McMillan v. Massachusetts Society for the Prevention of Cruelty to Animals

United States Court of Appeals
For the First Circuit

No. 97-1048

DR. MARJORIE C. MCMILLAN,

Plaintiff, Appellee,

v.

MASSACHUSETTS SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, AND
DR. GUS THORNTON,

Defendants, Appellants.

No. 97-1174

DR. MARJORIE C. MCMILLAN

Plaintiff, Appellant,

v.

MASSACHUSETTS SOCIETY FOR THE PREVENTION OF CRUELTY TO
ANIMALS, DR. GUS THORNTON AND DR. PAUL GAMBARDELLA,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Stahl, Circuit Judge,
Godbold,* Senior Circuit Judge,
and Cyr, Senior Circuit Judge.

Marcus E. Cohn with whom Melissa Bayer Tearney and Peabody & Brownwere on brief for defendants.
Dahlia C. Rudavsky with whom James S. Weliky and Messing & Rudavsky,
P.C. were on brief for plaintiff.

March 18, 1998

*Of the Eleventh Circuit, sitting by designation. STAHL, Circuit Judge. In the late 1980s, Dr. Marjorie
McMillan, head of the radiology department for the
Massachusetts Society for the Prevention of Cruelty to
Animals ("MSPCA"), learned that she was being paid less than
the male heads of the organization's other departments.
Defendants MSPCA and Dr. Gus Thornton now appeal the district
court's denial of their motion to set aside verdicts in Dr.
McMillan's favor on her various pay discrimination claims.
They also appeal as excessive the jury's award of
compensatory and punitive damages, and the district court's
award of attorney's fees. Dr. McMillan cross-appeals the
court's grant of judgment as a matter of law on her tortious
interference with contractual relations claim against
defendant Dr. Paul Gambardella, and its grant of summary
judgment on her contract claims against the MSPCA and on her
retaliation claim against all three defendants. We affirm
the district court's ruling on the pay discrimination,
tortious interference, contract, and retaliation claims, and,
in part, the jury's compensatory damages verdict; reverse the
award of punitive damages and compensatory damages
representing lost benefits; and vacate the award of
attorney's fees with directions that it be recalculated after
remand.
I.
BACKGROUND AND PRIOR PROCEEDINGS
We begin with an overview of general facts and prior
proceedings, and leave more detailed recitations to the
appropriate contexts.
Defendant MSPCA is a charitable, non-profit organization that
combats cruelty to animals through educational programs and
veterinary services. It operates Angell Memorial Animal
Hospital ("Angell"), whose staff, during the relevant time
period, totalled more than 200 employees, including
veterinarians, interns, residents in post-graduate veterinary
training, and technical and support staff. Defendant Dr. Gus
Thornton began working at Angell in 1957, and was its chief
of staff from 1966 until 1989, at which time he became
president of the MSPCA. Defendant Dr. Paul Gambardella
worked as a staff surgeon at Angell from 1975 until 1984, and
as the interim director of surgery from 1984 until 1989, when
Dr. Thornton appointed him chief of staff.
Plaintiff Dr. Marjorie McMillan was first employed by Angell
in 1969 and thereafter was employed in various capacities
until she left in 1977 to work in private practice. She
returned in 1981 as the director of the radiology department,
employed part time. She left Angell again in 1984 to spend
one year completing coursework necessary for board
certification and returned to Angell in 1985, again as
director of radiology on a part-time schedule. From 1987
until 1991, she worked full time as head of radiology. In
addition, from 1981 to 1991, she worked approximately seven
hours each week at Windhover Bird Clinic ("Windhover"), a
part-time private avian practice that she had established in
Walpole, Massachusetts.
Until 1988, Angell had seven veterinary departments: clinics,
cardiology, intensive care, clinical pathology, pathology,
surgery, and radiology. All of the departments were headed
by veterinarians, who, in addition to fulfilling their
clinical duties, also served as administrative directors of
their departments. During this time, Dr. Thornton was
responsible for negotiating veterinarians' initial salaries
and for setting discretionary annual increases from a fixed
amount of funds. Although the department directors were
responsible for such tasks as purchasing equipment, training
interns and residents, scheduling, and making budget and
compensation recommendations to Dr. Thornton, all of the
staff reported to Dr. Thornton rather than to the individual
directors.
In 1985 Dr. Thornton initiated a plan to restructure Angell's
management, giving to the department directors greater
responsibility, including the authority to make hiring,
firing, compensation, and discipline decisions. As part of
the reorganization, Dr. Thornton in 1988 consolidated
Angell's seven departments into four departments: radiology,
medicine, surgery, and pathology.
Dr. McMillan did not know the salaries of other veterinarians
employed by Angell until 1987, when she learned that the
salary of a newly-hired radiologist was $38,000. Dr.
McMillan, whose salary at that time was $41,000, consulted
Dr. Thornton and requested a raise so that her compensation
would be comparable to that of the other department heads.
Dr. Thornton eventually offered Dr. McMillan a raise to
$47,000, which she did not accept because she had been
offered a $50,000 salary for a non-administrative veterinary
position at Tufts University Veterinary School. Dr. Thornton
then agreed to adjust Dr. McMillan's salary to $51,000,
effective in January 1988.
In 1989, Dr. McMillan discovered the disparity between her
salary and that of the other department heads at Angell when
a newspaper published a letter about the MSPCA that listed
the various salaries. At the time, her salary was $58,000;
her male counterparts in surgery, pathology, and medicine, by
contrast, were earning $73,000, $80,244, and $73,199,
respectively. On the basis of the salary disparity, Dr.
McMillan filed a complaint with the Massachusetts Commission
Against Discrimination.
Also in 1989, Dr. Gambardella, who became chief of staff
upon Dr. Thornton's accession to the MSPCA presidency, set
out to reevaluate and to improve the level of department
heads' compensation. He began by creating job descriptions
for each of the department heads in which the list of duties
for the head of radiology was substantially the same as those
for the other department head positions. He also consulted a
study of the salaries at another major animal hospital and an
informal market survey, on the basis of which he tentatively
suggested to Kathleen Collins, Angell's human resources
director, that the heads of radiology and surgery receive
$88,000, the head of medicine, $90,000, and the head of
pathology, $95,000. Collins then undertook an analysis of
the department head jobs in order to "rationalize" the
MSPCA's salary structure, giving a range of points in a
number of categories of responsibility. On the basis of the
point totals, she determined an appropriate salary for each
of the department heads. On completion of the analysis, in
1990, Dr. McMillan received a raise from $58,295 to $72,000,
which was substantially larger than that received by any of
the other department heads.
Also in 1990, Dr. McMillan entered into negotiations with
Angell over the status of Windhover. Dr. McMillan suggested
that Angell acquire her practice or, alternatively, that it
rent her space so that she could carry on her bird practice
there or that it pay her a separate, additional amount for
her treatment of Angell's avian patients. When the
negotiations came to an impasse, Dr. McMillan refused to
continue to treat birds at Angell, a duty to which she had
been devoting approximately six hours per week.
