of July 20, 1994, which was the last of the
series of Orders constituting the functional equivalent of a
Final Judgment, also requires the addition of one more paragraph:
(o) Post-judgment interest is allowed
on the awards in paragraphs (a), (d), (h),
(i), (m), and (n).
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Defendants-Appellants Cabletron and Benson appeal from
the judgment entered against them on multiple grounds. Insofar
as the judgment was in favor of the defendants, Plaintiffs-Cross-
Appellants Scarfo and Miller also appeal on multiple grounds.
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II. CLAIMS OF ERROR II. CLAIMS OF ERROR
IN THE CHARGE TO THE JURY IN THE CHARGE TO THE JURY
A. Defendants' Appeal from Judgment on Scarfo's Sex A. Defendants' Appeal from Judgment on Scarfo's Sex
Discrimination Claim Discrimination Claim
Defendants ask us to vacate the judgment for Scarfo
against them on her Title VII claim because of erroneous
instructions to the jury.
On the element of causation in Scarfo's Title VII
claim, the trial judge instructed the jury:
Ms. Scarfo may prove her claims; that is,
make out a prima facie case, in one of two
ways. First she may simply produce evidence _______________________
that her gender was a factor which motivated
the defendants in making the challenged
employment decisions. [Ms. Scarfo h]aving ____________________
done so, the defendants are liable even if _____________________________________________
they would have made the same decisions _____________________________________________
absent the discriminatory motive. Second, ___________________________________
she may also establish a prima facie case
without direct evidence of discriminatory
intent by producing indirect evidence which
is sufficient to raise a presumption that
absent any other explanation the defendants
acted for discriminatory reasons. She need
not prove that Cabletron acted with any
discriminatory intent.
We conclude, as defendants contend, that this
instruction was flawed in its treatment of the issue of
causation. The instruction understated plaintiff's burden of
proof as initially defined in McDonnell Douglas Corp. v. Green, ________________________ _____
411 U.S. 792 (1973), and further developed in later cases.
Before the trial court charged the jury, defendants
filed an appropriate request for jury instruction, correctly
stating a rule of law declared in Price Waterhouse v. Hopkins, _________________ _______
490 U.S. 228 (1989). But defendants did not object after the
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charge was given to the jury, as required by Rule 51 of the
Federal Rules of Civil Procedure.
To what extent can the defendants now be heard on this
claim of error? We return to this question in Part IV below.
B. Defendants' Appeal from Judgment on Scarfo's Equal Pay Act B. Defendants' Appeal from Judgment on Scarfo's Equal Pay Act
Claim Claim
Defendants ask us to vacate the judgment for Scarfo
against them on her claim under the Equal Pay Act ("EPA") because
of erroneous instructions to the jury.
Specifically, they contend that the trial judge failed
to give any instruction on causation or on statutory defenses to
liability.
The trial judge's instructions on the EPA claim
included the following:
Ms. Scarfo alleges that Cabletron
discriminated against her based on her sex in
violation of the federal Equal Pay Act law.
Ms. Scarfo need not prove that Cabletron
intended to discriminate against her. In
comparing her work to that of higher paid
men, Ms. Scarfo need not show that her work
was precisely equal, but only that it was
substantially equal.... Ms. Scarfo need only
show unequal pay as compared with one male
employee.... If you find that Cabletron
violated the Equal Pay Act, she is entitled
to recovery for unpaid wages.
The special verdict form submitted to the jury
contained the following question:
[D]o you find that during the course of Ms.
Scarfo's employment Cabletron paid her at a
lower rate than it paid men who performed
jobs requiring substantially equal skill,
effort and responsibility and involving
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similar working conditions?
The jury was instructed to make a finding of damages if
they answered this question in the affirmative.
Defendants made no objection, within the time
prescribed in Rule 51, either to the question on the verdict form
or to the instructions. Thus, they failed to call to the trial
judge's attention the alleged lack of any instruction on
causation or on statutory defenses to Scarfo's EPA claim.
We return to this alleged error in Part V, below.
C. Plaintiff Scarfo's Appeal of Her Hostile Environment Claim C. Plaintiff Scarfo's Appeal of Her Hostile Environment Claim
Plaintiff-Cross Appellant Scarfo argues on cross-appeal
that the court's instruction on her sexual harassment claim was
erroneous.
The trial court instructed the jury as follows:
In order to establish a prima facie case for
sexual harassment under Title VII of the
Civil Rights Act, [Scarfo] must prove the
following elements by a preponderance of the ________
evidence. One, she was subject to unwelcome
sexual conduct. Two, unwelcome sexual
conduct was based upon [her] sex. Three, the
unwelcome sexual conduct was so severe or
pervasive that it had the effect of creating
an abusive working environment that ____
unreasonably interfered with her work _____________________________________________
performance. ____________
After the jury charge was given, plaintiff's counsel
made an objection to the court as follows:
In this instruction that was given, this
wording on the elements that she has to prove
the sexual harassment claim has the wording
in it "that unreasonably interfered with
Plaintiff Scarfo's work performance," and I
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think the way it was read, that comes out as
sounding like an element that she has to
prove, and the Harris case, which we had ______
requested instruction on, . . . [states that]
that's one factor that can be considered, but
it's not an element of her claim.
And we had requested . . . a paragraph
that was not given but that comes from the
recent Harris case that says that you don't ______
have to have the unreasonable interference
with work performance. It can be harassment
that affects the psychological well-being and
detract[s] from one's work and we would like
to have that instruction given and a
clarification that this isn't an element she
has to prove.
We return to this matter in Part VI, below.
D. Plaintiff Miller's Appeal of His Wrongful Discharge Claim D. Plaintiff Miller's Appeal of His Wrongful Discharge Claim
Plaintiff-Cross Appellant Miller argues on cross-appeal
that the court's instruction on damages with respect to Miller's
wrongful discharge claim was erroneous.
There are three types of damages at issue in this case:
"pecuniary damages," such as damages for economic harm; "non-
pecuniary damages," such as damages for pain and suffering; and
"enhanced compensatory damages," claimed under New Hampshire law.
The parties do not contest, and for present purposes we assume,
that "enhanced compensatory damages" may be awarded in the
discretion of the jury if the defendant's conduct was
particularly egregious.
See, e.g., DCPB, Inc. v. City of Lebanon, 957 F.2d _________ __________ _______________
913 (1st Cir. 1992)(New Hampshire law).
Miller argues that the court erred in refusing to
instruct the jury on nonpecuniary damages. Defendant Cabletron
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asserts that, in fact, the court did instruct the jury on
nonpecuniary damages.
We return to this matter in Part VII, below.
III. PROCESS, PRECLUSION, AND STANDARDS OF REVIEW III. PROCESS, PRECLUSION, AND STANDARDS OF REVIEW
FOR ALLEGED ERRORS IN CHARGING THE JURY FOR ALLEGED ERRORS IN CHARGING THE JURY
Rule 51 of the Federal Rules of Civil Procedure states
in relevant part:
No party may assign as error the giving or
the failure to give an instruction unless
that party objects thereto before the jury
retires to consider its verdict, stating
distinctly the matter objected to and the
grounds of the objection. Opportunity shall
be given to make the objection out of the
hearing of the jury.
Fed. R. Civ. P. 51.
If a party complies with Rule 51, then the "harmless
error" standard of Rule 61 governs the trial or appellate court's
consideration of any request for relief based on the alleged
error. The court is directed not to treat as a ground for
granting a new trial, or setting aside a verdict, or vacating or
modifying a judgment or order, any error or defect or anything
done or omitted by the court
unless refusal to take such action appears to
the court inconsistent with substantial
justice. The court at every stage of the
proceeding must disregard any error or defect
in the proceeding which does not affect the
substantial rights of the parties.
Fed. R. Civ. P. 61. The recent decision in O'Neal v. McAninch, ______ ________
115 S. Ct. 992 (1995), directs reviewing judges to inquire, when
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determining whether an alleged error is harmless, whether they
are "in grave doubt about the likely effect of an error on the
jury's verdict," id. at 994; if the court does have a grave ___
doubt, then the error must be held harmful. A party who does not
timely object in accordance with Rule 51, however, does not have
the benefit of review under Rule 61, either before the trial
court (on a post-trial motion) or on appeal.
If review is allowed at all at the instance of a party
who did not comply with Rule 51, it is under a standard requiring
substantially more than that the party show that the error was
harmful (the Rule 61 standard). It has long been settled that,
in general, an objection or request for jury instruction not made
in compliance with Civil Rule 51 cannot be raised successfully on
appeal. Roto-Lith, Ltd. v. F.P. Bartlett & Co., 297 F.2d 497, _______________ ____________________
500 (1st Cir. 1962). The rule has been rigorously enforced in
this circuit, and its clear language will be overlooked "only in
exceptional cases or under peculiar circumstances to prevent a
clear miscarriage of justice," Elgabri v. Lekas, 964 F.2d 1255, _______ _____
1259 and n.1 (1st Cir. 1992), or "where the error 'seriously
affected the fairness, integrity or public reputation of
judicial proceedings,'" Lash v. Cutts, 943 F.2d 147, 152 (1st ____ _____
Cir. 1991) (quoting Smith v. Massachusetts Inst. of Technology, _____ __________________________________
877 F.2d 1106, 1110 (1st Cir.), cert. denied, 493 U.S. 965 _____ ______
(1989)).
A rigorously enforced timeliness principle is
fundamental both to fair process and to avoiding adverse effect
-18-
on substantial rights of the parties. Under such a principle, a
clearly defined opportunity to present a contention must be
exercised at a precisely defined time in the trial proceedings.
It is a now-or-never opportunity that a party must, at that
precise time, use or lose. Cf. Arenson v. Southern Univ. Law ___ _______ ___________________
Ctr., 43 F.3d 194, 198 (5th Cir. 1995) (invoking the phrase "use ____
it or lose it" in relation to timeliness of motions for judgment
as a matter of law and, alternatively, for a conditional new
trial).
One of these contexts is the preparation of the charge
to the jury, including the specific phrasing of any questions
submitted to the jury. The moment immediately before the jury
retires to deliberate is a time when hard choices, with
significant consequences, must be made by the parties and by the
trial judge. Interests of fairness to each party weigh heavily
in favor of requiring that every other party, at this critical
moment, use or lose any right to assert that the trial court
should change in some way the court's instructions to the jury on
the substantive law governing the case. It is awkward to change
instructions after the jury has commenced deliberating, and as a
practical matter, once the jury has been disbanded after
returning a verdict, it can never be called back to receive the
corrected charge that the trial court might have given if asked
at the right time to do so.
Failure to exercise the right to object to the court's
charge at the critical moment prescribed by Rule 51 results in
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the loss of an opportunity for review under a standard no more
burdensome for the appellant than the harmless error standard.
Unless the reviewing court concludes that the charge has caused a
miscarriage of justice or has undermined the integrity of the
judicial process, the charge is treated as having an effect
closely analogous to law-of-the-case doctrine, and for similar
reasons of policy and fairness of process. Moore, slip op. at 6. _____
The use-or-lose principle applies with special force to
mixed law-fact issues. Cf. Cheshire Medical Ctr. v. W.R. Grace & ___ _____________________ ____________
Co., No. 94-1687, slip op. at 21 (1st Cir. Mar. 6, 1995)(citing ___
Chellman v. Saab-Scania AB, 637 A.2d 148, 151 (N.H. 1993)) ________ ______________
("Clear and intelligible jury instructions are particularly
important to explain complex or confusing legal concepts."). If
the trial counsel and the trial court are able to fashion
interrogatories that disentangle law from fact and ask the jury
all of the purely fact questions that are essential to
determining the outcome of the case once the disputed issues of
law are finally resolved, the rights of the parties to jury trial
can be protected even though a final decision on critical legal
issues is deferred to a later time. If, however (either because
of a preference for doing so or because of a sense that there is
no other practical option) the trial court elects to submit one
or more mixed law-fact questions to the jury, full protection of
the rights of the parties to have their dispute resolved by the
jury to whom the case is first submitted weighs compellingly in
favor of the conclusion that applying the use-or-lose principle
-20-
is essential to fair process and a just disposition of the
controversy.
We conclude that no party in this case is entitled to
have any of the alleged errors it presents in this appeal
considered under the harmless error standard of Rule 61. The
reason is that each appellant and cross-appellant now complaining
of some aspect of the charge to the jury had the right and
opportunity to state its contention to the trial judge after
completion of the judge's charge (including the trial judge's
modification of the charge after hearing objections) -- and did
not use it. Having failed to make a timely objection, the
complaining party is entitled to relief only to prevent a clear
miscarriage of justice or otherwise to preserve the integrity of
the judicial process. In most instances, nevertheless, we have
determined in our review of the record before us that we are not
in "grave doubt," as defined in O'Neal v. McAninch, 115 S. Ct. ______ ________
992, and conclude instead that correction of jury instructions at
the appropriate time would not have affected the verdict in this
case. In each of those instances, since we have determined that
the alleged error was harmless, it follows a fortiori that no ___________
miscarriage of justice has occurred.
