Azimi v. Jordan's Meats, Inc.

United States Court of Appeals
For the First Circuit

No. 05-2602

ABDUL AZIMI,

Plaintiff, Appellant,

v.

JORDAN'S MEATS, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, Senior U.S. District Judge]

Before

Lynch and Howard, Circuit Judges,
and Stafford,* Senior District Judge.

Michelle Allot, with whom Daniel Bates, John Lemieux, and
Farris Law were on brief, for appellant.
Lawrence C. Winger for appellee.
Stephanie E.F. Jazlowiecki, with whom Jeffrey Neil Young,
McTeague, Higbee, Case, Cohen, Whitney & Toker, P.A., Zachary L.
Heiden, and Maine Civil Liberties Union Foundation, were on brief,
for Maine Civil Liberties Union Foundation, amicus curiae.

August 3, 2006

*
Of the Northern District of Florida, sitting by
designation.
 LYNCH, Circuit Judge. A federal jury in Maine found that

Abdul Azimi, a Muslim immigrant from Afghanistan, had suffered

racial, religious, or ethnic harassment at his former workplace,

Jordan's Meats, Inc., in violation of 42 U.S.C. § 1981 and Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

The jury did not find that Azimi had suffered any harm

for which it would award compensatory damages. Azimi had put on no

evidence of any out-of-pocket costs he had incurred for medical

treatment or psychological counseling, or of any wages lost as a

result of the abuse he suffered at his workplace; instead, he

relied only on his own testimony and the testimony of his wife and

a friend about his emotional distress -- testimony that the jury

reasonably rejected as a basis for awarding compensatory damages.

On appeal, Azimi, supported by amicus Maine Civil

Liberties Union Foundation (MCLUF), advances the argument that, as

a matter of law, a finding of a hostile work environment requires

that there be an award of compensatory damages, even if a jury has

rejected plaintiff's causation-of-damages evidence. This argument

was long ago rejected by the Supreme Court.

Azimi also did not receive nominal damages. That is

because he did not ask for them in a timely fashion; he chose not

to submit the question of nominal damages to the jury, and he

waited far too long to request them from the district court. He

thus has forfeited the issue. Azimi now asserts that nominal

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damages must be awarded as a matter of law even if nominal damages

were not timely requested. We reject the argument.

Because Azimi had not been awarded back pay, or

compensatory damages, or nominal damages, the law of this circuit,

at least with respect to his Title VII claim, is that he could not

receive punitive damages. Although Azimi now wishes us to

reconsider that rule, he failed to timely raise this issue with the

trial court. Further, as to both his Title VII and § 1981 claims,

he did not object to the jury instruction on punitive damages or to

the special verdict form, both of which stated that punitive

damages could not be awarded if compensatory damages were not.

Indeed, his argument that punitive damages ought not be contingent

on compensatory damages was not made until his motion for a new

trial, which was denied by the district court.

Azimi now asks that we hold that in § 1981 cases,

whatever the rule in Title VII cases, there is no prerequisite that

there be nominal or compensatory damages before punitive damages

may be granted. We decline to reach the issue; it, too, was not

preserved.

Finally, Azimi contends that the district court erred in

entering summary judgment for Jordan's Meats on Azimi's unlawful

discharge claims. Azimi had argued that his discharge was

discriminatory and that it was also in retaliation for his earlier

complaints to the Maine Human Rights Commission (MHRC). The

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district court found that Azimi had produced no evidence of pretext

countering Jordan's Meats' explanation that it terminated Azimi's

employment because he engaged in serious misconduct, including

threatening a female co-worker in a dark parking lot. We affirm

the district court's judgment in all respects. This case

potentially raised a number of serious issues; none were preserved

for appeal.

Where appropriate, we recite the facts in the light most

favorable to the jury's verdict, Torres-Rivera v. O'Neill-Cancel,

406 F.3d 43, 45 (1st Cir. 2005), and discuss the pertinent facts

with the issues raised.

I.

A. Azimi's Claim for Compensatory Damages

Azimi was employed at the Jordan's Meats plant in

Portland, Maine, from November 1999 to November 2001. During the

period Azimi was employed, the company had about 150 full-time

employees. Azimi worked in various positions while at the plant,

including as a meat slicer and a meat stripper. At trial, Azimi

testified that he had been the subject of discriminatory treatment

and abusive and harassing behavior by some of his former co-workers

and supervisors. The incidents of maltreatment are myriad and

outrageous; we recite only a few examples.

On multiple occasions, one of Azimi's line leaders, Steve

Mitton, physically obstructed the hot water tap so as to prevent

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Azimi from washing his hands, which were swollen from handling

frozen meat. While Azimi was only allowed access to the cold water

tap, Mitton permitted other, white employees to use the hot water.

Subsequently, Azimi was transferred to another

department. There, a co-worker, George Libby, made numerous

disparaging comments to Azimi about his religion, including: "If

you eat pork and pussy, you become strong like me." When Azimi

told Libby that both oral sex and the consumption of pork were

against his religion, Libby said, "fuck you and fuck your God; fuck

your religion." On separate occasions, Libby, whom Azimi described

as weighing about three hundred pounds, also grabbed Azimi by the

neck and tried to shove pork into Azimi's mouth; held Azimi by the

waist and pumped him from behind, simulating sexual intercourse;

and told Azimi to "suck my dick" and, when Azimi took umbrage at

the comment, picked Azimi up and dangled him, off the floor, by his

arms, while other co-workers watched and laughed. Libby and

another co-worker, Phil Ryan, also called Azimi on one of the

phones in the plant and said to him, among other things, "Nigger,

Sudan [sic] Hussein is waiting for you."

In addition to a number of other instances of verbal

abuse and maltreatment by co-workers, Azimi was also subject to

other offensive conduct, often by anonymous perpetrators. For

example, he received an unsigned note in his locker; on one side of

the note was scrawled a swastika and on the other side was written:

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 Hey MotherFucker Why don't You GO BACK to your
Own Country.

You don't bE long HERE you Fucking musselum
You PIECE of Shit WE HATE YOU
ALL ThE MUSSELUMS

You Don't don't bElong here AT JORDANSMEAT.

YOUR NOTHing but a Fucking NIGGER . . . .

Azimi also once found pieces of pork in the pockets of his work

jacket; found a picture in his locker of Osama Bin Laden, on which

was written the words "Abdul," "Mother Fucker," and "Your Dad need

[sic] Help"; and discovered that his goggles and hearing-protection

equipment were smashed to pieces, and that his personal shoes had

been taken from his work locker and stuck in the toilet.

Azimi testified that he reported the harassment to his

supervisors; that Brian Smith, the Human Resources Manager, and

other supervisors failed to adequately investigate the incidents

and to impose appropriate punishment on the wrongdoers; and that

the harassment continued despite his complaints and his

supervisors' promises to address them.

After hearing the evidence, the jury found, by way of a

special verdict form, that Azimi "was subjected to an offensive

work environment that was hostile to his race, religion[,] or

ethnic origin," and that Jordan's Meats "knew or should have known

of the offensive hostile work environment and failed to take

adequate and effective remedial measures." The jury, however,

answered "no" to the question of whether "Defendant Jordan's Meats,

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Inc.'s unlawful harassment legally caused [Azimi] to be damaged by

emotional distress, pain, suffering, emotional anguish, loss of

enjoyment of life[,] and/or inconvenience."1 As a result of this

1
The special verdict form and the jury's answers read as
follows:

1. Has Plaintiff, Abdul Azimi, proven by a
preponderance of evidence that he was subjected to an
offensive work environment that was hostile to his race,
religion or ethnic origin?

