Trainor v. HEI Hospitality, LLC

United States Court of Appeals
For the First Circuit

No. 12-1152

LAWRENCE TRAINOR,

Plaintiff, Appellee,

v.

HEI HOSPITALITY, LLC ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Howard, Ripple* and Selya,

Circuit Judges.

Lynn A. Kappelman, with whom Lisa J. Damon, Gerald L. Maatman,
Jr., James M. Hlawek and Seyfarth Shaw LLP were on brief, for
appellants.
Gary M. Feldman, with whom Davis, Malm & D'Agostine, P.C. was
on brief, for appellee.

October 31, 2012

*
Of the Seventh Circuit, sitting by designation.
 SELYA, Circuit Judge. A time worn proverb teaches that

"Hell hath no fury like a woman scorned." Much the same dynamic

can be in play when, as in this case, a corporation abruptly

cashiers a member of senior management who believes that he

deserves better.

In this instance the denouement prompted a suit for age

discrimination and retaliation. After a protracted trial, the jury

found the employer guilty of retaliation and returned a seven-

figure verdict in the employee's favor. The district court allowed

the liability finding to stand; trimmed the damages but doubled

what remained; refused to grant either judgment notwithstanding the

verdict or an unconditional new trial; and awarded the prevailing

plaintiff attorneys' fees and an equitable remedy. The employer

appeals.

After careful consideration of a scumbled record, we

conclude that the sum awarded for emotional distress damages, even

after the district court's remittitur, remains grossly excessive.

We order a further remittitur. This order, in turn, affects the

outcome of the doubling of damages undertaken by the district

court. In all other respects, we reject the employer's challenges.

The tale follows.

I. BACKGROUND

We rehearse the facts as the jury supportably could have

found them, guided by the tenet that "when the losing party

-2-
protests the sufficiency of the evidence, the court of appeals must

take both the facts and the reasonable inferences therefrom in the

light most hospitable to the jury's verdict." Casillas-Díaz v.

Palau, 463 F.3d 77, 79 (1st Cir. 2006) (internal quotation marks

omitted).

Plaintiff-appellee Lawrence Trainor, then 59 years of

age, was enticed to join HEI Hospitality, LLC in the fall of 2006

after a long and distinguished career in hospitality management.1

The plaintiff was recruited by HEI's chief operating officer, Ted

Darnall, to become HEI's senior vice-president for acquisitions and

transitions (SVP). Above and beyond assisting with acquiring and

transitioning new hotel properties into HEI's sphere of influence,

the plaintiff also recruited and mentored general managers,

developed a "playbook" to organize integration strategies, and

worked with "priority" hotels.

The terms of HEI's initial offer required the plaintiff

to relocate to Norwalk, Connecticut (where HEI maintains its

headquarters). The plaintiff balked at this requirement, however,

and argued against a move from his home in Marshfield,

Massachusetts because of his wife's health. A compromise was

reached: the plaintiff would spend Mondays (and any other days on

1
The plaintiff sued three defendants: his employer and two of
its subsidiaries, HEI Hospitality Management LLC and Merritt
Hospitality LLC. For ease in exposition, we refer to all three
corporations collectively as "HEI."

-3-
which his presence was needed) in Norwalk and travel from

Marshfield to the properties that demanded his attention during the

balance of the week.

The company's hierarchs were consistently pleased with

the plaintiff's management style and overall job performance: he

received rave reviews from the chief executive officer Gary

Mendell, Darnall, and the senior vice-president for human resources

Nigel Hurst. Storm clouds began to gather in the fall of 2008,

when rumors began about the possibility of restructuring the

executive team. After Brian Meyer was brought in as senior vice-

president of operations, top-echelon executives received an

adjuration about a perceived need to relocate to Norwalk.

In November, Darnall offered the plaintiff a choice:

relocate to Norwalk or assume the general manager's position at a

hotel located in Cambridge, Massachusetts. HEI claims that the

relocation was necessary because it intended to promote the

plaintiff to a regional senior vice-president position. But the

plaintiff was never actually offered such a position (or so the

jury could have found).

During the next two weeks, the plaintiff had follow-up

conversations with both Darnall and Hurst and learned that the

demotion to general manager would be accompanied by a substantial

cut in salary and a discontinuance of his participation in HEI's

company-sponsored investment funds (described in more detail

-4-
infra). Dismayed by this turn of events, the plaintiff engaged

counsel. His lawyer wrote to Mendell on December 4, expressing the

plaintiff's disappointment with the recent developments at HEI.

The letter made clear that the plaintiff was both reluctant to

relocate and distressed by the prospect of being shifted to a

lower-level position. Of particular pertinence for present

purposes, the letter suggested that age discrimination was the

driving force behind HEI's planned restructuring and the

plaintiff's threatened demotion. Upon receiving this missive,

Mendell — by his own admission — was "surprised," was "frustrated,"

and "wasn't happy." He regarded the age discrimination claim as

"preposterous."

The plaintiff had some incidental communication with

Hurst regarding the December 4 letter. Thereafter, he met face-to-

face with Mendell, who told him for the first time that his

position had been eliminated. This discussion left only the

Cambridge job on the table; Mendell made no mention of the regional

senior vice-president position that HEI ostensibly intended to

offer to the plaintiff. The plaintiff began to negotiate the terms

of the lesser position and requested that HEI maintain his current

salary, allow him to continue to participate in all the company-

sponsored investment funds, and keep him involved in a certain

number of acquisitions per year. Mendell countered by offering,

among other things, to increase the salary figure to $200,000

-5-
(still appreciably below the salary then being paid to the

plaintiff) and to permit the plaintiff to vest in two of HEI's

three investment funds.

On December 20, the plaintiff's lawyer wrote to Mendell

expressing dissatisfaction with the counter-proposal and

reiterating the plaintiff's earlier requests. In a telephone

conversation nine days later, Mendell told the plaintiff that he

was "pissed." Seeking to reach common ground, the plaintiff asked

Mendell to give him a written offer anent the new position.

Mendell furnished a written offer later that day, but the offer did

not address any of the plaintiff's demands. It did, however,

include a stipulation that the offer be accepted in writing by

January 2, 2009.