Before explaining the relevant characteristics of the
record before us that lead to our conclusion, we pause to explain
why two kinds of precedents do not apply to the kinds of claims
of error before us here. First, an additional standard of
appellate review was invoked to allow new contentions to be
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considered on the merits, in "special circumstances," in Newport _______
v. Fact Concerts, Inc. 453 U.S. 247, 256 (1981). That case, ____________________
however, is easily distinguished from the present appeal; it
involved equitable relief and did not involve alleged
infringements of the rights of parties, in a case tried before a
jury, to have disputed fact questions finally decided by the jury
empaneled to try the case.
The second kind of inapplicable precedent is a
development under the rubric of "waiver." In criminal cases,
precedents have added a distinctive element to procedural-
preclusion analysis by recognizing that in some instances, even
when the court is satisfied that "plain error" was committed,
still the appealing party may be barred by circumstances that
constitute "waiver." In Olano the Court stated: _____
Waiver is different from forfeiture. Whereas
forfeiture is the failure to make the timely
assertion of a right, waiver is the
"intentional relinquishment or abandonment of
a known right." ... Whether a particular
right is waivable; whether the defendant must
participate personally in the waiver; whether
certain procedures are required for waiver;
and whether the defendant's choice must be
particularly informed or voluntary, all
depend on the right at stake.... Mere
forfeiture, as opposed to waiver, does not
extinguish an "error" under Rule 52(b) ....
If a legal rule was violated during the
District Court proceedings, and if the
defendant did not waive the rule, then there
has been an "error" within the meaning of
Rule 52(b) despite the absence of a timely
objection.
Marder, slip op. at 13 (quoting Olano, 133 S. Ct. at 1777). ______ _____
Recently a panel of this circuit has observed that
-22-
there have been "conflicting signals" on the scope and nature of
a waiver. See Marder, slip op. at 14 (comparing United States v. ___ ______ _____________
Rojo-Alvarez, 944 F.2d 959, 971 (1st Cir. 1991); United States v. ____________ _____________
Espinal, 757 F.2d 423, 426 (1st Cir. 1985); United States v. _______ ______________
Drougas, 748 F.2d 8, 30 (1st Cir. 1984); and United States v. _______ ______________
Kakley, 741 F.2d 1, 3 (1st Cir.), cert. denied, 741 F.2d 1 ______ _____ ______
(1984)). Because in this case we have concluded that we are
satisfied that correction of the errors called to our attention
would not have affected the verdict, in any event, we need not
consider whether "waiver" in the Olano sense may be extended to _____
the civil context (and might then be an additional reason for
concluding that appellants (and cross-appellants) cannot prevail
on this appeal). "Forfeiture" in the Olano sense is a concept _____
quite similar to principles underlying enforcement of timeliness
requirements. We next turn to applying those principles to the
claims of error asserted in this appeal.
IV. ERROR IN INSTRUCTIONS IV. ERROR IN INSTRUCTIONS
ON SCARFO'S SEX DISCRIMINATION CLAIM ON SCARFO'S SEX DISCRIMINATION CLAIM
As noted in Part II.A above, the instruction on
Scarfo's sex discrimination claim was flawed in its treatment of
the issue of causation because it understated plaintiff's burden
of proof.
Is the effect of the error so egregious as to warrant reversal
even though defendants did not object at the time and in the
manner prescribed by Civil Rule 51? Because we conclude that the
jury would have reached the same verdict even had it been
-23-
properly instructed, the error was harmless. Thus, it readily
follows that no miscarriage of justice or other blight on the
judicial process has resulted from the error.
The evidence of discrimination is powerful. It
contains numerous examples of Cabletron's different treatment of
Scarfo and her male colleagues who were similarly situated. On
the other hand, it is also true that some evidence in the record
tends to support defendants' theory that Scarfo was fired for
legitimate business reasons. In these circumstances, we must
explain the evidence of record in somewhat greater detail.
Of course, a jury is not required to credit a
plaintiff's evidence, even if the evidence is uncontradicted, and
neither are we. But a realistic assessment of the likelihood of
a different verdict in this case, had different instructions been
given, depends in part on an examination of the strength of
Scarfo's evidence and the findings it would support. We
summarize that evidence.
The strongest evidence on record supporting defendants'
theory was the review of Scarfo by Brian Miller, Scarfo's
immediate supervisor at Cabletron. Miller's report contained
several positive comments. But negative remarks regarding
Scarfo's management and purchasing skills dominated his review.
Miller also reported internal discipline problems in the
purchasing department.
The evidence on record supporting plaintiff Scarfo's
theory, however, is overwhelming.
-24-
First, Scarfo's requests to improve her department were
overlooked while the same requests made by her male replacement
were granted. After Scarfo was hired as a buyer and then
promoted to purchasing supervisor, she was told that she would
not be eligible for a raise until July 1988. Scarfo continued to
receive a buyer's salary, though she performed all the functions
of a supervisor. But in this position she was repeatedly denied
requests to hire additional buyers, train staff, and update
equipment so that she could focus on her managerial duties.
After Scarfo was terminated, Justin O'Connor, a
purchasing manager, was allowed to hire additional buyers,
upgrade equipment, implement training programs, and make other
improvements that Scarfo had previously been refused permission
to make. Further, unlike Scarfo, O'Connor was permitted to limit
his buying responsibilities so that he could devote more time to
his managerial responsibilities.
Second, when the purchasing department moved to a
larger space, Scarfo was denied an office although her male
colleague was given a separate office. Craig Benson, the chief
operating officer at Cabletron, did not want Scarfo to have her
own office. Benson, however, knew that Tim Jacobs, who was hired
with Scarfo, would have a separate office.
Third, Scarfo's business trip expenses were carefully
examined. In contrast, the expenses of a male colleague who was
on the same trip were not questioned. Specifically, Benson
examined Scarfo's expense vouchers for a two-week business trip.
-25-
He did not review expense vouchers of Roger Lawrence, a male
employee who went on the same trip and whose expenses were nearly
identical to those of Scarfo.
Fourth, Benson singled out Scarfo to take the blame for
an over-purchase of circuit boards, although other employees were
involved with this transaction. Scarfo had ordered the boards,
but the boards were subsequently not needed. Although Benson
knew that others besides Scarfo were responsible for this over-
purchase, he told Miller, "I don't like being ripped off, and I
blame Jeanne Scarfo for this."
Fifth, Scarfo was treated differently with respect to
stock options. Despite Benson's explanation that Scarfo was
omitted from the stock option list and his promise that she would
be on the next list of stock recipients, Scarfo, unlike her male
counterparts, never received any stock options.
Sixth, in addition to the evidence of these poignant
examples of disparate treatment, correlated with gender, there is
in the record other strong evidence of discrimination. Scarfo
offered evidence that in April 1990, Benson told Miller to hire a
"guy" for her position, but Miller refused. Benson said, "I
don't care if you fire or demote her, but I want a guy in that
position." Approximately ten days later, Miller was fired.
After Miller's departure, Scarfo was demoted to buyer
but was asked to continue to perform all management functions.
In October 1990, when Justin O'Connor was hired as
purchasing manager, Benson told him that he did not like Scarfo
-26-
and urged O'Connor to fire her. Only ten days after he came onto
the job, O'Connor wrote a negative review of Scarfo and placed
her on probation through February 1991.
O'Connor terminated Scarfo on January 10, 1991, a month
before the probationary period expired. His reason for firing
Scarfo was her failure to show improvement. In the
circumstances, it would have been difficult for O'Connor to make
a reasonable determination as to whether Scarfo's performance had
improved because Scarfo's time records indicated that she was
legitimately absent during her probation period.
Taking into account the weight of this evidence of
discrimination, we conclude that the error in the jury
instructions on Scarfo's Title VII claim was not an error that
"seriously affected the fairness, integrity or public reputation
of judicial proceedings," Lash, 943 F.2d at 152, or caused a ____
miscarriage of justice, Elgabri, 964 F.2d at 1269. _______
We conclude also that no other basis exists in the
circumstances of this case to warrant an exception from applying
the use-or-lose proposition stated in Rule 51 and explained, in
Part III of this Opinion, as a principle aimed at achieving
outcomes of jury trial that are fair and just on the merits.
V. SCARFO'S EQUAL PAY ACT CLAIM V. SCARFO'S EQUAL PAY ACT CLAIM
By instructing the jury that plaintiff merely had to
show disparity of treatment between the sexes and not sex-based
discrimination, and by failing to instruct on statutory defenses
-27-
included in the EPA, the trial court erred.
The EPA reads in relevant part:
No employer ... shall discriminate ...
between employees on the basis of sex by
paying wages to employees ... at a rate less
than the rate at which [the employer] pays
wages to employees of the opposite sex ...
for equal work on jobs the performance of
which requires equal skill, effort, and
responsibility, and which are performed under
similar working conditions, except where such
payment is made pursuant to (i) a seniority
system; (ii) a merit system; (iii) a system
which measures earnings by quantity or
quality of production; or (iv) a differential
based on any other factor other than sex.
29 U.S.C. 206(d).
The evidence of record overwhelmingly supports a
finding for plaintiff (even under a legal standard of intended
sex-based discrimination, had the instruction so required).
Defendants had the right and opportunity to object to the trial
court's instruction and tell the trial judge how to correct the
error. As defendants did not use the right, we review the record
before us only for evidence of a miscarriage of justice.
In addition to the evidence summarized in Part IV,
above, we note additional support in the record for the jury's
finding on the EPA claim.
Scarfo's economic expert testified that he reviewed and
processed Cabletron data on pay increments, education, and
employment history. His analysis showed a $14,000 difference
between male and female pay for Cabletron managers and
supervisors. The program accounted for education and seniority.
Further, the evidence in the record before the jury,
-28-
and before us, includes data from personnel files for men and
women holding similar positions. For example, at the same time
Cabletron hired Scarfo, it hired Tim Jacobs. Unlike Scarfo, who
was paid a starting salary of $27,000, Jacobs was given the title
of supervisor and paid a starting salary of $35,000.
Moreover, in 1990, Cabletron hired Justin O'Connor as
purchasing manager at a salary of $65,000.
In an attempt to justify this pay discrepancy,
defendants call attention to evidence that O'Connor had more
education and vastly greater experience than Scarfo. Given the
strength of the evidence supporting the EPA claim, however, it is
very unlikely that the jury would have returned a different
verdict had the error in the instruction been corrected before
they deliberated.
VI. SCARFO'S APPEAL OF HER HOSTILE ENVIRONMENT CLAIM VI. SCARFO'S APPEAL OF HER HOSTILE ENVIRONMENT CLAIM
A. The Form of Scarfo's Objection to the Charge and Request for A. The Form of Scarfo's Objection to the Charge and Request for
Instruction Instruction
Scarfo presents on appeal a contention that she frames
as a single alleged error in the charge to the jury on her
hostile environment claim. In our view, however, the contention
raises two issues that, though interwoven and related, involve
distinct points, neither of which was clearly expressed in the
objection before the trial court.
First, Scarfo argues that the court erred in
instructing the jury that Scarfo had to prove "unreasonable
interference with her work performance" as an element of her _______
-29-
claim.
Second, Scarfo argues, at least implicitly, that the
court should have instructed that in order to show such
interference, the plaintiff did not need to prove that her
tangible productivity had declined, but only that the harassment
so altered her working conditions as to make it more difficult
for her to do the job.
Defendants argue that the objection, quoted from the
transcript in Part II.C above, lacked the specificity and
distinctness required by Rule 51 to preserve for appeal any issue
regarding the instructions to the jury on the hostile environment
claim. See Fed. R. Civ. P. 51. ___
We conclude that the language of the objection is less
explicit than a well-crafted objection should be. Although the
objection was sufficient to inform the trial court that Scarfo
contended she was entitled to a "factors" instruction as part of
the Title VII charge, it failed to proffer a correct instruction
or in any other way to explain how the alleged error in the
charge could be corrected. Also, the objection failed to
identify explicitly the second of the two issues stated above,
and to explain how the alleged error could be corrected.
Plaintiff Scarfo's objection thus fell short of the
clarity and precision required to alert the trial judge to the
contentions now advanced on appeal. It matters not whether
Scarfo had by that time formulated the contentions as they are
now argued (rather than developing them through further
-30-
reflection during later proceedings, either in the trial court
after verdict, or on appeal). In any event, the trial court was
not alerted to the contentions now advanced.
We discuss the two related but separable issues in
turn.
B. "Unreasonable Interference" As a Factor, Not an Element B. "Unreasonable Interference" As a Factor, Not an Element
Plaintiff Scarfo says that the court erred in its
instruction to the jury that the plaintiff must prove by a
preponderance of the evidence an abusive work environment that
"unreasonably interfered with her work performance." Plaintiff
argues, citing Harris, that "unreasonable interference" was not a ______
separate element of the claim (failure to prove which would be _______
fatal to the claim), but only a factor to be considered along
with all other relevant factors in determining whether an abusive
work environment had been proved.
In Scarfo's favor, we accept the point that the terms
"element" and "factor", as they appear in judicial opinions and
commentaries, often signify a key difference between two types of
legal tests prescribed by law, for use by decisionmakers (juries
or judges), in determining whether the evidence in a particular
case satisfies the requirements for a legal theory (of a claim or
defense).
One type of legal test prescribes two or more
"elements" of a claim or defense. Each "element" must be
satisfied. Failure to satisfy any one among two or more
-31-
"elements" is fatal to the claim or defense for which the legal
test was prescribed by law, even if all other elements are proved
beyond doubt.