Yes X No

[If you answered Question 1 "YES," go on to Question 2.
If you answered Question 1 "NO," then answer no further
questions.]

2. Has Plaintiff, Abdul Azimi, proven by a
preponderance of evidence that Defendant, Jordan['s]
Meats, Inc., knew or should have known of the offensive
hostile work environment and failed to take adequate and
effective remedial measures?

Yes X No

[If you answered Question 2 "YES," go on to Question 3.
If you answered Question 2 "NO," then answer no further
questions.]

3. Has Plaintiff, Abdul Azimi, proven by a
preponderance of evidence that Defendant Jordan's Meats,
Inc.'s unlawful harassment legally caused Plaintiff to be
damaged by emotional distress, pain, suffering, emotional
anguish, loss of enjoyment of life and/or inconvenience?

Yes No X

[If you answered Question 3 "YES," go on to Question 4.
If you answered Question 3 "NO," then answer no further
questions.]

4. What amount is Plaintiff entitled to recover
from Defendant as compensation for those damages found in
answer to Question 3?

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finding, the jury followed the district court's instructions and

the special verdict form, and did not go on to consider what amount

Azimi was entitled to recover as compensation for any injuries

suffered. There were no objections to the special verdict form and

the jury instructions, a point that we analyze later.

On appeal, Azimi's contention is that the jury was

required to award compensatory damages, either as a matter of law

or because the evidence compelled it.

Azimi, supported by the MCLUF, first argues that inherent

in a finding of a hostile work environment is a finding that the

claimant suffered damages, such that any liability finding must be

($ . )
[Write out in words] [Figures]

[Answer question 5.]

5. Has Plaintiff, Abdul Azimi, proven by a
preponderance of evidence that Defendant's supervisory or
managerial personnel acted with malice or with reckless
indifference to Plaintiff's federally protected right to
be free from unlawful discrimination?

Yes No

[If you answered Question 5 "YES," then answer
Question 6. If you answered Question 5 "NO," then answer
no further questions.]

6. What amount of punitive damages should be
awarded to Plaintiff?

($ . )
[Write out in words] [Figures]

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accompanied by an award of compensatory damages.2 Azimi and amicus

present the issue as one of inconsistency in the jury verdict.

They also argue that the importance of the interests at stake

requires that there be an award of damages.

Both arguments have been repudiated by the Supreme Court.

Indeed, in Carey v. Piphus, 435 U.S. 247 (1978), the Court

rejected, in the context of a claim under 42 U.S.C. § 1983, the

arguments (1) that injury should be presumed from the violation of

a constitutional right and (2) that damages should be awarded for

a deprivation of a constitutional right regardless of whether any

injury was caused. See id. at 254. The Court noted that

"[r]ights, constitutional and otherwise, do not exist in a vacuum,"

and that "[t]heir purpose is to protect persons from injuries to

particular interests," such that without proof of injury, no

compensatory damages are possible. Id. (emphasis added); see also

Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986)

2
This argument is predicated on the fact that to establish
a case of hostile work environment under Title VII, a plaintiff
must demonstrate, inter alia,"that the work environment was 'both
objectively and subjectively offensive, one that a reasonable
person would find hostile or abusive, and one that [the plaintiff]
in fact did perceive to be so.'" Conto v. Concord Hosp., Inc., 265
F.3d 79, 82 (1st Cir. 2001) (quoting Faragher v. City of Boca
Raton, 524 U.S. 775, 787 (1998)). Amicus argues that "[i]t cannot
be possible that the Jordan's Meats workplace was both objectively
and subjectively offensive such that a reasonable person would find
it hostile or abusive, and that Mr. Azimi in fact did perceive [it
to] be so, and yet Mr. Azimi sustained no injury from that
experience."

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(noting that compensatory damages must be "grounded in

determinations of plaintiffs' actual losses"); Carey, 435 U.S. at

264 ("[W]e hold that neither the likelihood of [mental and

emotional] injury nor the difficulty of proving it is so great as

to justify awarding compensatory damages without proof that such

injury actually was caused.").

Carey establishes that there is no presumption of injury

and no automatic entitlement to damages. Cf. Rutstein v. Avis

Rent-A-Car Sys., Inc., 211 F.3d 1228, 1239 (11th Cir. 2000)

(stating, in the context of reversing a class certification in a

§ 1981 case, that Carey "makes clear that in order to receive

compensatory damages, individual plaintiffs must prove that 'injury

actually was caused[,]'" and that "[t]his is especially true since

compensatory damages under section 1981 can include damages for

emotional and psychological distress").

In a later § 1983 case, the Court reiterated "that

damages based on the abstract 'value' or 'importance' of

constitutional rights are not a permissible element of compensatory

damages." Stachura, 477 U.S. at 310; see also id. ("Carey thus

makes clear that the abstract value of a constitutional right may

not form the basis for § 1983 damages."). That role, if it is to

be played at all, is played by nominal damages. Id. at 308 n.11

("[N]ominal damages, and not damages based on some undefinable

'value' of infringed rights, are the appropriate means of

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'vindicating' rights whose deprivation has not caused actual,

provable injury."). So, too, here.

Nor do Title VII or § 1981 provide statutory authority

for automatic or presumptive damages. "The availability of

noneconomic damages [under these causes of action] does not mean

that their recovery is automatic whenever a plaintiff prevails."

Lindemann & Grossman, 2 Employment Discrimination Law 1828 (3d ed.

1996). "An award of damages for emotional distress must be

supported by competent evidence of 'genuine injury,'" Bailey v.

Runyon, 220 F.3d 879, 882 (8th Cir. 2000) (some internal quotation

marks omitted) (quoting Forshee v. Waterloo Indus., Inc., 178 F.3d

527, 531 (8th Cir. 1999)), the proof of which is distinct from the

proof required to show discrimination, see id. (citing Browning v.

President Riverboat Casino-Mo., Inc., 139 F.3d 631, 636 (8th Cir.

1998)); see also id. at 882 (rejecting the argument that emotional

harm is "inherent" in a finding of liability for sexual harassment

under Title VII, and noting that "[t]he Equal Employment

Opportunity Commission (EEOC) has made clear that '[e]motional harm

will not be presumed simply because the complaining party is a

victim of discrimination'" (some internal quotation marks omitted)

(second alteration in original) (quoting Vadie v. Miss. State

Univ., 218 F.3d 365, 376 (5th Cir. 2000) (quoting EEOC Policy

Guidance No. 915.002 § II(A)(2) (July 14, 1992)))); Lindemann &

Grossman, supra, at 1828 ("To qualify [for noneconomic damages

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under the employment anti-discrimination statutes], a plaintiff

must prove that he or she sustained noneconomic injuries, such as

emotional distress, pain and suffering, harm to reputation, and

other consequential injury, caused by the defendant's unlawful

conduct."). Injuries allegedly caused by the violation of Title

VII or § 1981 must be proven to the factfinder -- here, a jury --

which may reasonably find, within the law, that while there has

been harassment, the plaintiff has not been injured in any

compensable way by it.3 The district court quite correctly and

succinctly noted that Azimi was improperly trying to eliminate

causation of damages from the case.