In 1991, Dr. Gambardella began to receive complaints from
veterinarians -- other department heads and members of the
surgery staff, in particular -- that Dr. McMillan was
uncooperative and had created an atmosphere of animosity and
inflexibility in the radiology department. On November 21,
1991, Dr. Gambardella summoned Dr. McMillan as she was
preparing to perform a procedure on an anesthetized dog,
fired her, gave her fifteen minutes to gather her belongings,
and had her escorted out of the hospital. She was told not
to return and was thereafter excluded from the premises.
Although Angell had adopted in March 1990 a discipline policy
directed at the correction of inappropriate behavior and
retention of employees whenever possible, Dr. McMillan was
given no advance warning of her termination.
On May 21, 1992, Dr. McMillan sued the MSPCA, Dr. Thornton,
and Dr. Gambardella, alleging pay discrimination in violation
of Title VII, 42 U.S.C. 2000e-1; the Equal Pay Act ("EPA"),
29 U.S.C. 206; and the Massachusetts anti-discrimination
statute, Mass. Gen. Laws ch. 151B, and Equal Rights Act,
Mass. Gen. Laws ch. 93, 102. The complaint also alleged
retaliation in violation of Title VII, the EPA, and Mass.
Gen. Laws ch. 151B and ch. 272, 92A and 98; breach of
contract and negligent performance of contractual duties
against the MSPCA; and tortious interference with contractual
relations against Dr. Thornton and Dr. Gambardella. On March
17, 1995, the district court awarded the MSPCA summary
judgment on Dr. McMillan's claims for pay discrimination
under Title VII and Mass. Gen. Laws ch. 93, 102,
retaliation under state and federal law, breach of contract
and negligent performance of contractual duties, and tortious
interference with contractual relations against Dr. Thornton.
The court also held that damages against the MSPCA were
limited to $20,000, pursuant to the Massachusetts charitable
immunity law, Mass. Gen. Laws ch. 231, 85K. The court
later held that chapter 231 did not apply and granted Dr.
McMillan's motion for reconsideration of the limitation on
damages.
In December 1995, plaintiff tried to a jury the remaining
counts: pay discrimination in violation of the EPA against
the MSPCA and in violation of Mass. Gen. Laws ch. 151B
against the MSPCA and Dr. Thornton, and tortious interference
with contractual relations against Dr. Gambardella. The jury
found in her favor on all counts. On Dr. McMillan's pay
discrimination claim under Mass. Gen. Laws ch. 151B, the jury
awarded $183,784.50 as back pay accrued from 1985 through
1991, to which it added $178,915 for interest accrued from
1985. On her tortious interference claim against Dr.
Gambardella, it awarded $197,550 as back pay, adding
$84,846.50 as interest and $99,375.23 as front pay. Finally,
the jury assessed punitive damages against Dr. Thornton and
the MSPCA in the amount of $306,912.50. On November 12,
1996, the court awarded Dr. McMillan $447,928.81 in
attorney's fees and $18,889 in costs. On the same day, the
trial court set aside the jury verdict on the tortious
interference claim against Dr. Gambardella but declined to
set aside or grant a new trial on the pay discrimination
verdict or award of back pay and punitive damages. This
appeal and cross-appeal followed.
II.
DISCUSSION
A. Pay Discrimination
The MSPCA and Dr. Thornton contend that the trial court erred
by denying their Fed. R. Civ. P. 50(b) motion for judgment as
a matter of law, thereby ruling that there was sufficient
evidence for a reasonable jury to find that they
intentionally discriminated against Dr. McMillan, on the
basis of her sex, in setting her salary between 1985 and
1991. They first argue that the evidence was insufficient to
show that Dr. McMillan's skills, efforts, and
responsibilities as a radiologist and department head were
substantially similar to those of the male department heads.
The remainder of their argument addresses the issue of
pretext. Focusing on evidentiary questions, defendants
contend that the trial court erred by admitting Dr.
Gambardella's preliminary suggestions about appropriate
department head salaries, and sporadic comments derogatory to
women made by Dr. Thornton, as evidence that the reasons
provided by Dr. Thornton for the pay disparity were
pretextual. They further assert that there was insufficient
evidence that Dr. Thornton's stated reasons for his
determinations of base salaries and annual salary increases
were pretextual. Specifically, they contend that a
statistical analysis used to show pay differentials between
males and females at the MSPCA could not support the verdict,
and that Dr. Thornton's "stray remarks" were insufficient to
expose as pretextual his purported method of establishing and
raising salaries.
Defendants challenge the pay discrimination verdicts under
both state and federal discrimination law. To establish a
prima facie case of sex discrimination based on salary
disparity under the federal Equal Pay Act, a plaintiff must
show that her employer was subject to the Act, and that she
was paid less than her male counterparts who were performing
work requiring substantially equal skill, effort, and
responsibility under similar working conditions. Defendants
must then prove by a preponderance of the evidence that the
pay disparity can be explained by a legitimate factor such as
seniority or performance. See Corning Glass Works v.
Brennan, 417 U.S. 188, 195-96 (1974); Timmer v. Michigan
Dep't of Commerce, 104 F.3d 833, 843 (6th Cir. 1997). Thus,
in cases brought under the Equal Pay Act, the plaintiff need
not show that the defendant was motivated by a discriminatory
animus, as required in cases governed by the McDonnell-
Burdine burden shifting framework.
Under Massachusetts law, after a plaintiff presents her prima
facie case, the requirements of which are the same as under
federal law, see, e.g., Petsch-Schmid v. Boston Edison Co.,
914 F. Supp. 697, 706-07 (D. Mass. 1996), there is a
rebuttable presumption of intentional discrimination, seeBlare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass.
437, 441 (1995). The defendant then has the burden of
producing evidence of a legitimate, non-discriminatory reason
for the pay disparity. See id. at 441-42. After the
defendant has satisfied this burden, the presumption of
intentional discrimination disappears, see id. at 442, and
plaintiff assumes the burden of proving, by a preponderance
of the evidence, that the defendant's stated reasons for the
pay disparity were not the real reasons, see id. at 444-45.
We review de novo a trial court's decision to deny or to
grant a defendant's motion for judgment as a matter of law.
See Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429,
436 (1st Cir. 1997). The standard of review for motions for
judgment as a matter of law requires us to view the evidence
"in the light most favorable to the nonmoving party, drawing
all reasonable inferences in its favor." Id. We will not
set aside a jury verdict as a matter of law unless there was
only one conclusion the jury could have reached. See Conwayv. Electro Switch Corp., 825 F.2d 593, 598 (1st Cir. 1987).
1. Prima Facie Case
We agree with the district court that a reasonable jury could
have found that Dr. McMillan had satisfied her burden of
establishing a prima facie case of pay discrimination.
Contrary to defendants' assertion that plaintiff failed to
offer evidence comparing the skill, effort, and
responsibilities of her position as radiology department head
with that of the other department heads, plaintiff proffered
testimony that the radiology department is comparable with
the other departments in all three respects. In particular,
testimony from Dr. Neil Harpster, Angell's cardiology
department head from 1985 to 1988, and Dr. Allen Sisson, a
staff veterinarian, provided evidence both that the
