Che v. Massachusetts Bay Transportation Authority

United States Court of Appeals
For the First Circuit

Nos. 02-2078, 02-2079

CHUNGCHI CHE,

Plaintiff-Appellant, Cross-Appellee,

v.

MASSACHUSETTS BAY TRANSPORTATION AUTHORITY, JAMES F. JOHNSON,
Individually and in his Official Capacity,

Defendants-Appellees, Cross-Appellants,

DONALD A. SMITH, JR., Individually and in his Official Capacity,
BRIAN P. DWYER, Individually and in his Official Capacity,

Defendants, Appellees.

CROSS-APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker,* Senior U.S. District Judge]

Before

Howard, Circuit Judge,

Bownes and R. Arnold,** Senior Circuit Judges.

*
Of the Southern District of New York, sitting by designation.
**
The Hon. Richard S. Arnold, of the Eighth Circuit, sitting
by designation.
 Jonathan J. Margolis with whom Robert S. Mantell, Laurie A.
Frankl and Rodgers Powers & Schwartz, LLP were on brief for
plaintiff-appellant, cross-appellee.
Laurie F. Rubin with whom Thomas M. Elcock and Prince, Lobel,
Glovsky & Tye LLP were on brief for defendants-appellees, cross-
appellants.

August 26, 2003
 BOWNES, Senior Circuit Judge. A jury found that Chungchi

Che ("Che") was the victim of discrimination by his employer, the

Massachusetts Bay Transportation Authority ("MBTA"), and one of his

supervisors, James Johnson ("Johnson"). Che and the defendants

appealed. The parties ask us to review a number of rulings the

district court made before, during and after the trial. We affirm,

or decline to reach, the district court's decisions on all these

matters except one.

I. BACKGROUND

Che is an American citizen of Asian descent. In 1982,

Che was hired by the MBTA to drive buses. As the years passed, Che

was promoted several times. In 1988, the MBTA sent Che to receive

training in police work. As part of the training, Che was

introduced to anti-discrimination laws. After this training, Che

came to believe that in years past the MBTA discriminated against

him based on his race and national origin. Che filed a complaint

with the Massachusetts Commission Against Discrimination ("MCAD")

and, eventually, a lawsuit in state court. Meanwhile, Che was

promoted to the position of chief inspector, the highest unionized

job at the MBTA. In his capacity as a chief inspector, Che was

required to monitor the operation of the MBTA's Green Line.

In 1993, James Johnson was appointed as superintendent of

the MBTA's Green Line. Johnson believed that greater discipline

was needed amongst the MBTA employees he supervised. In 1994, Che

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and another employee had an argument at work. Johnson demoted Che

from chief inspector to streetcar operator, but this punishment was

later changed by the MBTA's grievance procedure to a three day

suspension. Shortly thereafter, Che suffered from an anxiety

attack and fainted in the presence of his union representative.

When the union representative asked Johnson to call for help,

Johnson said, "I think the chink is faking it." This incident

prompted Che to file a second MCAD complaint and state court

lawsuit alleging employment discrimination. Soon after, Che's two

lawsuits against the MBTA were consolidated.

Che alleges that his supervisors continued to

discriminate against him throughout 1995. Che says he was

improperly disciplined on a number of occasions. The main one

involved a dispute between Che and Johnson that erupted in

November, 1995. The incident began when Che called into work to

say that he would be late because of traffic congestion. Che

arrived to work at 4:45 p.m., but did not start his shift until

5:00 p.m. because the person who Che was scheduled to replace was

still working on one of the trains. The MBTA employee responsible

for keeping track of work schedules recorded in a special document

called the "assignment block" that Che's shift began at 5:00 p.m.

Che disagreed and wanted it recorded that he arrived at 4:45 p.m.

The record keeper refused. Later that evening, Che made a notation

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in the assignment block indicating that he had arrived at work at

4:45 p.m. and began his shift at 5:00 p.m.

Two days later, Johnson confronted Che about the

incident. The assignment block was used for recording a variety of

things, including hours worked for payroll purposes. The MBTA had

problems on past occasions with employees writing in the assignment

block in order to falsify time records. Johnson told Che that he

was not permitted to make notations in the assignment block.

Another MBTA supervisor involved in the conversation informed

Johnson that in the past other MBTA employees had been allowed to

write in the assignment block. Che told Johnson that it was

important that chief inspectors be able to write in the assignment

block in order to pass information to other employees. According

to Che, Johnson said that he would think about the matter and get

back to Che in a few days.