3
Azimi argues that Harris v. Forklift Systems, Inc., 510
U.S. 17 (1993), stands for the proposition that a plaintiff need
not demonstrate any specific harm in order for a claim to be
compensable, and that he was thus entitled as a matter of law to an
award of compensatory damages. Azimi misreads Harris. That
decision only speaks to what a plaintiff needs (or does not need)
to show to obtain a liability judgment in a Title VII hostile work
environment action. See id. at 22 ("Certainly Title VII bars
conduct that would seriously affect a reasonable person's
psychological well-being, but the statute is not limited to such
conduct. So long as the environment would reasonably be perceived,
and is perceived, as hostile or abusive, there is no need for it
also to be psychologically injurious." (citation omitted)). This
appeal does not turn on that issue. Indeed, no challenge has been
raised here to the jury's liability verdict, and there is no doubt
that the jury reasonably found that Jordan's Meats subjected Azimi
to an abusive working environment in violation of Title VII,
regardless of whether Azimi demonstrated psychological injury. It
is a separate question altogether, though, whether having made such
a liability finding, the jury was required to award Azimi
compensatory damages. There is nothing in Harris to override the
ordinary rule that causation of damages must be proven to, and is
the province of, the factfinder; if anything, Harris cuts against
Azimi's argument, since it holds that a jury is entitled to find
liability without necessarily finding psychological injury.

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 Azimi's alternative argument is that the jury's decision

not to award him any compensatory damages is against the weight of

the evidence. On that basis, he contends that the district court

erred both in denying his motion for a new trial on damages and in

refusing to reconsider that denial. We review the district court's

denial of motions for a new trial and for reconsideration for abuse

of discretion. Valentín-Almeyda v. Municipality of Aguadilla, 447

F.3d 85, 103-04 (1st Cir. 2006); Soto v. Flores, 103 F.3d 1056,

1063 (1st Cir. 1997). A district court "may grant a new trial only

if [it is] convinced that the verdict is against the clear weight

of the evidence, such that letting it stand would result in a

miscarriage of justice." Valentín-Almeyda, 447 F.3d at 104. "In

general, this rule applies to a verdict premised on a finding that

no damages have been satisfactorily proven." Quinones-Pacheco v.

Am. Airlines, Inc., 979 F.2d 1, 4 (1st Cir. 1992). "When evidence

of damage is equivocal, or a reasonable jury could determine that

the plaintiff failed to prove an essential element of his or her

case (such as causation), returning a 'zero damages' verdict is

acceptable and the non-award will be set aside only if manifest

injustice is in prospect." Id.

As noted above, it was Azimi's burden to prove that he

was injured by the hostile work environment at Jordan's Meats. The

only testimony on compensatory damages he offered came from him,

his wife, and a close friend from his mosque. Azimi testified that

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the abuse he suffered at work caused him, inter alia, to become

"stressed emotionally," to lose sleep and appetite, and to withdraw

socially from his then fiancee (now wife), his son, and his

friends. Azimi's wife testified that, as a result of the workplace

harassment, Azimi became hurt, quiet, and withdrawn; that he

developed sleeping problems; and that their marriage became

strained. Azimi's friend also testified that during the time Azimi

worked at Jordan's Meats, Azimi became "distressed[ and] sad" and

did not "want to do anything." None of these witnesses testified

that Azimi sought medical treatment or counseling because of the

harassment, that he suffered any out-of-pocket costs for such

treatment or counseling, or that he lost any wages or paid time

from work as a result of what happened at work.

Jordan's Meats presented evidence that Azimi instigated

or participated in some of the ugly exchanges with his co-workers

and that he engaged in off-color joking and teasing with at least

one of his harassers; that Azimi sought a permanent position at

Jordan's Meats and continued to work at the plant despite the

harassment;4 and that Azimi's wife sought work at Jordan's Meats in

2001, well after most of the harassing incidents of which Azimi

complained at trial had taken place.

4
Azimi was hired in November 1999 as a temporary employee
and did not become a permanent employee until July 2000.

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 The jury heard the testimony, and it was up to its

members to evaluate it and the witnesses' demeanor and credibility.

"'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'"; "[f]or just

this reason, '[w]e rarely will override the jury's judgment on the

appropriate amount of damages to be awarded.'" Milone v. Moceri

Family, Inc., 847 F.2d 35, 37 (1st Cir. 1988) (second alteration in

original) (quoting Wagenmann v. Adams, 829 F.2d 196, 215 (1st Cir.

1987); Brown v. Freedman Baking Co., 810 F.2d 6, 11 (1st Cir.

1987)); see also Quinones-Pacheco, 979 F.2d at 3 (noting that "a

trial judge does not sit as a super-juror, free to disregard the

considered verdict of a properly instructed jury 'merely because he

disagrees with it or would have found otherwise in a bench trial'"

(quoting Milone, 847 F.2d at 37)); Peckham v. Cont'l Cas. Ins. Co.,

895 F.2d 830, 837, 839 (1st Cir. 1990) (observing that "[c]ausation

questions . . . are normally grist for the jury's mill" and that

the appellate court "cannot reject possibilities rooted in the

record merely because, if sitting as factfinders, we [might] have

drawn a different set of conclusions").

Although a reasonable jury could have awarded damages

based on the evidence presented, there is no plausible argument

that on these facts a reasonable jury was compelled to give a

compensatory damages award. See Bailey, 220 F.3d at 880-81

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(rejecting plaintiff's theory that jury was required to credit his

evidence of emotional harm stemming from sexual harassment, and

finding no abuse of discretion in trial judge's denial of new trial

on damages); see also id. at 881 (noting that "'[m]edical or other

expert evidence is not required to prove emotional distress'" and

that "'[a] plaintiff's own testimony, along with the circumstances

of a particular case, can suffice to sustain the plaintiff's burden

in this regard,'" but that plaintiff was nonetheless "required 'to

convince the trier of fact that [he] actually suffered distress

because of the [Title VII violation] itself'" (alterations in

original) (some internal quotation marks omitted) (quoting Kim v.

Nash Finch Co., 123 F.3d 1046, 1065 (8th Cir. 1997); Price v. City

of Charlotte, 93 F.3d 1241, 1250 (4th Cir. 1996))); cf. Beard v.

Flying J, Inc., 266 F.3d 792, 803-04 (8th Cir. 2001); Walker v.

Anderson Elec. Connectors, 944 F.2d 841, 843 (11th Cir. 1991).

B. Nominal Damages And Punitive Damages

Azimi also appeals the denial of nominal damages. One

might ask why the parties should care on appeal about whether a

nominal damages award, for as little as one dollar, should be

ordered.5

5
Defendants suggest that the lack of an award of nominal
damages may be important to the issue of whether Azimi is a
prevailing party for an award of attorney's fees. See Farrar v.
Hobby, 506 U.S. 103, 114 (1992) (holding that an award of nominal
damages makes a plaintiff a "prevailing party" within the meaning
of 42 U.S.C. § 1988 and thus makes plaintiff eligible for
attorney's fees). This circuit has yet to resolve whether a Title

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 The reason that a nominal damages award is significant

here is because the law of this circuit is that no punitive damages

may be awarded in a Title VII case in the absence of an award of

compensatory damages or of nominal damages. We so held in Kerr-

Selgas v. American Airlines, Inc., 69 F.3d 1205 (1st Cir. 1995),

see id. at 1214-15, and have reiterated the rule in dicta in

subsequent cases, see Rodriguez-Torres v. Caribbean Forms Mfr.,

Inc., 399 F.3d 52, 65 n.12 (1st Cir. 2005); Campos-Orrego v.