The other type of legal test prescribes that two or
more "factors" are to be weighed and evaluated in making a single
"evaluative" determination that takes account of all of the
evidence bearing on all of the "factors." Weakness of the
showing of one factor, or even total failure to show it, is not
fatal; a strong showing as to other factors may outweigh the
deficiency.
Whatever the law may have been previously, Harris v. ______
Forklift Sys., 114 S. Ct. 367 (1993), leaves no doubt that the _____________
legal test prescribed by Title VII, as interpreted by the Supreme
Court, is, in part at least, a factors-type test.
Whether an environment is "hostile" or
"abusive" can be determined only by looking
at all the circumstances, which may include
the frequency of the discriminatory conduct;
its severity; whether it is physically
threatening or humiliating, or a mere
offensive utterance; and whether it
unreasonably interferes with an employee's
work performance.... [W]hile psychological
harm, like any other relevant factor, may be
taken into account, no single factor is
required.
Id. at 371. Thus, that discriminatory conduct unreasonably ___
interferes with the plaintiff's work performance is not an
element, proof of which is essential, but a factor to be _______ ______
considered in determining whether an "abusive" or "hostile"
environment has been proved.
The legal test set forth in Harris is in fact neither ______
-32-
entirely an "elements" test nor entirely a "factors" test.
Instead, the Harris test has both elements and factors within it. ______
First, it is comprised of several "elements" -- each alone fatal
to the claim if not satisfied. One of these "elements" is that
the work environment was "hostile" or "abusive."
Second, the test (or "sub-test," one may prefer to say,
to distinguish between the overall test and the internal test for
one "element") for determining whether one of the "elements" has
been satisfied is a "factors" type of test. More specifically,
one of the elements of the Harris test is proof that the ______
environment in which the plaintiff worked was "hostile" or
"abusive." And the test (or sub-test) for determining whether
this "element" has been satisfied in a particular case is a
"factors" test. The passage from Harris, quoted immediately ______
above, identifies both of these two characteristics of the legal
test set forth by the Court in that case.
This reading of the Opinion for a unanimous Court is
reinforced by the Concurring Opinions of both Justice Scalia and
Justice Ginsburg. Justice Scalia noted that
"[o]ne of the factors mentioned in the
Court's nonexhaustive list -- whether the
conduct unreasonably interferes with an
employee's work performance -- would, if it
were made an absolute test, provide greater
guidance to juries and employers. But I see
no basis for such a limitation in the
language of the statute.
Id. at 372 (Scalia, J., concurring). Justice Ginsburg, using the ___
word "dominantly" rather than an absolute or conclusive term,
also recognized that "unreasonable interference with work
-33-
performance" was not alone decisive as to whether an abusive
environment exists. [T]he
adjud
icato
r ' s
inqui
r y
shoul
d
cente
r ,
domin
antly
, on
wheth
e r
t h e
discr
imina
tory
condu
c t
h a s
unrea
sonab
l y
inter
fered
with
t h e
plain
tiff'
s
work
perfo
rmanc
e.
Id. at 372 (Ginsburg, J., concurring). ___
Thus, the trial court's instruction was incorrect in
stating that "unreasonable[e] interfere[nce] with her work
performance" was an absolute requirement for showing the
existence of a hostile or abusive work environment.
The problem is that plaintiff Scarfo did not properly
preserve this issue for appeal because plaintiff Scarfo's
-34-
statement to the trial court of the grounds of her objection was
deficient in several ways.
First, it was susceptible of being interpreted as
saying that the Harris test is entirely a "factors" test. It did ______
not acknowledge that the Harris test is in some respects an ______
"elements" test, one element being that the work environment was
hostile or abusive. Thus, the trial judge was not alerted to why
his use of the language of an "elements" test in the charge might
be error because of the particular way he used it, even though
language such as his would be proper and even essential as part
of an entirely correct instruction.
Second, the objection did not correctly formulate the
Harris "element" over which there was dispute and satisfaction of ______
which must be determined by a "factors" test (or sub-test).
Thus, even if the trial judge understood plaintiff's contention
that some aspect, at least, of the overall Harris test was a ______
"factors" test (or sub-test) for deciding whether one "element"
was satisfied, still the objection did not formulate that element
clearly enough to tell the trial judge how to correct the alleged
error in his instruction. That "element," as now clearly
formulated on appeal, is not "unreasonable interference with
work performance." It is, instead, that the work environment was
hostile or abusive.
In general, objections to a trial judge's charge to the
jury must be clear enough and explicit enough to tell the trial
judge what the party wishes the trial judge to say in order to
-35-
correct the alleged error.
See Linn v. Andover Newton Theological ___ ____ ___________________________
Sch., Inc., 874 F.2d 1 (1st Cir. 1989)("If ___________
there is a problem with the instructions, the
judge must be told precisely what the problem
is, and as importantly, what the attorney
would consider a satisfactory cure.").
For the reasons stated above, we conclude that plaintiff Scarfo's
objection was not sufficient to preserve the issue for appeal in
accordance with Rule 51. Since the plaintiff failed to make a
timely objection, we will reverse or award a new trial only if we
determine, based on our review of the record, that the error
resulted in a miscarriage of justice or "seriously affected the
fairness, integrity or public reputation of the judicial
proceedings." Lash v. Cutts, 943 F.2d at 152. ____ _____
It is true that the court's explanation of what
constitutes a "hostile or abusive environment" did not precisely
conform with Harris. Harris, however, does not prescribe a ______ ______
particular instruction on what constitutes a hostile or abusive
work environment. Rather, it clearly implies that its list of
factors is nonexhaustive.
See Harris, 114 S. Ct. at 371 ("Whether ___ ______
an environment is "hostile" or "abusive" can
be determined only by looking at all the
circumstances, which may include the _____ ___ _______
frequency of the discriminatory conduct, its
severity . . . .")(emphasis added).
We have no basis for concluding now -- if, indeed, Scarfo is
asking us to do so -- that the jury interpreted the court's
instruction to mean that "unreasonable interference" was the only
factor they were allowed to consider in determining the existence
-36-
of a hostile or abusive environment. Also, we have no basis for
determining that the jury, in deciding whether the work
environment was hostile or abusive, did not consider, as part of
their understanding of the instruction, factors such as "the
frequency of the discriminatory conduct; its severity; [and]
whether it is physically threatening." Id. We conclude that it ___
is very unlikely that the jury, if it had been instructed
correctly, would have returned a different verdict. Thus, no
miscarriage of justice occurred.
In summary, we are left with no good reason not to
apply the use-or-lose principle in view of the lack of clarity of
the objection made by Scarfo at the time prescribed by Rule 51.
C. Meaning of "Unreasonable Interference With Work Performance" C. Meaning of "Unreasonable Interference With Work Performance"
Plaintiff-Appellant Scarfo raises a second, related
issue with respect to the court's instruction on her sexual
harassment claim. She argues that the court's instruction was
erroneous because it required the jury to find that the
plaintiff's work performance was inadequate and that harassing __________
discriminatory conduct was a cause of that inadequacy. Plaintiff
asserts on appeal that she never intended to prove that the
quality or quantity of her work performance declined as a result
of her treatment; the plaintiff's theory of her case was that she
continued to perform well despite the sexual harassment. Thus,
she contends that the court's instruction precluded the jury from
considering her theory that the discriminatory conduct adversely
-37-
affected her work conditions, but not the quality of her
performance.
Was Scarfo's objection to the trial court sufficient to
alert the court to the refinement of her theory of the case that
she now argues before us?
The relevant portion of her objection stated:
And we had requested in our Jury Instruction
22 a paragraph that was not given but that
comes from the recent Harris case that says
that you don't have to have the unreasonable
interference with the work performance. It
can be harassment that affects psychological
well-being and detract[s] from one's work and
we would like to have that instruction given
. . . .
Plaintiff's counsel's use of the phrase "detract[s]
from one's work" was not sufficient to apprise the trial court of
the plaintiff's contention that there was no decline in her
productivity and instead only a hostile or abusive alteration of
her working conditions, over which she had the wit and will to
triumph, thus performing up to full productivity.
See United States v. Slade, 980 F.2d 27 ___ _____________ _____
(1st Cir. 1992)(passing allusions are not
adequate to preserve an argument in either a
trial or appellate setting);
Linn, 874 F.2d at 5. ____
Although plaintiff-cross-appellant's brief in this court points
to Justice Ginsburg's discussion of this issue in her concurrence
in Harris v. Forklift, Justice Ginsburg's discussion was not the ______ ________
subject of any of the plaintiffs' proposed instructions in the
trial court. Plaintiff's proposed Jury Instruction 22 does
include a paragraph from the Opinion for the unanimous Court in
-38-
Harris, but that paragraph does not speak to this issue. ______
The trial judge could not be expected to glean the
substance of the present argument from plaintiff's counsel's
statements and requests. Thus, the plaintiff failed to object
specifically on this ground as required by Fed. R. Civ. P. 51.
Plaintiff Scarfo correctly notes that Justice Ginsburg
made a statement in her concurrence in Harris that supports the ______
argument plaintiff now makes.
To show such interference, "the plaintiff
need not prove that his or her tangible
productivity has declined as a result of the
harassment." It suffices to prove that a
reasonable person subject to the
discriminatory conduct would find, as the
plaintiff did, that the harassment so altered
working conditions as to "make it more
difficult to do the job."
Harris v. Forklift, 114 S. Ct. at 372 (Ginsburg, J., ______ ________
concurring)(quoting Davis v. Monsanto Chem. Co., 858 F.2d 345, _____ ___________________
349 (6th Cir. 1988), cert. denied, 490 U.S. 1110 (1989)(a case _____ ______
concerning race-based discrimination)). But it is also relevant
that Justice Ginsburg's explanation of the meaning of
"unreasonable interference" was neither expressly adopted nor
disavowed by the Opinion for the unanimous Court.
For the reasons stated below, we have no need to
decide, and refrain from deciding, whether, had a more explicit
objection been made, the trial court should have adopted Justice
Ginsburg's interpretation of "unreasonable interference with work
performance."
Even if we assume that the quoted passage from Justice
-39-
Ginsburg's concurrence is also the view of the Court, we conclude
that plaintiff Scarfo has not met her burden of showing that an
exception to the use-or-lose principle should be invoked here.
The trial court's instruction on plaintiff's sexual harassment
claim did not elaborate on the phrase "unreasonable interference
with work performance." That instruction did not preclude the
jury from considering the theory of her case that plaintiff
Scarfo now emphasizes -- the theory that her working conditions
had been unreasonably altered even though her performance was not
affected. Justice Ginsburg's concurrence treats the phrase
"interference with the plaintiff's work performance" as including
an alteration of the working conditions that makes it harder to
do the job. Nothing in any of the opinions in Harris suggests, ______
as plaintiff now does on appeal, that this phrase can be
interpreted to mean only a tangible decline in productivity. In ____
addition, the plaintiff has not shown any basis for our
concluding that the particular instruction at issue in this case,
either as a whole or in part, gave the jury the impression that a
tangible decline in productivity was something the plaintiff was
required to prove as an element of her claim.
Viewed another way, plaintiff's argument on appeal is
that the trial court should have given an instruction stating
that the plaintiff can prove unreasonable interference with work
performance either (1) by proving that the discriminatory conduct
would cause the quality or quantity of a reasonable person's work
to decline and the plaintiff's work did so decline; or (2) by
-40-
proving that a reasonable person, subjected to the harassment
that she proved, would find, and the plaintiff did so find, that
the harassment so altered working conditions as to make it more
difficult to do the job. If Scarfo thought that such an
instruction would have been helpful to the jury's understanding
of her claim, Scarfo had the right and opportunity to make such a
request. No such request was made at the critical moment
prescribed by Rule 51.
D. Plaintiff Scarfo's Argument That the Evidence Compelled a D. Plaintiff Scarfo's Argument That the Evidence Compelled a
Finding for Her Finding for Her
Appellant Scarfo argues, alternatively, that the
evidence in support of her claim of sexual harassment was so
overwhelming as to compel a verdict in her favor.
We do not reach the merits of her contention, however,
because she did not preserve the issue for appeal. She could
have preserved the issue by moving for judgment as a matter of
law under Rule 50, or by moving for a new trial under Rule 59.
See Wells Real Estate v. Greater Lowell Bd. of Realtors, 850 F.2d ___ _________________ ______________________________
803, 810 (1st Cir.), cert. denied, 488 U.S. 955 (1988) (waiver of _____ ______
the right to request judgment as a matter of law does not
preclude a party from moving for a new trial). Her failure to do
either is fatal to her appeal on grounds of sufficiency or weight
of the evidence, as was made clear in Wells. _____
We do not reach the issue of the
sufficiency of the evidence . . . because
plaintiff's counsel failed to move for a
judgment notwithstanding the verdict in the
district court. Therefore we have no
-41-
decision of the district court to consider. .
. . Appellate review may be obtained only on
the specific ground stated in the motion for
directed verdict. . . .
A federal appellate court may not
reverse for insufficiency of the evidence in
the absence of an unwaived motion for
directed verdict. . . .
. . .