On Tuesday, December 30, the plaintiff notified a phalanx

of HEI officials, including Darnall and Hurst, that he would be

working remotely that week and taking vacation the following week.

In response, Darnall extended good wishes for the plaintiff's

vacation and stated that he would call in the next few days.

On January 2, 2009, the plaintiff filed a charge of age

discrimination with the Massachusetts Commission Against

Discrimination (MCAD). The plaintiff's lawyer forwarded a copy of

the charge to Mendell. His transmittal letter indicated that the

plaintiff remained "amenable" to working out a solution with HEI.

Mendell received the letter (including the copy of the MCAD charge)

-6-
on January 2. Three hours after he received these materials,

Mendell fired the plaintiff via e-mail. The e-mail explained that

the offer of the Cambridge position expired on January 2 and his

current position no longer existed. Mendell concedes that he did

not even read the details of the age discrimination charge before

cashiering the plaintiff.

The plaintiff, after exhausting administrative remedies,

filed suit in federal district court alleging that HEI had both

discriminated and retaliated against him in violation of applicable

federal and state law. Specifically, the plaintiff invoked the Age

Discrimination in Employment Act of 1967, 29 U.S.C. § 623, and

Mass. Gen. Laws ch. 151B, § 4.

After extensive pretrial discovery, an eight-day trial

ensued. The jury returned a special verdict in which it found HEI

liable for retaliation (but not for age discrimination) and awarded

the plaintiff $500,000 in back pay, $750,000 in front pay, and

$1,000,000 for emotional distress. Since the jury determined that

HEI had knowingly violated state law, the court entered an order

doubling the plaintiff's damages. See Trainor v. HEI Hosp'y, LLC

(Trainor I), No. 09-10349, 2011 WL 1670234 (D. Mass. Apr. 14, 2011)

(citing Mass. Gen. Laws ch. 151B, § 9).

HEI responded to the verdict and the multiplication order

with a flood of motions. These included motions seeking

alternative relief: judgment as a matter of law, a series of

-7-
remittiturs, an unconditional new trial, and vacation of the order

for double damages. For his part, the plaintiff moved for an award

of attorneys' fees and renewed an earlier request for an injunction

allowing his continued participation and vesting in certain HEI-

sponsored investment funds. The district court denied HEI's

motions for judgment as a matter of law and a new trial, refused to

remit the awards of either front or back pay, cut the award of

emotional distress damages in half, adhered to its earlier ruling

that double damages were appropriate, and allowed the motion for

attorneys' fees. See Trainor v. HEI Hosp'y, LLC (Trainor II), No.

09-10349, 2012 WL 119597 (D. Mass. Jan. 13, 2012). In a separate

order, the court granted the request for equitable relief. See

Trainor v. HEI Hosp'y, LLC (Trainor III), No. 09-10349, 2012 WL

113384 (D. Mass. Jan. 13, 2012). This timely appeal followed.

II. ANALYSIS

We subdivide our analysis into seven segments, which in

the aggregate address all of HEI's myriad claims of error.

A. Liability.

We start with the district court's denial of HEI's motion

for judgment as a matter of law. See Fed. R. Civ. P. 50(b). This

inquiry engenders de novo review. See Casillas-Díaz, 463 F.3d at

80. When conducting such an inquiry, we must take the evidence and

all reasonable inferences therefrom in the light most flattering to

the nonmovant. Id. at 80-81. In performing this tamisage "we may

-8-
not consider the credibility of witnesses, resolve conflicts in

testimony, or evaluate the weight of the evidence." Wagenmann v.

Adams, 829 F.2d 196, 200 (1st Cir. 1987). A motion for judgment as

a matter of law should be granted "only when the evidence, viewed

from this perspective, is such that reasonable persons . . . could

not have reached the conclusion that the jury embraced." Casillas-

Díaz, 463 F.3d at 81.

In this instance, there is no smoking gun; that is, there

is no direct evidence of retaliation. In such a situation,

succeeding on a claim of retaliation under either federal or

Massachusetts law entails proof that "(1) [the plaintiff] engaged

in protected conduct under federal or [state] law; (2) [he]

suffered an adverse employment action; and (3) a causal connection

existed between the protected conduct and the adverse action."

McMillan v. Mass. SPCA, 140 F.3d 288, 309 (1st Cir. 1998). In

order to make a prima facie showing of these elements, it is not

necessary that the plaintiff succeed on the underlying claim of

discrimination; "[i]t is enough that the plaintiff had a

reasonable, good-faith belief that a violation occurred; that he

acted on it; that the employer knew of the plaintiff's conduct; and

that the employer lashed out in consequence of it." Mesnick v.

Gen. Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991).

Once the plaintiff makes his prima facie showing, the

burden shifts to the defendant to produce evidence of a

-9-
"legitimate, non-retaliatory reason" for the adverse employment

action. McMillan, 140 F.3d at 309. If the defendant produces such

evidence, the burden reverts to the plaintiff to prove that "the

real reason for the decision" was retaliatory. Id.

In the case at hand, the record contains ample evidence

that the plaintiff engaged in protected conduct, namely, his voiced

suspicions about the allegedly discriminatory nature of HEI's

proposed restructuring and his filing of a formal charge of

discrimination with the MCAD. By the same token, it is

transparently clear that adverse employment actions occurred. Not

surprisingly, then, HEI's challenge to the sufficiency of the

plaintiff's proof of retaliation focuses with laser-like intensity

on the causation element.

There is a common-sense aspect to causation: to establish

that an adverse employment action was caused by an employee's

protected activity, the employer's decision to act adversely to the

employee must postdate the protected activity. Muñoz v. Sociedad

Española de Auxilio Mutuo y Beneficiencia, 671 F.3d 49, 56 (1st

Cir. 2012); Sabinson v. Trs. of Dartmouth Coll., 542 F.3d 1, 5 (1st

Cir. 2008). It follows that an employer "need not suspend

previously planned [decisions] upon discovering that a

[discrimination] suit has been filed." Clark Cnty. Sch. Dist. v.

Breeden, 532 U.S. 268, 272 (2001) (per curiam). In an attempt to

bring itself within this safe harbor, HEI asseverates that no

-10-
cause-and-effect relationship can exist here because the adverse

employment actions were a foregone conclusion prior to the

plaintiff's protected conduct. See id.