procedures performed by Dr. McMillan in her job were among
the most technically difficult procedures performed by any
veterinarian at Angell and that the hours Dr. McMillan spent
at her job were comparable to those of the other department
heads. In addition, the evidence showed that Dr. McMillan
supervised more staff than did Dr. James Carpenter, the head
of the pathology department, and that, in Kathleen Collins's
analysis of department head jobs in the late 1980s, radiology
was ranked equally with pathology and medicine in seven out
of eight categories of responsibility. Moreover, although
the job descriptions that Dr. Gambardella formulated in 1989,
without more, are not dispositive, the fact that the job
requirements for all of the department heads were
substantially the same is supportive of other evidence that
the department head positions required substantially equal
skill, effort, and responsibility. Finally, a market survey
published sometime in the first half of the 1980s and
admitted into evidence demonstrated that the average salaries
of radiologists were comparable to those of other
specialists, indicating that radiology is not an
intrinsically less demanding area of veterinary medicine.
The evidence was thus sufficient to support a finding that
plaintiff had presented a prima facie case.
2. Pretext
We turn next to the issue of pretext. At trial, defendants
presented several reasons to explain why Dr. McMillan was
paid less than the other department heads. Dr. Thornton
testified that, as chief of staff, he set a department head's
compensation by conducting an informal survey of what
similarly situated veterinarians were being paid at other
institutions and by negotiating compensation with the
prospective department head. He stated that, in general,
radiologists commanded lower compensation than did
veterinarians in other specialties. He further testified
that, to determine yearly percentage salary increases, he
evaluated each department head's productivity and
responsibilities. Dr. Thornton stated that, in his view, the
head of medicine, Dr. Michael Bernstein, had significantly
more responsibilities, including the oversight of more staff,
than did Dr. McMillan as head of radiology. Dr. Thornton
likewise claimed that the head of pathology, Dr. Carpenter,
had more responsibilities than did Dr. McMillan because he
supervised more staff, had a larger budget, and was
nationally known, and because pathology, unlike radiology,
incorporated several disciplines such as clinical and
anatomic pathology. The head of surgery, Dr. Gambardella at
the time, merited greater compensation in Dr. Thornton's view
because he was accountable for the budget and staff hiring
and discipline for the department, supervised more staff, and
had significant responsibility for patient care and client
contact.
Defendants make two primary arguments regarding the pretext
prong of plaintiff's pay discrimination claim. First, they
argue that the jury's findings that Dr. Thornton's
explanations were pretextual are tainted because the district
court improperly admitted into evidence (1) Dr. Gambardella's
preliminary suggestions in 1989 regarding salary increases as
proof of Dr. Thornton's state of mind throughout the time
period that he set Dr. McMillan's salary and yearly
increases, and (2) evidence of sporadic distasteful remarks
that Dr. Thornton made to women colleagues in 1979 and 1989.
Second, defendants assert, in essence, that, even taking into
account all of the evidence actually admitted, plaintiff
failed to prove, as required under Massachusetts law, that
Dr. Thornton's stated procedures for setting salaries were
pretextual.
We review a district court's evidentiary rulings for abuse of
discretion. See United States v. Young, 105 F.2d 1, 8 (1st
Cir. 1997). A judge should not exclude relevant evidence,
unless its probative value is substantially outweighed by the
danger of unfair prejudice. See Fed. R. Evid. 403. "Only
rarely -- and in extraordinarily compelling circumstances --
will we, from the vista of a cold appellate record, reverse a
district court's on-the-spot judgment concerning the relative
weighing of probative value and unfair effect." Freeman v.
Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988).
The court's admission of testimony about Dr. Gambardella's
1989 suggestions regarding salary increases was not an abuse
of its discretion. One of Dr. Thornton's stated reasons for
setting salaries at Angell as he did during the period from
1985 to 1989 was that radiologists commanded lower salaries
on the market than did veterinarians in other specialties.
The issue was whether this reason was pretextual. The
informal 1989 survey on which Dr. Gambardella based his
suggestions showed relative parity among salaries of
radiologists and other specialists. Accordingly, Dr.
Gambardella's suggestions were probative of whether radiology
is intrinsically a less-valued veterinary specialty and,
therefore, of whether Dr. Thornton's stated reason was, in
fact, the real reason. They are probative also of Dr.
Thornton's credibility because they were based on what
veterinarians in various specialties were worth in the
market, the very factor on which Dr. Thornton purported to
rely in setting salaries at Angell. Further, although
defendants contend that, regardless of the status of
radiology at other institutions, the radiology department at
Angell was not equal to Angell's other departments with
regard to the responsibilities required of its head, we think
that the district court did not abuse its discretion in
determining that Dr. Gambardella's testimony regarding salary
parity at other institutions was not unfairly prejudicial to
defendants in their attempt to make this point.
Whether the court's admission into evidence of the so-called
stray remarks was proper presents a more difficult question.
There is, of course, no question that Dr. Thornton's
motivation in paying Dr. McMillan less than the other
department heads was a material issue in the case. We note
initially that stray remarks may properly constitute evidence
of discriminatory intent for the jury to consider in
combination with other evidence. See Bevan v. Honeywell,
Inc., 118 F.3d 603, 610 (8th Cir. 1997); O'Connor v. DePaul
Univ., 123 F.3d 665, 671-72 (7th Cir. 1997) ("'[S]tray
remarks' -- made by the decisionmaker but not related to the
disputed employment action -- may be relevant to the question
of pretext . . . ."). Yet even if the remarks are relevant
for the pretext inquiry, their probativeness is circumscribed
if they were made in a situation temporally remote from the
date of the employment decision, see Armbruster v. Unisys
Corp., 32 F.3d 768, 779 (3d Cir. 1994), or if they were not
related to the employment decision in question or were made
by nondecisionmakers, see, e.g., Ezold v. Wolf, Block, Schorr
& Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992) ("Stray
remarks by non-decisionmakers or by decisionmakers unrelated
to the decision process are rarely given great weight . . .
.").
The allegations in this case are that, during his time at
Angell, Dr. Thornton made various unprofessional remarks to
women with whom he worked. In 1979 or 1980, he talked to a
lab technician about warming up a vial of medicine in her
brassiere. Approximately ten years later, he made a remark
to the MSPCA's lobbyist about her cleavage and then later
asked whether, to stop bad publicity about the MSPCA by a
particular reporter, she had slept with the reporter.
Arguably, at least, these remarks may have been relevant and
probative as to Dr. Thornton's motivation in setting the
salaries of male and female department heads, in the sense
that they evince a derogatory attitude toward women.
However, not only did the remarks not involve the employment