The authority to grant a new trial is
confided almost entirely to the exercise of
discretion on the part of the trial court .
. . .
Where . . . the district court's ruling
would call into play a discretionary matter,
peculiarly appropriate for that court, it
becomes more important to bring the error
first to that court's attention. Thus, a
motion for new trial must be made in the
first instance before the trial court,
particularly where the weight of the evidence
is at issue.
Wells, 850 F.2d at 810-11 (citations and quotations omitted). _____
See also Havinga v. Crowley Towing and Transp. ___ ____ _______ ___________________________
Co., 24 F.3d 1480, 1483 n.5 (1st Cir. 1994); ___
Vel zquez v. Figueroa-G mez, 996 F.2d 425, 426-27 _________ ______________
(1st Cir.), cert. denied, 114 S. Ct. 553 (1993); _____ ______
Pinkham v. Burgess, 933 F.2d 1066, 1070 (1st Cir. _______ _______
1991).
Appellant clings to our statement in Sampson v. Eaton _______ _____
Corp., 809 F.2d 156, 161 (1st Cir. 1987), that a post-trial _____
motion is not always required to preserve an issue for appeal.
She maintains that we should review her appeal because it is
based solely on a contention of law. The only strictly legal
question raised by her appeal on the harassment claim, however,
is the propriety of the jury instruction. We have addressed that
matter in Part VI.B and VI.C, supra. _____
-42-
Her alternative argument that the evidence compelled a
verdict in her favor -- although a contention "of law" -- is
plainly based on assertions about the "sufficiency" of the
evidence. This kind of contention is controlled by Wells. _____
Appellant also argues that a substantial policy reason
mitigates against a conclusion that she has failed to preserve
her
contention for appeal. She maintains that if this court requires
every party to file a motion for new trial as a prerequisite to
appeal, then even parties who prevail on all of their claims
except one -- and decide against appealing the minor loss -- must
move for a new trial in anticipation of filing a cross-appeal if
the other party should appeal. Such post-trial procedure,
appellant urges us to conclude, would unnecessarily clog the
docket.
Appellant first raised this policy argument in her
reply brief, affording appellees no opportunity to respond. In
any event, it is unconvincing. At least where, as here, no
satisfactory explanation has been advanced for appellant's
failure to seek a new trial, we conclude that it is appropriate
for us to take account of the fact that trial counsel had the
opportunity to decide, and may in fact have decided, that the
potential costs of a new trial outweighed the potential benefits.
She could have eased to some extent the burdens of such a
decision at the post-trial stage, by moving for new trial only as
an alternative to a motion for judgment as a matter of law. In
-43-
any event, it would plainly be inconsistent with the letter and
spirit of Rule 59 to give her a second opportunity to seek a new
trial now when she did not use the opportunity available to her
at the time prescribed by Rule 59.
We have also considered whether the recent decision in
Lebr n v. National R.R. Passenger Corp., 115 S. Ct. 961 (1995), ______ ______________________________
might salvage Scarfo's right to complain of this error at this
time. We conclude that it does not, for reasons that apply also
to another claim of error (one advanced by defendant Benson), as
explained in Part IX, infra. _____
VII. MILLER'S WRONGFUL DISCHARGE CLAIM VII. MILLER'S WRONGFUL DISCHARGE CLAIM
Miller argues that the court erred in refusing to
instruct on nonpecuniary damages. Cabletron responds that in
fact the court did instruct on this subject. The record reveals
good reason for confusion over this matter.
During a colloquy with counsel before the closing
arguments, the court stated its intention to instruct the jury on
"enhanced compensatory damages," and not to instruct the jury on
"nonpecuniary damages." Miller's counsel objected at this point
to the omission of an instruction on nonpecuniary damages, and
the court expressly restated its intention not to instruct on
nonpecuniary damages.
Miller's counsel, in reliance on the court's ruling,
argued in his closing that the jury should award enhanced
compensatory damages. Miller's counsel did not argue to the jury
-44-
that it should award nonpecuniary damages.
When the court instructed the jury just after the
closing arguments, it instructed on nonpecuniary damages, but did
not instruct the jury on enhanced compensatory damages. This was
the opposite of the court's previously stated intention.
After the court's instruction in this way, Miller's
counsel objected -- ostensibly, to apprise the court of the fact
that the court's instructions had varied from its stated
intention. Miller's counsel requested that "the Court reverse
those two consistent with what you described this morning." This
statement can reasonably be interpreted as a request for an
instruction on enhanced compensatory damages to replace the _______
instruction on nonpecuniary damages. Thus, Miller's counsel's
statement arguably indicated to the judge that Miller had changed
his position since his original request.
Following this colloquy, the court re-instructed the
jury on the wrongful discharge claim. This time, the court
instructed the jury on enhanced compensatory damages, but did not
withdraw its earlier instruction on nonpecuniary damages, or in
any other way mention nonpecuniary damages. No further objection
was made by Miller's counsel.
It is not clear from the record whether the second
instruction was intended to substitute for the first instruction, __________
or was intended as an additional instruction. The latter __________
interpretation is supported by the form of the verdict, in which
the jury was instructed to answer special questions, including
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the damages questions referred to below.
The jury awarded Miller $995,000 in damages on the
wrongful discharge claim, but awarded no "enhanced compensatory
damages." See Jury Verdict, Questions 4 and 5. Although no ___
question on the verdict form specifically addressed "nonpecuniary
damages," Question 4, which refers to damages generally, may
reasonably have been construed by the jury to include both
pecuniary and nonpecuniary damages.
In these circumstances, the instructions and the
verdict form did not preclude the jury from considering an award
of nonpecuniary damages in accordance with the original
instruction, and the jury's award of $995,000 may have included
such an award. Thus, the verdict form together with the
instructions does not conclusively demonstrate that, as plaintiff
Miller urges, the jury was not instructed on the issue of
nonpecuniary damages.
Even if we were to conclude that the jury was not
instructed on nonpecuniary damages, counsel's failure to object,
after the "substitute" instruction was given, is an obstacle in
the way of Miller's asserting error with respect to this
instruction on appeal. Moreover, Miller's counsel's apparent
reversal of his position -- although arguably intended merely to
apprise the court of its inconsistency -- weighs against allowing
Miller to assert his original position on appeal.
In addition to these obstacles is another. Although
plaintiff argues that the availability of nonpecuniary damages in
-46-
a wrongful discharge action is an open question, defendant
Cabletron argues that nonpecuniary damages are not available
under New Hampshire state law in a wrongful termination case.
See Monge v. Beebe Rubber Co., 316 A.2d 549 (N.H. ___ _____ ________________
1974)(noting that nonpecuniary damages are not
available in contract actions, and holding in the
context of a wrongful termination claim based on breach
of contract that the plaintiff had not proved such
damages).
Since the most that can be said for Miller is that this issue is
an open question under New Hampshire state law, it is not certain
that the trial court's charge, in whatever way it is construed,
was contrary to New Hampshire law.
In these circumstances, we conclude that the
controversy over this potentially disputable issue of state law
has not been properly preserved for decision on this appeal. The
error, if any, did not result in a miscarriage of justice.
VIII. CABLETRON'S AND BENSON'S APPEAL VIII. CABLETRON'S AND BENSON'S APPEAL
OF MILLER'S WRONGFUL DISCHARGE CLAIM OF MILLER'S WRONGFUL DISCHARGE CLAIM
Appellants Cabletron and Benson ask this court to
vacate that part of the district court's judgment making an award
to plaintiff Miller on his claim under state common law for
wrongful termination. Appellants argue that we should do so
either on the ground that New Hampshire would not permit a common
law claim for wrongful discharge or on the ground that the
district court improvidently exercised supplemental jurisdiction.
Appellants also ask that we set aside the damages award
and remand the case for a new trial with appropriate guidance to
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the district court on the scope of damages. This is in effect a
reiteration of the argument that the jury should have been
instructed under New Hampshire statutory law rather than common
law because, as appellants concede, the principal difference
between the two -- at least in the context of this case -- is in
the scope of the remedies available.
Alternatively, appellants ask that this court certify
the determinative question of state common law to the New
Hampshire Supreme Court.
Appellants contend that this claim should never have
been submitted to the jury because New Hampshire's human rights
laws, see N.H. Rev. Stat. Ann. 354-A, provides the exclusive ___
remedy for a claim of retaliatory discharge based on sex
discrimination. Appellee Miller responds that appellants did not
properly preserve the issue for appeal and that, in any event,
the cited statute does not provide an exclusive remedy.
Appellants acknowledge that they never objected to the
court's instruction to the jury on the question of damages. The
first time appellants gave the trial judge notice of the argument
now advanced on appeal was in a post-judgment motion seeking
various forms of relief, including vacatur of judgment and a new
trial.
Appellants contend that they raised the issue of
statutory exclusion of common law remedies for gender
discrimination in a motion for summary judgment. Appellants,
however, did not "squarely and distinctly," see Rivera-G mez v. ___ ____________
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de Castro, 843 F.2d 631, 635 (1st Cir. 1988), raise on the merits _________
in their motion for summary judgment the issue of the exclusion
by statute of a common law wrongful termination remedy for gender
discrimination. Moreover, even if we were to hold that they had
done so, still, in seeking relief from this court they face the
obstacle that they failed to move on this ground, under Rule 50,
for judgment as a matter of law at the close of the evidence. In
view of this failure to bring the matter to the attention of the
trial court after the close of the evidence at trial, their claim
of error on this ground is not available for review under a
standard as favorable to appellants as the harmless error
standard. See Eastern Mount. Platform Tennis v. Sherwin ___ __________________________________ _______
Williams, 40 F.3d 492, 497 (1st Cir. 1994). ________
Even if the damages award for Miller's state law claim
was based on a legal premise that may not be the way this New
Hampshire substantive-law issue is eventually resolved, at some
future time, it does not follow that the judgment based upon that
legal premise was a miscarriage of justice. The only prejudice
that appellants purport to show was an award of damages for pain,
suffering, and mental anguish that, they argue, is precluded by
the absence of nonpecuniary damages from the statutory
specification of exclusive remedies. Even were we to accept this
assertion, and hence conclude that plaintiffs were not legally
entitled to damages for pain, suffering, and mental anguish, the
point remains that the record contains evidence of other elements
of damages -- evidence more compelling than any evidence of pain,
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suffering, and anguish. Nor is there any showing that pain,
suffering, and anguish were emphasized by Miller in presenting
his claims to the jury. Finally, there is some doubt, as
explained above, see Part VII, whether the jury could be expected
to understand the charge as instructing that they could award
damages for pain and suffering. At best, the suggestion of
prejudice is quite speculative.
For these reasons, we do not consider on the merits
appellants' argument for vacating that part of the judgment
making an award to Miller on his claim for wrongful termination
under state common law. Nor do we give further consideration to
certifying a question to the Supreme Court of New Hampshire when
appellants are procedurally barred from raising on the merits the
very issue on which they seek certification.
We also do not consider whether we should vacate this
part of the judgment on the ground that the district court
improvidently exercised supplemental jurisdiction. Appellants
did not brief this issue on appeal, see Brown v. Trustees of ___ _____ ____________
Boston University, 891 F.2d 337, 352 (1st Cir. 1989), cert. __________________ _____
denied, 496 U.S. 937 (1990), and in any event are precluded from ______
raising the issue by their failure to object to the instruction
on the wrongful termination claim.
IX. DEFENDANT BENSON'S APPEAL OF THE TITLE VII CLAIMS IX. DEFENDANT BENSON'S APPEAL OF THE TITLE VII CLAIMS
Appellant Benson asks this court to vacate the Title
VII liability findings against him in favor of both Scarfo and
-50-
Miller and to determine that the district court should have
dismissed the Title VII claim against him because, as a matter of
law, an individual cannot be liable under Title VII.
Benson squarely raised this issue in a motion for
summary judgment filed against plaintiff Miller. Appellant
Benson concedes that he did not seek summary judgment against the
other plaintiff, Scarfo, on this ground. He contends, though,
that the district judge's later consolidation of plaintiffs'
cases and express order that the defendants' motion for summary
judgment in the Miller case be transferred to the main case and
considered re-filed in that case, rendered the summary judgment
motion applicable to plaintiff Scarfo. We decline to accept this
contention. To accept it would imply that it would be
appropriate to enter summary judgment against a party who never
had explicit notice that her opponent had moved for summary
judgment against her. Therefore, we consider Benson's
contentions only as they apply to his appeal of the judgment
against him for his retaliatory firing of Miller.
After the trial court denied Benson's motion for
summary judgment as to Miller's claim of individual Title VII
liability, Benson did not raise the issue again in the trial
court on a Rule 50 motion for judgment as a matter of law. Thus,
the claim of error by the trial court in concluding, as a basis
for denying summary judgment, that Miller may be held
individually liable is not available for review under a standard
as favorable to appellants as the harmless error standard. See ___
-51-
Eastern Mount. Platform Tennis, 40 F.3d at 497. ______________________________
The instruction on Benson's individual liability under
Title VII may or may not have been erroneous. The trial judge
made clear that on this point he was adopting the view of a
district court of this circuit, and arguably the view of some
circuits, over the plainly contrary view of other circuits. As
was true of the issue of municipal liability under 42 U.S.C.