The weakness in HEI's asseveration is that the record

admits of conflicting interpretations about the events that

transpired from November 2008 through January 2009. Although HEI

suggests that a jury could not supportably find retaliation because

the elimination of the plaintiff's position and his eventual

termination were part of a larger plan set in motion long before

the plaintiff engaged in any protected activity, the plaintiff

counters that matters were in flux until after he engaged in the

protected activities.

It is not our province to choose between the competing

scenarios sketched by the parties. Instead, our task is simply to

determine whether the jury acted reasonably in placing its

imprimatur on the plaintiff's version of events. See Casillas-

Díaz, 463 F.3d at 80-81. Unless the evidence compels the

conclusion that HEI's adverse employment actions were preplanned,

our hands are tied. See id. We examine the record from this

standpoint.

The plaintiff contends that two instances of retaliation

occurred: the abolition of the SVP position (which followed on the

heels of his attorney's December 4 letter alleging age

discrimination) and his discharge (which followed HEI's receipt of

-11-
a copy of the MCAD charge by a matter of hours). On the record

before us, we think that the jury reasonably could have found that

either or both of these acts were retaliatory. We discuss them

sequentially.

To begin, the jury reasonably could have found that HEI

never considered the outright elimination of the plaintiff's

position until after it received the December 4 letter. In this

regard, we find significant the plaintiff's testimony that the

abolition of his position was not mentioned either in his November

conversation with Darnall or in any other discussions or

correspondence preceding HEI's action. Similarly, the elimination

of the SVP position was not mentioned in any internal memorandum or

e-mail written in the mid-November to early December time frame.

To cinch the matter, Darnall's November adjuration that the

plaintiff relocate to Norwalk logically contemplated the continued

existence of the SVP position (or so the jury could have found).

In the same vein, the December 4 letter itself made requests that

would necessitate the continued existence of the SVP post.

To be sure, HEI claims that the elimination of the SVP

position was a necessary corollary of its November relocation

request because it intended to offer the plaintiff a different

position as a regional senior vice-president once he moved. But

the jury reasonably could have found that no such intention ever

existed. After all, Mendell never mentioned the regional position

-12-
during the December meeting (when he told the plaintiff that HEI

was eliminating the SVP position) and, similarly, the jury could

reasonably have found that neither Darnall nor any other HEI

hierarch ever offered the plaintiff that position.2

What internal communications there were among HEI's

executives also conduce to the conclusion that no firm plan had

been crafted before December 4 with respect to the fate of the

plaintiff's position. Indeed, some of those communications clearly

envision the plaintiff as continuing to perform his SVP duties.

There is more. The jury received evidence suggesting

that, in the relevant time frame, HEI's executive leadership was

contemplating future acquisition and transition work that would

logically have fueled an ongoing need for the SVP position. For

example, Mendell established a new investment vehicle for the

stated purpose of funding acquisitions in 2009 and 2010, and

Darnall predicted that there might be as many as twelve

acquisitions in 2009. This is especially noteworthy because, as an

HEI executive affirmed: "if HEI were to acquire any new hotels in

2009 or 2010, they would need someone to work on the acquisition

and transition process." The short of it is that the jury

2
In a very real sense, this claim cuts against HEI's
argument; if HEI had intended to offer the plaintiff the regional
position (as it contends), its failure to follow through on this
intention after it received the December 4 letter is an additional
datum supporting the jury's finding that HEI retaliated against the
plaintiff.

-13-
reasonably could have inferred that HEI's ambitious plans for the

near-term acquisition of new hotel properties logically required

continuation of the SVP position.

Taken in the ensemble, the evidence discussed above

undercuts HEI's claim that the position-elimination decision was

set in cement long before December 4.

We reach the same conclusion with respect to the

plaintiff's firing on January 2, 2009. As we explain below, we

believe that the jury could reasonably have concluded that this

event was in retaliation for the filing of the MCAD charge.

To begin, the close temporal proximity between Mendell's

receipt of the MCAD charge and his dismissal of the plaintiff — a

matter of a few hours — itself supports an inference of

retaliation. See Harrington v. Aggregate Indus.-Ne. Region, Inc.,

668 F.3d 25, 32 (1st Cir. 2012). Here, moreover, such an inference

is reinforced by other evidence in the record suggesting that

negotiations were still ongoing between the parties when the axe

fell. While HEI argues that everyone knew that January 2 was a

"drop dead" date and that the plaintiff was aware that his

employment with the company would come to a screeching halt if he

did not sign the outstanding offer by then, the record is much less

conclusive. A number of HEI executives indicated in e-mails sent

during the critical period and in trial testimony that they thought

negotiations were velivolant and would extend beyond January 2.

-14-
The plaintiff certainly labored under this impression; the January

2 transmittal letter stated unambiguously that he remained

"amenable to working with HEI to arrive at a resolution." In

addition, both the plaintiff's January 2 vacation alert and

Darnall's tacit approval of that leave would have been superfluous

had either party believed that January 2 was a "drop dead" date.

This expectation of negotiations yet to come was validated by

evidence of HEI's past practice of giving leeway with respect to

offer letter deadlines. Finally, HEI was unable to produce any

memorandum, e-mail, or other internal writing substantiating its

claim that it planned all along to cashier the plaintiff if he did

not sign the offer by January 2. The absence of such evidence is

a factor that the jury reasonably could consider in deciding this

issue. See Benders v. Bellows & Bellows, 515 F.3d 757, 763-64 (7th

Cir. 2008).

HEI's principal repost is that the elimination of the SVP

position and the plaintiff's subsequent discharge were the natural

consequence of a path staked out well before December 4. In

support, it characterizes Darnall's November conversation with the

plaintiff as one in which an ultimatum was delivered. While the

conversation may be susceptible to that characterization, the

record contains sufficient evidence to permit a finding that it was

not an ultimatum but, rather, the beginning of a dialogue about

-15-
HEI's proposed executive restructuring and the plaintiff's place in

it.

