Bandera v. City of Quincy

United States Court of Appeals
For the First Circuit

No. 02-2307

KATHLEEN E. BANDERA,

Plaintiff, Appellee,

v.

CITY OF QUINCY; JAMES SHEETS, MAYOR;
THOMAS FRANE, POLICE CHIEF,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Marianne B. Bowler, U.S. Magistrate Judge]

Before

Boudin, Chief Judge,

Baldock,* Senior Circuit Judge,

and Howard, Circuit Judge.

David F. Grunebaum with whom Holtz Gilman Grunebaum and Monica
E. Conyngham, City Solicitor, City of Quincy, were on brief for
appellant City of Quincy.
Kathleen E. Bandera pro se.

September 12, 2003

*
Of the Tenth Circuit, sitting by designation.
 BOUDIN, Chief Judge. This is an appeal by the City of

Quincy from a jury verdict against the city in favor of Kathleen

Bandera. The jury awarded Bandera $135,000 in punitive damages for

sexual harassment, seemingly under state law. The appeal presents

two different issues–-whether the claim was barred by a prior

purported settlement agreement and whether the trial was infected

by error. The background facts follow.

In September 1997, Bandera was hired by the City of

Quincy as executive director of a newly established, or to be

established, Community Policing Commission. In the role she

reported to then-Mayor James Sheets and Police Chief Thomas Frane.

According to testimony at the later trial, both men warned her that

she would encounter difficulties in her new post both as a woman

and as a civilian.

Bandera testified at trial that she was subject to

discriminatory treatment during her brief tenure as director: that

she was excluded from meetings, ridiculed, and subjected by male

officers to graphic details of their sexual exploits. Further, she

said, Sheets and Frane failed to take steps to halt this harassment

although they were advised of at least some of Bandera's concerns.

She told the jury that in early June 1998 Frane asked Sheets to

replace her with a male police officer. On June 9, 1998, Bandera

was terminated effective at the end of the month.

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 Bandera responded by suing the city, Frane, and Sheets in

the federal district court, alleging gender discrimination of two

kinds: sexual harassment and wrongful termination. Her claims were

based on two federal statutes--Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e (2000), and Section 1983, 28 U.S.C. § 1983

(2000)–-and on the Massachusetts Fair Employment Practices Act,

Mass. Gen. Laws ch. 151B (2000). After initial discovery, the

district court in September 2001 scheduled trial for November 13,

2001.

The parties then conferred over two days at the end of

October 2001 (October 29 and 30) with a mediator. This resulted in

a handwritten agreement, dated October 30, 2001, and signed

separately by counsel for the defendants, by counsel for Bandera,

and by Bandera herself. The text of the "Memorandum of Agreement"

is as follows:

1. The parties will enter a Stipulation of
dismissal with prejudice, and without costs.

2. The City will pay $21,300 to "Wendy Kaplan,
Esq., as Attorney for Kathleen Bandera." The
City will issue a 1099 for this amount to
Wendy Kaplan, Esq.

3. The City will cause the Quincy School
Committee to issue an employment contract to
Kathleen Bandera for a position in the Quincy
Public Schools as a permanent substitute for
the balance of the 2001-2002 school year.

4. If Bandera is not hired by the Quincy
Public Schools for a permanent teaching
position on or before the start of the 2002-
2003 school year, Mayor Sheets will recommend

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 to the Superintendent that Bandera be offered
a contract as a permanent substitute for the
2002-2003 school year. If the Superintendent
declines to offer the contract because of lack
of funds, the Mayor will take all necessary
steps to attain sufficient funding.

5. The parties will execute a general release
of all claims asserted or unasserted and a
comprehensive settlement document which shall
include non-admission and non-disclosure
provisions.

6. Both the facts of an agreement, and the
terms of this agreement, shall not be
disclosed, except to the U.S. District Court
prior to November 13, 2001.

7. This settlement, and the terms of
settlement, shall not be deemed or construed
as an admission or finding of a violation of
any law, policy, custom, or procedure, and
shall not be introduced as evidence of such a
violation in any other proceeding.

8. David Grunebaum has the authority to sign
for the defendants.

At some point in early November 2001, Bandera herself

apparently called defendants' counsel to disavow the settlement

agreement and she thereafter refused to sign a typewritten version

of the agreement and consonant release. In the election held on

November 6, 2001, Sheets was defeated by another candidate. On

November 13, 2001, Bandera's own counsel filed a motion to

withdraw. On November 19, 2001, the parties appeared before the

district court and the city moved to enforce the settlement

agreement.

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 Bandera responded that she had been coerced into the

settlement by her attorney's alleged threats (e.g., that Bandera

might be held in contempt). Further, Bandera said that there had

been at the time of the written agreement an oral agreement between

both attorneys and Bandera that–-if Bandera signed and remained

silent until the election–-the agreement would be redrafted

afterwards to address Bandera's concerns and that if Mayor Sheets

were not re-elected, the agreement would be null and void.

The district court then gave Bandera 30 days to retain

new counsel. In December 2001, incident to her request to

withdraw, Bandera's counsel made filings including an affidavit

disputing in general terms Bandera's version of what had occurred

at the mediation and settlement and countering certain of Bandera's

specific allegations. Her counsel did not say one way or the other

what she had said to Bandera incident to the signing but did say

that the terms of the agreement had originally been proposed by

Bandera herself.