1983 in Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), the _______ ____________________
court's interpretation of the "contours of . . . [individual]
liability under" Title VII in this case "hardly could give rise
to plain judicial error since those contours are currently in a
state of evolving definition and uncertainty." Id. at 256. ___
In these circumstances, this ruling of law by the trial
court, to which no objection was taken until after verdict, is
closely analogous to, if not precisely within, the concept of the
law of the case. See Moore v. Murphy, No. 94-1974, slip op. at 6 ___ _____ ______
(1st Cir. Feb. 1, 1995). See also Part III, supra. ___ ____ _____
X. STANDARDS OF REVIEW OF DAMAGES AWARDS X. STANDARDS OF REVIEW OF DAMAGES AWARDS
With respect to plaintiffs' Title VII claims, all
parties stipulated before trial that the jury would determine
liability and the court would calculate damages, if necessary.
With respect to plaintiff Miller's claim under New
Hampshire state law for wrongful discharge, the jury determined
both liability and damages. Similarly, with respect to plaintiff
Scarfo's claim under the Equal Pay Act, the jury determined both
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liability and damages.
The district court, in its calculation of damages for
the Title VII claims, made certain findings of fact as the basis
for the awards. This court sets aside such findings only if they
are "clearly erroneous." Fed. R. Civ. P. 52(a).
This court may, however, modify an award made by the
district court when the record is sufficiently developed that the
Court of Appeals can apply the law to the trial court's
factfindings on the record and calculate the proper award without
resorting to remand. Cf. Lipsett v. Blanco, 975 F.2d 934, 943 ___ _______ ______
(1st Cir. 1992)(modifying an award of fair and reasonable
attorneys' fees when the trial court made a legal error with
respect to the method of calculation).
Parts XI-XV of this Opinion explain our resolution of
the distinct issues that various defendants raise with respect to
the amounts of the several awards.
XI. PLAINTIFF SCARFO'S PRINCIPAL CLAIMS FOR DAMAGES XI. PLAINTIFF SCARFO'S PRINCIPAL CLAIMS FOR DAMAGES
A. The Components of Scarfo's Claims A. The Components of Scarfo's Claims
Plaintiff Scarfo was awarded damages on two of her
claims: the Title VII sex discrimination claim and the Equal Pay
Act claim. We discuss each of these awards in turn. To aid the
reader in understanding the damages analysis, we note that the
following dates are relevant to Plaintiff Scarfo's damages.
Plaintiff Scarfo was terminated on January 10, 1991. Plaintiff
Scarfo filed a claim with the EEOC on March 6, 1991 and filed
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this civil action with the court below on October 8, 1991. The
first of the Orders that, together, constitute the final judgment
in this case was entered on May 10, 1994.
1. Title VII Claim 1. Title VII Claim
The damages awarded to plaintiff Scarfo by the trial
court for her successful Title VII claim consist of three types:
back pay, front pay, and damages for the value of stock options
that plaintiff did not receive as a result of the discrimination.
The court awarded plaintiff Scarfo $1,187,901.07 in
damages for the Title VII violation (consisting of the sum of
$242,407.07 in back pay, $744,744 in front pay, and $228,750 for
the value of stock, reduced by the jury's award of $28,000 under
the Equal Pay Act).
The term back pay refers to lost wages commencing on
the date two years before the plaintiff's filing with the EEOC to
the date of judgment. Front pay refers to damages for wages from
the date of judgment to some specified date in the future.
The back pay and front pay damages awarded by the trial
court are to some extent overlapping and must be modified for
reasons explained in Part XI.C below.
2. The Equal Pay Act Claim 2. The Equal Pay Act Claim
The jury awarded plaintiff Scarfo $28,000 in damages
for defendant Cabletron's violation of the Equal Pay Act. The
trial court instructed the jury that
Under the Equal Pay Act, Ms. Scarfo's award
of unpaid wages is limited to a period of two
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years prior to filing this lawsuit and
extending until her termination unless she
proves by a preponderance of the evidence
that the violation was willful. If you find
that Cabletron acted willfully, then Ms.
Scarfo may recover unpaid wages for a period
of three years prior to filing this lawsuit
and extending until her termination.
Cf. 29 U.S.C. 155. ___
We have no need to decide, and thus refrain from
deciding, whether this instruction on the law was accurate
because neither party objected to the instruction at trial and
neither has raised the issue before this court.
The special verdict form does not indicate whether the
jury found that the defendant's violation was willful. Thus,
assuming, as we must, that the jury followed the court's
instructions, the jury's award represents the damages for the
time span from October 8 of either 1988 or 1989 up to January 10
of 1991, when plaintiff Scarfo was terminated.
Neither plaintiff Scarfo nor defendant Cabletron
challenges the jury's award under the Equal Pay Act of $28,000.
There is a lack of clarity in the briefs and record, however,
about whether this recovery is in addition to the recovery for
violation of Title VII. We discuss this issue in Parts XI.A.3
and XI.E below.
3. Combining to a Nonduplicative Total 3. Combining to a Nonduplicative Total
The award under Title VII is to some extent duplicative
of the award under the Equal Pay Act.
Apparently to avoid a duplicate recovery, the trial
-55-
court subtracted the jury's award of $28,000 for the Equal Pay
Act violation committed by Cabletron from the court's total
calculation of $1,215,901.07 (consisting of $242,407.07 in back
pay, $744,744 in front pay, and $228,750 for the value of stock
options) in damages for the Title VII violation committed by
Cabletron and Benson, resulting in what the court determined was
the total Title VII award of $1,187,901.07 against Benson and
Cabletron.
Thus, under the final judgment entered in the case by
the court below, defendants Cabletron and Benson were held
jointly and severally liable for $1,187,901.07 for the Title VII
violation and Cabletron was held liable for an additional $28,000
for the Equal Pay Act violation. Since Benson was not liable
under the Equal Pay Act, there is a problem about subtracting
$28,000 from the award against Benson to avoid duplicative
recovery. We address this problem in Part XI.E below, along with
the need for other modifications.
Defendants Cabletron and Benson raise arguments with
respect to all three components of Scarfo's Title VII award. We
discuss each component in turn.
B. Awards to Scarfo for Back Pay B. Awards to Scarfo for Back Pay
As stated above, the court awarded Scarfo back pay for
the Title VII claim in the amount of $242,407.07 (before
reduction by $28,000 for the Equal Pay Act award).
Title VII permits an award of back pay starting two
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years before the date of the filing of plaintiff's complaint with
the EEOC (two years before March 6, 1991) up until the date of
judgment. 42 U.S.C. 2000-5(g). Thus, plaintiff Scarfo is
entitled to back pay from March 6, 1989 to May 10, 1994. From
March 6, 1989 to the date of her termination, January 10, 1991,
the damages represent the amount that she was underpaid because
of discrimination on the basis of her sex. From January 10, 1991
to May 10, 1994, damages represent the amount she should have
been paid, if she had not been terminated on the basis of her
sex.
The court performed a detailed set of calculations
based on evidence admitted at trial and awarded Scarfo
$242,407.07 in back pay (before reduction to avoid duplication).
See Addendum to Court's Order of May 9, 1994. These calculations ___
separate the time period for back pay into the relevant sub-
periods and use the salary rate of an arguably equivalent male
employee (as a proxy for what plaintiff Scarfo would have earned
in the absence of discrimination) to calculate the damages for
each day of each sub-period. Although defendants raise several
arguments with respect to these calculations, we determine that
the court's findings of fact are not "clearly erroneous" and the
method of performing the calculations was in accordance with
applicable law.
In particular, the defendants criticize the trial
court's use of the salaries of two other Cabletron employees, Mr.
O'Connor and Mr. Jacob, in the calculations. Defendants argue
-57-
that the trial court erred in comparing plaintiff Scarfo to these
two employees because these two employees had greater
responsibilities at Cabletron. This argument fails because the
trial court reasonably could have determined that Scarfo either
had a similar level of responsibility or would have been given
similar responsibilities but for discrimination.
The court calculated damages up until May 4, 1994,
only, instead of May 10, 1994. No party, however, has raised any
issue on appeal regarding this period of approximately one week,
and we do not disturb the trial court's calculations in this
respect.
C. Scarfo's Front Pay Award C. Scarfo's Front Pay Award
The court awarded Scarfo $744,744 as front pay. In a
Title VII case, the court has discretion to award front pay from
the date of judgment forward when reinstatement is impracticable
or impossible.
See Goss v. Exxon Office Sys. Co., 747 F.2d 885, ___ ____ _____________________
890 (3d Cir. 1984)("The award of future lost earnings
in Title VII cases is an alternative to the traditional
equitable remedy of reinstatement.");
Cf. Wildman v. Lerner Stores, 771 F.2d 605 (1st ___ _______ ______________
Cir. 1985)(court has same discretion to award front pay
under the Age Discrimination in Employment Act).
This court will disturb a trial court's front pay award only if
we conclude that the trial court abused its discretion, or that
findings of fact on which the award was based are clearly
erroneous.
The trial court, in its Order of May 10, made the
-58-
finding that plaintiff Scarfo did not have "the option of
returning to her former position at Cabletron." Defendant
Cabletron does not challenge this finding, nor is it clearly
erroneous.
The court also found that plaintiff Scarfo "is a
displaced worker and will be unable to find professional
employment in the future." Although defendants challenge this
determination, the record shows that the court heard expert
testimony on the likelihood that plaintiff Scarfo would be able
to find an equivalent job with the same earning potential. In
light of the evidence that she had only a ten percent chance of
returning to full employment at an equivalent salary, the court's
finding that Scarfo will be unable to find professional
employment in the future is not clearly erroneous.
Defendants also argue that the "court imported the
erroneous concept of displaced worker into the case." The court
did not explain the meaning of "displaced worker," nor has our
attention been called to any published opinion that uses this
terminology in the Title VII context. In any event, regardless
of the terminology used, plaintiff Scarfo's ability to find
similar employment in the future is relevant both to the trial
court's decision to award front pay and to the calculation of
such an award. The trial court did not abuse its discretion in
awarding front pay to the plaintiff.
In calculating Scarfo's front pay award, the court
adopted the calculations of plaintiff's expert witness.
-59-
Defendants do not dispute that these calculations were admissible
and were adequately explained by the expert's report and
testimony; rather, they now question merely the weight the court
gave to this evidence by pointing out concessions made by the
expert during the cross-examination. The defendants' contentions
fail because the choice by the court, as factfinder for the
purpose of calculating damages, to give probative weight to the
expert's calculations was not clearly erroneous.
In another respect, however, we conclude that the court
erred in adopting and using the expert's calculations as a
measure of front pay. The expert's calculation of damages in the
amount of $973,494, which the court adopted for Scarfo's front
pay award, was for a period commencing on January 1, 1991. As
stated above, "front pay" usually refers to an award for future
salary payments starting on the date of the judgment, in this
case, May 10, 1994. Since the court, in addition to its front
pay award, also awarded back pay for the time period up until the
date of the verdict on May 4, 1994, plaintiff Scarfo obtained
duplicate damages for the period from January 1, 1991 to May 4,
1994.
"[T]he law abhors duplicative recoveries. That is to
say, a plaintiff who is injured by reason of a defendant's
behavior is, for the most part, entitled to be made whole -- not
to be enriched." Dopp v. HTP Corp., 947 F.2d 506, 516 (1st Cir. ____ _________
1991). The court adopted the expert's calculations for the front
pay award and performed its own calculations to determine the
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back pay award. Thus, the amounts of the front pay and back pay
awards representing the period from January 1, 1991 to May 10,
1994 are different because the expert and the court employed
different methods to calculate damages. To avoid duplicative
recovery, plaintiff Scarfo's combined total of Title VII damages
should be reduced either by the amount the court awarded as back
pay for the period from January 1, 1991 to May 10, 1994, or by
the amount the court ordered as front pay for that same period.
For two reasons we choose the latter method of
determining the measure of the duplication that must be avoided.
First, unlike the court's calculations for that period, the
expert's calculations include social security contributions and
fringe benefits. Therefore, the amount derived from the expert's
calculations is a larger amount than the amount calculated by the
court for that period. Thus, it is more consistent with our goal
of modification only as needed to avoid duplicative recovery to
decrease the total award by the smaller amount, that is the
amount the court calculated for back pay for that period.
Second, since the expert's calculations were computed on an
annual basis and the court's calculations were computed on a
daily basis, using the back pay measure calculated by the court
for the period from January 10, 1991 to May 10, 1994 makes for an
easier and more precise calculation of the duplication.
As stated above, the trial court calculated plaintiff
Scarfo's Title VII damages to be $1,215,901.07 (before adjustment
for the Equal Pay Act award) consisting of $242,407.07 in back
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pay, $744,744 in front pay, and $228,750 for the value of stock
options. The portion of the court's back pay award attributable
to the period for January 1, 1991 to May 10, 1994 is $224,013.12.
Thus, to avoid duplication, we reduce the court's calculation of
Title VII damages by $224,013.12, resulting in a back pay award
of $18,393.95 ($242,407.07 less $224,013.12), and a total sum of
Title VII damages (before adjustment with respect to Cabletron
for the Equal Pay Act award) of $991,887.95, consisting of
$18,393.95 for the period up to January 10, 1991, $744,744 for
the period commencing January 10, 1991, and $228,750 for the
value of stock options. Both defendants Cabletron and Benson are
jointly and severally liable for this amount. This amount does
not include the adjustment (discussed below in Part XI.E) for the
jury's Equal Pay Act award against Cabletron only.