So, too, the evidence permits the conclusion that HEI

never intended to create any path that would lead ineluctably to

the termination of the plaintiff's employment. After all, HEI had

an ongoing need for an executive with the plaintiff's expertise (or

so the jury could have found); it consistently gave him sterling

performance reviews; and a host of HEI executives testified that

they were eager to retain his services, notwithstanding any

restructuring that might take place. It was not until the

plaintiff engaged in protected activities that negotiations began

to unravel. And it was not until the filing of the MCAD charge

infuriated Mendell that the plaintiff found himself out in the

cold.

Let us be perfectly clear. Although the record is

susceptible to a conclusion that HEI, before any protected activity

occurred, had staked out a path that committed it to the

elimination of the SVP position and the plaintiff's ouster if he

would not accept a demotion to the Cambridge job, the record is

equally susceptible to the opposite conclusion. Because the record

supports conflicting versions of the truth, it became the jury's

function — not the court's — to choose between these versions. See

Noonan v. Staples, Inc., 556 F.3d 20, 30 (1st Cir. 2009).

Accordingly, HEI is not entitled to judgment as a matter of law.

-16-
 B. Mitigation of Damages.

HEI asserts broadly that the plaintiff failed to satisfy

his obligation to mitigate damages and that, therefore, the

district court erred in refusing to remit all of the damage awards

on this ground. We begin our appraisal of this assertion by

remarking on the obvious: a district court has discretion to order

a remittitur if such an action is warranted in light of the

evidence adduced at trial. See Kelley v. Airborne Freight Corp.,

140 F.3d 335, 355 (1st Cir. 1998). In exercising this discretion,

the court is obliged to impose a remittitur "only when the award

exceeds any rational appraisal or estimate of the damages that

could be based upon the evidence before it." Wortley v. Camplin,

333 F.3d 284, 297 (1st Cir. 2003) (internal quotation marks

omitted). We review the grant or denial of a remittitur for abuse

of discretion. Reyes-Garcia v. Rodriguez & Del Valle, Inc., 82

F.3d 11, 14-15 (1st Cir. 1996).

A failure to mitigate damages is in the nature of an

affirmative defense and the defendant, therefore, must carry the

devoir of persuasion on this issue. See Quint v. A.E. Staley Mfg.

Co., 172 F.3d 1, 15-16 (1st Cir. 1999). This requires a showing

that "(i) though substantially equivalent jobs were available in

the relevant geographic area, (ii) the claimant failed to use

reasonable diligence to secure suitable employment." Id. at 16;

-17-
see Black v. Sch. Comm. of Malden, 341 N.E.2d 896, 900-01 (Mass.

1976).

We agree with the district court, see Trainor II, 2012 WL

119597, at *3, that there was sufficient evidence to support a jury

determination that HEI failed to carry this burden. The plaintiff

testified that, in an effort to find work after the sudden

termination of his employment, he networked with former employers

and colleagues, canvassed the industry, and tried to exploit other

contacts. He also interfaced with executive search firms, utilized

available internet resources, and perused trade journals. How much

is enough is generally a question of fact, and we think that a jury

could reasonably have concluded — as this jury did — that no more

was exigible to defeat a claim of failure to mitigate. See, e.g.,

Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 557 (6th Cir.

2006); Achilli v. John J. Nissen Baking Co., 989 F.2d 561, 565 (1st

Cir. 1993).

HEI tries to parry this thrust by positing that the

plaintiff's refusal to accept the Cambridge position necessarily

betokened a failure to mitigate. But the jury could reasonably

have concluded that the negotiations concerning this position were

cut short by Mendell's abrupt termination of the plaintiff's

employment and that, therefore, the option no longer remained open.

At any rate, a plaintiff is not required to mitigate damages by

accepting a position that is substantially below his wonted pay

-18-
grade and skill set. See, e.g., Ford Motor Co. v. E.E.O.C., 458

U.S. 219, 231-32 (1982) (holding that a claimant need not "accept

a demotion" in order to mitigate damages).

To sum up, we conclude that the record contains

sufficient evidence of the plaintiff's due diligence in attempting

to find alternative employment to defeat HEI's claim of failure to

mitigate. Given this conclusion, we discern nothing remotely

resembling an abuse of discretion in the district court's refusal

to trim any of the damage awards on mitigation grounds.

C. Front Pay.

HEI makes two other arguments directed at the district

court's failure to remit the jury's front pay award. We consider

these arguments separately.

1. Availability. In what is logically a threshold

argument, HEI challenges the availability of front pay as a matter

of law. Because this challenge raises a purely legal question, it

engenders de novo review. See Perry v. Blum, 629 F.3d 1, 8 (1st

Cir. 2010).

The centerpiece of HEI's argument is the proposition

that, as a matter of law, front pay is not available when a

plaintiff has received the benefit of an award of double or treble

damages. This proposition is all bleat and no wool.

HEI claims that this proposition is venerated in First

Circuit precedent. This claim is specious. The seminal case on

-19-
which HEI relies is Wildman v. Lerner Stores Corp., 771 F.2d 605

(1st Cir. 1985). There, the plaintiff had received an award of

double damages and the district court had denied front pay. Id. at

616. While we affirmed the denial of front pay, our decision in no

way hinted, let alone held, that multiplied damages and front pay

are mutually exclusive. Rather, we based our ruling on the wide

discretion vested in the district court with respect to awards of

front pay — a discretion that could be exercised to take account of

the inherently speculative nature of front pay. See id.; see also

Lussier v. Runyon, 50 F.3d 1103, 1109 (1st Cir. 1995) (discussing

Wildman); Powers v. Grinnell Corp., 915 F.2d 34, 42-43 (1st Cir.

1990) (same). This same principle animated our decisions in the

other cases highlighted by HEI. See, e.g., Rodriguez-Torres v.

Caribbean Forms Mfr., Inc., 399 F.3d 52, 67 (1st Cir. 2005); Carey

v. Mt. Desert Island Hosp., 156 F.3d 31, 40-41 (1st Cir. 1998).

