Andrade v. Self-Help, Inc.

USCA1 Opinion












United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
____________________

No. 95-1039

HELEN RUTH ANDRADE,
Plaintiff, Appellant,

v.

JAMESTOWN HOUSING AUTHORITY, ESTATE OF BARRETT GROSS,
ERNEST ANTHONY, EDWARD HOLLAND, LLEWELYN EATON,
PHYLLIS TIEXIERA AND FREDERICK HILLIER,
Defendants, Appellees.
____________________

No. 95-1040

HELEN RUTH ANDRADE,
Plaintiff, Appellee,

v.

JAMESTOWN HOUSING AUTHORITY, ESTATE OF BARRETT GROSS,
ERNEST ANTHONY, EDWARD HOLLAND, LLEWELYN EATON,
PHYLLIS TIEXIERA AND FREDERICK HILLIER,
Defendants, Appellees,

_____________________

SELF-HELP, INC. AND DEBORAH A. JACKSON,
Defendants, Appellants.
____________________

No. 96-1329

HELEN RUTH ANDRADE,
Plaintiff, Appellee,

v.

JAMESTOWN HOUSING AUTHORITY, ESTATE OF BARRETT GROSS,
ERNEST ANTHONY, EDWARD HOLLAND, LLEWELYN EATON,
PHYLLIS TIEXIERA AND FREDERICK HILLIER.
Defendants, Appellants.





















APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge] ___________________

____________________

Before

Torruella, Chief Judge, ___________
Cyr and Stahl, Circuit Judges. ______________

____________________

Ernest Barone for Helen Ruth Andrade. _____________
Frank E. Reardon with whom Hassan & Reardon, P.C. was on brief _________________ _______________________
for Self-Help, Inc. and Deborah Jackson.
James A. Donnelly for Jamestown Housing Authority, et al. _________________


____________________

May 1, 1996
____________________






































STAHL, Circuit Judge. Plaintiff-appellant, Helen STAHL, Circuit Judge. _____________

Ruth Andrade, filed a five-count complaint in Rhode Island's

federal district court seeking redress for her termination

from employment as an administrative assistant at the

Jamestown Housing Authority ("JHA"). In addition to JHA,

Andrade sued Self-Help, Inc. ("Self-Help"), the sponsoring

agency that placed her at JHA; Deborah Jackson, a Self-Help

employee; Barrett Gross,1 JHA's Executive Director; and

Ernest Anthony, Edward Holland, Llewelyn Eaton, Phyllis

Tiexiera, and Frederick Hillier, all of whom were JHA

Commissioners. At trial, Andrade sought to prove violations

of 42 U.S.C. 1983 (Count II), 42 U.S.C. 1985(3) (Count

III), and state tort (Count IV) and contract (Count V) law.2

At the close of evidence, the district court,

pursuant to Fed. R. Civ. P. 50(a), granted the defendants'

motions for judgment as a matter of law on Counts III, IV and

V, reserved ruling on JHA's Rule 50(a) motion as to Count II,

and submitted Count II to the jury. The jury found JHA,

Gross, and Eaton liable on Count II and awarded compensatory

and punitive damages to Andrade. The parties subsequently

filed motions for attorney's fees, and the district court

referred the motions to the magistrate for a report and

____________________

1. Barrett Gross died before the commencement of this
litigation. His estate has been sued as a party defendant.

2. Count I, charging a violation of Title VII, was
voluntarily dismissed by Andrade on the first day of trial.

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recommendation. The magistrate's report and recommendation,

adopted by the court, granted fees to Andrade as prevailing

plaintiff vis a vis JHA, Gross, and Eaton and to Self-Help, ___ _ ___

Jackson, Anthony, Holland, Tiexiera, and Hillier as

prevailing defendants.

Andrade appeals the grant of judgment as a matter

of law on Counts IV and V as well as the attorney's fees

award. JHA cross-appeals the denial of the Rule 50(b) motion

on Count II. Self-Help and Jackson cross-appeal the

attorney's fees award. Finding no error, we affirm.

I. I. __

Background Background __________

A. The Relevant Facts ______________________

Self-Help, a non-profit corporation, operates the

Senior Aide Program ("the Program") in the East Providence

area. The Program, which is funded by the Department of

Labor through the National Council of Senior Citizens

("NCSC"), seeks to employ low-income seniors in non-profit

businesses and municipal agencies as "Senior Aides." Under

the Program, Senior Aides spend a maximum of two years at an

assignment, receiving on-the-job and/or other training, with

a goal of attaining placement in unsubsidized positions

thereafter.

During the summer of 1990, Nancy Newbury, JHA's

Executive Director, contacted Self-Help to inquire about the



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possibility of JHA becoming a host agency under the Program.

Bridget Kelly, Self-Help's Director of the Senior Employment

Program, and Newbury agreed that JHA would create two

administrative assistant positions for Senior Aides at JHA.

Newbury then posted the positions, and Andrade applied.

After Kelly determined that Andrade was eligible for the

Program, Newbury interviewed Andrade and offered her the job.

Andrade accepted.

At trial, Newbury and Kelly both testified that, at

some point during the hiring process, Andrade informed them

that she was receiving workers' compensation benefits and

stated that she would only want to work at JHA so long as the

wages she would receive from Self-Help would not reduce her

existing benefits. Newbury's and Kelly's testimony diverged

on how they responded to this information.

Newbury testified that, with Kelly and Andrade in

her office, she called Andrade's case manager at the Workers'

Compensation Commission ("the Commission") on speakerphone,

and he assured them that Andrade's wages from Self-Help would

not reduce her benefits. Kelly, however, denied such a

conversation took place and testified that she had informed

Andrade that her review of the NCSC Policy and Procedure

Manual ("NCSC Manual") suggested that the benefits would not

be counted in determining her income eligibility under the





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Program, but that Andrade should contact the Commission to

see how it would handle her receipt of wages.

