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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