In any event, the cases upon which HEI relies strike a

common chord. In each of them, the district court denied front

pay,3 and we upheld that denial. See, e.g., Rodriguez-Torres, 399

F.3d at 67; Carey, 156 F.3d at 40-41. By their own terms, those

3
In many situations, front pay is an equitable remedy rather
than an element of damages. See Johnson v. Spencer Press of Me.,
Inc., 364 F.3d 368, 380 (1st Cir. 2004). Here, however, the
parties and the district court treated front pay as an element of
damages to be submitted to the jury. Neither party has suggested
that the court, rather than the jury, should have been the arbiter
of front pay in the first instance. Thus, we do not pursue the
point further.

-20-
decisions are inapposite to the case at hand, in which we are asked

to set aside a ruling upholding an award of front pay.

If more were needed — and we doubt that it is — the

purposes of front pay and multiplied damages are so disparate that

a per se rule of mutual exclusivity makes no sense. The purpose of

a front pay award is to help to make a plaintiff whole. Lussier,

50 F.3d at 1112 n.10. Conversely, multiplication of damages, at

least under Mass. Gen. Laws ch. 151B, § 9, is "essentially punitive

in nature." Fontaine v. Ebtec Corp., 613 N.E.2d 881, 889 (Mass.

1993) (internal quotation marks omitted). In other words, the

multiplication factor is meant to punish the wrongdoer for

egregious conduct. It follows that there is no principled basis to

bar front pay simply because multiplied damages are in prospect.

Since HEI's argument for precluding front pay as a matter

of law is premised on an incorrect reading of the cases and is

jurisprudentially unsound, we reject it.

2. Evidentiary Sufficiency. In declining to remit the

front pay award, the district court concluded that the plaintiff

would have worked at HEI until the end of 2013 (or so the jury

could have found). See Trainor II, 2012 WL 119597, at *4. HEI

insists that there was insufficient evidence to support a rational

conclusion that, absent the plaintiff's unlawful termination, he

would have worked at HEI through 2013. Addressing this challenge

-21-
requires us to take the evidence bearing on front pay in the light

most favorable to the plaintiff. See Kelley, 140 F.3d at 355.

In the last analysis, a front pay calculation is a

prediction of a series of future events. To that extent, crafting

a front pay award necessarily entails some degree of speculation.

See Lussier, 50 F.3d at 1109. Here, however, the task of

vaticination is made simpler by the plaintiff's age: at the time of

trial (March of 2011), the plaintiff was 63 years old. This means

that his normal retirement year (age 65) was only two years away.

Moreover, there was no evidence of any corporate policy mandating

early retirement.

The plaintiff testified flatly that he intended to work

at HEI until the end of 2013. This statement of intent was

supported by circumstantial evidence; his professed work expectancy

was coterminous with both the year of his eligibility for full

Social Security benefits and the year in which he would vest at the

80% level in the last of HEI's investment funds. Based on this

testimony, the jury's forecast of the emoluments that this three-

year period would yield was reasonable.

In an effort to undermine the plaintiff's testimony on

this point, HEI proffered evidence suggesting that the pace of its

acquisitions had slowed beginning in 2009. Thus, the company might

not have been able to justify the SVP position on a going-forward

basis. But this evidence was not compelling; the jury also heard

-22-
evidence that HEI not only had plans for growth but also had the

capital needed to implement those plans. What is more, the SVP

position included responsibilities beyond those arising out of

acquisitions and transitions. There is no reason to believe that

those responsibilities were made irrelevant by the passage of time.

Choosing between competing inferences that plausibly can

be drawn from a body of evidence is principally a task for the

factfinder. See Noonan, 556 F.3d at 30. Drawing all reasonable

inferences in favor of the verdict, see Casillas-Díaz, 463 F.3d at

79, we conclude, without serious question, that the evidence was

sufficient to support the jury's award of front pay through 2013.

D. Emotional Distress.

Despite the fact that the district court cut the award of

emotional distress damages in half (from $1,000,000 to $500,000),

HEI maintains that even the reduced amount is grossly excessive.

We approach this inquiry mindful that "translating legal damage

into money damages — especially in cases which involve few

significant items of measurable economic loss — is a matter

peculiarly within a jury's ken." Sanchez v. P.R. Oil Co., 37 F.3d

712, 723 (1st Cir. 1994) (alteration and internal quotation marks

omitted). This is not to say, however, that emotional distress

damages are immune from judicial review. They are not. See, e.g.,

Koster v. Trans World Airlines, Inc., 181 F.3d 24, 34 (1st Cir.

1999). But judicial review of such awards is circumspect — and

-23-
that review is even more constrained where, as here, the trial

court has already pared the original jury award. See Sanchez, 37

F.3d at 723-24. Further relief is not warranted unless the award,

as remitted, remains "so extravagant as to shock the appellate

conscience." Id. at 724; see Conde v. Starlight I, Inc., 103 F.3d

210, 214-16 (1st Cir. 1997) (remitting a previously remitted award

of damages for future lost income); Gumbs v. Pueblo Int'l, Inc.,

823 F.2d 768, 773-75 (3d Cir. 1987) (remitting a previously

remitted award of emotional distress damages).

In this case, it cannot be gainsaid that the plaintiff

suffered emotionally by reason of his firing. Both he and his wife

vouchsafed that the abrupt termination of his relationship with HEI

changed him as a person; he became withdrawn and lost interest in

activities that formerly gave him pleasure. His wife added that,

up until his firing, he had always enjoyed his work in the hotel

industry and found his job rewarding. Moreover, the damming of his

income stream forced him to deplete his retirement savings, and he

became greatly concerned about his family's financial security.

These vicissitudes, in turn, put a strain on his marriage.

Even so, the plaintiff did not introduce any evidence

that he received medical treatment, counseling, or other similar

attention for his despondency. While evidence from a physician or

other mental health professional is not a sine qua non to an award

of damages for emotional distress, the absence of such evidence is

-24-
relevant in assessing the amount of such an award. See Koster, 181

F.3d at 35. Here, moreover, the plaintiff proffered no evidence

that he suffered any physical infirmity as a result of his ouster.

The only relevant evidence is anecdotal and, to some extent, self-

serving.

We do not mean to minimize the toll that the loss of a

job can take, even apart from serious health concerns. Here,

however, the evidence of emotional distress is so thin that the

remitted award of $500,000 seems vastly out of proportion. We

hold, therefore, that a further remittitur is required.