In July 1990, Andrade began work at JHA. Shortly

thereafter, Newbury resigned as Executive Director and

brought charges of racism against JHA, requesting an

investigation of its adherence to fair housing principles.

On April 30, 1991, during hearings before the Jamestown Town

Council, Andrade testified that Commissioner Eaton had made

two racially discriminatory remarks in her presence.

Meanwhile, in March 1991, the Commission sent

Andrade a "Report of Earnings" form, requesting information

about her Self-Help wages. Because Andrade did not return

the form, the Commission sent another in April. On May 1,

1991, when Kelly's successor, Deborah Jackson, went to JHA to

recertify Andrade for her second year of the Program, Andrade

showed Jackson the Report of Earnings form and asked for her

assistance in filling it out. Jackson agreed to look at the

form and took it with her.

While at JHA that day, Jackson also met with Gross

who requested that Self-Help transfer Andrade from JHA for

having testified against Eaton the night before. On May 2,

1991, Gross sent Jackson a letter memorializing their

conversation which requested that she "attempt to transfer

Senior Aid [sic] Helen Andrade from the Authority" and stated

that "Her testimony against one of our commissioners, Mr.



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Eaton, who is ultimately her superior has made her presence

here uncomfortable."

On May 8, 1991, having examined the Report of

Earnings form, Jackson notified Caroline Pellegrino, Self-

Help's Director of Senior Services, that Andrade had not

reported her Self-Help earnings to the Commission.

Pellegrino called the Commission and was informed that it

could hold Self-Help liable for the wages paid to an employee

who was receiving workers' compensation benefits.

Pellegrino, in turn, notified Dennis Roy, Self-Help's

Executive Director, and Roy referred her to Mary Mulvey, an

NCSC representative. Mulvey informed Pellegrino that Self-

Help might also be liable to NCSC for Andrade's wages should

inclusion of her workers' compensation benefits in the income

eligibility assessment render Andrade ineligible for the

Program. Mulvey recommended Andrade's termination pending

resolution of the issue. Roy agreed and had Jackson

telephone Andrade with the news.

Referring generally to a problem regarding

Andrade's receipt of workers' compensation benefits, Jackson

asked Andrade to go home for the day and said that she would

be phoning her with more details. Later that afternoon,

Jackson told Andrade that she was terminated because of her

failure to report her wages to the Commission. Five days

later, Jackson sent Andrade a letter stating that "Your



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failure to notify R.I. Workers [sic] Compensation Department

of your entering the Senior Aide Program is the reason for

the termination."

Having learned of Andrade's termination, Newbury

appeared before Gross and the Commissioners at the next JHA

board meeting and petitioned for Andrade's reinstatement to

her former position. Newbury testified that Commissioner

Hillier responded to her plea by stating that "it would be a

cold day in hell when anybody testifies against us and thinks

they are going to have a job here."

B. Prior Proceedings _____________________

Andrade's complaint charged JHA, Gross, the

Commissioners, Self-Help, and Jackson with violations of

Title VII (Count I -- which she later dismissed voluntarily),

42 U.S.C. 1985(3) (Count III), wrongful and tortious

discharge, intentional infliction of emotional distress, and

interference with contract (Count IV); JHA, Gross, and

Commissioners Holland, Hillier, Eaton, and Tiexiera with

violation of 42 U.S.C. 1983 (Count II); and Self-Help with

breach of express and implied contract (Count V). After

discovery, a seven-day jury trial ensued. At the close of

the evidence, all of the defendants sought judgment as a

matter of law under Fed. R. Civ. P. (50)(a) on Counts III and

IV; JHA brought a Rule 50(a) motion on Count II, and Self-

Help brought a Rule 50(a) motion on Count V. The district



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court delivered a detailed oral opinion, granting the motions

as to Counts III, IV, and V, and reserving decision on Count

II until after the jury returned its verdict.

As to Count V, the court concluded that (i) Andrade

had failed to provide any evidence that an express contract

for a definite duration existed between her and Self-Help,

(ii) the fact that the NCSC Manual and the Self-Help Senior

Employment Program Personnel Policy ("the Self-Help Policy")

limited Andrade's employment at JHA to two years and provided

for an annual recertification review did not establish a

definite term of employment, (iii) Andrade and Self-Help's

mutual mistake as to whether Andrade's earnings would be paid

to the Commission prevented a meeting of the minds, a

necessary element to the formation of a contract, and (iv)

even assuming arguendo that a contract existed, Andrade ________

suffered no damage in its breach because any earnings that

she was denied would have to have been paid to the

Commission. In ruling on Count IV, the court found that (i)

no cause of action for wrongful discharge exists under Rhode

Island law, (ii) Andrade failed to provide evidence of any

injury of sufficient magnitude to satisfy the element of

intentional infliction of emotional distress requiring

physical manifestation of injury and failed to provide any

expert medical testimony showing a causal connection between

Andrade's symptoms, some of which existed well before her



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termination, and defendants' actions, and (iii) because

Andrade did not have a contract with Self-Help that gave her

an expectation of continued employment, there could be no

tortious interference with that contract.

With only Count II before it, the jury returned a

verdict for Andrade vis a vis JHA, Gross, and Eaton. Hillier ___ _ ___

and Tiexiera were found not liable. The jury granted

compensatory damages of $7,183 against the three defendants

and punitive damages of $250 each against Gross and Eaton.