D. Scarfo's Damage Award for Stock Options D. Scarfo's Damage Award for Stock Options
The court awarded damages to plaintiff Scarfo for the
value of stock options she would have received if she had not
been discriminated against on the basis of sex. The court found
that Scarfo would have been given options to purchase 2500 shares
of stock at a purchase price of $15.50. The court found that the
value of the stock was $107.00 per share around the time of the
trial and awarded Scarfo $228,750 in damages ($107.00 minus
$15.50 times 2,500).
Defendants raise only one argument with respect to this
damages award; they say that Scarfo is barred from recovering
-62-
these damages on the basis of res judicata. Before filing the
civil action in federal court, Scarfo filed an action with the
New Hampshire Department of Labor. In that action, the plaintiff
sought to recover compensation under N.H. Rev. Stat. Ann.
275:51.
See N.H. Rev. Stat. Ann. 275:51 (authorizing the ___
Commissioner of the New Hampshire Department of Labor
to hold hearings to enforce the provisions of certain
New Hampshire labor laws).
The Department of Labor determined, inter alia, that stock _____ ____
options were not "compensation" and thus not recoverable under
N.H. Rev. Stat. Ann. 275:51.
In her amended complaint to the trial court below,
Scarfo sought to recover lost wages and stock options on a breach
of contract theory. The district judge dismissed the breach of
contract claim on the basis of res judicata because it stated the
same cause of action the plaintiff had already adjudicated under
N.H. Rev. Stat. Ann. 275:51.
Defendants assert that because the plaintiff was barred
from recovering damages for stock options under a breach of
contract theory, the plaintiff should be barred from recovering
damages for stock options under a Title VII sex discrimination
theory. This argument lacks merit. Under defendants' reasoning,
the plaintiff would be barred from recovering any type of lost
compensation (including wages) under Title VII, because she had
adjudicated a breach of contract claim for lost wages and other
compensation in the Department of Labor proceedings. But res
judicata bars causes of action, not types of damages recoverable
-63-
under some other claim not subject to adjudication in the
tribunal rendering the judgment.
See In Re Alfred P., 126 N.H. 628, 629 (1985)("The ___ _______________
doctrine of res judicata precludes the litigation in a
later case of matters actually litigated, and matters
that could have been litigated, in an earlier action
between the same parties for the same cause of
action.").
Plaintiff's Title VII cause of action is not the same cause of
action as her breach of contract action; it requires different
elements to be proved. These different elements were not tried,
and could not have been tried, in the New Hampshire Department of
Labor hearings. Thus, plaintiff Scarfo's Title VII claim is not
barred by res judicata.
Since the defendants raise no other arguments with
respect to the trial court's award of $228,750 for the value of
stock options not received by plaintiff Scarfo, we do not disturb
the trial court's award.
E. Avoiding Duplication of the Equal Pay Act Award E. Avoiding Duplication of the Equal Pay Act Award
As described above, the trial court originally
calculated Title VII damages to be $1,215,901.07. Then,
recognizing the need to avoid duplicative recovery, the court
subtracted $28,000 for the Equal Pay Act claim. Thus, under the
final judgment entered by the court (as gleaned from the
collection of Orders referred to in Part II, supra) Cabletron was _____
held liable for $1,187,901.07 for the Title VII violation and
$28,000 for the Equal Pay Act violation.
Defendants argue that the court erred in subtracting
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the Equal Pay Act award from the back pay component of the
court's Title VII award. We agree that the method used by the
trial court to avoid duplicate recoveries was at best confusing,
if not erroneous, for two reasons. First, the back pay component
of the Title VII damages award and the jury's Equal Pay Act award
represent damages for different time periods. Second, only
defendant Cabletron (and not defendant Benson) is liable under
the Equal Pay Act. Thus, we make the following additional
adjustment.
In Part XI.C above, our modification of the total Title
VII damages resulted in a calculation of Title VII damages in the
amount of $991,887.95. The remaining question before us is how
appropriately to modify this award to avoid duplicative recovery
by plaintiff Scarfo.
The portion of our modified Title VII damages
calculation representing damages from March 6, 1989 to January 1,
1991 is $18,393.95. The jury's Equal Pay Act award of $28,000
represents damages for the same injury, namely discrimination in
pay on the basis of sex, for a period commencing either October
8, 1988 or October 8, 1989 and extending to January 10, 1991, the
date of her termination. Thus, regardless of whether the jury
found willfulness, these time periods overlap to some extent.
We consider separately the two cases (the two different
periods, and as a result the two different methods of calculation
to avoid an overlap).
If the jury found wilfulness, the EPA award of $28,000
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represents the period from October 8, 1988 to January 10, 1991.
This time period is longer than, and includes entirely the time
period of March 6, 1989 to January 1, 1991, for which damages
were calculated at $18,393.95. Thus, if the jury found
wilfulness, the appropriate way to avoid duplicative recovery is
to reduce the Equal Pay Act award by $18,393.95, so that
Cabletron is liable to plaintiff Scarfo for $991,887.95 for the
Title VII violation and an additional $9,606.05 for the Equal Pay
Act violation.
If the jury did not find wilfulness, the Equal Pay Act
award of $28,000 represents the period from October 8, 1989 to
January 10, 1991. This is a shorter time period than the time
period from March 6, 1989 to January 1, 1991 for which the judge
awarded $18,393.95. If we could determine that the jury did not
find wilfulness, the more accurate adjustment we could make to
avoid duplicative recovery would be to reduce the Equal Pay Act
award by $12,367.55, the amount of the Title VII award
representing damages from October 8, 1989 to January 1, 1991.
Since we cannot determine whether the jury found
wilfulness, we conclude that it is appropriate in these
circumstances to accept the reduction of $18,393.95 as an
appropriate adjustment to avoid overlap (instead of the reduction
of $12,367.55). If, in fact, the jury's award was not based on a
finding of wilfulness and accordingly the appropriate adjustment
is a reduction of $12,367.55, then the prejudice to plaintiff
Scarfo is quite small (i.e., $6,026.40) in comparison either with
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her total recovery or with the cost to her, as well as to
opposing parties and the public, of a remand for a new trial on
the sole issue of whether Cabletron's Equal Pay Act violation was
wilful. Having failed to request an explicit jury finding as to
wilfulness, Scarfo is in no position to complain of this
resolution of the issue.
Thus, after the reduction of $18,393.95 to avoid
overlap, Cabletron is liable to plaintiff Scarfo for $991,887.95
for the Title VII violation and an additional $9,606.05 for the
Equal Pay Act violation.
Since the Equal Pay Act claim was not brought against
defendant Benson, Benson is liable only for Title VII damages.
In accordance with the explanation above, Benson is jointly and
severally liable to Scarfo for Title VII damage totalling
$991,887.95 consisting of $18,393.95 for the period before
January 10, 1991; $744,744 for the period after January 10, 1991;
and $228,750 in stock options.
We emphasize that these adjusted calculations are not
intended to alter the usual terminology and relevant time periods
for damages under Title VII. As explained above, a successful
plaintiff (one who has proved liability under Title VII) is
entitled to back pay for a Title VII violation starting on the
date two years before the plaintiff's EEOC filing and continuing
until the date of judgment. A court, in its discretion, may also
award front pay for a Title VII violation starting on the date of
judgment and continuing to some specified date in the future.
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XII. PLAINTIFF MILLER'S DAMAGES XII. PLAINTIFF MILLER'S DAMAGES
The jury found defendants Cabletron and Benson liable
to plaintiff Miller under Title VII for retaliatory discharge.
The court awarded plaintiff Miller $190,651.85 in back pay
representing lost compensation from the date of his discharge to
the date of judgment. The court awarded Miller $995,000 in front
pay purportedly representing lost compensation from the date of
judgment forward. The court also awarded Miller $206,060 for the
value of stock options that he did not receive because of his
discharge. These three calculations total $1,391,711.85 in
damages for the Title VII violation.
The defendants raise no arguments with respect to the
court's back pay award of $190,651.85. We discuss, in turn, the
defendants arguments with respect to the front pay damages and
the damages for the value of the stock options.
A. Miller's Damages for Front Pay A. Miller's Damages for Front Pay
Defendants argue that the court's method of calculating
damages for front pay was an abuse of discretion. The jury
awarded plaintiff Miller $995,000 in damages for Miller's
wrongful discharge claim under New Hampshire state law. The
court, for a reason not stated, assumed that this sum represented
damages for front pay only. Thus, the court incorporated this
sum of $995,000 into the court's calculations of Title VII
damages as the damages for front pay.
As stated above, we review a court's decision to award
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front pay damages under the abuse-of-discretion standard. We
conclude that the defendants are correct in asserting that the
court's decision to use the jury's figure of $995,000 for front
pay damages was an abuse of discretion because the jury's award
may have included some back pay, some amount for the value of the
stock options, and some amount as damages for pain and suffering.
Plaintiff Miller, in a post-trial motion and in his brief as
appellee, agrees that the court erred in this respect.
The jury was instructed that if it found Cabletron
liable on the state law wrongful termination claim, it must
consider two types of damages:
First, you must determine the amount of wages
and fringe benefits he would have earned
through employment with defendant Cabletron
. . . if he had not been discharged on May
30th, 1990, to the date of your verdict.
Second, you must determine the amount of
future wages and fringe benefits he
reasonably would have earned in his
employment with Cabletron if he had not been
discharged.
This instruction clearly permits the jury to award both back-pay
damages and front-pay damages. The verdict form did not require
the jury to report the two separately. The $995,000 awarded by
the jury is reasonably interpreted as an award for both back pay
and front pay. As explained above, the $995,000 may have
included, also, damages for pain and suffering. Thus, the court
erred in using the jury's award on the state law wrongful
termination claim as the measure of front pay damages under Title
VII.
At trial, plaintiff Miller's expert testified that
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$211,000 was the appropriate award for front-pay damages.
Plaintiff Miller has asked this court, in correcting for this
error, to reduce the award for front-pay damages from $995,000 to
$211,000, the amount calculated by plaintiff Miller's expert.
Defendants Cabletron and Benson argue that this court should
vacate the entire award for front pay because the trial court
abused its discretion in deciding to make any award for front
pay.
The court below found that Miller did make reasonable
efforts to procure employment, but that the courier business he
began in 1991 has not yet made a profit. We will not disturb
this finding of fact because the defendants have not shown it to
be clearly erroneous. From this finding, we infer that the court
also found that it was impracticable for Miller to return to
Cabletron and that Miller had made reasonable efforts to find a
job with the same earning capacity. Miller is thus entitled to
damages for front pay. The court's determination that Miller was
entitled to an award of front pay was not an abuse of discretion,
and we will not disturb that determination.
Plaintiff's proposal to this court that the award be
reduced from $995,000 to $211,000 -- if the proposal had been
made to and accepted by the trial court -- has evidentiary
support in the testimony of plaintiff's expert.
This court has authority to modify a damages award when
all the necessary factfindings have been made in the court below.
Cf. Lipsett, 975 F.2d at 943 (modifying an award of fair and ___ _______
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reasonable attorneys' fees when the trial court made a legal
error with respect to the method of calculation). Reducing the
award to $211,000, however, as plaintiff Miller requests, would
require this court to evaluate the credibility of the plaintiff's
expert and to make a new finding of fact, not made in the trial
court, that Miller is entitled to $211,000 in damages for front
pay.
Since we do not have the authority to make findings of
fact in order to modify the award in the manner requested by
plaintiff, we vacate the front pay award.
We remand this case to the district court for the
limited purpose of determining an appropriate amount for the
front pay award. The district court, on remand, may allow the
interested parties a reasonable time period within which to file
with the district court a stipulation resolving this issue (for
example, a stipulation such as Miller's proposal to this court
that his award for front pay be reduced to $211,000 and judgment
be entered accordingly). If no such agreement is filed, the
trial court is to determine the amount of the award to Miller for
front pay. The trial court may find it appropriate to act on the
present record of evidence and adopt the plaintiff's calculation
of $211,000 for front pay. It may instead calculate front pay
damages from the date of judgment (May 10, 1994) forward in some
other manner supported by the present record of evidence. Also,
the court, in its discretion and for cause shown, may receive
additional evidence bearing upon this issue.
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B. Miller's Damages Award for Stock Options B. Miller's Damages Award for Stock Options
During his employment, plaintiff Miller was told that,
over a specific period of time, he would be given stock options
that would allow him to purchase 10,000 shares of stock at a
purchase price of $3.97 per share. During his employment, he
received options to purchase only 2,000 shares. During the time
period from the date of his termination (April 20, 1990) to the
date of judgment (May 10, 1994) Miller alleges that he would have
received options to purchase 5,000 shares. Miller also alleges
that within a month of the date of judgment, his right to options
with respect to the remaining 3,000 shares would have vested.
Thus, Miller's counsel argued to the trial court that Miller
should have been awarded damages for the value of options for
8,000 shares of stock.