That same evening, Che noticed that leaves had piled up

around some of the tracks on the Green Line. The MBTA uses heated

coils to defrost tracks in the winter to allow for switches to

operate properly. The heated coils sometimes ignite dried leaves

and cause fires. Che's shift ended late at night and he was

worried that the coils would be turned on the next morning and

ignite the leaves. Che made a note in the assignment block stating

"heaters cannot be turned on until the leaves have been cleaned

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away. (cause fire)." Che signed his name and badge number next to

the notation.

Upon learning that Che had written in the assignment

block, Johnson accused Che of insubordination and launched an

investigation into the incident. When the investigation was

completed, Che was demoted from chief inspector to streetcar

operator. Che became emotionally distraught and went on sick

leave. Che was later diagnosed as suffering from stress and

anxiety disorders, as well as an irritable bowel syndrome. He

subsequently filed for workers compensation. Che has remained on

sick leave ever since, but is still an MBTA employee.

As a result of the demotion, Che filed a third lawsuit,

but this time in federal district court. Che alleged that he was

demoted in retaliation for filing his previous MCAD complaints and

his state court lawsuits, and that he was discriminated against

based on his race and national origin in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Che also brought

discrimination claims under 42 U.S.C. § 1981, 42 U.S.C. § 1983, and

Mass. Gen. Laws. ch. 151B.

Before the trial began, the district court declined to

exercise supplemental jurisdiction over Che's state law claims and

dismissed them pursuant to 28 U.S.C. § 1367(c). During the trial,

the district court made two decisions that are pertinent to this

appeal. First, the district court ruled that there was no evidence

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justifying submission of punitive damages to the jury. Second, the

district court denied the defendants' request for a jury

instruction on the law regarding constructive discharges.

The jury ultimately found that the MBTA and Johnson

violated federal law by demoting Che in retaliation for filing his

earlier lawsuits. The jury awarded Che $375,000 in back pay and

$125,000 for emotional distress. The jury also found that Johnson

created a retaliatory hostile work environment, but awarded Che no

damages on this claim.

Following the jury's verdict, the parties filed several

motions, only three of which are relevant to this appeal. First,

the defendants properly moved for judgment as a matter of law,

claiming that there was not enough evidence for a reasonable jury

to find in Che's favor. Second, Che moved the district court for

reinstatement to his job as chief inspector, or alternatively, for

an award of front pay. Lastly, the defendants moved for a

remittitur of Che's back pay award. The district court denied all

of these motions.

On appeal, Che challenges the district court's dismissal

of his state law claims, the dismissal of his claim for punitive

damages, and the denial of his request for reinstatement or front

pay. The defendants cross-appeal the district court's denial of

their motion for judgment as a matter of law, refusal to instruct

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the jury on the constructive discharge standard, and denial of

their motion to remit the jury's award of back pay.

II. DISCUSSION

A. Dismissal of the State Law Claims

By statute, a district court may decline to exercise

supplemental jurisdiction if, among other things, the state claim

"substantially predominates over the claim or claims over which the

district court has original jurisdiction," or "in exceptional

circumstances, [when] there are other compelling reasons for

declining jurisdiction." 28 U.S.C. § 1367(c)(2), (c)(4). Prior to

trial, the district court invoked both of these statutory reasons

for refusing to exercise supplemental jurisdiction over Che's state

law claims. The district court's reasoning rested primarily on the

fact that when Che filed his current state law claims in federal

court he had two discrimination lawsuits against the MBTA already

pending in state court.

We afford district courts "broad discretion" when making

decisions regarding supplemental jurisdiction. Vera-Lozano v.

Int'l Broad., 50 F.3d 67, 70 (1st Cir. 1995). In making these

decisions, district courts must examine the totality of the

circumstances. See Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168,

1177 (1st Cir. 1995). This includes giving consideration to such

issues as "comity, judicial economy, convenience, fairness and the

like." Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 257

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(1st Cir. 1996). All three of Che's lawsuits involved similar

claims of discrimination against the same employer. The three

cases shared some of the same witnesses and evidence. In light of

these facts, we cannot say that the district court abused its

discretion.