After excusing the jury, the district court returned to the

unresolved Rule 50 motion on Count II. The court denied the

motion, finding that Gross's letter of May 2, 1991 and

Commissioner Hillier's response to Newbury's request to

reinstate Andrade were sufficient to permit a reasonable jury

to find that Andrade was terminated because she testified

against Commissioner Eaton at a public hearing. Thereafter,

the court referred the parties' motions for attorney's fees

to the magistrate for a report and recommendation.

After a hearing, the magistrate found that,

although she was a prevailing plaintiff under 42 U.S.C.

1988, Andrade had succeeded in only one of her five claims,

had received only $7,183 in compensatory damages and $500 in

punitive damages, and had brought frivolous claims. Based on

these findings, the magistrate granted Andrade a modest

attorney's fees award of $2,500. Finding that Counts I, III,



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and IV were frivolous, the magistrate concluded that Self-

Help, Jackson, Holland, Hillier, Anthony, and Tiexiera were

prevailing defendants under 1988 and 42 U.S.C. 2000e-

5(k). Mindful of Andrade's limited financial resources, the

magistrate granted Self-Help and Jackson a $1,000 attorney's

fee for their defense of Counts I and III and Commissioners

Holland, Hillier, Anthony, and Tiexiera a $1,500 attorney's

fee for their defense of Counts I, III, and IV. The district

court adopted the magistrate's report and recommendation.

II. II. ___

Discussion Discussion __________

A. Judgment as a Matter of Law _______________________________

1. Andrade's Appeal ____________________

On appeal, Andrade contends that the district court

erred in granting judgment as a matter of law on Counts IV

and V of her complaint. After reciting the standard of

review, we consider these contentions separately.

We review the grant of a Rule 50(a) motion for

judgment as a matter of law de novo, under the same standards __ ____

as the district court. See Coastal Fuels of Puerto Rico, ___ _______________________________

Inc. v. Caribbean Petroleum Corp., No. 95-1460, slip op. at 6 ____ _________________________

(1st Cir. Mar. 12, 1996). The evidence and the inferences

reasonably to be drawn therefrom are considered in the light

most favorable to the non-movant. The court, however, must

"not consider the credibility of witnesses, resolve conflicts



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in testimony, or evaluate the weight of the evidence."

Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir. 1987). A _________ _____

verdict may be directed only if the evidence, viewed from

this perspective, "would not permit a reasonable jury to find

in favor of the plaintiff[] on any permissible claim or

theory." Murray v. Ross-Dove Co., 5 F.3d 573, 576 (1st Cir. ______ _____________

1993).

a. Contract Claim __________________

Andrade contends that the evidence she submitted on

Count V was legally sufficient to permit a jury to find a

breach of contract, and therefore the district court erred in

granting Self-Help judgment as a matter of law on Count V.

Because we agree with the court below that Andrade did not

prove a prima facie case of breach of contract, we affirm the

court's grant of the Rule 50(a) motion on Count V.

Under Rhode Island law, it is well established that

"a promise to render personal services to another for an

indefinite term is terminable at any time at the will of

either party and therefore creates no executory obligations."

School Comm. of Providence v. Board of Regents for Educ., 308 __________________________ __________________________

A.2d 788, 790 (R.I. 1973); see also Lamoureux v. Burrillville ___ ____ _________ ____________

Racing Ass'n, 161 A.2d 213, 216 (R.I. 1960); Booth v. _____________ _____

National India-Rubber Co., 36 A. 714, 715 (R.I. 1897). ___________________________

Although she presented no evidence of an express employment

contract for a fixed period between herself and Self-Help,



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Andrade argues that certain provisions in the Self-Help

Policy and the NCSC Manual, both of which were admitted into

evidence, created a triable issue as to whether she and Self-

Help had an implied contract for a fixed period3 and whether

she could only be terminated for just cause.4

Apparently recognizing it to be an issue of first

impression, however, the Rhode Island Supreme Court expressly

avoided the question of whether to adopt the emerging case

law that employment manuals or policies may give rise to

enforceable contract rights, Roy v. Woonsocket Inst. for ___ ______________________

Sav., 525 A.2d 915, 918 (R.I. 1987), and, as a federal court ____

hearing this state law issue under our supplemental

jurisdiction, we are reluctant to extend Rhode Island's

contract law "beyond its well-marked boundaries." Markham v. _______

Fay, 74 F.3d 1347, 1356 (1st Cir. 1996); cf. A. Johnson & Co. ___ ___ ________________

v. Aetna Casualty and Sur. Co., 933 F.2d 66, 73 (1st Cir. _____________________________

1991) (holding that this court, sitting in diversity, should

____________________

3. In particular, Andrade claims that the two-year
durational limit upon her employment at JHA and the one-year
recertification review by Self-Help supplied the durational
term.

4. Andrade identifies an "employability plan" that she and
Newbury devised and Self-Help adopted as an additional source
of her alleged contract rights. Testimony, viewed in the
light most favorable to Andrade, revealed that the plan
detailed Newbury's and Andrade's goals for Andrade's
employment at JHA. The ultimate goal identified in the plan
was training Andrade to become a certified housing manager.
Nothing in the plan, however, suggested that Andrade was
guaranteed employment at JHA for a definite term or that she
would only be terminated for cause.