Rivera, 175 F.3d 89, 97 (1st Cir. 1999); Provencher v. CVS

Pharmacy, Div. of Melville Corp., 145 F.3d 5, 11-12 (1st Cir. 1998)

(noting Kerr-Selgas, but distinguishing it and allowing a punitive

damages award to stand on the basis that although plaintiff had not

been awarded compensatory or nominal damages, he had been awarded

backpay).

In Kerr-Selgas, the rule that punitive damages were not

available absent an award of nominal or compensatory damages was

derived from the common law, not from the statutory language. See

Kerr-Selgas, 69 F.3d at 1214 ("[G]enerally a claimant may not

recover punitive damages without establishing liability for either

compensatory or nominal damages." (citing Cooper Distrib. Co.,

Inc. v. Amana Refrigeration, Inc., 63 F.3d 262, 281-83 (3d Cir.

VII and § 1981 plaintiff who wins a liability judgment and a
declaratory judgment, but not a damages award, counts as a
"prevailing party" within the meaning of 42 U.S.C. § 2000e-5(k) or
§ 1988. We express no view today on the issue.

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1995); Restatement (Second) of Torts § 908 cmts. b, c (1979))).

The Kerr-Selgas rule has been criticized. See, e.g., Cush-Crawford

v. Adchem Corp., 271 F.3d 352, 357-59 (2d Cir. 2001) (disagreeing

with Kerr-Selgas because, among other reasons, "[t]here is . . . no

one common law rule" and "the statutory maxima capping punitive

damage awards [under Title VII] strongly undermine the concerns

that underlie the reluctance to award punitive damages without

proof of actual harm"). And at least three circuits do not make

punitive damages in Title VII and § 1981 cases contingent on there

being an award of compensatory or nominal damages. See Tisdale v.

Fed. Express Corp., 415 F.3d 516, 534-35 (6th Cir. 2005); Cush-

Crawford, 271 F.3d at 359; Timm v. Progressive Steel Treating,

Inc., 137 F.3d 1008, 1010-11 (7th Cir. 1998). Indeed, only one

other circuit appears to follow the Kerr-Selgas rule.6 See

Louisiana ACORN Fair Hous. v. LeBlanc, 211 F.3d 298, 303 (5th Cir.

2000) (holding, in the context of a Fair Housing Act case, that

punitive damages are not available, absent an award of actual

6
Four circuits have recognized the disagreement, but have
avoided the issue on other grounds. See Salitros v. Chrysler
Corp., 306 F.3d 562, 575 (8th Cir. 2002) (reserving the question
whether punitive damages are available in the absence of
compensatory and nominal damages, because punitive damages could be
predicated on front pay, which had been awarded); Corti v. Storage
Tech. Corp., 304 F.3d 336, 341-43 (4th Cir. 2002) (allowing for
punitive damages where there was an award of back pay); E.E.O.C. v.
W&O, Inc., 213 F.3d 600, 615 & n.5 (11th Cir. 2000); Passantino v.
Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 515 (9th
Cir. 2000).

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damages, except in cases where a violation of a constitutional

right has occurred).

On appeal, Azimi would like to challenge the Kerr-Selgas

rule and get a remand for a trial on punitive damages. He argues

that 42 U.S.C. § 1981a, which sets forth damages available in

certain actions under Title VII,7 does not require compensatory or

nominal damages to be awarded as a predicate to an award of

punitive damages. Rather, he argues, that provision states only

one precondition to an award of punitive damages: that "the

complaining party demonstrate[] that the respondent engaged in a

discriminatory practice or discriminatory practices with malice or

with reckless indifference to the federally protected rights of an

aggrieved individual." 42 U.S.C. § 1981a(b)(1). He also argues

that the Kerr-Selgas rule applies only to Title VII cases and that

this circuit has never addressed whether punitive damages were

7
42 U.S.C. § 1981a(a)(1) provides:

In an action brought by a complaining party under section
706 or 717 of the Civil Rights Act of 1964[, 42 U.S.C. §§
2000e-5 or 2000e-16] against a respondent who engaged in
unlawful intentional discrimination (not an employment
practice that is unlawful because of its disparate
impact) prohibited under section 703, 704, or 717 of the
Act[, 42 U.S.C. §§ 2000e-2, 2000e-3, or 2000e-16], and
provided that the complaining party cannot recover under
section 1981 of this title, the complaining party may
recover compensatory and punitive damages as allowed in
subsection (b) of this section, in addition to any relief
authorized by section 706(g) of the Civil Rights Act of
1964, from the respondent.

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available, in the absence of compensatory or nominal damages, under

§ 1981. We do not address these arguments. His objections come

too late.

Azimi did not object on the grounds articulated here to

the jury instructions on punitive damages, either before or

immediately after the jury was instructed. Nor did he object on

these grounds to the special verdict form. Indeed, he did not

raise a challenge to the punitive damages instruction until he

filed his motion for a new trial on damages. He thus has forfeited

the issue, see Fed. R. Civ. P. 51(b)(2), (c)(2) (stating that a

party that has been informed of an instruction before the jury is

instructed and before final jury arguments must object to the

instruction on the record "before the instructions and arguments

are delivered"); see also Fed. R. Civ. P. 51(d)(1)(A), if not

waived it entirely. When the issue was finally presented in a

motion for a new trial, the district court found that the claim

came too late. The court also said correctly that it was bound by

the Kerr-Selgas rule.

Had Azimi presented the issue in a timely fashion before

the district court and preserved it for appeal, this panel would

ordinarily also be bound by Kerr-Selgas.8 But we do not address

the question because Azimi did not timely raise the issue. For the

8
That is, we would be bound unless there is an intervening
and contrary Supreme Court precedent. Azimi presents no argument
that this is so.

-20-
same reason, we also do not address the question of whether

punitive damages may be awarded in a § 1981 case in the absence of

a compensatory or nominal damages award.

Azimi asks us to resort to plain error review. But plain

error review would not help him here. It is hardly plain that the

Kerr-Selgas rule is error. Moreover, as Azimi concedes, we have

never addressed the rule in the context of a § 1981 case, so there

is no plain error with respect to that argument either.9

Azimi did have an easy alternative if he wanted the jury

to consider awarding him punitive damages: he could have asked for

nominal damages in a timely fashion.

In situations in which an employer has been found to have

violated the law, but the jury awards no compensatory damages, the

Supreme Court has said in procedural due process cases that a

district court ordinarily should award nominal damages. In Farrar

v. Hobby, 506 U.S. 103 (1992), a case under 42 U.S.C. § 1983, the

Court stated that a finding of a procedural due process violation

unaccompanied by a finding of actual injury "obligates" a district

9
The Fifth Circuit, in LeBlanc, identified Kerr-Selgas as
a § 1981 case. LeBlanc, 211 F.3d at 303 ("[I]n another 42 U.S.C.
§ 1981 case, the First Circuit held that a punitive damages award
must be vacated absent either a compensatory damages award or a
timely request for nominal damages."). It is clear from the
context of the statement, however, that the LeBlanc court meant to
identify Kerr-Selgas as a case under § 1981a (which sets out the
damages available under Title VII), not § 1981.

-21-
court to award nominal damages. Id. at 112 (citing Carey, 435 U.S.

at 266).

This circuit has adopted this rule of obligatory nominal

damages, but we have thus far done so only for constitutional

procedural due process claims. See Campos-Orrego, 175 F.3d at 98.