The court awarded plaintiff Miller $206,060 in damages
for the value of 2,000 shares of stock. The court did not
explain how it determined the number 2,000 to be the number of
shares of stock.
Defendants-appellants, in their brief on appeal, do not
dispute the facts, as alleged by plaintiff Miller, regarding the
options for 10,000 shares. In an effort to point out all
potential errors made by the district court in support of their
argument that this court should vacate both awards entirely, they
argue that the trial court erred in deciding to award Miller the
value of 2,000 stock options. Defendants suggest that the trial _____
court mistakenly thought that Miller had already received stock ________
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options for 8,000 of the 10,000 shares, when, in fact, this was
the amount he had not received because of his termination. ___ ________
The brief of appellee Miller agrees that the court
erred, and suggests (adopting defendants' reasoning in part) that
the court should have awarded $824,240, the value of stock
options for 8,000 shares.
The implications of defendants' argument on appeal are
troubling. They have requested, in the event that this court
does not reverse the liability determination on Miller's Title
VII claim, that this court set aside Miller's entire damages
award and remand. If the remand were limited to trial of the
issue of damages for the value of stock, however, the trial court
might award either the value of 5,000 shares of stock (the amount
vesting before the date of judgment), or the value of 8,000
shares of stock. In either case, the probable consequence of
retrying only this issue would be an additional liability, beyond
that already awarded by the trial court, of either $309,090 or
$618,180 in favor of plaintiff Miller.
Miller's brief as appellee requests that this court ____
award damages for the value of stock options for 8,000 shares.
Defendants respond that we should not grant this request (which
would increase the total damages award) because plaintiff Miller
did not appeal the award of damages in his cross-appeal; rather,
plaintiff Miller raised this argument only in its appellee brief
responding to the defendants' appeal.
We refrain from modifying the judgment to award the
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value of 8,000 stock options because to do so would require this
court to make new findings of fact. We also refrain from
remanding this issue to the trial court for the limited purpose
of determining an appropriate award for the value of lost stock
options because neither party has requested that we do so. Both
parties have requested that this court take actions that are
beyond this court's authority. Since neither party's position
has merit, we simply affirm the trial court's award of $206,060
for the value of stock options for 2,000 shares of stock.
XIII. PREJUDGMENT INTEREST XIII. PREJUDGMENT INTEREST
A. The Arguments of the Parties A. The Arguments of the Parties
There is some confusion both in the record and in the
parties' briefs about whether the court awarded prejudgment
interest on any part of Scarfo's damages award and whether
prejudgment interest, if awarded, was appropriate. Defendants
argue that the court awarded prejudgment interest on Scarfo's
Title VII award, and that this was error. Plaintiff Scarfo
argues that the trial court refused to award prejudgment interest
on Scarfo's Title VII award.
We conclude from a review of the record that the trial
court denied prejudgment interest on every element of the award
to plaintiff Scarfo. In answer to Question 6 of the verdict
form, the jury answered "NO," finding against Scarfo on her
prejudgment interest claim. By its Order of July 20, 1994, the
court stated as to all of Scarfo's claims, "Prejudgment interest
is disallowed."
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With respect to the judgment for plaintiff Miller, the
defendants have not raised on appeal any objection to the trial
court's award of prejudgment interest on Miller's state law
wrongful termination claim at the rate of 10% per annum, as
mandated by N.H. Rev. Stat. Ann. 524:1-b and 336:1. With
respect to Miller's Title VII award, however, there is some
confusion in the parties' briefs about whether the parties
understood that the court awarded prejudgment interest on any
part of the award. The parties' briefs assume that prejudgment
interest was awarded on the entire Title VII award. From this
premise, the parties dispute whether it was appropriate for the
court to award prejudgment interest on the front pay award and
the portion of the back pay award representing damages for the
period from the date Miller's complaint was filed to the date of
judgment.
We conclude from a review of the record that the trial
court allowed prejudgment interest on Miller's state law claim
for wrongful termination, but not on any aspect of his Title VII
claim. In its answer to Question 6 of the verdict form, the jury
answered "NO," thus finding against Miller on his claim for
prejudgment interest. But in his Order of July 19, 1994, the
trial judge "abrogate[d]" that finding insofar as it applied to
the state law claim for wrongful termination and awarded Miller
prejudgment interest from the date of filing of the complaint to
the date of the verdict.
Since, contrary to the contentions of the parties, we
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have concluded that the trial court did not award prejudgment
interest on plaintiff Scarfo's and plaintiff Miller's Title VII
awards, the only question remaining is whether the trial court
erred by denying prejudgment interest on all aspects of the
plaintiffs' Title VII awards.
A trial court has discretion whether to award
prejudgment interest on a successful Title VII claim.
See Earnhardt v. Puerto Rico, 744 F.2d 1, 3 (1st ___ _________ ___________
Cir. 1984)(in a Title VII case the question of "whether
[prejudgment interest is] necessary to make the
plaintiff whole is within the discretion of the
district court").
In view of the discretion allowed the trial court as to interest
on a Title VII award, we conclude, in the circumstances of this
case, that the trial court did not abuse its discretion in
declining to award prejudgment interest on the Title VII award.
Thus, as stated below in the Conclusion, we affirm the trial
court's decision not to award prejudgment interest on both
plaintiffs' Title VII claims.
B. Front Pay Awards B. Front Pay Awards
For an additional reason, we affirm the trial court's
denial of prejudgment interest on the front pay components of
both plaintiffs' Title VII damages awards. Interest is
ordinarily awarded to compensate for the lost use of funds.
Since the front pay awards represent damages for wages the
plaintiffs would have received in the future, after the date of
judgment, the plaintiffs had not lost use of these funds before
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the judgment was ordered.
Cf. Conway v. Electro Switch Corp., 523 N.E.2d ___ ______ _____________________
255, 258-59 (Mass. 1988)(prejudgment interest is not
available under Massachusetts law for awards of front
pay for violations of a Massachusetts anti-
discrimination statute).
Moreover, the plaintiffs' experts, in calculating damages for
front pay, correctly chose to discount the amounts representing
the plaintiffs' future wages at an appropriate interest rate in
order to determine the present value of the future stream of
income to which each plaintiff would have been entitled.
Thus, as stated in the Conclusion below, we affirm the
trial court's denial of prejudgment interest on the front pay
components of plaintiffs' Title VII awards.
C. Awards for the Value of Stock Options C. Awards for the Value of Stock Options
In this case, defendants argue that prejudgment
interest should not be awarded on the value of the stock options,
since the amount of damages was based on the price of the stock
on or near the date of judgment. If the plaintiffs had received
the stock options at the time due and had not transferred them,
the plaintiffs would have been in possession of shares of stock
having the value equal to the purchase price plus the amount of
damages. Thus, the damages awards for the stock options already
represent the present value of the stock options at the date of
judgment. We conclude that an award of prejudgment interest is
not necessary to compensate the plaintiffs. Although a
reasonable argument may be made that prejudgment interest is an
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appropriate remedy for the loss of dividends that would have been
paid to plaintiffs if they had been in possession of the stock
during the period to which they were entitled to it, neither
party has argued this proposition. Since both plaintiffs have
conceded either explicitly (in Miller's case) or implicitly (in
Scarfo's case, to the extent she argues that prejudgment interest
was not even awarded) that prejudgment interest on the value of
the stock options is not appropriate, we refrain from addressing
the argument that prejudgment interest may be awarded as
compensation for lost dividends.
Thus, defendants and plaintiffs agree that prejudgment
interest was inappropriate on the damages for stock options and
we affirm the trial court's denial of prejudgment interest on the
stock options components of plaintiffs' Title VII awards.
XIV. MILLER'S CHOICE OF DAMAGES AWARDS XIV. MILLER'S CHOICE OF DAMAGES AWARDS
The orders of the district court that we have
determined to be the functional equivalent of a final judgment
are silent, and thus perhaps ambiguous, with respect to the
effect of the overlap between the judgment for plaintiff Miller
on the jury finding of damages in the state law wrongful
termination claim and the judgment for plaintiff Miller in the
court's findings of damages in the Title VII claim. Separate
awards were made for these two claims, but nothing is stated
explicitly about whether and to what extent, and with what effect
on collectibility, the elements of harm for which damages are
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awarded under the two claims overlap.
None of the parties brought this matter to the
attention of the trial court. Each party may have been reluctant
to do so for fear the ambiguity would then be resolved against
it. Having chosen instead to argue their respective positions
only on appeal, however, no party is in a favorable position to
seek an award of costs of appeal. We award no costs of appeal
and cross-appeal from the judgment of the district court with
respect to Miller's claims.
To eliminate any uncertainty, we state our
determination of the meaning of the judgment, with the
modifications we order.
Plaintiff Miller prevailed on two claims: his state
law claim for wrongful discharge against Cabletron (and not
Benson) and his federal Title VII claim for retaliatory discharge
against Cabletron and Benson.
Plaintiff Miller was awarded $995,000 with prejudgment
interest at a rate of 10% per annum from the date of the filing
of the complaint to the date of the verdict (May 4, 1994) on his
New Hampshire state law claim for wrongful termination against
Cabletron.
After modification by this court, plaintiff Miller is
entitled to three types of damages for his Title VII claim
against Cabletron and Benson. First, Miller is entitled to back
pay in the amount of $190,651.85 (without prejudgment interest).
Second, Miller is entitled to damages for front pay (without
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prejudgment interest). As stated in Part XII.A supra, the trial _____
court will determine, after proceedings on remand, whether to
award $211,000 or some different amount as the front pay award.
Third, Miller is entitled to damages (without prejudgment
interest) for the value of lost stock options in the amount of
$206,060.
Since defendant Benson is liable on the Title VII claim
(and not the state law claim), Cabletron and Benson are jointly
and severally liable for the total amount of the Title VII
damages only.
Although defendant Cabletron was found liable on both
the state law and federal law claims, plaintiff Miller is not
entitled to collect on both claims.
See Freeman v. Package Mach. Co., 865 F.2d 1331, ___ _______ _________________
1345 (1st Cir. 1988)("[P]laintiff is entitled to only
one full recovery, no matter how many legal grounds may
support the verdict ... but there is no basis for
allowing the losing party to pick which of the
overlapped awards it prefers to pay. In collecting the
fruits of his victory, [plaintiff] was concededly
entitled to only a single slice of pie -- but the
choice of the slice was his.").
In this case, plaintiff Miller may choose the larger of the two
damages awards.
If the total Title VII damages award is larger than the
award on Miller's state law claim for wrongful discharge,
defendants Cabletron and Benson will be jointly and severally
liable for the total of the Title VII damages.
If the damages award on the state law claim ($995,000
plus prejudgment interest at the per annum rate of 10%) is larger
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than the total Title VII award (which, we note, will be the case
if the parties stipulate to $211,000 as the front pay award,
resulting in a total Title VII award equal to $607,711.65),
defendants Cabletron and Benson will be jointly and severally
liable for the Title VII damages award and Cabletron will be
separately liable for the amount of the award on the state law
claim that is in excess of the Title VII award.
XV. ATTORNEYS' FEES XV. ATTORNEYS' FEES
The status of each plaintiff as a prevailing party is
not challenged on appeal. Appellants do challenge, however, the
size of each award of attorneys' fees on the ground that it does
not account for plaintiff's failure to win at trial on all claims
originally made.
Plaintiff Scarfo prevailed on her claim against
Cabletron and Benson for sex discrimination and on her claim
against Cabletron under the Equal Pay Act. She did not prevail
on her claim of sexual harassment against Benson or Cabletron.
Her claim for intentional infliction of emotional distress
against Cabletron was dismissed, and she lost on the same claim
against Benson at trial. Her claim of breach of contract was
dismissed on the ground of res judicata. The defamation claim
was not pressed at trial, apparently because it was settled.
Miller prevailed against Cabletron and Benson on his
Title VII claim for retaliatory discharge, and against Cabletron
on his state-law wrongful termination claim. Although he lost
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none of his claims that went to the jury (except for prejudgment
interest), Miller's claims for abuse of process and intentional
infliction of emotional distress were apparently dismissed before
or during trial, although on the record before us we cannot tell
under what circumstances or on what terms they were dismissed.
Following trial, the court received briefs and held a
hearing to determine attorneys' fees. The court awarded fees to
Scarfo in the amounts of $225,300.13 for services of the firm
that handled the bulk of her case and $18,955 for the services of
a firm that handled a small part of the case. The court awarded
fees to Miller in the amount of $117,510.97.
Appellants assert that the trial court improperly
awarded Miller fees related to claims on which he did not prevail
at trial -- apparently, the dismissed claims of abuse of process
and intentional infliction of emotional distress. Yet appellants
have failed to provide this court with a record from which we
could determine whether the award included the cost of
prosecuting these claims.
It is clear from the trial court's order awarding
attorneys' fees to Miller that the court had before it a detailed
bill for Miller's attorneys' services. Appellants have not made
that bill, or any other information sufficient to support a
reasoned decision by this court, a part of the record. This
court therefore has no basis for determining whether there is any
truth to appellants' assertion that the fee award against them
included the cost of litigating claims on which Miller did not
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prevail at trial. In these circumstances, we do not reach the
question whether the trial court abused its discretion in its
award of fees for the simple reason that we have no basis for a
reasoned decision.
