United States Court of Appeals
For the First Circuit
No. 02-1241
DIANNE FOLEY,
Plaintiff, Appellant,
v.
COMMONWEALTH ELECTRIC COMPANY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
John R. Hope for appellant.
Keith B. Muntyan, with whom Robert P. Morris and Morgan, Brown
& Joy, were on brief, for appellee.
December 10, 2002
STAHL, Senior Circuit Judge. Plaintiff-appellant Dianne
Foley appeals from a judgment following a jury verdict in favor of
her former employer, defendant-appellee Commonwealth Electric
Company ("the Company"), on her gender discrimination claims. She
contends that she did not get a fair trial because the district
court erroneously omitted jury instructions concerning vicarious
liability and several aspects of employment discrimination law. We
affirm the judgment below.
I. BACKGROUND
Foley began working as a meter reader for the Company in
September, 1997. She began as a temporary employee, then became a
probationary employee. Probationary employees are subject to a
six-month trial period after which they become regular employees
and are covered by applicable collective bargaining agreements.
While on probation, they can be terminated by the Company at its
discretion.
On January 22, 1998, midway through her probationary
period, Foley was involved in a single-car accident while driving
a Company vehicle. The accident caused several hundred dollars'
worth of damage to the vehicle.
As a result of the accident, Foley's immediate
supervisor, Robb Campbell, decided to terminate her employment.
After visiting the accident scene but before interviewing Foley
about it, he determined that the accident was "avoidable."
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Campbell's supervisor, Mark Gracie, and the Company's Administrator
for Labor Relations, Joseph Roda, were notified of and assented to
Foley's termination. The termination was effective January 23,
1998.
On March 15, 2000, Foley filed a complaint in the United
States District Court for the District of Massachusetts. She
alleged that the Company discriminated against her on the basis of
gender in violation of Title VII of the 1964 Civil Rights Act, 42
U.S.C. § 2000e et seq., and Mass. Gen. Laws ch. 151B.
A jury trial began in January, 2002. At trial, Foley
attempted to prove her discrimination claims with evidence that
Campbell treated certain male employees who had been involved in
driving accidents more favorably than he treated her.
Specifically, she contended that John LaCava, a contract employee
meter reader, was not terminated following a comparable car
accident, and that Campbell did not even report the accident.1 She
also claimed that Nathan Rego, a temporary employee, was terminated
for an avoidable accident only after several days' delay. The
Company disputed that these disparities were motivated by
discrimination, argued that the facts were dissimilar, and put
forth evidence that under Campbell's supervision, women were hired
and retained at a higher rate than men.
1
Contract employees worked for the Company via a staffing
service on an as-needed basis.
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After both parties rested their cases, the Company moved
for a directed verdict. The motion was denied.
The district court then conducted a charge conference, in
which there was a brief discussion of plaintiff's proposed jury
instruction No. 3. The proposed instruction read, in its entirety:
Commonwealth Electric is liable for any
discriminatory act by its supervisory
personnel. Therefore, if you find that Mrs.
Foley's supervisor or supervisors
discriminated against her because she was a
woman, you must find for Mrs. Foley.
The only discussion of proposed instruction No. 3 did not concern
vicarious liability:
The Court: With respect to No. 3, I'm not sure--
the objection is it's not complete
enough; is that the objection?
The Company: Yes, your Honor, but we don't maintain
that objection particularly strongly.
I think "because of" or "but for" kind
of language is satisfactory, and that's
the kind of language that Judge Young
went along with.2
Notwithstanding Foley's assertion on appeal that the court
indicated that it would give this instruction, the court did not
state its intention one way or the other.
Foley also submitted several proposed jury instructions
concerning discrimination. In the charge conference, the court
declined to give proposed instructions 8 and 9, which dealt with
2
After this exchange, the court inquired about differences
between the state and federal standards for proving discrimination,
and then proceeded to discuss the next proposed jury instruction.
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unconscious gender bias. The court cited the absence of evidence
of "stereotyped thinking, [for example,] about women drivers." It
also rejected proposed instruction No. 11, which addressed an
employer's failure to follow its own rules as evidence of bias, but
stated that it would not be improper for Foley to "argue the point
as part of [her] laying out the circumstances from which they can
make the inference." Finally, the court declined to give proposed
instruction No. 12A, which concerned the failure to investigate
similarly situated males as evidence of bias, on the ground that
the language in the proposed instruction resembled disfavored
instructions on burden shifting.
The district court charged the jury before the parties'
closing arguments, and directed counsel to hold any objections to
the charge until after the closing arguments.3 In its charge, the
district court did not give the proposed instruction concerning
vicarious liability, nor any of the proposed instructions
concerning evidence of bias that it had rejected earlier.
After the closing arguments, Foley's counsel stated that
he didn't hear an instruction on "liability of the company for acts
of the supervisors," as was proposed in instruction No. 3. The
court answered:
You're right, you didn't hear it. I'm not
sure it's necessary, is it? . . . [I]t's the
3
The district court chose this somewhat unusual order of the
charge and closing arguments without objection from the parties.
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assumption that everybody has had. It hasn't
been put in issue by the defendant.
Foley's counsel responded:
I would say that, you know, there's a
distinction made about Mr. Campbell having a
target on his head and that Mr. Campbell is
the one who's suffering--Well, I object to not
giving that one.