decision at issue, they did not involve employment at all.
Further, at least one of the remarks was made several years
before any dispute arose over the pay disparity between Dr.
McMillan and other department heads. Such factors heighten
the remoteness of the remarks, arguably to the point at which
they are no more probative than they are prejudicial.
Nonetheless, the question we must address in determining
admissibility is not whether we agree with the district court
but, rather, whether the district court abused its
discretion. See Espeaignnette v. Gene Tierney Co., Inc., 43
F.3d 1, 8 (1st Cir. 1994). We think that it did not.
Although the comments were unrelated to Dr. McMillan's
situation, and although the remarks may, in the end, have
fallen on the other side of the imprecise nexus/no-nexus
boundary, the court's determination to admit the remarks for
the jury to consider with the other evidence was not so one-
sided such that it did not act within its discretion.
Defendants contend in addition that the district court erred
by giving the jury an improper instruction on the relevance
of Dr. Thornton's remarks. They assert that the court both
analyzed and added to the evidence by equating Dr. Thornton's
remarks with his attitude about the value of women when no
evidentiary foundation supplied the nexus. Further, they
argue that the instruction misled the jury to believe that
stray remarks alone were sufficient evidence of pretext.
Defendants' objections to the jury instructions were not
clearly articulated at trial and, therefore, not properly
preserved. In such a situation, we review only for error
resulting in a "clear miscarriage of justice." Transnational
Corp. v. Rodio & Ursillo, Ltd., 920 F.2d 1066, 1069 (1st Cir.
1990).
In reviewing jury instructions such as these, we focus
principally on "whether they tended to confuse or mislead the
jury on the controlling issues." Service Merchandise Co.,
Inc. v. Boyd Corp., 722 F.2d 945, 950 (1st Cir. 1983). In
this instance, we discern no problems with the judge's stray
remarks instructions. First, contrary to defendants'
suggestion, federal judges may comment on the evidence. SeeLeshore v. County of Worcester, 945 F.2d 471, 474 (1st Cir.
1991). Second, in this case the judge merely made explicit
what the jury might infer if it chose to credit the stray
remarks. This may be, as defendants assert, "connect[ing]
the dots," but it is not a suggestion that a particular
conclusion must be reached. Moreover, the court made clear
to the jury that it was equally plausible to regard the
remarks as "random and completely out of character," and thus
to infer nothing at all about them. Likewise, the
instructions in no way misled the jury to believe that the
stray remarks might, alone, be sufficient to prove that
defendants' stated reasons for paying Dr. McMillan less were
mere pretext. That the jury "might decide that a given
remark is evidence of a discriminatory mindset" seems to us
to be nothing other than a restatement of why such evidence
is presented to the jury in the first place; it implies
nothing about how much or how little of such evidence is
sufficient for the jury to find in the plaintiff's favor. In
any event, the instructions did not result in a "clear
miscarriage of justice."
As to the sufficiency of the evidence of pretext, defendants
attack the analysis of plaintiff's statistical expert, Dr.
Arlene Ash. They argue that the analysis cannot support the
jury verdict because it did not incorporate variables that
Dr. Thornton argued he applied when he set initial salaries
and determined annual incremental increases. They also
contend that it was based on a legally insufficient sample
size.
We turn first to the argument that Dr. Ash's analysis ignored
important factors. Defendants assert that Dr. Ash's model
should have included such variables as market factors,
negotiations, veterinary experience, performance evaluations,
productivity, and veterinarians' overall contribution to the
hospital. As a preliminary matter we note that, although a
failure to include particular variables in a regression
analysis may diminish the probativeness of the analysis, "it
can hardly be said, absent some other infirmity, that an
analysis which accounts for the major factors . . . 'must be
considered unacceptable as evidence of discrimination.'" SeeBazemore v. Friday, 478 U.S. 385, 400 (1986). Dr. Ash
incorporated into the analysis such legitimate variables as
veterinarians' seniority at Angell, department head status,
board-approved specialization, area of specialization, and
departmental budget size. Although the models she developed
may not have included every relevant variable, her testimony
shows solid reasoning in her determinations to exclude
certain variables that the defendants argued should have been
included. We therefore reject this argument.
Defendants further assert that Dr. Ash's analysis was
effectively based on an insufficient sample size because Dr.
Ash used factors which could apply only to department heads.
This objection is opaque and unpersuasive. Dr. Ash's choice
of sample, which was the approximately forty-six
veterinarians who worked at Angell from 1981 to 1991, was not
fatally deficient. The analysis made a distinction between
those veterinarians who were department heads and those who
were not. Only one variable -- budget size -- was specific
to department head status, and it was not applied to the
veterinarians who were not department heads.
Defendants continue, however, arguing that statistical
evidence "should rarely be accorded any weight" in disparate
treatment cases. We agree that in a disparate treatment
case, such as this one, the necessary focus on the treatment
of a particular individual appears incongruous with an
analysis that necessarily involves numerous individuals and
that, therefore, is intuitively more probative in the
disparate impact context. See LeBlanc v. Great Am. Ins. Co.,
6 F.3d 836, 848 (1st Cir. 1993); Cumpiano v. Banco Santander
P.R., 902 F.2d 148, 156 (1st Cir. 1990). Nonetheless, such
analyses are admissible even in disparate treatment cases
unless they are "so incomplete as to be inadmissible as
irrelevant." See Bazemore, 478 U.S. at 400 n.10. Further,
we have held that "[s]tatistical evidence is permissible on
the issue of pretext in a disparate treatment case since
'statistics as to . . . employment policy and practice may be
helpful to a determination of whether [the employer's
conduct] conformed to a general pattern of discrimination.'"
Freeman, 865 F.2d at 1342 (quoting McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 805 (1973)). We agree with the court
below that, in a case such as this, "the jury could have
found a plausible connection between Dr. Thornton's treatment
of women generally at Angell and his treatment of Dr.
McMillan in particular."
Leaving aside whether Dr. Ash's analysis was watertight in
all respects, we think it important to note that Dr. Ash's
testimony was focused, perceptive, and understandably
compelling to the jury. Reviewing the record, it is apparent
to us that, whatever "infirmities" existed in her analysis,
none was so substantive that no reasonable jury could have
relied on it, along with the other evidence, in reaching a
verdict. Rather, if Dr. Ash's analysis omitted what
defendants argue are important variables, or was deficient in
other respects, and thereby did not reflect whether Dr.
Thornton's salary decisions were based at least in part on
gender, it was up to defendants to exploit and discredit the
analysis during cross examination. Furthermore, although the
conflicting expert testimony they provided placed Dr. Ash's
analysis into question, the jury was free to disregard that
testimony and place credence in that of Dr. Ash. Indeed, as
the district court noted, although the defendants' expert,