Azimi asks that we extend the rule to cover his Title VII and

§ 1981 claims. He points out that at least one circuit has done

so, at least with respect to a § 1981 claim; indeed, the Eighth

Circuit has held that "proof of a Section 1981 violation

automatically entitled [plaintiff] to nominal damages." Hicks v.

Brown Group, Inc., 902 F.2d 630, 652 (8th Cir. 1990), vacated on

other grounds, 499 U.S. 914 (1990). The Eighth Circuit rule,

however, is not the rule of all the circuits; in fact, the Eleventh

Circuit has expressly refused to extend Carey to Title VII claims.

See Walker, 944 F.2d at 845 ("Nothing in Carey mandates the award

of nominal damages for statutory violations."). Still, we will

assume arguendo, and in Azimi's favor, that the rule set forth in

Campos-Orrego, that proof of deprivation of procedural due process

in a § 1983 action usually will lead to an award of nominal

damages, extends to Title VII and § 1981 cases.

Regardless of whether an award of nominal damages is

obligated in a Title VII and § 1981 case where liability has been

found, a request for nominal damages may be forfeited, and has been

forfeited here. This court has made clear that "[a]lthough nominal

-22-
damages are recoverable in intentional discrimination cases under

42 U.S.C. § 1981a(a)(1), . . . a liability verdict [does not]

compel[] such an award absent a timely request." Kerr-Selgas, 69

F.3d at 1215; see also Campos-Orrego, 175 F.3d at 98 (noting that

the entitlement to nominal damages is not "automatic" and that "it

is incumbent upon the plaintiff to make a timely request for

nominal damages"); accord Oliver v. Falla, 258 F.3d 1277, 1281-82

(11th Cir. 2001) (agreeing with our rule and citing cases).

In this circuit, a "plaintiff may request the judge to

instruct the jury on nominal damages, or in the absence of such an

instruction, may ask the trial court for nominal damages on the

occasion of, or immediately after, the return of the verdict."

Campos-Orrego, 175 F.3d at 99. Our rule is plaintiff-friendly in

the sense that it does not require that plaintiffs make a strategic

choice whether to ask for a nominal damages instruction. Indeed,

there are good reasons why a plaintiff may choose not to give a

jury the "out" of awarding nominal damages as an alternative to

awarding compensatory damages. Azimi may have made such a tactical

choice here, and he is bound by his choice.

If, as here, the plaintiff chooses not to give the jury

the nominal damages question, then he or she must make a timely

request to the court by requesting nominal damages "on the occasion

of, or immediately after, the return of the verdict." Azimi,

however, did not make a timely request that the court decide

-23-
whether nominal damages should be awarded.10 Indeed, Azimi did not

clearly request nominal damages until July 26, 2005 -- three months

after the verdict was returned on April 25, 2005. That request for

nominal damages came in his motion for reconsideration of the

district court's denial of his initial motion for a new trial, and

was presented only after the district court noted, in denying the

motion for a new trial, that Azimi was not entitled to punitive

damages, in the absence of an award of compensatory damages,

because he had made no request for nominal damages. In that same

order, the district court correctly stated that even if such a

request had been made in the initial motion for a new trial, the

request would have been untimely anyway.

As a general rule, a plaintiff must make a timely claim

for all damages he seeks. This rule takes on special importance in

cases like this one, in which the availability of one type of

damages is conditioned upon the award of another. There is a right

10
Azimi points out that his complaint requested "such
further relief as deemed appropriate," and argues that this
statement is tantamount to a timely request for nominal damages.
There is nothing in this vague prayer for relief, however, that
would compel the district court to award nominal damages or that
would even give notice to the court that such damages were being
sought. Azimi also argues that in his reply to defendant's
opposition to his motion for a new trial, he wrote: "[A]t a
minimum, the court should award nominal damages in most cases. At
the very least, the court should do so in this case." Even if this
perfunctory statement, articulated belatedly in a reply brief
rather than in the motion for a new trial, would have been enough
to put the court on notice of a nominal damages claim, the nominal
damages request was still untimely.

-24-
to jury trial on damages, including punitive damages, in Title VII

and § 1981 cases. See 42 U.S.C. § 1981a(c)(1) (providing for jury

trials in Title VII cases, so long as the complaining party is

requesting compensatory or punitive damages); United States v.

Burke, 504 U.S. 229, 240 (1992) ("42 U.S.C. § 1981[] permits

victims of . . . employment discrimination to obtain a jury trial

at which 'both equitable and legal relief, including compensatory

and, under certain circumstances, punitive damages' may be

awarded." (quoting Johnson v. Ry. Express Agency, Inc., 421 U.S.

454, 460 (1975))). If the jury is to consider whether to award,

and the appropriate sum of, punitive damages, then the issue must

be submitted to the jury before it is discharged. Cf. Walker, 944

F.2d at 845 (declining to reverse district court's failure to award

nominal damages for a Title VII violation where plaintiff failed to

submit the issue to the jury, in part because of "[t]he federal

court's long standing policy against additur, as an intrusion on

the jury's domain and violation of the Seventh Amendment"). This

means that the question of whether preconditions for an award of

punitive damages are met, such as the preconditions set forth in

Kerr-Selgas, must be answered either before, on the occasion of, or

immediately after the jury verdict. In this case, both the motion

for a new trial and the motion for reconsideration were filed long

-25-
after the jury ended its deliberations. Azimi thus has forfeited

his claim for nominal damages.11

II.

Grant of Summary Judgment
on the Unlawful Discharge Claims

We turn to Azimi's final argument: that his unlawful

discharge claims should not have been resolved against him on

summary judgment.12

The district court, after oral argument, adopted and

affirmed the magistrate judge's recommended decision granting

summary judgment in favor of Jordan's Meats on Azimi's unlawful

discharge claims. We review the court's grant of summary judgment

de novo, Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d

325, 329 (1st Cir. 2005), drawing all reasonable inferences in

favor of the non-movant, Nadherny v. Roseland Prop. Co., 390 F.3d

44, 48 (1st Cir. 2004). "'Even in employment discrimination cases

where elusive concepts such as motive or intent are at issue,'

summary judgment is appropriate if the non-moving party rests

11
Azimi does not ask for plain error review of the nominal
damages issue. Regardless, there was no plain error here.
12
The magistrate judge's recommended decision, which was
adopted by the district court, granted summary judgment on the
merits of the unlawful discharge theory under Title VII, § 1981,
and the Maine Human Rights Act (MHRA), Me. Rev. Stat. Ann. tit. 5,
§ 4551 et seq. The recommended decision also held that Azimi had
failed to exhaust his Title VII unlawful discharge claim, and Azimi
did not challenge this determination before the district court.
Thus, technically all that is before us to review are the claims
under § 1981 and MHRA for unlawful discharge.

-26-
'merely upon conclusory allegations, improbable inferences, and

unsupported speculation.'" Benoit v. Technical Mfg. Corp., 331

F.3d 166, 173 (1st Cir. 2003) (quoting Feliciano de la Cruz v. El

Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000)).

"[T]o defeat a properly supported motion for summary judgment, the

nonmoving party must establish a trial-worthy issue by presenting

'enough competent evidence to enable a finding favorable to the

nonmoving party.'" LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842

(1st Cir. 1993) (quoting Goldman v. First Nat'l Bank of Boston, 985

F.2d 1113, 1116 (1st Cir. 1993)).

In analyzing Azimi's unlawful discharge claim, we employ,

as did the parties and the district court, a modified version of

the framework established in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). Rivera-García v. Sistema Universitario Ana G.

