Scarfo v. Cabletron Systems, Inc.

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,

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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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