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not "torture state law into strange configurations or

precipitously to blaze new and unprecedented jurisprudential

trails"); Mason v. American Emery Wheel Works, 241 F.2d 906, _____ ___________________________

909-10 (1st Cir.) (noting that a diversity court must take

state law as it finds it, "not as it might conceivably be,

some day; nor even as it should be"), cert. denied, 355 U.S. _____ ______

815 (1957). Because Andrade has not convinced us that Rhode

Island would so extend its contract law, we decline to do so

here.

b. Tort Claims _______________

Andrade also contends that she submitted sufficient

evidence to permit a jury to find the torts of intentional

infliction of emotional distress, wrongful and tortious

discharge, and interference with contract, and therefore the

district court erred in granting the defendants judgment as a

matter of law on Count IV. We consider each tort claim in

turn.

Rhode Island recognizes a cause of action for

intentional infliction of emotional distress ("IIED")

patterned after 46 of the Restatement (Second) of Torts

(1965). Champlin v. Washington Trust Co., 478 A.2d 985, 988 ________ ____________________

(R.I. 1984). To prevail on a claim of IIED, the plaintiff

must prove that the defendant, by extreme and outrageous

conduct, intentionally or recklessly caused the plaintiff

severe emotional distress. Id. at 989. Rhode Island ___



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requires that to be "severe," the emotional distress must

evoke some physical manifestation. Reilly v. United States, ______ _____________

547 A.2d 894, 898-99 (R.I. 1988); Curtis v. State Dep't for ______ ________________

Children, 522 A.2d 203, 208 (R.I. 1987). ________

At trial, Andrade testified on direct examination

that as a result of her termination from employment at JHA in

May 1991, she experienced irritated bowels, diarrhea, tension

headaches, and sleeplessness. Andrade stated, however, that

the diarrhea and tension headaches began in the latter part

of 1990, months before her termination. On cross-

examination, Andrade also conceded that prior to the

occurrence of the events alleged in the complaint she had

experienced stomach problems. Specifically, Andrade

acknowledged that she had gastric surgery in 1978, 1980, and

1981 for which she continues to take medication.

Andrade relied exclusively on her own testimony to

prove her IIED claim. The district court, in ruling on the

defendants' Rule 50(a) motion, found that Andrade's testimony

--

that she had experienced these symptoms contemporaneously

with her termination and her termination was the cause of

these symptoms -- was insufficient to prove causation,

particularly given Andrade's prior history of stomach

problems, headaches, and diarrhea. In directing a verdict

against Andrade on the IIED claim, the court cited her



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failure to produce expert medical testimony that her symptoms

were in fact caused by the defendants' conduct.

Rhode Island case law is silent on the question of

the necessity of expert testimony to prove the causation

element of IIED. Section 46 of the Restatement (Second) of

Torts, on which Rhode Island's IIED claim is patterned, also

fails to provide any clues; nowhere in 46 is the

introduction of expert medical testimony required or even

mentioned. Despite this silence, however, we find that under

the particular facts of this case expert medical testimony

was indispensable to the proof of causation.

Had the district court allowed the IIED claim to go

to the jury at the close of the evidence, the jury would have

been faced with the daunting task of ascertaining the degree

to which Andrade's physical symptoms were the proximate

result of her termination as opposed to her prior gastric

surgeries, chronic maladies, or other outside forces.

Understanding the relationship between Andrade's physical

symptoms and the competing causal factors without the benefit

of medical expertise, however, was beyond the ken of the

jury.5 See Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, ___ ______ ___________________

636-37 (Iowa 1990) (holding that expert medical testimony was

____________________

5. In so holding, we are not establishing a bright-line rule
that expert testimony is always necessary to prove the
causation prong of IIED. There may very well be situations
where causation is within the common knowledge and experience
of the layperson; this case, however, is not one of them.

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required to establish causation between harassment at work

and physical symptoms "that peaked three months after

[plaintiff] left his employment"); Mayer v. Town of Hampton, _____ _______________

497 A.2d 1206, 1211 (N.H. 1985) (holding that proof of

causation in an IIED claim "will usually be based on expert

testimony"); but see Tanner v. Rite Aid of West Virginia, ___ ___ ______ ____________________________

Inc., 461 S.E.2d 149, 160-61 (W. Va. 1995) (holding that jury ____

could properly evaluate IIED claim without expert testimony

despite plaintiffs' prior history of emotional problems).

Because Andrade's own testimony and conclusions regarding the

cause of her physical symptoms, by themselves, were

insufficient to allow a jury to find the requisite nexus

between her distress and the May 8, 1991 termination, an

element of the prima facie case for IIED was not satisfied,

and the district court correctly granted the defendants' Rule

50(a) motion on the IIED claim.

Turning to the remaining tort claims, we note

Andrade's acknowledgment that the Rhode Island Supreme Court

has unequivocally held that no cause of action exists for

wrongful discharge in Rhode Island. Pacheo v. Raytheon Co., ______ ____________

623 A.2d 464, 465 (R.I. 1993). Nonetheless, Andrade

maintains that she presented sufficient evidence for a jury

to find the nonexistent cause of action. In conjunction with

her wrongful discharge claim, Andrade alleged violations of

Rhode Island's Fair Housing Practices Act and Fair Employment



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Practices Act. Andrade argues that infusing her wrongful

discharge claim with references to independent violations of

state laws made it cognizable. We disagree. Pacheo made ______

clear that there is no common law tort of wrongful discharge

in Rhode Island and that protection against discharges that

contravene public policy is for the General Assembly, not the

courts.6 623 A.2d at 465. Accordingly, we affirm the

district court's grant of the defendants' Rule 50(a) motion

on the wrongful discharge claim.

Finally, Andrade claims that she presented

sufficient evidence for a jury to find tortious interference

with contract. Our earlier determination that Andrade did

not present sufficient evidence of an enforceable employment

contract, however, is dispositive of this claim as well. In

Rhode Island, the existence of a contract, not surprisingly,

is an element of the tort of interference with contract. See ___

Smith Dev. Corp. v. Bilow Enters., Inc., 308 A.2d 477, 482 _________________ ____________________

(R.I. 1973). Given Andrade's failure to establish this

element at trial, the district court was correct in taking

the interference with contract claim away from the jury.