Méndez, 442 F.3d 3, 5 (1st Cir. 2006). Under this framework:

a plaintiff employee must carry the initial
burden of coming forward with sufficient
evidence to establish a prima facie case of
discrimination or retaliation. If he does so,
then the burden shifts to the employer "to
articulate some legitimate, nondiscriminatory
reason for the employee's [termination],"
sufficient to raise a genuine issue of fact as
to whether it discriminated against the
employee. . . . If the employer's evidence
creates a genuine issue of fact, the
presumption of discrimination drops from the
case, and the plaintiff retains the ultimate
burden of showing that the employer's stated
reason for terminating him was in fact a
pretext for retaliat[ion or discrimination]
. . . .

-27-
Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 160-61 (1st Cir.

1998) (first alteration in original) (citations omitted) (quoting

McDonnell Douglas, 411 U.S. at 802).

Jordan's Meats does not argue that Azimi failed to make

out a prima facie case of unlawful discharge; rather, it contends

that Azimi failed to produce sufficient evidence to allow a

reasonable jury to conclude that his firing was a pretext and was

actually motivated by retaliation or discrimination. We thus

assume that Azimi has made out a prima facie case and go directly

to the issues of pretext and motivation.

Jordan's Meats produced admissible evidence that Brian

Smith, the Human Resources Manager, and Russell Cram, Azimi's

immediate supervisor, jointly made the decision to discharge Azimi

after he engaged in five related acts of what the company perceived

to be "serious misconduct." Specifically, Smith's affidavit listed

the following incidents as having led to the termination of Azimi's

employment: (1) Azimi threatened and intimidated a female co-

worker, Mercedes Manning, while she was alone in a dark parking lot

at 6 a.m. before work; (2) Azimi attempted a second time to

approach Manning in the parking lot; (3) Azimi lied when confronted

with Manning's allegations; (4) Azimi made a false allegation

against co-worker Harry Adams; and (5) Azimi threatened Adams in

the presence of their supervisor, Russell Cram. Smith stated that

Jordan's Meats "would never let -- and . . . had never let -- any

-28-
employee get away with the kind of misconduct engaged in by Mr.

Azimi."

Smith's affidavit was supported by, inter alia, business

records of Jordan's Meats,13 see Fed. R. Evid. 803(6), which

consisted of contemporaneous notes, which were taken by two staff

members of the Human Resources Department at the meeting in which

Manning reported that Azimi threatened her, and which detail

Manning's allegations and the staff members' personal observations

of Manning's demeanor; a signed statement from Manning reiterating

her allegations against Azimi; a signed statement from Cram, who

was Azimi, Adams, and Manning's immediate supervisor, stating his

firsthand observation of Azimi "angrily threatening [Adams]," as

well as other reasons for his recommending that Azimi be fired; and

a written record of the company's investigation of, and response

to, two complaints made by Azimi of what the company characterized

as "minor" harassment by co-workers.

We initially describe Manning's complaints against Azimi

about two incidents, one on November 8 and another on November 12,

2001. We focus on the Manning incidents for several reasons.

13
Azimi vaguely suggests that defendant's evidence was not
admissible, Hodgens, 144 F.3d at 160, because it constituted
hearsay evidence. The argument is insufficiently developed, and we
thus consider it waived. See United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990). In any event, Azimi offers no response to
Jordan's Meats' rejoinder that the exhibits were business records,
see Fed. R. Evid. 803(6), and that they and the affidavit were
submitted to prove not the underlying events but the information
Smith had at the time he made his decision to terminate Azimi.

-29-
First, Azimi's opposition to summary judgment did not deny that

Manning made those allegations against him and did not argue that

Manning had any reason to falsely accuse him. Second, no inference

of pretext can be raised from the company's response to Manning's

complaint. Jordan's Meats' investigation into Manning's

allegations, which was conducted in large part by persons who had

no prior history with Azimi, was reasonable and led the company to

conclude that Manning was credible and that Azimi was not. The

severity of the discipline that Jordan's Meats meted out as a

consequence -- termination of employment -- does not itself raise

any inference of pretext or of discrimination or retaliation.

Third, Azimi has produced no evidence of disparate discipline to

show that other employees who engaged in equivalent conduct of

physically intimidating and also threatening a vulnerable female

co-worker in order to induce her to lie and then lying about it

were not terminated.

Manning's charge was that Azimi confronted her while she

was alone in the dark parking lot at 6 a.m. on November 8 and

demanded that she substantiate his version of an altercation that

had occurred between him and Adams, which Manning had witnessed the

day earlier. According to Manning's signed statement, Azimi

"threatened that if [she] did not tell the boss what [Azimi] wanted

that [Azimi] would tell the supervisor that Adams touches himself

in front [of her] (demonstrated by grabbing his crotch) and that

-30-
Adams touches [her] in a sexual way." Manning stated that Azimi's

accusations were untrue and that Adams had never touched her or

himself in her presence.

According to Manning's statement, after Azimi threatened

her in the parking lot, Manning "did not know what to do."

Therefore, that very day, she confided in a fellow co-worker,

Estaban Batista. At Batista's encouragement, Manning reported the

incident to her supervisor, Cram, the next morning, which was

Friday, November 9. After telling Cram her account of the events,

she was interviewed, in Cram's presence, by two members of the

Human Resources Department, Sonya Voutour and Trish Thorpe. Also

present at the meeting was Norma Finnegan, Manning's co-worker, who

translated for Manning, whose first language is Spanish. Voutour's

contemporaneous notes, from which we quote, give Manning's account

of the November 8 incident:

At approximately 6:10 am on Thursday, November
8, 2001[,] Mercedes arrived at the parking lot
across the street from Amatos. Abdul Azimi
was in the parking lot and came up to her car
as she pulled into the parking lot. Abdul
told Mercedes to park her car in this spot.
Mercedes was frightened and said, NO and that
she would park on the other side of the
parking lot. Abdul kept insisting that she
park her car here. Mercedes parked on the
other side still. Abdul came up to where she
parked her car and walked with her to the
building. Abdul told her that she must tell
her supervisor, Russ Cram[,] that Harry Adams
used a "Bad Word" when they were arguing
yesterday (Wednesday). Mercedes told him that
the problem was between Harry and himself
(Abdul) and not with her. Abdul frightened

-31-
 her by insisting that she must tell Russ Cram
that Harry used a "Bad Word" with Abdul during
the incident. Mercedes asked why he was
getting her involved with a problem between
Harry and himself (Abdul). Abdul told
Mercedes that if she did not tell Russ that
Harry used a "Bad Word" with Abdul then he
would say bad things to people. Mercedes
demonstrated the gesture Abdul used when
saying the next line. Mercedes lifted her
sweatshirt up a bit and grabbed for her crotch
area. Abdul told her that he would tell
people that Harry would grab himself, in a
sexual way, and point it toward Mercedes. He
(Abdul) would also tell people that Harry
would grab Mercedes in a sexual way. Mercedes
told Abdul that it wasn't her problem[,] and
the problem was between Harry and himself
(Abdul).

Other contemporaneous notes by Thorpe of the meeting are

consistent with Voutour's and add that "Mercedes was visibly upset

and near tears many times" as she told her story. Thorpe also

noted that Manning said that she told Azimi that she did not hear

Adams say what Azimi accused Adams of saying and asked Azimi why he

"wanted his problem to be her problem." Thorpe also noted that

Manning denied that Adams had ever touched her, and said that she

was happily married. Finally, Thorpe noted that "Mercedes stated

that she was worried about coming into work because it is dark when

she arrives," and that Cram told Manning that he would make sure

that someone would be there to escort her into the plant in the

morning.