Dr. Herbert Weisberg, disputed Dr. Ash's finding of a pattern
of discrimination, he admitted that her model had produced
statistically significant results.
In arguing that plaintiff did not show evidence of pretext,
Defendants' position seems to be that, aside from evidence of
Dr. Thornton's stray remarks and Dr. Ash's statistical
analysis, there remains no basis on which the jury might
reasonably have found pretext under Massachusetts law and pay
discrimination under the EPA. But in addition to the
statistical analysis, plaintiff offered other evidence,
which, in combination with the statistical evidence, was
sufficient to support a finding of pretext. Although
defendants posited that the radiology department was smaller
than the other departments, plaintiff presented evidence
that, in fact, cardiology was the smallest department, with
only two employees under the supervision of the department
head. The record reveals that the issue of seniority
provided an additional basis for a jury finding of pretext.
Dr. Thornton testified that both the number of years a
veterinarian had been in practice and his or her seniority at
Angell were factors he weighed in setting initial salaries
for a particular position. And, indeed, it appears from the
evidence that he did consider seniority in setting the
salaries of Dr. Gambardella when he became head of surgery
and of Dr. Michael Aronsohn when he succeeded Dr. Gambardella
in that position. Dr. Thornton's testimony indicates,
however, that he ignored seniority and years in practice in
the case of Dr. McMillan, treating her as a new hire when she
returned to Angell in 1985. The testimony shows that, even
though Dr. McMillan in 1985 had spent two and a half years as
radiology department director (albeit part time) and five
years at Angell in various capacities, Dr. Thornton did not
consider that experience in setting her salary. Rather, he
testified that he based her salary on a survey that
recommended $29,000 to $50,000 for the least experienced
radiologists, and that, in fact, he paid her $35,000 simply
because he could. But $35,000 was essentially the same
salary Dr. McMillan had been earning in 1983, before she
spent a year away from Angell. As for annual percentage
increases of salaries, although Dr. Thornton testified that
he based his decisions on subjective factors such as
productivity, contribution to the hospital, and interaction
with other employees, he also testified that he did not
systematically quantify contributions and interaction and
that he did not evaluate the radiology department on the
basis of productivity. Finally, testimony from Dr. Bernstein
and Dr. Aronsohn placed into question Dr. Thornton's
assertion that some department heads were so-called "strong
department heads," and had more authority on that basis.
Thus, a reasonable jury could have found that Dr. Thornton's
stated reason for his salary decisions was not true or, in
other words, pretextual.
Accordingly, because we think that there was sufficient
properly admitted evidence for a jury to find that Dr.
Thornton's stated reasons for the pay disparity were
pretextual, we choose not to disturb the district court's
denial of judgment as a matter of law with regard to the pay
discrimination claims based on Mass. Gen. Laws ch. 151B and
on the Equal Pay Act.
B. Damages
Defendants present a variety of arguments regarding
calculation of damages, most of which need not detain us
long. At the outset, we note that we do not disturb a jury's
award of damages unless it "exceed[s] any rational appraisal
or estimate" of what the damages should be. Kolb v.
Goldring, Inc., 694 F.2d 869, 871 (1st Cir. 1982) (internal
citation omitted).
Defendants argue that Dr. McMillan's back pay damages award
should be set aside or reduced because the award was
excessive and unsupported by the evidence. They contend that
the jury's award of back pay based on an average of the
salaries of the male department heads between 1985 and 1991
has no legal basis. We disagree. As Dr. McMillan rightly
points out, the cases defendants rely on to support their
argument, Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 954
(1st Cir. 1995) and E.E.O.C. v. Liggett & Myers, Inc., 690
F.2d 1072, 1075 (4th Cir. 1982), are inapplicable in this
situation, and, if anything, serve to support rather than to
discredit the averaging method. In Liggett & Myers, the
court rejected a calculation of back pay based on the average
salary in favor of a calculation based on the salary of the
highest paid employee comparator. See 690 F.2d at 1074.
Although Scarfo holds that back pay should be calculated by
comparing the plaintiff's salary to that of "arguably
equivalent" employees, it in no way indicates that averaging
the salaries of two or more such employees is inappropriate.
See 54 F.3d at 954. Here, averaging the salaries of the male
department heads was a rational approach. In fact, in this
context, a more appropriate method has not been proposed. We
thus find that the method the jury apparently used to
determine the amount of the back pay award was not
inappropriate.
Defendants next assert that Dr. McMillan is not entitled to
recovery, as part of her back pay award, for "lost benefits"
-- health insurance, life insurance, and retirement
contributions -- because she did not prove that she had lost
them. Plaintiff testified that she had been told that such
benefits constituted twenty-one percent of an employee's
salary and that, in her capacity as department head, she
budgeted twenty-one percent of her supervisees' salaries as
benefits. On this basis, the jury awarded Dr. McMillan an
additional twenty-one percent of her back pay award to
represent the value of the lost benefits.
Lost benefits are recoverable only if the plaintiff has
offered evidence of out-of-pocket expenses for the same
benefits. See Kossman v. Calumet County, 800 F.2d 697, 703-
04 (7th Cir. 1986) (holding that, to recover damages
representing benefits, a plaintiff must show that she
actually incurred insurance or medical care expenses); Taylorv. Central Pa. Drug & Alcohol Servs. Corp., 890 F. Supp. 360,
372 (M.D. Pa. 1995); Berndt v. Kaiser Aluminum & Chem. Sales,
Inc., 604 F. Supp. 962, 965 (E.D. Pa. 1985). In this case,
even if the budgeted value of benefits corresponding to
plaintiff's salary had been less than the budgeted value of
benefits corresponding to the salaries of the other
department heads, plaintiff presented no evidence that she
incurred insurance expenses. In addition, she presented no
evidence that any employer-contributed retirement benefits
were tied to the amount of her salary. Further, that
benefits may have amounted to twenty-one percent of her
supervisees' salaries does not mean that benefits constituted
an equal percentage of higher salaries. Indeed, it would be
logical to expect that employer insurance contributions at
all salary levels were substantially the same and that,
therefore, benefits were a considerably lower percentage of
higher salaries. Because there was no competent evidence
from which a reasonable jury could conclude that Dr. McMillan
suffered any loss in benefits as a result of her lower
salary, Dr. McMillan's back pay award should be accordingly
reduced by the amount of the lost benefits award.
Defendants' third argument is that we should import the
three-year cap on back pay liability under the EPA, see 29
U.S.C. 255, to Dr. McMillan's state back pay award under
chapter 151B. This argument is without merit. No court
decisions impose such a cap under Massachusetts law, and
defendants present no rationale as to why state law should be
the same as federal law. Further, Mass. Gen. Laws ch. 151B,
as interpreted by the Supreme Judicial Court of Massachusetts
("SJC"), mandates "make-whole relief," which encompasses