Andrade also argues that she has presented

sufficient evidence to prove the similar but distinct tort of


____________________

6. We express no view on whether violations of Rhode
Island's Fair Housing Practices Act and Fair Employment
Practices Act, alleged independently of the wrongful
discharge claim, could have been established.

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interference with prospective contractual relations. Andrade,

however, not only failed to raise this argument below, see ___

United States v. Palmer, 956 F.2d 3, 6 (1st Cir. 1992) ______________ ______

(holding that argument not raised below is waived), she

failed to assert this claim in her complaint. Accordingly,

we refuse to consider this argument.

2. JHA's Cross-Appeal ______________________

JHA argues that Andrade did not present sufficient

evidence that it acted to deprive Andrade of her civil rights

in violation of 1983, and therefore the district court

erred in failing to grant its Rule 50(b) post-verdict motion

on Count II. We review the denial of a post-verdict motion

for judgment as a matter of law de novo, see Lama v. Borras, __ ____ ___ ____ ______

16 F.3d 473, 477 (1st Cir. 1994), and we must sustain the

court's denial of a Rule 50(b) motion "`unless the evidence,

together with all reasonable inferences in favor of the

verdict, could lead a reasonable person to only one

conclusion, namely, that the moving party was entitled to

judgment,'" id. (quoting PH Group Ltd. v. Birch, 985 F.2d ___ ______________ _____

649, 653 (1st Cir. 1993)).

During its deliberations on Count II, the jury

asked the court how to distinguish JHA from the individual

Commissioners. The district court responded that the action

of a majority of the five Commissioners constituted an action

of JHA. JHA argues therefrom that because the jury only



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found one of the Commissioners liable when it needed to find

three Commissioners liable in order to find that JHA acted,

the jury could not have found JHA liable as it did. Because

we find that Andrade provided ample evidence from which the

jury could have concluded that JHA violated 1983, we affirm

the district court's denial of JHA's Rule 50(b) motion.

Andrade presented three significant pieces of

direct evidence: (1) Gross's May 2, 1991, letter to Jackson

requesting Andrade's transfer from JHA because of her

testimony against Commissioner Eaton at a public hearing, (2)

Andrade's tape recording of her May 1, 1991, conversation

with Gross, during which he stated that "[I]t's [Andrade's

testimony] been a problem with the Commissioners. The

Commissioners, the five Commissioners, hire and fire me and,

in essence, they hire and fire you, or they hire and transfer

you . . . ," and (3) Commissioner Hillier's refusal at a JHA

Board Meeting to consider reinstating Andrade due to her

testimony against Commissioner Eaton. Assuming arguendo that ________

under 1983 a majority of the Commissioners was needed for

JHA to have acted, the jury could have inferred from this

evidence that (1) a majority of the Commissioners shared

Gross's views or two of the Commissioners present at the

Board Meeting shared Commissioner Hillier's views,7 (2)


____________________

7. Indeed, no evidence was presented that any Commissioner
publicly renounced Hillier's comment.

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these same Commissioners had authorized their Executive

Director, Gross, to request Andrade's transfer in retaliation

for her testimony, and (3) Gross's May 1, 1991, conversation

with Jackson as memorialized in his May 2, 1991, letter

caused Self-Help to terminate Andrade.

To the extent that JHA is also complaining that the

verdict is inconsistent in that it finds only one

Commissioner liable at the same time as it finds JHA liable,

that argument is waived because of JHA's failure to make a

timely objection to the alleged inconsistency. See Bonilla ___ _______

v. Yamaha Motors Corp., 955 F.2d 150, 155-56 (1st Cir. 1992) ___________________

(holding that a party waives the issue of inconsistency if it

fails to object after the verdict is read and before the jury

is dismissed).

B. Attorney's Fees ___________________

We review a fee award only for mistake of law or

abuse of discretion, see Krewson v. City of Quincy, 74 F.3d ___ _______ ______________

15, 17 (1st Cir. 1996), and accord deference to the district

court's "extremely broad" discretion in this area, Lipsett v. _______

Blanco, 975 F.2d 934, 937 (1st Cir. 1992). "[B]ecause ______

determination of the extent of a reasonable fee necessarily

involves a series of judgment calls, an appellate court is

far more likely to defer to the trial court in reviewing fee

computations than in many other situations." Lipsett, 975 _______





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F.2d at 937. Here, Andrade as well as Self-Help and Jackson

challenge the court's fee award.

1. Andrade's Appeal ____________________

Andrade challenges the fee award on three grounds.

She argues that the district court misapplied the law and

abused its discretion in (1) setting the hourly rate at $125,

(2) reducing her fee award for partial success, and (3)

awarding attorney's fees to Self-Help, Jackson, Holland,

Anthony, Hillier, and Tiexiera as prevailing defendants. We

consider each challenge in turn.

a. Reasonableness of Hourly Rate _________________________________

In his report and recommendation, adopted by the

district court, the magistrate set a reasonable hourly rate

for Andrade's counsel at $125. Andrade's counsel suggested

an hourly rate of $200 for his services, citing his

experience, a $200/hr. rate he had received in a similar

case, and affidavits from two civil rights attorneys in the

community attesting that they charged $175/hr. The

magistrate, however, noted that JHA, Gross, and the

Commissioners requested a $125 hourly rate and Self-Help and

Jackson requested a rate within the $100 to $125 range. The

magistrate set the rate for Andrade's attorney at $125/hr.,

reasoning that $200/hr. is not a reasonable rate for civil

rights litigation in the Providence, Rhode Island, area,

Andrade had not provided adequate support for the higher



-22- 22













rate, and no reason presented itself why Andrade's attorney's

rate should be more than the defense attorneys' rates.