B. Motion for Judgment as a Matter of Law

We review de novo a district court's denial of a motion

for judgment as a matter of law. See Primus v. Galgano, 329 F.3d

236, 241 (1st Cir. 2003). "Once a jury renders a verdict, a heavy

burden is placed on one who challenges it." White v. N.H. Dep't of

Corr., 221 F.3d 254, 259 (1st Cir. 2000) (citation and quotation

marks omitted). This is because our standard of review requires

that we examine the evidence in the light most favorable to Che and

draw all reasonable inferences in his favor. See Espada v. Lugo,

312 F.3d 1, 2 (1st Cir. 2002). In addition, our review "is

weighted toward preservation of the jury verdict, for we must

affirm unless the evidence was so strongly and overwhelmingly

inconsistent with the verdicts that no reasonable jury could have

returned them." Crowley v. L.L. Bean, Inc., 303 F.3d 387, 393 (1st

Cir. 2002) (citation and quotation marks omitted).

We begin by noting that Che has presented only

circumstantial evidence of discriminatory retaliation. In such

cases, we use the burden-shifting analysis first established by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792

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(1973). See Feliciano de la Cruz v. El Conquistador Resort &

Country Club, 218 F.3d 1, 6 (1st Cir. 2000). Under the McDonnell

Douglas analysis, a plaintiff must make a prima facie showing of

retaliation by presenting evidence that (1) he engaged in protected

conduct, (2) he was thereafter subjected to an adverse employment

action, and (3) a causal connection existed between the protected

conduct and the adverse action. See Hernandez-Torres v.

Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998).

The defendants challenge only the third element of Che's

prima facie case, and we will therefore assume that he meets the

first two. The defendants argue that no reasonable jury could find

a "causal connection" between Che's filing of his first two

discrimination lawsuits against the MBTA and his demotion to

streetcar operator because the demotion occurred eleven months

after he filed his most recent lawsuit. According to the

defendants, "[t]his lack of temporal proximity dooms Che's prima

facie case." We disagree.

Temporal proximity is but one method of proving

retaliation. See Wyatt v. City of Boston, 35 F.3d 13, 16 (1st Cir.

1994) (per curiam) (stating that "[o]ne way of showing causation is

by establishing that the employer's knowledge of the protected

activity was close in time to the employer's adverse action.");

Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991)

(stating that "there are many sources of circumstantial evidence

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that . . . can demonstrate retaliation"). Evidence of

discriminatory or disparate treatment in the time period between

the protected activity and the adverse employment action can be

sufficient to show a causal connection. See Kachmar v. SunGard

Data Sys., Inc., 109 F.3d 173, 177 (3d Cir 1997) (stating that

"where there is a lack of temporal proximity, circumstantial

evidence of a 'pattern of antagonism' following the protected

conduct can also give rise to the inference" that a causal

connection exists); Sumner v. United States Postal Serv., 899 F.2d

203, 209 (2d Cir. 1990) (stating that "[t]he causal connection

between the protected activity and the adverse employment action

can be established indirectly with circumstantial evidence, for

example, by showing that the protected activity was followed by

discriminatory treatment or through evidence of disparate treatment

of employees who engaged in similar conduct . . ."); 2 Arthur

Larson & Lex K. Larson, Employment Discrimination § 35.02, at 35-15

(2d ed. 2001).

When examining such evidence, we keep in mind that the

prima facie case is "a small showing that is not onerous and is

easily made." Kosereis v. State of Rhode Island, 331 F.3d 207, 213

(1st Cir. 2003) (citations and internal quotation marks omitted).

After carefully examining the record, we believe there is ample

evidence of disparate and discriminatory treatment from which a

jury could find a causal connection between Che's demotion and his

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earlier lawsuits. Perhaps most striking is the fact that there is

documentary and testimonial evidence that, unlike Che, other

employees were not disciplined for writing in the assignment block.

Multiple witnesses testified that they wrote on the assignment

block themselves, or saw other chief inspectors write on the

assignment block, but were not disciplined. There was testimony

from which the jury could find that Johnson never issued any

written or verbal orders telling other employees not to write on

the assignment block.

There is other evidence as well. In 1994 Johnson

disciplined Che for having an argument with a coworker. There was

evidence at trial that Johnson did not discipline white inspectors

who engaged in arguments with coworkers. In addition, after

Johnson disciplined Che for the argument, Che fainted and his union

representative asked Johnson to call for help. In response,

Johnson said "I think the chink is faking it." There was evidence

at trial that Johnson and another MBTA supervisor referred to Che

as a "chink" on other occasions. In sum, this evidence of

discriminatory and disparate treatment is sufficient to meet "the

relatively low threshold showing necessary to establish a prima

facie case." Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 165-66

(1st Cir. 1998).