Foley's counsel further stated, "And I also object to not giving
the ones that we talked about yesterday, the stereotyping . . .
[a]nd the failure to investigate and the failure to follow
procedures." The court responded, "Okay," and did not ask for
clarification.
The jury returned a verdict in favor of the Company on
all counts. Final judgment was entered on January 24, 2002.
II. DISCUSSION
Fed. R. Civ. P. 51 requires a party to object to an
instruction "before the jury retires to consider its verdict,
stating distinctly the matter objected to and the grounds of the
objection." If a party complies with Rule 51, then the harmless
error standard governs. Babcock v. Gen. Motors Corp., 299 F.3d 60,
64 (1st Cir. 2002). Fed. R. Civ. P. 61 sets forth the harmless
error rule:
No error in either the admission or the
exclusion of evidence and no error or defect
in any ruling or order or in anything done or
omitted by the court or by any of the parties
is ground for granting a new trial or for
setting aside a verdict or for vacating,
modifying, or otherwise disturbing a judgment
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or order, unless refusal to take such action
appears to the court inconsistent with
substantial justice. . . .
In the absence of a properly preserved objection,
however, this court reviews the trial judge's jury instructions
under the plain error standard. Gray v. Genlyte Group, Inc., 289
F.3d 128, 134 (1st Cir.), cert. denied, 123 S.Ct. 485 (2002). The
party claiming plain error is required to demonstrate "(1) that
there was error, (2) that it was plain, (3) that it likely altered
the outcome, and (4) that it was sufficiently fundamental to
threaten the fairness or integrity or public reputation of the
judicial proceedings." Id. (citing United States v. Olano, 507
U.S. 725, 735-36 (1993)).
We first consider the district court's omission of the
vicarious liability instruction. The Company contends that Foley
did not preserve her objection, pointing out that our
interpretation of Rule 51 is quite strict. See Babcock, 299 F.3d
at 64; Gray, 289 F.3d at 134. Even if the initial request for an
instruction is made in detail, the requesting party must object
again after the instructions are given but before the jury retires
for deliberations. Gray, 289 F.3d at 134 (citing Smith v. Mass.
Inst. of Tech., 877 F.2d 1106, 1109 (1st Cir. 1989)). "[I]t is not
enough for counsel in renewing an objection merely to refer back
generically to objections made before the charge." Id.
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Foley's counsel's objection to the omission of the
vicarious liability instruction may or may not fall short of the
stringent requirements of Rule 51. His statement that "there's a
distinction made about Mr. Campbell having a target on his head and
that Mr. Campbell is the one who's suffering" is not a particularly
lucid expression of the ground for his objection. We need not
decide this issue, however, because under either the harmless error
or plain error standard, the district court's omission does not
warrant reversal.
An instruction as to the Company's liability for Campbell
and the other supervisors' actions certainly would have been
appropriate under Title VII and chapter 151B. See Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 762 (1998) ("[A] tangible
employment action taken by the supervisor becomes for Title VII
purposes the act of the employer."); Mass. Gen. Laws ch. 151B, § 4
(unlawful practice for "an employer, personally or through its
agents, to sexually harass any employee"). Although this
instruction optimally should have been included in the charge, its
absence does not require a new trial.
As the district court pointed out, no one suggested at
trial that the Company was not responsible for its supervisors'
actions, or indeed that any meaningful distinction could be made
between the supervisors and the Company. Moreover, the only
evidence presented to the jury concerning discrimination against
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Foley involved her supervisors' treatment of her with regard to her
car accident. No other allegedly discriminatory treatment or
company policy was implicated. It is simply not reasonable to
surmise that, in the absence of specific instruction concerning
vicarious liability, the jury determined that Campbell's actions
constituted unlawful discrimination but that the Company should not
be held liable. In the context of the evidence presented,
therefore, any error was harmless.
Foley's next argument on appeal is that the district
court erred in failing to give certain of the proposed instructions
concerning evidence of gender bias: namely, the instructions
dealing with unconscious stereotyping, the Company's failure to
follow its own procedures, and its failure to investigate similarly
situated males. Her objections to the court's omission of these
instructions were not properly preserved under Rule 51. Foley's
counsel simply stated: "And I also object to not giving the ones
that we talked about yesterday, the stereotyping . . . And the
failure to investigate and the failure to follow procedures."
While this may have been adequate to put the district court on
notice as to which instructions he was referencing, it did not
state any grounds for the objection, much less state such grounds
"distinctly" as required by the Rule. He merely referred generally
back to the objections he made at the charge conference, which is
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insufficient under Rule 51. See Gray, 289 F.3d at 134, and cases
cited.4
Accordingly, we apply the much more stringent plain error
rule. Id. This is not the sort of "exceptional case" that merits
reversal under a plain error analysis. See id. After reviewing
the district court's jury charge as a whole, we conclude that the
omission of the requested instructions concerning bias does not
merit a new trial. See Testa v. Wal-Mart Stores, Inc., 144 F.3d
173, 175 (1st Cir. 1998) (in reviewing jury instructions to
determine whether they adequately illuminate the applicable law
without unduly complicating matters or misleading the jury, we
examine the instructions as a whole rather than taking each
fragment in isolation).
Affirmed.
4
Indeed, at oral argument Foley conceded that "it would be a
stretch" to say that the objection was properly preserved below.
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