In sum, Manning told the Human Resources Department that

she was afraid of Azimi, and to others she appeared genuinely

-32-
afraid. Manning also told the Human Resources Department and

reiterated in her own signed statement that Azimi insisted that she

get involved in his problems, that Azimi told her to lie, and that

when she refused, Azimi threatened to disseminate lies about her

and Adams concerning the sensitive topic of sexual conduct. It is

self-evident that Azimi's threatened statements would cause serious

problems for Manning with her husband, with Adams, and in her

workplace.

According to Manning's statement, on Monday, November 12,

the next work day after she reported the incident with Azimi to her

supervisor and the Human Resources Department, she saw Azimi

sitting in his car in the same parking lot, with his car's lights

off and engine running, which caused her to be "afraid" that he was

planning to confront her again. According to Smith's deposition,

a supervisor had to go to the parking lot and escort Manning into

the plant. As a result of the incidents, Manning said that she

filed a complaint against Azimi with the Portland Police Department

shortly after the November 12 incident.

Jordan's Meats placed Azimi on indefinite suspension

while the company initiated an investigation of Manning's

allegations, and, the record shows, Azimi was eventually terminated

on November 19, 2001, ten days after Manning made her initial

complaint. According to Smith's deposition, as part of the

investigation, Smith, who was out of town on November 8 and 9,

-33-
personally interviewed Manning when he returned to the plant on

November 12. Manning repeated to Smith the allegations against

Azimi and told Smith of her plans to file a police report about the

incident. Smith stated in his deposition that the police did, in

fact, follow up on Manning's allegations.

A few days after speaking with Manning, Smith and Cram

interviewed Azimi. According to Smith's affidavit, Azimi

"repeatedly and strongly denied any and all wrongdoing and gave

exculpatory explanations for his parking lot conduct (i.e., that he

was just there smoking a cigarette and not waiting for Ms.

Manning[,] that Ms. Manning's English is so poor that he could not

possibly have threatened her as she claims, and she must have

misunderstood what happened)."

Smith explained that he ultimately credited Manning's

account for several reasons. According to Smith's affidavit, he

and his staff spoke directly with Manning, and from personal

observation, he noted that Manning, whom he described as "a small,

vulnerable, Hispanic woman," struck him as genuinely "terrified" of

Azimi. At his deposition, Smith said that he was convinced that

Manning did, in fact, understand what Azimi had said to her that

day in the parking lot, because Smith himself had engaged in

conversations in English with Manning and it was his experience

that "[s]he can understand [English] a lot better than she speaks

it." Smith also testified that Cram had told him that Manning's

-34-
account was corroborated 'almost verbatim' by someone else. In

fact, Smith's impression was that Cram had told him that this other

source was Azimi himself. Finally, Smith noted that Manning was

not involved in any of the previous incidents of harassment

complained of by Azimi.

In addition to Manning's allegations, Smith also relied

on as grounds for terminating Azimi the signed statement by Cram,

in which Cram detailed a number of other reasons, in addition to

the incidents with Manning, why he supported terminating Azimi's

employment. Of particular significance to Smith was Cram's

statement that "on the afternoon of November 7, 2001 in my office

and in my presence, [Azimi] very angrily threatened another male

team member [Adams] to settle things outside." Cram said that he

was "concerned and frightened" by "the terrifying expression on

. . . Azimi's face and in his eyes when he" made this threat. Cram

also noted that "Azimi had a history of not being cooperative with"

co-workers and that "[m]any allegations were made against . . .

Azimi, but he always denied any wrong doing." Finally, Cram stated

that "there have been credibility issues" with Azimi. As an

example, Cram said that one of Azimi's co-workers had reported that

an anonymously written racist note that Azimi found in his locker

was actually planted by Azimi himself; the co-worker "explained in

vivid detail that . . . Azimi had showed him the note and admitted

he had planted it." Smith confirmed at his deposition that the

-35-
employee, Kurt Chim, had indeed come forward in February 2001,

about a year after Azimi complained about the note, and told Smith

that he had talked with Azimi, that Azimi had admitted placing the

note in his own locker, and that Azimi believed the planting of the

note would help him get hired full time. Chim, whom Smith found

credible, explained that he had not wanted to get involved

initially because he did not want to be perceived as a "rat." Chim

also told Smith that he had gone to high school with Azimi and that

it was his opinion that Azimi had always been a dishonest person.

Whether Azimi told the truth about the Manning and Adams

incidents is not the point. Jordan's Meats had a substantial basis

for concluding that Azimi was not credible and had engaged in the

misconduct charged.

In response to these specific reasons that Jordan's Meats

offered for terminating him, Azimi offered only the following

evidence in support of his opposition to summary judgment: (1) his

own deposition testimony, which he characterizes as denying

Manning's allegations; and (2) an administrative decision by the

Maine Department of Labor (MDOL) regarding his eligibility for

unemployment benefits. He also relies on two other arguments: (1)

that he was terminated for his misconduct, while others were not

disciplined for what he claims was equivalent misconduct; and (2)

that he was fired nine months after he filed his second complaint

-36-
with the MHRC and two months after the September 11, 2001 attacks.

We consider each in turn.

Azimi's opposing statement of material facts merely

offered this conclusory allegation:

In retaliation for Mr. Azimi's charges of
discrimination filed [with] the Maine Human
Rights Commission and as a further act of
discrimination, Defendant discharged Plaintiff
on false grounds on November 19, 2001. Azimi
Deposition at 249-264.

The referenced deposition pages do not refute the employer's

explanation about believing what Manning and Cram said had

happened. Those pages merely recount Azimi's version of the

November 8 incident, which was that he was smoking a cigarette by

his car in the parking lot when Manning approached him and said "I

am sorry" and something about "Harry Adams"; that Azimi did not

understand what Manning was saying because she was speaking

Spanish; that the only thing he said to Manning was that she should

"talk to Russell"; and that he and Manning walked into the plant

together. Azimi did not deny that Manning made the complaints

against him, did not explain why the account that Manning gave on

a consistent basis each time she described it differed so much from

his own, and did not give any reason why Manning would lie to her

employer about what happened in the parking lot.

Azimi's denial of wrongdoing is not enough to raise an

inference of pretext, on these facts, where the company undertook

a reasonable investigation, heard his side of the story, and

-37-
decided that his accuser's was more credible. "In assessing

pretext, a court's 'focus must be on the perception of the

decisionmaker,' that is, whether the employer believed its stated

reason to be credible," subject to some limitations not present

here. Mesnick v. Gen. Elec. Co., 950 F.2d 816, 824 (1st Cir. 1991)

(quoting Gray v. New Eng. Tel. & Tel. Co., 792 F.2d 251, 256 (1st

Cir. 1986)); see also Rivera-Aponte v. Rest. Metropol #3, Inc., 338

F.3d 9, 11-12 (1st Cir. 2003) ("Whether a termination decision was

wise or done in haste is irrelevant, so long as the decision was

not made with discriminatory animus."). Although an "employer's

good faith belief is not automatically conclusive," Zapata-Matos v.

Reckitt & Colman, Inc., 277 F.3d 40, 46 (1st Cir. 2002), "[i]t is

not enough for a plaintiff merely to impugn the veracity of the

employer's justification; he must elucidate specific facts which

would enable a jury to find that the reason given is not only a

sham, but a sham intended to cover up the employer's real [and

unlawful] motive" of discrimination, Mesnick, 950 F.2d at 824

(internal quotation mark omitted) (quoting Medina-Munoz v. R.J.

Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir. 1990)). Azimi has

not made that showing here.

Azimi also relies on a decision from an unemployment

benefits hearing before the MDOL, in which the MDOL concluded that

Jordan's Meats had not met its burden of proving that Azimi was

ineligible to receive certain unemployment benefits because he had

-38-
engaged in misconduct within the meaning of Me. Rev. Stat. Ann.

tit. 26, § 1043(23)(A)(10). See Me. Rev. Stat. Ann. tit. 26,

§ 1193(2) (disqualifying a claimant "discharged for misconduct

connected with his work" from benefits for a certain period of

time). Azimi observes that the MDOL had reached its decision in

large part because it determined that Manning's English skills were

so limited as to undermine Jordan's Meats' account of the parking

lot incident. Azimi argues that the MDOL's reasoning is enough to

raise a material dispute of fact about the credibility of Jordan's

Meats' explanation for terminating him.

The MDOL decision, however, does not in its conclusion or

rationale help him. That decision merely found the employer had

not "prove[d] that [Azimi's] conduct [met] the statutory definition

of misconduct." It did not address or find that Jordan's Meats had

no reasonable basis to believe that Azimi had engaged in misconduct

or even that Manning herself was not credible; in fact, the MDOL

specifically noted that Manning, who was called to testify,

"testified that she felt threatened by the encounter in the parking

lot." Nor did the MDOL even purport to address the questions of

whether Azimi had been more harshly disciplined than a similarly

situated employee, or, if so, whether the difference in treatment

was motivated by an intent to discriminate or retaliate.

In contrast, at the summary judgment stage, it is up to

Azimi to produce sufficient evidence to generate a material dispute

-39-
of fact that Jordan's Meats' articulated reasons for firing him

were pretext. Most importantly -- even if Azimi were to show that

he did not, in fact, threaten Manning and, further, that Jordan's

Meats knew that he did not and fired him anyway -- Azimi still must

produce sufficient evidence from which a jury could reasonably

infer that the real reason Jordan's Meats fired him was because of

discrimination or retaliation.

Azimi argues that a jury could reasonably infer that

Jordan's Meats was motivated by discriminatory or retaliatory

animus, because he was terminated for his misconduct while other

employees were disciplined more leniently for similar misbehavior.

There were four types of misconduct leading up to the termination

decision, according to Smith: (1) the two incidents in the parking

lot with Manning; (2) lying about the Manning incident; (3) making

false allegations against Adams; and (4) threatening Adams in the

presence of Cram. This case does not involve, as Azimi seems to

argue, only the third and fourth categories of misconduct. This

case involves, in addition to those two categories, intimidating a

female co-worker in a dark parking lot, threatening to spread

rumors about her if she did not lie, and putting her in genuine

fear. Azimi has provided no evidence of comparable misconduct and

has not met his burden of providing evidence that the employment of

co-workers who had committed misconduct similar to that act or that

combination of acts were not also terminated.

-40-
 In his statement of material facts, Azimi refers to

Jordan's Meats' failure to terminate the employment of co-workers

whom he accused of calling him names and using off-color or obscene

language. Use of such language, not uncommon on a meat-processing

plant floor, is simply not similar to the conduct in which Azimi

was reported to have engaged. More serious are his claims that

George Libby engaged in inappropriate roughhousing by "grabb[ing

Azimi] hard by the waist [and] thrusting his [Libby's] groin into

[Azimi's] buttocks," and that Azimi felt threatened when another

co-worker said that she was going to break his "fucking teeth out."

That Jordan's Meats, which investigated the incidents, concluded

that neither Libby's conduct nor an angry exchange between mutually

abusive co-workers was the equivalent of the behavior for which

Azimi was terminated does not raise an inference of discrimination.

Indeed, Jordan's Meats had reason to believe that Azimi may have

been the instigator of some of these verbal and physical exchanges.

In fact, there was undisputed evidence in the summary

judgment record that at least one co-worker, Libby, complained that

Azimi himself had directed verbal insults and physical conduct

toward Libby, which was offensive and threatening. Yet Azimi was

not disciplined as a result. Libby complained to Smith that Azimi

had called Libby names, such as "fat ass"; that Azimi also had

grabbed him from behind and humped him; that Azimi had "on many

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times" tried to grab him and restrain him; and that Libby was

afraid of Azimi.

The record shows that Jordan's Meats did, in fact,

discipline Libby and other co-workers whom the company found to

have harassed Azimi. The female co-worker who threatened to break

Azimi's teeth was issued a warning; Libby was suspended for three

days for his harassment of Azimi and would have been terminated if

his conduct had not improved; and another co-worker, Phil Ryan, was

suspended for one day for phoning Azimi and making racist comments,

after Ryan said Azimi called him "a fat ass" and told him that he

was going to "cut his fat ass."

Nor does Azimi offer any evidence from which a jury could

reasonably infer that the individuals who made the decision to

terminate him -- specifically, Smith and Cram -- harbored any type

of discriminatory or retaliatory animus toward him. That Smith, as

the Human Resources Manager, and Cram, as Azimi's supervisor, dealt

with some of Azimi's complaints of pre-termination harassment, is

not enough to allow the inference that they terminated him because

of unlawful animus.14 In fact, the evidence in the record tends to

14
Azimi does not argue that any of his harassers was
involved in the decision to terminate him. See Medina-Munoz, 896
F.2d at 10 ("The biases of one who neither makes nor influences the
challenged personnel decision are not probative in an employment
discrimination case."). Nor does Azimi allege that this is a case
like Cariglia v. Hertz Equipment Rental Corp., 363 F.3d 77 (1st
Cir. 2004), in which a neutral decisionmaker is induced to act
based on inaccurate information provided because of the provider's
discriminatory animus. There is no claim that Manning or Adams

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show that Smith and Cram were sympathetic to many of Azimi's

complaints and were trying to stamp out any discrimination at the

company. For example, according to Smith's deposition, when Azimi

found the note in his locker in 1999, Smith undertook an

investigation. He even forwarded the note and handwriting samples

to a handwriting expert, who could not identify the author. Smith

then had several meetings with small groups of employees on three

shifts, informed them that the letter was despicable and that such

conduct would not be tolerated in the company, and distributed a

memo he wrote on workplace behavior and diversity awareness.

Finally, Azimi suggests that a reasonable factfinder

could infer animus from the fact that he was fired within nine

months of the filing of his second complaint with the MHRC and

within two months after the September 11, 2001 attacks on the World

Trade Center and other targets. Nine months is simply too long a

time lapse to support an inference of retaliatory animus. When

Azimi has proffered no additional evidence of discriminatory animus

on the part of Smith or any other decisionmaker, the fact that he

was fired two months after September 11 also is not enough to

generate a material dispute of fact on the unlawful discharge

theory.

were biased against Azimi because of his race, religion, or
ethnicity. The record shows that Manning, Adams, and Azimi had a
cordial relationship prior to the events of November 7, 2001.

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 Drawing all reasonable inferences in Azimi's favor, we

conclude based on our review of the summary judgment record that

summary judgment was warranted in relation to the unlawful

discharge claims. The law does not protect the jobs of those who

threaten other employees with harm, even if they themselves have

been mistreated. That Azimi was wronged gave him no right to do

wrong.

III.

Judgment affirmed. Each side shall bear its own costs.

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