As a part of our decisional calculus, we have looked to

awards in comparable cases. Although our central focus in

reviewing an award of damages must be the evidence in the case

subjudice, see Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 579

(1st Cir. 1989), "[a]wards in comparable cases are instructive,"

Aponte-Rivera v. DHL Solutions (USA), Inc., 650 F.3d 803, 811 (1st

Cir. 2011). A review of cases with comparable facts corroborates

our conclusion that $500,000 is grossly excessive here. See, e.g.,

Aponte-Rivera, 650 F.3d at 811-12 (upholding a district court's

remittitur of emotional distress damages to $200,000 where

employee, although experiencing some distress due to

discrimination, did not introduce testimony by medical experts,

experienced no "outward manifestations of emotional distress," and

did not undergo long-term depression or medical treatment (internal

-25-
quotation marks omitted)); Rodriguez-Torres, 399 F.3d at 63-64

(upholding a $250,000 award of damages for emotional distress where

plaintiff experienced a drastic life change, financial

difficulties, marital problems, and depression).

This brings us to the question of what the award should

be. This court adheres to the "maximum recovery rule," which

permits us to direct a remittitur geared to the maximum recovery

for which there is evidentiary support (subject, of course, to the

plaintiff's right to reject the remittitur and instead elect a new

trial on the disputed damages claim). See Koster, 181 F.3d at 36.

After a careful review of the record and a compendium of analogous

cases, we conclude that the upper limit of the universe of

reasonable outcomes — the plaintiff's maximum recovery — is

$200,000. Consequently, we remand to the district court with

directions to vacate the award of $500,000 for emotional distress

and order a new trial on that issue unless the plaintiff agrees to

accept a further remittitur of $300,000. Once the plaintiff takes

a position as to remittitur, the district court should revise its

previous doubling of damages accordingly.

E. The Multiplication Order.

The district court submitted the case to the jury by

means of a special verdict form, see Fed. R. Civ. P. 49(a), and the

jury accompanied its finding of retaliation with a special finding

that HEI knew or had reason to know that its retaliatory actions

-26-
violated state law. Based on this special finding, the court

doubled the damages award. See Trainor I, 2011 WL 1670234. HEI

assigns error to this ruling.

Massachusetts law provides for double damages in an age

discrimination case (including a retaliation case) if "the act or

practice complained of was committed with knowledge, or [the

defendant had] reason to know, that such act or practice violated

[Mass. Gen. Laws ch. 151B, § 4]." See Mass. Gen. Laws ch. 151B,

§ 9. The special finding upon which the district court relied was

tailored to this standard.

The primary thrust of HEI's assignment of error is that

this special finding is inconsistent with another special finding

memorializing the jury's conclusion that HEI had not willfully

violated federal law. HEI contends that the standards underlying

the two questions — knowingly violating Massachusetts law and

willfully violating federal law — are effectively the same and

that, therefore, the special findings are inconsistent. HEI first

raised this contention in a post-trial motion, and the district

court rebuffed it on the ground that no inconsistency existed.

Trainor II, 2012 WL 119597, at *7.

We need not linger long over HEI's ipse dixit. HEI

waived its right to challenge the alleged inconsistency because it

failed to mount a timely objection. When the jury returned with an

affirmative answer to the question about knowing violation of state

-27-
law and a negative answer to the question about willful violation

of federal law, HEI had both an opportunity and an obligation to

point out any inconsistency. Yet, HEI did nothing; its counsel sat

silent and did not call the district court's attention to the

matter. The first time that HEI saw fit to mention any alleged

inconsistency was when it filed its post-trial motions (well after

the court had awarded double damages and dismissed the jury).

Courts, like the Deity, tend to help those who take steps

to help themselves. So it is here: with respect to special

verdicts, "[t]he law is perfectly clear that [parties]

. . . waive[] any claim of internal inconsistency by failing to

object after the verdict [is] read and before the jury [is]

discharged." Peckham v. Cont'l Cas. Ins. Co., 895 F.2d 830, 836

(1st Cir. 1990) (internal quotation marks omitted). We have

described this rule as "iron-clad." Wennik v. Polygram Grp.

Distrib., Inc., 304 F.3d 123, 130 (1st Cir. 2002). The resultant

waiver forecloses HEI from challenging the court's multiplication

of damages based on any purported inconsistency between the two

special findings.

In an effort to escape from the consequences of its

waiver, HEI suggests that because the verdict in this case was

returned pursuant to Federal Rule of Civil Procedure 49(a), it had

no duty to call the inconsistency to the district court's attention

-28-
prior to the jury's discharge.4 This suggestion flies in the teeth

of settled precedent in this circuit. See, e.g., Andrade v.

Jamestown Hous. Auth., 82 F.3d 1179, 1189 (1st Cir. 1996); Peckham,

895 F.2d at 836 (holding that party waived its right to object to

inconsistency in context of Rule 49(a) special verdict).5

4
Rule 49(a)(1) provides that:

The court may require a jury to return only a special
verdict in the form of a special written finding on each
issue of fact. The court may do so by:
(A) submitting written questions susceptible of a
categorical or other brief answer;
(B) submitting written forms of the special findings
that might properly be made under the pleadings and
evidence; or
(C) using any other method that the court considers
appropriate.

Fed. R. Civ. P. 49(a).
5
We recognize that this Rule 49(a) waiver issue has split the
circuits. See 9 James Wm. Moore, Moore's Federal Practice
§ 49.11[6] (2012) (collecting cases). In creating this split, some
courts have held that no waiver arises despite the failure to
object to a putative inconsistency before the jury leaves the box.
See, e.g., Pierce v. S. Pac. Transp. Co., 823 F.2d 1366, 1370 (9th
Cir. 1987); Ladnier v. Murray, 769 F.2d 195, 198 & n.3 (4th Cir.
1985). But we are "firmly bound" by past panel holdings in this
circuit, United States v. Clark, 685 F.3d 72, 79 (1st Cir. 2012),
and therefore must adhere to our own precedent. This body of
precedent inarguably requires that parties object to verdict
inconsistencies prior to the jury's discharge on penalty of waiver.
See, e.g., Jamestown Hous. Auth., 82 F.3d at 1189; Coastal Fuels of
P.R. v. Caribbean Petroleum Corp., 79 F.3d 182, 201-02 (1st Cir.
1996); Peckham, 895 F.2d at 836.