Andrade argues on appeal that in basing her counsel's fee on

the amounts proposed by the defendants, the magistrate failed

to apply the prevailing community rate for federal civil

rights litigation and to account for the contingency and

delay-in-payment factors that distinguish her counsel's rate

from that of the defense attorneys.

In determining a reasonable hourly rate, the

Supreme Court has recommended that courts use "the prevailing

market rates in the relevant community" as the starting

point. Blum v. Stetson, 465 U.S. 886, 895 n.11 (1984) ____ _______

(defining "prevailing market rates" as "those prevailing in

the community for similar services by lawyers of reasonably

comparable skill, experience and reputation"). While an

attorney may inform the court's analysis by providing

evidence of her customary billing rate and of prevailing

rates in the community, the court is not obligated to adopt

that rate. Moreover, the court is entitled to rely upon its

own knowledge of attorney's fees in its surrounding area in

arriving at a reasonable hourly rate, see Nydam v. Lennerton, ___ _____ _________

948 F.2d 808, 812-13 (1st Cir. 1991); United States v. ______________

Metropolitan Dist. Comm'n, 847 F.2d 12, 19 (1st Cir. 1988), _________________________

as well as the defense attorneys' rates, cf. Liberty Mut. ___ _____________

Ins. Co. v. Continental Casualty Co., 771 F.2d 579, 588 (1st _________ ________________________



-23- 23













Cir. 1985) (comparing plaintiff's counsel's fee estimate to

defendant counsel's estimate in attempting to ascertain how

much of jury's damage verdict was based on fees that should

not have been allowed).

The magistrate in the present case did not stray

from these principles in determining a reasonable hourly

rate. To the contrary, he determined the prevailing market

rate for federal civil rights litigation by utilizing his

knowledge and experience of the Providence, Rhode Island,

market while considering the customary rates of Andrade's

counsel, the defense attorneys, and two Providence civil

rights attorneys. Accordingly, we cannot say that the

district court, in adopting the magistrate's report and

recommendation, misapplied the law or abused its discretion

in setting an hourly rate of $125 for Andrade's counsel.

As for Andrade's contention that the magistrate's

reliance on the defense attorneys' rates failed to account

for her counsel's contingency and delay-in-payment factors,

the Supreme Court has held that an attorney's contingent risk

is ordinarily subsumed (at least to some extent) in the

"lodestar" calculation, City of Burlington v. Dague, 505 U.S. __________________ _____

557, 562-63 (1992), which is determined by multiplying the

total number of hours reasonably spent by a reasonable hourly

rate, Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (holding _______ _________

that the lodestar provides the basis for determining a



-24- 24













reasonable fee). In particular, the Dague Court found that _____

an attorney's contingent risk results in part8 from the

difficulty of establishing the merits of the claim, and this

difficulty is ordinarily reflected in the lodestar, i.e., "in ____

the higher number of hours expended to overcome the

difficulty, or in the higher hourly rate of the attorney

skilled and experienced enough to do so." Dague, 505 U.S. at _____

562-63. Accordingly, for Andrade's argument to survive, she

must establish that the magistrate improperly assessed either

one or both of these two factors. Upon reviewing the record,

we perceive no such error.

Andrade cannot complain about the magistrate's

determination of the first prong of the lodestar because he

accepted as reasonable the 211.90 hours that her counsel

requested. Nor can she complain about the second prong

because we have already found the magistrate's choice of the

$125/hr. rate to be reasonable. Because we find that the

difficulty of the 1983 claim was fully reflected in the

number of billable hours recorded by Andrade's counsel and

his special skill and experience was reflected in the

reasonableness of the hourly rate, Andrade's contingency

argument must fail.

____________________

8. An attorney's contingent risk also results from "the
legal and factual merits of the claim." Dague, 505 U.S. at _____
562. The Court, however, expressly found that this factor
"should play no part in the calculation of the [fee] award."
Id. at 563. ___

-25- 25













b. Amount of Award ___________________

In determining the amount of Andrade's fee award,

the magistrate carefully followed the multi-factor analysis

laid out in Hensley v. Eckerhart, 461 U.S. 424, 429-37 _______ _________

(1983), the seminal case on awarding attorney's fees under

the Civil Rights Attorney's Fees Awards Act of 1976, codified

at 42 U.S.C. 1988. The magistrate began his analysis by

calculating the lodestar. See Hensley, 461 U.S. at 433. ___ _______

Multiplying 211.90 hours by $125, the magistrate reached a

lodestar of $26,487.50.

After finding that Andrade's five claims were

interrelated because they involved a common core of facts,

see id. at 434-36, the magistrate then weighed the factors ___ __

that might lead to an adjustment of the lodestar upward or

downward, beginning with the crucial "results obtained"

factor, id. at 434. Noting that Andrade prevailed on only ___

one of her five claims and the jury awarded her only a very

modest amount of compensatory and punitive damages, the

magistrate concluded that Andrade had achieved an extremely

limited degree of success. Concluding that three of her five

claims were frivolous, the magistrate then found that

Andrade's fees and expenses would have been significantly

reduced had she "conducted a meaningful evaluation of the

case" and elected to bring only her non-frivolous claims.





-26- 26













Based on these considerations, the magistrate downwardly

adjusted the lodestar to $2,500.