damages which are "the natural and probable consequences of
the illegal conduct." Conway v. Electro Switch Corp., 402
Mass. 385, 388 (1988) (internal citation omitted). Indeed,
the SJC has declined to follow federal precedent in order to
interpret chapter 151B more liberally than the federal courts
have interpreted parallel federal law provisions. See Lynn
Teachers Union, Local 1037 v. Massachusetts Comm'n Against
Discrimination, 406 Mass. 515, 521 n.7 (1990). We thus
decline to adopt defendants' suggestion.
Fourth, defendants contend that Dr. McMillan's punitive
damages award against the MSPCA on her pay discrimination
claim should be set aside, or, alternatively, that a new
trial should be granted on the issue. They challenge the
punitive damages award on the basis that it was unwarranted,
excessive, and obtained as a result of irrelevant testimony
about Dr. Gambardella's termination of Dr. McMillan. We
agree with defendants that the award was unwarranted and
excessive.
In a lawsuit such as this one, in which state law provides
the basis of decision, "the propriety of an award of punitive
damages for the conduct in question, and the factors the jury
may consider in determining their amount, are questions of
state law." Browning-Ferris Ind. v. Kelco Disposal, 492 U.S.
257, 278 (1988). In reviewing an award of punitive damages,
our role is to determine whether the district court abused
its discretion in determining that the jury's award of
punitive damages was within the confines of state law and
that defendants are not entitled to a new trial or
remittitur. See id. at 279. Although juries have wide
discretion in determining the amount of punitive damages, and
the trial court has broad discretion to affirm the jury's
award of damages, see Fishman v. Clancy, 763 F.2d 485, 489-90
(1st Cir. 1985), appeals courts should reduce or set aside
awards that are "grossly excessive" or "shocking to the
conscience," id. at 489 (citing LaForest v. Autoridad de Las
Fuentes Fluviales De P.R., 536 F.2d 443, 447 (1st Cir.
1976)).
The jury in this case assessed punitive damages under chapter
151B against the MSPCA in the amount of $135,662.50 and
against Dr. Thornton in the amount of $171,250. Although the
statute authorizes punitive damages, see Mass. Gen. Laws ch.
151B, 9, it does not specify when they should be awarded.
However, other punitive damages provisions in Massachusetts
law provide that such damages shall apply only on a finding
that defendants' conduct was wilful, wanton, or reckless,
see, e.g., Mass. Gen. Laws ch. 229, 2, and the SJC has
further refined the criteria, holding that punitive damages
are warranted "where a defendant's conduct warrants
condemnation and deterrence," Bain v. City of Springfield,
424 Mass. 758, 767 (1997).
Dr. McMillan contends that, because the jury found
intentional discrimination, she was eligible for an award of
punitive damages if the jury so decided in its discretion.
We observe, however, that nowhere does Massachusetts law
state that a finding of intentional discrimination
necessarily justifies an award of punitive damages. This
accords with the logic that, even in situations involving
intentional misconduct, compensatory damages may provide
sufficient punishment and deterrence. See Smith v. Wade, 461
U.S. 30, 52 (1983); see also Rowlett v. Anheuser-Busch, Inc.,
832 F.2d 194, 205 (1st Cir. 1987) (holding that, even though
a jurisdiction may authorize punitive damages in cases
requiring proof of intentional wrongdoing, "[t]hat does not
mean that punitive damages are appropriate in every [such]
case").
The district court's jury instructions on punitive damages
were that the jury could award punitive damages if it found
defendants' conduct to have been "egregious and beyond the
pale of tolerable," and that such damages are "intended to
punish the defendants as a warning, both to them and other
like-minded individuals, that society will not tolerate
grievous discriminatory behavior." The district judge
further stated that "[a]ny sum you award as punitive damages
should be commensurate with your own conscience, the
outrageousness of the conduct that you intend to punish, and
the character of the MSPCA as both an employer and as a
nonprofit enterprise." As these instructions imply, above
the inquiry for finding intent, the jury had to conduct a
second inquiry to determine whether defendants' intentional
conduct was egregious enough for an award of punitive
damages. Cf. Smith, 461 U.S. at 52 (observing that whether
punitive damages are appropriate turns on whether the
tortfeasor's conduct "is of the sort that calls for
deterrence and punishment over and above that provided by
compensatory awards"). It follows, then, that just as we may
review the record to determine whether a reasonable jury
could have found that the defendants intentionally
discriminated against Dr. McMillan, we may also review the
record to determine whether a reasonable jury could have
found defendants' conduct sufficiently worthy of condemnation
and deterrence to justify exemplary damages.
Although we affirm the jury's finding of discrimination, we
cannot say, on the basis of the record before us, that Dr.
Thornton's and the MSPCA's intentional misconduct calls for
punishment and deterrence beyond that secured by the
compensatory award. Determining what conduct rises to the
level at which an award of punitive damages is appropriate is
a difficult task, but the evidence shows that the actions at
issue in this case do not. We therefore hold that the
district court abused its discretion in upholding the award
of punitive damages, and that the award of punitive damages
in this case constitutes a grossly excessive award of damages
that shocks the conscience.
Fifth, defendants argue that the MSPCA's liability is limited
to $20,000 by a damages cap for charitable organizations
under the Massachusetts charitable immunity law, which
provides that liability for any "cause of action based on
tort brought against a [charitable] corporation" shall not
exceed $20,000 exclusive of interest and costs. See Mass.
Gen. Laws ch. 231, 85K. Although this statute applies to
negligent, reckless, and intentional torts in the employment
context, see St. Clair v. Trustees of Boston Univ., 25 Mass.
App. Ct. 662, 665-66 (1988), it has been unclear whether a
claim under chapter 151B is a "cause of action based on tort"
and thus subject to the $20,000 limitation. We conclude that
it is not.
Defendants and plaintiff engage in extensive exercises of
interpretation to suggest the relevance of a variety of cases
to this issue. Ultimately, we agree with Dr. McMillan that
Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 27
(1997), provides the most guidance. In that case, the SJC
held that the chapter 231, section 85K damages limitation
does not apply to damages awarded under Mass. Gen. Laws ch.
93A, the Massachusetts Consumer Protection Statute, on the
basis that chapter 93A "creates an independent statutory
basis of liability" and "forbid[s] conduct not previously
unlawful under the common law of contract and tort or under
any prior statute," id. (internal citation omitted). Like
chapter 93A, chapter 151B creates rights that did not exist
under the common law, see, e.g., Melley v. Gillette Corp., 19
Mass. App. Ct. 511, 512-13 (1985), aff'd, 397 Mass. 1004
(1986); the causes of action to which it gives rise thus
cannot properly be called causes of action in tort.
Accordingly, we hold that the damages award to Dr. McMillan
pursuant to chapter 151B is not subject to the constraints of
chapter 231.
Defendants next contend that the district court misapplied
the relevant legal standard when it awarded attorney's fees
because it did not award the appropriate hourly rates for the
different types of services performed and instead allowed Dr.