Once a prima facie case has been presented under the

McDonnell Douglas analysis, an inference of discrimination arises.

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See Hazel v. United States Postmaster Gen., 7 F.3d 1, 3 (1st Cir.

1993). The employer is then required to offer a non-discriminatory

reason for the employment action in question. See Bishop v. Bell

Atl. Corp., 299 F.3d 53, 58 (1st Cir. 2002). In this case, the

defendants claim that Che was demoted because he was insubordinate

for writing in the assignment block. When the employer offers a

non-discriminatory reason, the inference of discrimination fades

away. All that remains is for the plaintiff to show that the

adverse employment action was the result of discriminatory animus.

See Feliciano de la Cruz, 218 F.3d at 6. Evidence that the

employer's stated reasons are pretextual can be sufficient for a

jury to infer discriminatory animus. See Gonzalez v. El Dia, Inc.,

304 F.3d 63, 69 (1st Cir. 2002).

The defendants argue that there is no evidence from which

a reasonable jury could have found that the MBTA's stated reason

for demoting Che was pretextual. Pretext can be proven in several

different ways. See Santiago-Ramos v. Centennial P.R. Wireless

Corp., 217 F.3d 46, 55 (1st Cir. 2000). One way is by presenting

evidence of disparate treatment. See Straughn v. Delta Air Lines,

Inc., 250 F.3d 23, 43-44 (1st Cir. 2001); Mesnick, 950 F.2d at 824.

As we have already explained, there was documentary and testimonial

evidence that other employees who wrote on the assignment block

were not disciplined.

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 Another way of demonstrating pretext is "by showing that

the employer's proffered explanation is unworthy of credence."

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)

(citation and quotation marks omitted). In this regard, there was

testimony from which it could be inferred that Johnson withdrew his

order not to write on the assignment block after he was informed

that such behavior had been permitted in the past. Thus, the jury

could have concluded that Che was not insubordinate to begin with

and that the MBTA's stated reason for his demotion was contrived.

See Rossy v. Roche Prods., Inc., 880 F.2d 621, 625 n.5 (1st Cir.

1989) (stating that "[t]he reasonableness of the employer's reasons

may of course be probative of whether they are pretexts." (citation

and quotation marks omitted)).

We are mindful that there is no "mechanical formula" for

finding pretext. Feliciano de la Cruz, 218 F.3d at 6. It is the

type of inquiry where "everything depends on the individual facts."

Thomas v. Eastman Kodak Co., 183 F.3d 38, 57 (1st Cir. 1999)

(citation and quotation marks omitted). As such, we have been

"particularly cautious" about taking such questions out of the

jury's hands. Hodgens, 144 F.3d at 167; see also Petitti v. New

England Tel. & Tel. Co., 909 F.2d 28, 34 (1st Cir. 1990) ("This

court has consistently held that determinations of motive and

intent, particularly in discrimination cases, are questions better

suited for the jury, as proof is generally based on inferences that

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must be drawn, rather than on the proverbial 'smoking gun.'"

(citation and quotation marks omitted)). In light of the evidence

described above, we agree with the district court that there was

sufficient evidence from which a jury could find that the MBTA's

stated reason for Che's demotion was pretextual.

The defendants' motion for judgment as a matter of law

also challenged the jury's finding that Johnson retaliated against

Che by creating a hostile work environment. A supervisor can be

liable for a retaliatory hostile work environment if, among other

things, the alleged harassment was severe or pervasive. See

Marrero v. Goya of P.R., Inc., 304 F.3d 7, 26 (1st Cir. 2002). In

deciding whether the harassment was sufficiently severe or

pervasive, the fact finder must examine all the circumstances. See

Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). These

circumstances include the frequency and severity of the

discriminatory conduct, whether the conduct was physically

threatening or humiliating, whether the conduct unreasonably

interfered with the employee's work performance, and the effect of

the conduct on the employee's psychological well-being. See id.

As a general matter, these are questions best left for the jury.

See Marrero, 304 F.3d at 19. "The barrier to reversal on this

ground is high, given the jury's superior ability to gauge the

witnesses and draw inferences in favor of one side or the other on

this highly factual issue." Danco, Inc. v. Wal-Mart Stores, Inc.,

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178 F.3d 8, 16 (1st Cir. 1999). We see no reason to disturb the

jury's verdict.