-29-
 HEI also argues that it cannot be charged with a waiver

because, when the jury returned its verdict, the district court

never inquired as to whether any party wished to comment. This

argument is untenable. It is the obligation of a litigant to bring

a question of verdict inconsistency to the court's attention, not

the other way around. See, e.g., Austin v. Lincoln Equip. Assocs.,

Inc., 888 F.2d 934, 939 (1st Cir. 1989). As we have said in a

different context, "[t]he law ministers to the vigilant not to

those who sleep upon perceptible rights." Puleio v. Vose, 830 F.2d

1197, 1203 (1st Cir. 1987).

That ends this aspect of the matter. Given HEI's waiver,

it is not necessary for us to pursue the merits of HEI's

inconsistency argument.6

F. Attorneys' Fees.

After the jury verdict, the lower court determined that

the plaintiff, as a prevailing party, was entitled to attorneys'

fees under both federal and state law. See 29 U.S.C. §§ 216(b),

626(b); Mass. Gen. Laws ch. 151B, § 9. The court proceeded to

6
We note in passing that HEI's claim that the answers are
inconsistent is in the nature of a deathbed conversion. In both
its proposed jury instructions and its proposed special verdict
form, HEI asked the district court to treat separately the issues
of knowing violation of state law and willful violation of federal
law. Moreover, HEI lodged no objection to the court's submission
of the two questions to the jury as separate and distinct matters.
Setting aside the verdict on the basis of a belated claim of
inconsistency would appear to "place a premium on agreeable
acquiescence to perceivable error as a weapon of appellate
advocacy." Merchant v. Ruhle, 740 F.2d 86, 92 (1st Cir. 1984).

-30-
compute the time productively spent by the plaintiff's lawyers,

applied reasonable hourly rates, performed a lodestar calculation,

and awarded the plaintiff $533,553.15 in fees.7 Trainor II, 2012

WL 119597, at *8-14. HEI challenges the fee award on only a single

ground: the inclusion of hours spent with respect to the

unsuccessful age discrimination claim.

We limit our discussion to cases — like this one — to

which fee-shifting statutes pertain. Even then, however,

plaintiffs generally may not recover attorneys' fees on

unsuccessful claims. See Hensley v. Eckerhart, 461 U.S. 424, 440

(1983); Lipsett v. Blanco, 975 F.2d 934, 940 (1st Cir. 1992). But

this generalization — like virtually every generalization — admits

of exceptions. One such exception holds that attorneys' fees may

be awarded with respect to work performed on unsuccessful claims if

those claims are interrelated with successful claims. Lipsett, 975

F.2d at 940; Aubin v. Fudala, 782 F.2d 287, 291 (1st Cir. 1986)

(Breyer, J.). Thus, if an unsuccessful claim includes "a common

core of facts" or is premised on a "related legal theor[y] linking

[it] to the successful claim," the award "may include compensation

for legal work performed on the unsuccessful claim[]." Garrity v.

Sununu, 752 F.2d 727, 734 (1st Cir. 1984) (internal quotation marks

omitted).

7
This award included expenses. For ease in exposition, we
refer only to attorneys' fees, subsuming expenses within this
rubric.

-31-
 We review a district court's award of attorneys' fees for

abuse of discretion. See Spooner v. EEN, Inc., 644 F.3d 62, 66

(1st Cir. 2011). A material error of law is, of course, an abuse

of discretion. See id. When passing upon the interrelatedness of

claims, we have ceded particularly great respect to the trial

court's views. "This deference is motivated by our conviction that

the decision as to how to separate the wheat from the chaff in a

fees contest, within broad limits, is a matter for the district

court's discretion." Lipsett, 975 F.2d at 941 (internal quotation

marks omitted).

Applying this deferential standard of review, we discern

no misuse of discretion in the district court's refusal to exclude

the time committed to the age discrimination claim. The court

plausibly reasoned that the successful retaliation claim and the

unsuccessful age discrimination claim shared a common legal theory.

Trainor II, 2012 WL 119597, at *9. In order to succeed on the

retaliation claim, the plaintiff had to prove, in the parlance of

the jury instructions, that he "reasonably and in good faith

believed that HEI was engaged in discrimination [based on age]."

Seen in this light, work performed on the age discrimination claim

was intertwined with, and contributed materially to, the eventual

success of the retaliation claim. Mindful of this

interconnectedness, it would be "difficult to divide the hours

expended on a claim-by-claim basis." Hensley, 461 U.S. at 435.

-32-
 HEI resists this conclusion, expostulating that the

retaliation claim relied only on the testimony of a few individuals

and, thus, made the work performed on the two claims susceptible to

easy separation. This expostulation glosses over the district

court's finding of interrelatedness predicated on the need to make

a good faith showing of likely age discrimination in order to

prevail on the retaliation claim. While it might be possible to

parse the record in the way that HEI suggests, this possibility is

of no consequence due to the district court's supportable finding

that a sufficient nexus existed between the successful retaliation

claim and the unsuccessful age discrimination claim.

We add that "[w]hen interrelatedness is in question, the

overall degree of the prevailing party's success is an important

datum." Lipsett, 975 F.2d at 941. In this litigation, the

plaintiff achieved what only can be described as a smashing success

and, therefore, he should "recover a fully compensatory fee."

Hensley, 461 U.S. at 435.

For these reasons, the district court did not abuse its

discretion when it refused to exclude from the fee award time

related to the prosecution of the unsuccessful age discrimination

claim. See Passantino v. Johnson & Johnson Consumer Prods., Inc.,

212 F.3d 493, 517-18 (9th Cir. 2000) (finding retaliation claims

"inextricably intertwined" with discrimination claims for purposes

of an interconnectedness analysis).

-33-
 G. Equitable Relief.

HEI's final plaint concerns the district court's post-

trial order, which allows the plaintiff a right to participate and

vest in the three company-sponsored investment funds. To place

this peevish plaint into proper perspective, we limn the

background.