McMillan's counsel to recover her standard hourly rate ($285
per hour) for performing tasks appropriate to either a less
experienced lawyer or a secretary or paralegal. We agree.
We have established that "clerical or secretarial tasks ought
not to be billed at lawyers' rates, even if a lawyer performs
them." Lipsett v. Blanco, 975 F.2d 934, 940 (1st Cir. 1992).
Thus, "[t]ime spent on clerical or secretarial tasks by
attorneys should be compensated at a rate commensurate with
the nature of the tasks." Massachusetts Dep't of Pub. Healthv. School Comm. of Tewksbury, 841 F. Supp. 449, 460 (D. Mass.
1993); see Deary v. City of Gloucester, 789 F. Supp. 61, 66
(D. Mass. 1992), aff'd, 9 F.3d 191 (1st Cir. 1993). We think
that it was an abuse of discretion to award the same rate for
all tasks performed by Dr. McMillan's counsel, without regard
to the nature of the tasks. Accordingly, we remand this
issue in order that the court may determine those tasks which
could have been adequately performed by a less-experienced
lawyer or by a secretary or paralegal. The compensation for
tasks so designated should be reduced to an appropriate
level.
Finally, defendants argue that the trial court erred by
computing interest on the back pay award from the date on
which the cause of action accrued, rather than from the date
plaintiff filed her complaint. This argument has no merit.
As the district court stated, "the purpose of interest is to
insure that the present value of an award fully compensates a
plaintiff for her losses." Moreover, the SJC has held that
an award of interest may be used to make an aggrieved party
whole in chapter 151B actions. See Conway, 402 Mass. at 390
n.7. Here, an award of interest from the date Dr. McMillan
was paid less than her counterparts comports with these
standards.
C. Cross-Appeal
Plaintiff cross-appeals from the district court's grant of
judgment as a matter of law in favor of defendants setting
aside the jury's finding that Dr. Gambardella had tortiously
interfered with Dr. McMillan's employment relationship with
the MSPCA. She argues that she presented ample evidence
during the trial to show that Dr. Gambardella's actions
leading up to and including her termination were based on "an
improper motive, active animosity and spite." We do not
agree.
Viewing the evidence in a light most favorable to the
plaintiff, see Morrison, 108 F.3d at 436, we conclude that
the evidence did not permit a reasonable jury to find for the
plaintiff. Under Massachusetts law, to make out the tort of
intentional interference with a contractual relationship, a
plaintiff must present evidence of "actual malice" or a
"spiteful, malignant purpose, unrelated to the legitimate
corporate interest." Shea v. Emmanuel College, 425 Mass.
761, 764 (1997) (quoting Wright v. Shriners Hosp. for
Crippled Children, et al., 412 Mass. 469, 476 (1992)). In
addition, "[w]hen an employer or supervisor is acting within
the scope of his employment responsibilities, the hiring and
firing decisions are privileged unless he acted with
malevolence." Walker v. Waltham Hous. Auth., 44 F.3d 1042,
1049 n.1 (1st Cir. 1995).
Dr. McMillan presented evidence that Dr. Gambardella
questioned her decisions and actions on various occasions,
that he had her replaced as the head of a hospital committee,
that he did not reprimand another doctor who made a derisive
comment to her during a staff meeting, and that he terminated
her without notice, had her summoned while she was involved
in a complicated radiological procedure, and then barred her
from the hospital grounds. To support her claim of tortious
interference, Dr. McMillan points to O'Brien v. New England
Tel. & Tel. Co., 422 Mass. 686, 687 (1996), in which the SJC
held reasonable a jury's finding that an employer tortiously
interfered with an employment relationship when he
incessantly harassed employee, called her names in front of
coworkers, and actively sought to make her cry. The facts of
O'Brien are, however, much more egregious than those in this
case. Insensitive though Dr. Gambardella's actions may have
been, they did not demonstrate that type of ill will that the
employer's actions in O'Brien did. We think that the
district court properly concluded that these actions and
statements did not demonstrate "anything more than a
personality conflict with Dr. McMillan." For the most part,
Dr. Gambardella's actions were properly within the scope of
his duties as chief of staff at Angell, and, in any event,
they failed to evince malevolent intent. No reasonable jury
could have concluded otherwise.
Dr. McMillan argues next that the district court erred by
granting the MSPCA, Dr. Thornton, and Dr. Gambardella summary
judgment as to her claim that her termination was in
retaliation for her filing of an administrative complaint of
sex discrimination in 1989. She asserts that the district
court misapplied the law in ruling that she had failed to
establish a causal connection between the filing and her
termination because too much time had lapsed between the two
events. She also argues that the court improperly viewed the
facts from the defendants' perspective.
We review the district court's grant of summary judgment to
defendants de novo. See Associated Fisheries of Me., Inc. v.
Daley, 127 F.3d 104, 109 (1st Cir. 1997). Further, to
determine whether the summary judgment record is sufficient
to support a finding that the employment action was
retaliatory, we review only those facts that were available
at the summary judgment stage, construing all facts and
inferences therefrom in favor of the plaintiff. See Aybar v.
Crispin-Reyes, 118 F.3d 10, 13 (1st Cir. 1997).
To succeed on a retaliation claim under both state and
federal law, when, as here, there is no direct evidence of
retaliatory animus, a plaintiff must both establish a prima
facie case and prove that the defendants' legitimate business
reasons for terminating the plaintiff were pretextual. SeeFennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st
Cir. 1996) (discussing Title VII's analytical framework);
Lewis v. Gillette, Co., 22 F.3d 22, 24-25 (1st Cir. 1994)
(observing that Massachusetts retaliation law parallels
federal law). Specifically, to establish a prima facie case
of retaliation, a plaintiff must show that (1) she engaged in
protected conduct under federal or Massachusetts law; (2) she
suffered an adverse employment action; and (3) a causal
connection existed between the protected conduct and the
adverse action. See Fennell, 83 F.3d at 535. Once the
plaintiff has made a prima facie showing, the burden of
production shifts to the defendant to articulate a
legitimate, non-retaliatory reason for its employment
decision. See id. If the defendant does so, the plaintiff
must show that the defendant's proffered reason was not, in
fact, the real reason for the decision and that the decision
was the result of the defendant's retaliatory animus. Seeid.
We conclude that Dr. McMillan did not establish a prima facie
case because she presented no evidence of a causal link
between her termination and the filing of her complaint. The
strongest argument Dr. McMillan makes in this regard is that
Dr. Gambardella urged her not to file an MCAD complaint,
stating that her doing so would make their relationship
difficult. But, in light of undisputed facts in the summary
judgment record, this does not suggest a causal connection
between Dr. McMillan's filing of the discrimination claim, on
one hand, and the actual deterioration and eventual
termination of the employment relationship, on the other.
The MSPCA and Dr. Gambardella asserted that Dr. McMillan had
had an acrimonious relationship with other department heads
and staff veterinarians at Angell, that she refused to treat
birds after Angell refused to purchase her bird practice or