On appeal, Andrade argues that the $2,500 fee award

compensated her attorney for a meager twenty hours of work,

far too few to litigate a federal civil rights suit from

complaint to jury verdict. Accordingly, she claims that this

ninety-one percent reduction of the lodestar, from $26,487.50

to $2,500, was a misapplication of Hensley and an abuse of _______

discretion. We disagree.

Hensley makes clear that where multiple claims are _______

interrelated and a plaintiff has achieved only limited

success, awarding her the entire lodestar amount would

ordinarily be excessive. Id. at 436. Hensley, therefore, ___ _______

counsels that, while "[t]here is no precise rule or formula

for making these determinations," a court "may attempt to

identify specific hours that should be eliminated, or it may

simply reduce the award to account for the limited success."

Id. In short, the test that emerged from Hensley is that a ___ _______

court should award only that amount of fees that is

reasonable in relation to the results obtained. Id. at 435, ___

438-40 (counselling district courts to "focus on the

significance of the overall relief obtained by the plaintiff

in relation to the hours reasonably expended on the

litigation").





-27- 27













Although we may not have chosen to reduce the size

of Andrade's fee award so appreciably, we need not interfere

with a fee award if the district court's determinations

"seem[] plausible, given what has transpired in the

litigation." Metropolitan Dist. Comm'n, 847 F.2d at 18. In _________________________

the present case, the magistrate carefully weighed the

correct factors and arrived at a result barely within a

supportable range. See generally Farrar v. Hobby, 506 U.S. ___ _________ ______ _____

103, 115 (1992) (holding that when a 1983 plaintiff obtains

only nominal damages of one dollar, "the only reasonable fee

is usually no fee at all"); Lewis v. Kendrick, 944 F.2d 949, _____ ________

954-56 (1st Cir. 1991) (denying all fees where plaintiff

recovered only $1,000 and submitted a request for a $50,000

fee award); Zook v. Brown, 865 F.2d 887, 895-96 (7th Cir. ____ _____

1989) (affirming a 75% reduction in attorney's fees for

limited success). In determining a reasonable fee in

relation to the results Andrade obtained, the magistrate

justifiably considered Andrade's success in only one out of

five claims as well as the frivolity of three of her five

claims, see Part II.B.1.c. infra. He was equally entitled to ___ _____

take into account the relative size of the damage award and

fee request. See Foley v. City of Lowell, 948 F.2d 10, 19-20 ___ _____ ______________

(1st Cir. 1991). Considering the combined weight of these

three factors and mindful of the district court's intimate

knowledge of the litigation and its nuances, we cannot say



-28- 28













that the court's adoption of the magistrate's reduction of

the lodestar was an abuse of discretion.

c. Award of Fees to Prevailing Defendants __________________________________________

Under 1988, a district court may award attorney's

fees to a prevailing defendant upon a finding that

plaintiff's action "was frivolous, unreasonable, or without

foundation, even though not brought in subjective bad faith."

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). __________________________ ____

For a claim to be "frivolous" under 1988, it must be

frivolous when originally raised in the district court. See ___

id. at 421-22; Casa Marie Hogar Geriatrico, Inc. v. Rivera- ___ _________________________________ _______

Santos, 38 F.3d 615, 619-20 (1st Cir. 1994). Andrade ______

challenges the magistrate's award of attorney's fees to Self-

Help, Jackson, Holland, Anthony, Hillier, and Tiexiera,

arguing that her 1985(3) claim and common law tort claims

were colorable and therefore the district court erred in

granting attorney's fees to the prevailing defendants.

Noting that Andrade failed to allege in her

complaint that her discharge was based on "some racial or

otherwise class-based invidiously discriminatory animus,"

Griffin v. Breckenridge, 403 U.S. 88, 102 (1971), a crucial _______ ____________

element of 1985(3), and Andrade conceded that the claim was

"facially defective," the magistrate concluded that Andrade's

1985(3) claim was frivolous when brought. The magistrate

also found the tort claims of Count IV to be frivolous for



-29- 29













essentially the same reasons that the district court granted

the Rule 50(a) motion on Count IV. We consider each count

separately in assessing the magistrate's frivolity findings.

A cause of action under 1985(3) has four

elements: (1) two or more persons must conspire, (2) to

deprive, either directly or indirectly, any person or class

of persons of the equal protection of the laws or of equal

privileges and immunities under the laws, (3) one or more of

the conspirators must have done or caused to be done an act

in furtherance of the object of the conspiracy, and (4) the

plaintiff must have suffered either an injury to person or

property or a deprivation of a constitutionally protected

right or privilege as a result of the conspiracy. See ___

Griffin, 403 U.S. at 102; Romero-Barcelo v. Hernandez-Agosto, _______ ______________ ________________

75 F.3d 23, 34 (1st Cir. 1996). The Supreme Court has

construed the second element to require that "there must be

some racial or perhaps otherwise class-based, invidiously

discriminatory animus behind the conspirators' action."

Griffin, 403 U.S. at 102. _______

As to racial animus, Andrade's complaint is devoid

of any allegations that the Commissioners together with Gross

conspired to terminate her because she had testified, on

behalf of African-Americans, that Commissioner Eaton

exhibited racial bias. Nor did Andrade present any evidence

that could be viewed as supporting a racial animus claim.



-30- 30













Andrade argues that she "does not have to be a member of the

black race to maintain an action under 1985(3)" and

therefore her claim was not frivolous. While that is an

accurate statement of the law, see Cutting v. Muzzey, 724 ___ _______ ______

F.2d 259, 260 (1st Cir. 1984) (finding that members of a

conspiracy to deprive minorities of equal rights are liable

under 1985(3) to persons who are injured in furtherance of

the object of the conspiracy, whether they be Caucasian or a

member of the minority group), it does not address Andrade's

failure to allege such a racial animus in her complaint or to

present any such evidence at trial.