When an appellant fails to provide a record of evidence
material to the point the appellant wishes to raise, and thus
leaves the appellate court with an insufficient basis to make a
reasoned decision, the court in its discretion may either
consider the merits of the case insofar as the record permits, or
may dismiss the appeal if the absence of a full record thwarts
intelligent and reasoned review. See Moore, slip op. at 4. ___ _____
Appellants assert that the district court did not
reduce the award to Scarfo to account for her unsuccessful
claims. The support for this assertion consists primarily of a
listing of the claims on which plaintiffs did not prevail.
Appellants cite a statement of the trial court in a related case
in which the court acknowledged that the Title VII and state-law
claims involved different defenses and varying remedies, as well
as novel issues of state law. Appellants also assert that
plaintiffs "failed to establish entitlement to the fees" and
"wholly failed to explain many of the general entries which were
made."
At the hearing, the trial court heard testimony from
Scarfo's lead counsel regarding Scarfo's counsel fees. Counsel
testified that the proffered itemized bill did not include work
relating to the defamation claim, or work solely related to the
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harassment claim or the emotional distress claim. She also
testified that the fees for which her client sought reimbursement
were $75,000 less than the total fees charged. Counsel was
subjected to fairly detailed cross-examination, especially
regarding the fees attributable to the sexual harassment claim;
cross-examination on that topic focused especially on fees for
research undertaken on February 2 and February 5, 1993.
The court found that on these two dates, February 2 and
5, 1993, research was undertaken on issues on which plaintiff did
not prevail, but that "the issues are interwoven." The court
stated that it was reducing the charges allowed for those two
days by 50% to $427.50.
An award of fees under Title VII is reviewed primarily
under an abuse of discretion standard, and the trial court's
range of discretion is particularly broad. See Phetosomphone v. ___ _____________
Allison Reed Group, Inc., 984 F.2d 4, 6 (1st Cir. 1993). That _________________________
range extends to determining the portion of bills for services to
be awarded to parties who have won on only some of their claims,
as long as the trial court considers the relevant factors:
Where, as here, plaintiffs have won a federal
claim for which attorneys' fees are allowed
to a prevailing party, the question becomes
whether the claims on which they lost in the
same suit were unrelated to the successful
ones (in which event no fees may be awarded
for work on the unsuccessful claims), or
whether, instead, the losing claims included
"a common core of facts," or were "based on
related legal theories," linking them to the
successful claim. In the latter event, the
award may include compensation for legal work
performed on the unsuccessful claims.
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Garrity v. Sununu, 752 F.2d 727, 734 (1st Cir. 1984) (citing _______ ______
Hensley v. Eckerhart, 461 U.S. 424 (1983)). Where the district _______ _________
court gives consideration to these factors, we defer to its
judgment absent an abuse of discretion.
See id. at 735; ___ ___
see also Lipsett v. Blanco, 975 F.2d 934, 940 (1st ___ ____ _______ ______
Cir. 1992) (the fee in a case involving interrelated
claims is an "equitable judgment entrusted to the
discretion of the factfinder, to be made on the basis
of all the circumstances of the litigation") (citation
omitted).
The district court should not only exercise its
discretion but also do so demonstrably. It is important
for the district court to provide a concise
but clear explanation of its reasons for the
fee award. When an adjustment is requested
on the basis of either the exceptional or
limited nature of the relief obtained by the _______________
plaintiff, the district court should make _________________________________
clear that it has considered the relationship _____________________________________________
between the amount of the fee awarded and the _____________________________________________
results obtained. ________________
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (emphasis added). _______ _________
See also Weinberger v. Great Northern Nekoosa Corp., 925 F.2d ___ ____ __________ _____________________________
518, 527 (1st Cir. 1991) (court must make concrete findings and
explain its reasoning). The district court's explanation of the
bases for its conclusions is essential to meaningful appellate
review. Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st ____________________ ______
Cir. 1984).
It is not clear exactly what the legal basis is for
appellants' request for a remand. That is, it is not clear
whether appellants are contending that the district court did not
conduct the analysis required by Hensley in cases of interrelated _______
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claims, or, instead are contending that the court conducted the
analysis, but came to the wrong conclusion. We consider, and
reject, both possibilities.
Appellants overstate their case when they assert that
the court "made no reduction for counsel fees as a result" of
unsuccessful claims. The district court specifically found that
on two dates (February 2 and 5, 1993) research was undertaken on
issues on which plaintiffs did not prevail, but that "the issues
are interwoven"; the court stated that it was reducing the
charges allowed for those two days by 50%.
Although we interpret the statement that "the issues
are interwoven" as having been intended to invoke the Hensley _______
analysis, it is, to be sure, not a sufficient explanation of the
basis of the court's award of fees in a case of purportedly
interrelated claims. It falls short of the "thorough and
detailed opinion reviewing the imbrication between the successful
and unsuccessful claims" that was before the court in Lipsett, _______
975 F.2d at 941. In the present case, the district court did not
-- as far as we can tell on the record before us -- "make clear
that it considered the relationship between the amount of the fee
awarded and the result obtained." See Hensley, 461 U.S. at 437. ___ _______
The court's order does not reflect a Hensley analysis of the _______
relationship among the claims; in fact, it does not indicate what
issues the court has determined to be interrelated, or even
whether they are issues of fact or law.
Nevertheless, our review of the record leads us to
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conclude that Scarfo's claims of sexual harassment and
intentional infliction of emotional distress shared sufficient
common issues of fact with her successful claims under Title VII
and the Equal Pay Act to justify the award made in this case. In
any event, we conclude that appellants should not now be heard on
their request for remand because they did not adequately present
this issue to the trial court or in the briefs filed with this
court.
The trial court's order, it is true, does not address
the nature of legal work performed by Scarfo's counsel beyond the
research billed for February 2 and February 5, 1993. But we will
not ourselves consider, or remand to the district court for
consideration of, a blanket request not specific enough for
reasoned evaluation of the merits of the request. Appellants
have failed to meet their burden of production before the trial
court and their burden of adequate briefing before this court.
This failure deprives both courts of an opportunity to make an
intelligent and reasoned decision regarding the segregability of
fees awarded for any work related to losing claims that took
place on days other than February 2 and 5, 1993.
Parties must fulfill certain obligations of specificity
of grounds of claim or defense if the district court is to be
able to make a reasoned decision as to a proper fee award. The
fee-seeker, for example, must provide a "particularized account"
of his or her claim for fees. Weinberger, 925 F.2d at 527. When __________
a fee-seeker has not won on all counts but properly documents her
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claim for fees and plausibly asserts that the time cannot be
allocated between successful and unsuccessful counts, it becomes
the fee-target's burden to show a basis for segregability. See ___
Lipsett, 975 F.2d at 941. Appellants failed to meet this burden. _______
There was evidence before the district court, in the
form of testimony by Scarfo's counsel, that the requested award
already reflected a $75,000 deduction from overall costs to
account for time spent solely on the sexual harassment and
infliction of emotional distress claims; the remainder of her
firm's work on these claims, she testified, was closely related
to the claims on which her client prevailed. She also testified
that the award did not include any expenses related to the
defamation claim. That testimony constituted a "plausible
assertion" that counsel had already segregated fees to the extent
practicable. The credibility of that testimony is for the trial
court, not this court, to determine.
The defendant was free to challenge this assertion by
pointing specifically to segregable aspects of the bill that
formed the basis for the award. The defendants' cross-
examination of Scarfo's counsel regarding expenses billed for
February 2 and February 5 apparently convinced the judge that a
50% reduction in the fees for those days was warranted, despite
his conclusion that they pertained to "interwoven" issues.
Perhaps a further reduction in fees would have followed if
defendants had presented an adequate basis for subjecting other
billed hours to judicial scrutiny. But defendants did not point
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to any other purportedly segregable entries in the bill submitted
by Scarfo, either during cross-examination or in written
submissions contained in the record before us.
Appellants did not even assert in the trial court that
the award improperly included fees attributable to the defamation
or breach of contract claims.
Plaintiffs' contentions at trial and before this court
regarding the segregability of other claims, moreover, are merely
statements of conclusions. The written submissions to the trial
court contained in the record before us merely stated conclusions
that the losing claims "have separate and distinct elements of
proof requiring different testimony and documentary evidence" or
have a "distinct and separate nature" and are "easily
segregated." Appellants' argument of segregability on appeal is
even less specific than the arguments advanced before the trial
court.
In these circumstances, in which we do not even know
what arguments the appellants would make on remand because they
have failed to make those arguments to the trial court or to us,
we conclude that it would be improper to give appellants another
bite at the apple.
Appellants argue to us that plaintiffs "failed to
establish entitlement to the fees" and "wholly failed to explain
many of the general entries which were made." Even if we were to
construe these assertions as arguments independent of the
arguments regarding segregability of fees, they are no more than
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statements of the conclusion appellants ask us to reach. They do
not constitute adequate explanation of a basis for reasoning to
this conclusion from evidence of record. We cannot sustain
contentions
of this kind. See Brown v. Trustees of Boston Univ., 891 F.2d at ___ _____ ________________________
352.
For the same reason, we cannot sustain appellants'
argument that the award of expert fees was improper.
XVI. CONCLUSION XVI. CONCLUSION
We affirm the trial court's judgment for plaintiffs
Scarfo and Miller in all respects other than the amount of the
damages award, which we modify, as stated below, for the reasons
stated in Parts X-XIV of this Opinion.
With respect to plaintiff Miller, on remand the trial
court may allow the parties a reasonable time to file a
stipulation with respect to the award to Miller for front pay.
Absent a stipulation resolving this issue, the district court on
remand may, in its discretion, resolve it consistently with this
Opinion, either on the present record or by allowing the parties
to present additional evidence.
The district court is directed, on remand, to enter an
Amended Final Judgment as follows:
(a) judgment for plaintiff Scarfo on
her claim under Title VII of the Civil Rights
Act for sex discrimination against defendants
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Cabletron and Benson for the sum of
$991,887.95 (consisting of $18,393.95 in back
pay, $744,744 in front pay, and $228,750 for
the value of stock options) without
prejudgment interest;
(b) judgment for defendant Levine on
Scarfo's Title VII claim for sex
discrimination against him;
(c) judgment for defendants Cabletron,
Benson, and Levine on plaintiff Scarfo's
claim under Title VII of the Civil Rights Act
for sexual harassment based on a hostile or
abusive environment;
(d) as an addition to the amount in
paragraph (a), judgment for plaintiff Scarfo
against Cabletron (but not against Benson),
on her claim under the Equal Pay Act, in the
sum of $9,606.05 (being $28,000 less
$18,393.95 because of overlap with the award
in paragraph (a)), without prejudgment
interest;
(e) judgment for defendants Benson and
Levine on plaintiff Scarfo's claims for
intentional or reckless infliction of
emotional distress;
(f) plaintiff Scarfo's claim of
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intentional or reckless infliction of
emotional distress against defendant
Cabletron is dismissed;
(g) plaintiff Scarfo's claims for
breach of contract and defamation are
dismissed;
(h) judgment for plaintiff Miller
against defendants Cabletron and Benson, on
his claim for retaliatory discharge in
violation of Title VII, for [a sum to be
determined upon remand] without prejudgment
interest consisting of
(i) $190,651.85 in back pay;
(ii) [a sum to be determined upon
remand] for front pay; and
(iii) $206,060 for the value of stock
options;
(i) judgment for plaintiff Miller
against defendant Cabletron (but not against
Benson) on his claim under New Hampshire
state law for wrongful termination, in the
sum of $995,000 with prejudgment interest at
a rate of 10% per annum under New Hampshire
state law from the date of filing, April 14,
1992, to the date of the verdict, May 4,
1994;
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(j) plaintiff Miller's claims of abuse
of process and intentional or reckless
infliction of emotional distress against
Benson, Levine, and Cabletron are dismissed;
(k) all claims by plaintiff Miller
against defendant Levine are dismissed;
(l) it is further ordered that
plaintiff Miller will not be allowed to
collect more than the larger of the two
awards in his favor against Cabletron as set
forth in paragraphs (h) and (i).
(m) judgment for plaintiff Scarfo
against defendants Cabletron and Benson, for
attorneys' fees and disbursements, in the
amount of $244,255.13 (consisting of
$225,300.13 incurred for services of one and
$19,955 incurred for services of the other of
two firms that represented her);
(n) judgment for plaintiff Miller
against defendants Cabletron and Benson, for
attorneys' fees and disbursements, in the
amount of $117,510.97;
(o) the awards in paragraphs (a), (d),
(h), (i), (m), and (n) will bear post-
judgment interest commencing on May 10, 1994
at the federal post-judgment interest rate of
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5.02% per annum (the rate applicable on the
date of entry of the original final judgment,
May 10, 1994);
(p) costs are awarded to plaintiffs.
This case is remanded for further proceedings
consistent with the Opinion of this court and for the entry of an
Amended Final Judgment accordingly.
As to the judgment for Scarfo, costs of the appeal are
awarded to appellee Scarfo. As to costs of the cross-appeal by
Scarfo, costs of the appeal are awarded to cross-appellees. As
to the appeal and cross-appeal from the judgment of the district
court on Miller's claims, all parties will bear their respective
costs of appeal.
It is so ORDERED.
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