pay her separately for the time she spent with avian
patients, and that Dr. Gambardella received complaints from
staff members about Dr. McMillan's attitude. Indeed, Dr.
Gambardella stated that, by late 1991, his relationship with
Dr. McMillan had deteriorated to the extent that he told Dr.
Thornton that he would himself resign if Dr. McMillan were
not terminated.
In addition, we agree with the district court that, even if
Dr. McMillan had established a prima facie case, she did not
present material facts that would permit a reasonable jury to
find that Dr. Gambardella's explanation for her firing was
pretextual and influenced instead by a retaliatory motive.
Although plaintiff presented evidence that she continued to
work hard and to maintain a good relationship with much of
the veterinary staff, she simply did not proffer evidence to
refute defendants' showing that the veterinary staff
complained to Dr. Gambardella about her performance and
demeanor. In light of this undisputed evidence, even if Dr.
Gambardella may have exercised arguably poor business
judgment in terminating her, and in doing so in an abrupt,
clumsy, and unfeeling manner, it would be unreasonable on the
evidence for a factfinder to conclude that his explanation
for the termination was, in fact, not the true reason. We
therefore decline to order a new trial on this issue.
Third, Dr. McMillan argues that the district court improperly
granted the MSPCA summary judgment on her claim that the
MSPCA's failure to comply with the progressive discipline
policy outlined in its Rules and Regulations Memorandum
constituted a breach of contract because the policy was a
contract governing her employment. She contends that the
court improperly applied in a "wooden" fashion factors set
forth in Jackson v. Action for Boston Community Dev., 403
Mass. 8, 14-15 (1988), for determining whether a personnel
manual's policy guidelines constitute a binding employment
agreement. For support, she relies on O'Brien, 422 Mass. at
691-93, in which the SJC held that the terms of an employees'
manual become part of an implied employment contract if the
parties so agree, even if the terms of the manual have not
been negotiated, and even if, in a continuing employment
relationship, an employee only reasonably believed that the
employer "was presenting the manual as a statement of the
conditions under which employment would continue." Id. at
693.
We agree with the district court's reasoning on this issue
and its observation that, although personnel manuals may
sometimes constitute an employment agreement, see Jackson,
403 Mass. at 13, the facts Dr. McMillan alleged do not
support such an inference. As the district court observed,
"Dr. McMillan does not claim to have bargained for any of the
terms of the manual, to have signed the manual, or to have
executed any other employment agreement with the MSPCA.
Moreover, the manual described itself as a disciplinary
guideline that 'is not all inclusive.'" McMillan v. MSPCA,
880 F. Supp. 900, 910 (D. Mass. 1995). Contrary to Dr.
McMillan's assertion, the court's analysis was not an
application of inflexible prerequisites to finding an
employment contract. Rather, the court's analysis employs
the factors appropriately, as mere guidelines in the
determination. See O'Brien, 422 Mass. at 692. We do the
same. In addition to the factors highlighted by the district
court, we note additionally that there is no evidence that
Dr. McMillan reasonably expected that the MSPCA would follow
the procedures with regard to her conduct or that of other
supervisory veterinarians at Angell.
Dr. McMillan's next argument is that she should be granted a
new trial on her claim for emotional distress damages. Dr.
McMillan withdrew that claim after the district court adopted
a magistrate's ruling ordering the disclosure of records of
Dr. McMillan's therapist, which defendants had requested
during discovery. Dr. McMillan argues that we must review
this matter de novo, in light of Jaffee v. Redmond, 518 U.S.
1, 116 S. Ct. 1923 (1996), in which the Supreme Court
recognized a federal privilege against the compelled
disclosure of counseling records. In the alternative, she
argues that the district court erred as a matter of law and
abused its discretion in its determination of the privilege
issue.
We need not resolve these issues, however, because, as
defendants rightly point out, Dr. McMillan's withdrawal of
her claim for emotional distress damages constituted a waiver
of the claim. This rule holds regardless whether new law has
emerged which potentially may bolster a party's argument.
Finally, Dr. McMillan argues that the district court abused
its discretion by determining that attorney's fees
representing work on Dr. McMillan's contract and emotional
distress claims were noncompensable and, accordingly, by
reducing the attorney's fee award by twenty percent. She
argues that the court was wrong in concluding that the
contract claims were severable and not connected to the
discrimination claims and thus not compensable. Further, she
contends that the claims together represent no more than
three percent of the total time documented.
As the district court correctly observed, fee awards are
appropriate only for successful claims; unsuccessful claims
warrant a fee award only if they are connected to the
successful ones. Krewson v. City of Quincy, 74 F.3d 15, 19
(1st Cir. 1996). Having determined that Dr. McMillan's
unsuccessful emotional distress and contract claims were not
connected with her successful claims, the court thought
appropriate "some apportionment between successful and
unsuccessful claims," and correspondingly reduced the award
by twenty percent.
"As a general rule, a fee-awarding court that makes a
substantial reduction in either documented time or
authenticated rates should offer reasonably explicit
findings, for the court, in such circumstances, 'has a burden
to spell out the whys and wherefores.'" Brewster v. Dukakis,
3 F.3d 488, 493 (1st Cir. 1993) (quoting United States v.
Metropolitan Dist. Comm'n, 847 F.2d 12, 18 (1st Cir. 1988)).
Although the district court did not explicitly state why it
regarded the contract claims as unconnected to the
discrimination claims, we do not think the court abused its
discretion in making that determination and in denying fees
for the time spent on that claim, or on the emotional
distress claim, which is even more clearly unrelated to Dr.
McMillan's successful claims.
It is not so easily discernable, however, that twenty percent
was a proper reduction. Although the district court has
considerable discretion in determining fee awards, and
although, as defendants point out, the fee petition is not
amenable to easy analysis, our review of the fee petition
does not convince us that the time plaintiff's counsel spent
on the contract and emotional distress issues could
reasonably be regarded as twenty percent of the total time
documented. In such a situation, the district court
should, at a very minimum, make clear why it chose to reduce
the fee award by such a substantial percentage. Because the
court in this case provided no elaboration for the reduction,
we remand this issue to the district court for
reconsideration.
III.
CONCLUSION
We affirm the district court's denial of judgment as a matter
of law on plaintiff's pay discrimination claims and, in part,
the jury's award of compensatory damages, and we vacate the
jury's award of punitive damages. In addition, we remand for
a recalculation of the damages in light of our determination
that an amount representing lost benefits should not have
been included in the award, and for recalculation of
attorney's fees with regard to hourly compensation rates and
the fee reduction for time spent on plaintiff's contract and
emotional distress claims.
SO ORDERED.