There was sufficient evidence from which a reasonable

jury could find that Che was subjected to a hostile work

environment. There was evidence that Che received undeserved or

excessive discipline on multiple occasions over a roughly two year

period. By way of example, Johnson attempted to demote Che to

streetcar operator in late 1994 because Che refused to sign a

disciplinary slip. Later, the MBTA changed the demotion to a three

day suspension. In 1995, Che was reprimanded for reporting an

automobile accident using a telephone instead of his radio, despite

the fact that MBTA regulations specifically permitted employees to

report such accidents with either a telephone or a radio. The

reprimand was later expunged from Che's record by the MBTA. There

was also evidence that Che was told to use his radio less

frequently even though doing so would hamper his work performance

and that Che was improperly scolded for requesting meal breaks.

In addition, there was evidence that employees were

permitted to scream at Che without punishment. There was evidence

that Che complained to Johnson that another manager was harassing

him, but Johnson never told the manager to stop. There was

evidence that Johnson and other supervisors referred to Che as a

"chink." Lastly, there was evidence that the defendants' conduct

caused Che to suffer psychological and physical aliments. Viewed

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collectively and in the light most favorable to Che, this evidence

is sufficient for a reasonable jury to find that Johnson subjected

Che to a hostile work environment.

C. Punitive Damages

At the close of Che's evidence, but before the

defendants' presented their case, the district court ruled that

there was "absolutely no proof justifying the submission of

punitive damages to the jury." The district court was also

concerned that its "suggestion to the jury that this was an

egregious case might effect an award of compensatory damages on a

subconscious basis." We review de novo a district court's decision

on whether there was sufficient evidence for a jury instruction on

punitive damages. See Marcano-Rivera v. Pueblo Int'l., Inc., 232

F.3d 245, 254 (1st Cir. 2000).

The Supreme Court has explained that punitive damages in

discrimination cases are authorized "in only a subset of cases

involving intentional discrimination." Kolstad v. Am. Dental

Ass'n, 527 U.S. 526, 534 (1999). In order to fall within that

subset "[t]he employer must act with malice or reckless

indifference to the plaintiff's federally protected rights." Id.

at 535 (quotation marks omitted) (emphasis in original). The Court

has explained that this means "an employer must at least

discriminate in the face of a perceived risk that its actions will

violate federal law." Id. at 536. This inquiry is centered around

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the subjective knowledge or intent of the employer. See Romano v.

U-Haul Int'l, 233 F.3d 655, 669 (1st Cir. 2000).

Prior to Kolstad, the rule in this circuit was that "the

evidence of intent that is necessary to support a punitive damages

award is the same evidence of intent that is required for a finding

of discrimination in the first place." Criado v. IBM Corp., 145

F.3d 437, 445 (1st Cir. 1998) (citations and quotation marks

omitted). After Kolstad, we have been careful to differentiate

between cases where the evidence of the defendant's state of mind

"relates only to the conduct, not to the consequence; that is, it

entails an intent to do the act, not to effect a civil rights

violation." Iacobucci v. Boulter, 193 F.3d 14, 26 (1st Cir. 1999).

Nevertheless, we have not abandoned our pre-Kolstad jurisprudence

altogether. Instead, we have taken a more cautious approach and

disavowed our previous case law only to the extent that it "fails

to draw a distinction between the state of mind requirement anent

the actor's conduct and the state of mind requirement anent the

effects of that conduct." Id. at 27.

In fact, we have continued to recognize that "acts of

intentional discrimination are just the sort of conduct that

punitive damages are aimed to deter." DiMarco-Zappa v. Cabanillas,

238 F.3d 25, 38 (1st Cir. 2001); see also Hemmings v. Tidyman's,

Inc., 285 F.3d 1174, 1198 (9th Cir. 2002) (stating "that after

Kolstad, in general, intentional discrimination is enough to

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establish punitive damages liability"). The present case involves

intentional discriminatory retaliation. The jury found that Che

was demoted because he engaged in conduct protected by federal

anti-discrimination laws. When a jury finds that an employer has

engaged in intentional discriminatory retaliation, the employer's

actions and the effect of those actions are closely connected in a

way not necessarily present in other types of cases.

In Iacobucci, for example, we held in the context of a

false arrest claim brought under § 1983 that although an officer's

split-second decision to arrest the plaintiff was unreasonable,

there was no evidence suggesting he possessed any malice or

reckless indifference to the plaintiff's constitutional rights.