Without a charge of racial animus, Andrade needed

to allege discriminatory class-based animus. See Romero- ___ _______

Barcelo, 75 F.2d at 34. In particular, Andrade would had to _______

have alleged facts showing that the defendants conspired

against her because of her "'membership in a class and that

the criteria defining the class were invidious.'" Id. ___

(quoting Harrison v. Brooks, 519 F.2d 1358, 1359 (1st Cir. ________ ______

1975)). Neither Andrade's complaint nor the evidence she

presented at trial, however, identifies any class of which

she was a member, let alone describes the invidious criteria

defining the class. Accordingly, we find that the magistrate

was correct in finding that the 1985(3) claim was frivolous

when first brought.





-31- 31













Although we are mindful that the granting of a

motion for a directed verdict is not tantamount to a finding

that a claim was frivolous under 1988, see Christiansburg, ___ ______________

434 U.S. at 421-22 (cautioning district courts to resist "the

understandable temptation to engage in post hoc reasoning by

concluding that, because a plaintiff did not ultimately

prevail, his action must have been unreasonable or without

foundation"), we nevertheless affirm the district court's

finding of frivolity so far as the wrongful discharge and

interference with contract claims are concerned for the same

reasons that we affirmed the grant of the Rule 50(a) motion

on these claims.9

Because we find that the district court did not

abuse its discretion in finding that Count III and the

majority of Count IV were frivolous when brought, we affirm

the district court's grant of an award of attorney's fees to

Self-Help, Jackson, Holland, Anthony, Hillier, and Tiexiera.

2. Self-Help's and Jackson's Cross-Appeal __________________________________________

In their cross-appeal, Self-Help and Jackson argue

that the magistrate erred in reducing their attorney's fees




____________________

9. Although we disagree with the district court's finding
that the IIED claim was frivolous when brought, we
nevertheless conclude that the fact that only two of the
three claims were frivolous, rather than all three, would not
have materially altered the district court's determination of
the fee.

-32- 32













award without allowing supplemental discovery on Andrade's

actual financial condition.

Once it has calculated the lodestar for a

prevailing defendant, the district court may deny or reduce

that amount after considering the plaintiff's financial

condition. See Charves v. Western Union Tel. Co., 711 F.2d ___ _______ ______________________

462, 465 (1st Cir. 1983). This court has recognized that

while an award of attorney's fees to a prevailing defendant

must not subject the plaintiff to financial ruin, it also

must fulfill the deterrent purpose of 1988 and 42 U.S.C.

2000e-5(k) in discouraging plaintiffs from bringing frivolous

claims. Id. ___

Having calculated Self-Help's and Jackson's

lodestar in defending Counts I and IV to be $40,810.90, the

magistrate drastically reduced this amount to $1,000 because

of his assessment of Andrade's impecunity. In determining

that Andrade had limited financial resources, the magistrate

considered her workers' compensation benefits of

approximately $95/week, her subsidized housing, and her car.

The magistrate, however, also considered that Andrade was

awarded a judgment of $7,183 in compensatory damages and $500

in punitive damages.

Self-Help and Jackson challenge the modest

attorney's fees award, claiming that the magistrate

mistakenly applied the law in failing to allow for separate



-33- 33













discovery regarding Andrade's financial condition. In

particular, they claim that in addition to the three sources

of financial resources that the magistrate cited, the record

also revealed that Andrade was formerly a partner in two real

estate ventures. Andrade testified that she "thinks" her

partnership in West Associates, a real estate brokerage firm,

"was a loss" and that she lost about $50,000 as a partner in

Erban Andrade Associates. Self-Help and Jackson argue that

this testimony reveals that the magistrate did not consider

all of Andrade's financial resources in determining her

financial condition and therefore he should have permitted

supplemental discovery to ascertain Andrade's actual

financial condition.

Self-Help's and Jackson's sole support for this

proposition comes from our decision in Charves, 711 F.2d at _______

462. However, Charves is distinguishable. In Charves, we _______ _______

upheld the district court's authorization of supplemental

discovery because of its finding that the plaintiff was not a

credible witness (the court characterized her testimony about

her financial condition as "evasive and contradictory") and

its suspicion that the plaintiff had attempted "to place her

assets beyond the reach of anyone lawfully entitled to look

to the same." Id. at 465. We can discern neither of these ___

justifications in the present case.





-34- 34













From the vantage point of reviewing a cold

appellate record, Andrade's testimony that she "thinks" her

partnership in West Associates "was a loss" does not appear

to be evasive. Moreover, it was well within the district

court's discretion to credit Andrade's testimony about her

financial condition and therefore deny Self-Help's and

Jackson's request for supplemental discovery, finding that it

had all of the information regarding Andrade's financial

condition before it. Accordingly, we decline to remand this

case to allow discovery of Andrade's financial condition,

heeding the Supreme Court's warning that "[a] request for

attorney's fees should not result in a second major

litigation."10 Hensley, 461 U.S. at 437. _______

III. III. ____

Conclusion Conclusion __________

For the reasons stated above, we affirm the ______

district court's grant of Rule 50(a) motions on Counts IV and

V as well as its denial of JHA's Rule 50(b) motion on Count

II. We also affirm the district court's grant of the various ______

attorney's fees awards. No costs. ________






____________________

10. We find Self-Help's and Jackson's final argument that
the district court erred in entering an award of attorney's
fees and costs prior to the entry of final judgment to be
without merit.

-35- 35