When HEI initially recruited the plaintiff, it offered

him the opportunity — consistent with its praxis vis-à-vis selected

senior executives — to participate in certain company-sponsored

investment funds. Two such funds existed at the time (Funds I and

II), and HEI developed a third in 2008 (Fund III). These private

equity funds serve a dual purpose. First, they are designed to

furnish a source of fresh capital for HEI's continued growth.

Second, they provide both an investment opportunity and a profit-

sharing vehicle for investor-employees.

The trial record does not contain the actual

documentation for Funds I, II, or III. The parties, however, have

offered summary descriptions of how the funds operate. It appears

that, once an investor-employee receives a return of his equity

plus a cumulative six percent return, he has a right to share in

excess returns generated by the fund as a whole (called "promote

funds"). An employee's right to receive promote funds vests

according to a set schedule. To the extent that an investor-

employee leaves HEI before fully vesting in a particular fund, his

-34-
unvested share of promote funds is forfeited and redistributed

within the fund.

At the time of his dismissal, the plaintiff had invested

$50,000 in Fund I and $50,000 in Fund II. He also had subscribed

a like amount for Fund III, but had not paid the entire

subscription price because an outstanding balance had not been

called.

The opportunity to participate in these investment

vehicles was much coveted and viewed as a fringe benefit (and,

thus, as part of an executive's compensation package). HEI made

the opportunity available only to selected employees — a grouping

that included the plaintiff. The promise that he could participate

in the funds was a critical factor in the plaintiff's decision to

join HEI.

When HEI showed him the door, the plaintiff stood to lose

his right to participate fully in Fund III and to earn the full

extent of the promote funds. Consequently, he sought an injunction

to allow him to fulfill his subscription to Fund III and to

continue vesting in all the promote funds. As both sides in this

litigation agree, equitable relief of this sort is reserved for the

court. See Sharkey v. Lasmo (AUL Ltd.), 214 F.3d 371, 373-75 (2d

Cir. 2000). The district court granted equitable relief: it

allowed the plaintiff to continue vesting in all three funds as

though he were employed by HEI through January of 2014, and ordered

-35-
HEI to treat the plaintiff during that interval as any other

executive still participating in the funds. Trainor III, 2012 WL

113384. With respect to Fund III, the court conditioned the relief

granted on the plaintiff's timely completion of his subscription

when and as future capital calls were made. Id.

In appealing this order, HEI asserts that the order

contravenes the contractual provision that halts vesting and

disallows further participation in the funds upon termination of

employment. Notwithstanding this contractual term, we conclude

that the challenged order is within the scope of the district

court's broad power to make a prevailing plaintiff whole.

"[W]e review a district court's choice of equitable

remedies for abuse of discretion . . . ." Rosario-Torres v.

Hernandez-Colon, 889 F.2d 314, 323 (1st Cir. 1989) (en banc). We

will not set such an order aside unless "we are left with a firm

conviction that [the court] has committed a meaningful error in

judgment." Id. (internal quotation marks omitted).

Under both the federal and state laws governing age

discrimination cases (including retaliation cases), prevailing

plaintiffs are entitled not only to money damages but also to

injunctive relief where appropriate. See 29 U.S.C. § 626(b) ("In

any action brought to enforce this chapter the court shall have

jurisdiction to grant such legal or equitable relief as may be

appropriate . . . ."); Mass. Gen. Laws ch. 151B, § 9 (stating that,

-36-
in employment discrimination cases, a plaintiff may sue for

"damages or injunctive relief or both"). Under both regimes, the

trial court is ceded wide discretion to make a prevailing plaintiff

whole. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19

(1975); Bournewood Hosp., Inc. v. MCAD, 358 N.E.2d 235, 242 (Mass.

1976).

We decry no abuse of discretion here. The plaintiff

considered his right to participate fully in the company-sponsored

investment funds as part of his compensation package and, at least

in part, he planned his retirement around his vesting schedule.

The plaintiff's expectations were reasonable under the

circumstances. The district court saw the funds for what they were

and, in order to make the plaintiff whole, it appropriately ordered

HEI to continue to treat him, for a finite period, as if he had not

been wrongfully discharged.

The relief that the district court granted is not

unorthodox. Both parties agree that HEI's investment funds are

analogous to pension plans. Equitable relief to maintain pension

plan benefits is within the universe of options available to a

district court in its effort to ensure that a plaintiff is made

whole. See, e.g., Banks v. Travelers Cos., 180 F.3d 358, 365 (2d

Cir. 1999) (explaining that reinstating pension rights falls within

the panoply of available equitable remedies); Geller v. Markham,

635 F.2d 1027, 1036 (2d Cir. 1980) (similar).

-37-
 Employees who — like the plaintiff — are near the

endpoint of their normal work expectancy are especially vulnerable

to the loss of retirement benefits. Where, as here, such an

employee is unlawfully discharged, the district court has both the

authority and the discretion to grant equitable relief to make him

whole. The lower court's exercise of this authority in the case at

hand is well within the bounds of that discretion.8

III. CONCLUSION

This case was tried cleverly, by skilled counsel on both

sides, before an able judge and an impartial jury. The briefs on

appeal are stellar. When all is said and done, however, the record

is freighted with ambiguities. The jury resolved those ambiguities

in favor of the plaintiff. Doing so was the jury's prerogative —

indeed, its duty — and we cannot disturb the jury's resolution

unless the record compels a contrary conclusion. With the lone

exception that we have noted, it does not.

We need go no further. For the reasons elucidated in the

foregoing pages, we affirm the judgment below, with only a single

exception: we vacate the previously remitted award of emotional

distress damages and direct the district court to order the

plaintiff either to remit all of that award in excess of $200,000

8
In resisting the order for equitable relief, HEI repeats its
argument that the December 31, 2013 retirement date is based on
speculation. We already have examined this argument and found it
wanting, see supra Part II(C)(2), and it would serve no useful
purpose to repastinate this well-plowed soil.

-38-
or else undergo a new trial on that issue. The district court also

must adjust its award of multiplied damages to reflect the

plaintiff's response to this remittitur.

Affirmed in part, vacated in part, and remanded. Two-thirds costs

shall be taxed in favor of the plaintiff.

-39-