193 F.3d at 26. In contrast, when an employer retaliates against

an employee because the employee engages in conduct that is

protected by well-established federal civil rights statutes, a jury

could, but need not, fairly infer that the employer harbored malice

or reckless indifference towards those civil rights. See

Rubinstein v. Admin'rs of Tulane Educ. Fund, 218 F.3d 392, 406 (5th

Cir. 2000) (holding that, where there is evidence that employer

retaliated because employee filed previous lawsuits, such evidence

"certainly indicates a healthy disdain for [plaintiff's] rights to

seek redress in the courts for perceived wrongs adequate to meet

the standard of reckless indifference at least, if not outright

animus, towards those rights"); Passantino v. Johnson & Johnson

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Consumer Prods., Inc., 212 F.3d 493, 516 (9th Cir. 2000) (holding

that jury could find malice or reckless indifference to an

employee's federally protected rights because her employer's

actions were "in retaliation for her complaints").

This is not to say that punitive damages will be

appropriate in every case involving intentional discrimination.

See Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 205 (1st Cir.

1987). The Court has described situations where an employer may

intend to discriminate, but does not intend to violate the law.

See Kolstad, 527 U.S. at 536-37. These include situations when the

employer is unaware of the federal law prohibiting discrimination,

when the employer believes he can lawfully discriminate, when the

underlying theory of discrimination is novel or poorly recognized,

or when the employer believes its discrimination falls within a

statutory exception. See id. None of these situations, or others

like them, are present in this case. Nor do we see any other

compelling reason why a jury should be prevented from exercising

its "discretionary moral judgment" as to punitive damages in this

case. Smith v. Wade, 461 U.S. 30, 52 (1983). Accordingly, the

district court's denial of Che's requested jury instruction on

punitive damages is reversed.

On remand, we believe the proper route is to let stand

the jury's award of compensatory damages, but retry the issue of

punitive damages. We have "broad discretion to remand for a new

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trial on all, or some, of the issues in the case." Dopp v. HTP

Corp., 947 F.2d 506, 518 (1st Cir. 1991). We do not think that the

district court's error regarding the punitive damages instruction

nullifies the jury's findings that the defendants are liable for

discriminatory retaliation and the creation of a hostile work

environment. See Dopp, 947 F.2d at 518; Santiago-Negron v. Castro-

Davila, 865 F.2d 431, 437 (1st Cir. 1989). Thus, the jury's award

of compensatory damages is affirmed and the case is remanded for a

new trial on the issue of punitive damages. See McKinnon v. Kwong

Wah Rest., 83 F.3d 498, 509 (1st Cir. 1996) (affirming district

court's award of compensatory damages, but remanding on the issue

of punitive damages).

D. Motion for Reinstatement or Front Pay

In light of our ruling that a new trial is required for

punitive damages, we believe it proper to leave the question of

reinstatement or front pay open for the district court to determine

following the jury's determination of damages. Reinstatement and

front pay are equitable remedies that require the district court to

take a "flexible approach." Selgas v. Am. Airlines, Inc., 104 F.3d

9, (1st Cir. 1997). In view of the fact that the damages awarded

to Che could change, the district court deserves the opportunity to

consider these changes in fashioning equitable relief. See Lussier

v. Runyon, 50 F.3d 1103, 1112 (1st Cir. 1995) (stating that a

district court's decision on a particular form of relief "must be

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assessed as part of the entire remedial fabric that the trial court

has fashioned in a particular case"). However, we do offer the

district court some guidance on the issue of reinstatement.

In cases such as this one, which involve employment

discrimination under Title VII, a district court's discretion to

fashion an equitable remedy must be consistent with the important

national goals reflected in the statute. See Selgas, 104 F.3d at

12; Lussier, 50 F.3d at 1111. As the Supreme Court has explained,

the goals of Title VII include "eradicating discrimination

throughout the economy and making persons whole for injuries

suffered through past discrimination." Albemarle Paper Co. v.

Moody, 422 U.S. 405, 421 (1975). We have recognized that

reinstatement is an important remedy because it "most efficiently"

advances the goals of Title VII by making plaintiffs whole while

also deterring future discriminatory conduct by employers. Quint

v. A.E. Staley Mfg. Co., 172 F.3d 1, 19 (1st Cir. 1999); see also

Hiraldo-Cancel v. Aponte, 925 F.2d 10, 13 (1st Cir. 1991). As a

result, we have said that in employment discrimination cases, "the

overarching preference is for reinstatement." Selgas, 104 F.3d at

13. It is clear to us that "equitable considerations different in

kind or degree from those regularly accompanying reinstatement must

be present," if this important remedy is to be denied. Rosario-

Torres v. Hernandez-Colon, 889 F.2d 314, 323 (1st Cir. 1989).

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 We have highlighted a number of special considerations

that could form the basis for a denial of reinstatement.1 See

Velazquez v. Figueroa-Gomez, 996 F.2d 425, 429 (1st Cir. 1993).

Although the list is certainly not exhaustive, the district court

on remand should analyze whether any of these factors are present

in this case. We have also recognized, as did the district court

in its decision denying Che's reinstatement, that government

operations can be burdened because of the hostility that results

from reinstatement. See Hiraldo-Cancel, 925 F.2d at 13-14. But we

have repeatedly said that such burdens and hostility are not enough

to justify a denial of reinstatement, absent special circumstances.

See Velazquez, 996 F.2d at 429; Hiraldo-Cancel, 925 F.2d at 14;

Rosario-Torres, 889 F.2d at 323. The reason we have adopted such

a rule is because the goals of Title VII would be ill served if we

permitted such routine antagonism to be an adequate ground for

denying reinstatement. See Quint, 172 F.3d at 21.

We do not agree with the district court that "Che's

presence would likely be more disruptive than in the ordinary,

garden-variety, return-to-work scenario," because two of the

1
"In the past, we have indicated a number of special
considerations that influence the district court determination in
specific cases, including: (1) the strength of the evidence . . .;
(2) whether the discharged employee has found comparable work; (3)
the absence of a property right in the position because the
employee was hired in violation of local law; and (4) the
ineligibility of the employee for the position, due to failure to
meet established qualifications, which would permit immediate
discharge for no reason or for any permissible reason." Id.

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witnesses who testified at trial against Che would be his

supervisors, and a named defendant is currently in charge of the

Green Line. The participation of supervisors and coworkers in a

plaintiff's employment discrimination case is common and often

unavoidable. These attendant antagonisms are precisely the type of

"routinely incidental burdens" that are a foreseeable consequence

of the defendants' misconduct, and therefore "insufficient, without

more, to tip the scales against reinstatement." Rosario-Torres,

889 F.2d at 322. This is not to say, of course, "that coworker

hostility adequately proven real and intolerable, may not provide

an appropriate ground for refusing reinstatement." See Quint, 172

F.3d at 21. (emphasis in original). Rather, it is a recognition

that, given the importance of reinstatement as a remedy in

employment discrimination cases, there must be evidence in the

record aside from an employer's mere participation in the trial to

support a finding of extraordinary antagonism if that is to be the

basis for the district court's denial of reinstatement.

E. Constructive Discharge Jury Instruction

Lastly, the defendants appeal the district court's

decision not to instruct the jury that Che was required to prove

that he was constructively discharged. The defendants objected at

the proper times, and our review is therefore de novo. See Gray v.

Genlyte Group, Inc., 289 F.3d 128, 133-34 (1st Cir. 2002). Like

the district court, we are not persuaded by the defendants'

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argument. This case involves discrimination by way of retaliation

and the creation of a hostile work environment. The elements of

these two different claims are well settled in our circuit. See

White, 221 F.3d at 259, 262. Suffice it to say, neither cause of

action requires that the plaintiff be actually or constructively

discharged. See Kosereis, 331 F.3d at 216-17 (involving plaintiff

who brought hostile work environment and retaliation claims while

still employed by defendant). Thus, the district court correctly

denied the defendants' requested jury instruction. Having

concluded that the defendants' requested jury instruction lacked

merit, we rule that the district court did not abuse its discretion

in denying the defendants' corresponding motion for a remittitur of

Che's back pay award. See Trull v. Volkswagen of America, Inc.,

320 F.3d 1, 9 (1st Cir. 2002) (stating that motions for remittitur

are reviewed for abuse of discretion).

III. CONCLUSION

The district court's ruling denying Che's requested jury

instruction on punitive damages is REVERSED and this case is

REMANDED for a new trial on punitive damages. We leave the

district court to exercise its discretion to award reinstatement or

front pay in light of the outcome of the proceedings on remand. In

all other respects, the district court's rulings are AFFIRMED. So

ordered.

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