At a status conference on January 4, 2002, Bandera–-now

representing herself--objected to the motion to enforce the

settlement agreement, saying that the agreement was only

preliminary and that Sheets was no longer mayor. The district

judge told Bandera that the city would still have to follow through

with its commitment but Bandera said that she wanted to get out of

the settlement agreement and to proceed with a new attorney. The

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defendants repeated that they had a valid settlement. The district

judge then stated:

That [referring to the signed Memorandum of
Agreement] is going to lead to another trial,
whether she, you know, whether she intended to
do it or she didn't intend to do it.

What I am going to do is -- I think the
case should be settled. This is America. If
she wants to try her case, she can try it. I
am going to give her a trial date three months
from now. Give her a date. No continuances.
If you don't get a lawyer, you are going to
have to try the case yourself.

Responding to a further objection from the defendants, the court

responded, "just for the record, I am going to deny the request to

enforce the settlement agreement."

On January 7, 2002, the district court issued a written

decision denying defendants' motion to enforce the settlement. The

district court noted that the parties signed only the "Memorandum

of Agreement" anticipating a final comprehensive agreement, and

never signed the final agreement, and continued:

"As a general rule, a trial court may not
summarily enforce a settlement agreement if
there is a genuinely disputed question of
material fact regarding the existence or terms
of that agreement" [quoting Malave v. Carney
Hosp., 170 F.3d 217, 220 (1st Cir. 1999)]. In
this case, the Parties disagree about the
significance of the "Memorandum of
Settlement." Defendants' Motion, therefore,
is DENIED.

The defendants filed a motion for reconsideration seeking

enforcement of the settlement agreement or at least an evidentiary

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hearing. Following the denial of both requests, the defendants

sought to appeal to this court from the refusal to enforce the

settlement agreement but the appeal was dismissed for lack of a

final appealable order. In due course, the case was set for trial

before a magistrate judge on the consent of both parties. 28

U.S.C. § 636(c) (2000); Fed. R. Civ. P. 73. At the ensuing trial

Bandera represented herself.

At trial, Bandera testified in detail as to her

experience and sought compensatory front and back pay but–-

apparently to avoid further discovery and delay–-made no claim for

emotional suffering. She also adduced testimony from a number of

witnesses including Nancy Coletta, a female police officer in the

Quincy Police Department. Coletta, who had filed then-pending

sexual harassment claims of her own against the police department,

gave damaging testimony, more fully described below, as to her own

experience and her view of Bandera's treatment.

The defense offered testimony from several witnesses

including Frane and two other police officials. After two days of

deliberation, the jury returned a set of special verdicts

addressing, as to each defendant, each theory of recovery urged

against that defendant (not every theory was directed against each

defendant). The jury rejected all claims made against the mayor

and police chief and all claims against the city save for the

sexual harassment claims made under Title VII and Chapter 151B.

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The jury also ruled that Bandera had proved no damages as to front

or back pay but was entitled to $135,000 in punitive damages.1

On this appeal, the city argues-–as one would expect–-

first that the settlement agreement foreclosed Bandera's claims

and, alternatively, that the district court could not refuse

enforcement of the agreement without holding an evidentiary

hearing. On the facts of record, the latter position is

presumptively correct, although the issue is a shade more

complicated than the city suggests. At the very least, the

district court has not yet supplied an adequate reason for refusing

to enforce the agreement.

A formal release would have barred Bandera's claims

without more, Restatement (Second) of Contracts § 284 (1981), but

Bandera's release could be secured only by enforcement of the

settlement agreement. Yet it is conventional for the court before

whom the case is pending to enforce a settlement agreement,

assuming it is valid, Quint v. A.E. Staley Mfg. Co., 246 F.3d 11,

14 (1st Cir. 2001), cert. denied, 535 U.S. 1023 (2002); it would

generally be preposterous to conduct a trial in the teeth of a

1
In response to post-trial motions by the city, the district
court ruled that–given the instructions–the award of punitive
damages given in the absence of compensatory damages had implicitly
been premised on Chapter 151B which (the court held) permits such
an award. Bandera v. City of Quincy, 220 F. Supp. 2d 26, 29-31 (D.
Mass. 2002). Compare Kerr-Selgas v. Am. Airlines, Inc., 69 F.3d
1205, 1214-15 (1st Cir. 1995); see also Provencher v. CVS Pharmacy,
Div. of Melville Corp., 145 F.3d 5, 11 (1st Cir. 1998). No appeal
as to this ruling has been taken.

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valid settlement agreement and award damages–only to have the

resulting judgment unwound by a contract action or similar remedy

implementing the settlement agreement.

Does a judge nevertheless have residual authority to

refuse to enforce a settlement agreement that is otherwise a valid

contract? It is hard to foresee all possible circumstances, but of

this we are sure: a judge cannot refuse to enforce an otherwise

valid settlement agreement on the ground initially given in this

case, namely, that doing so would require the judge to conduct a

mini-trial into the question whether a binding contract had been

made. Contract enforcement is not normally a matter of judicial

convenience.

The district judge was moved by Bandera's desire to have

her day in court. But settlement agreements, if valid and not

against public policy, are voluntary surrenders of the right to

have one's day in court. Conceivably, a settlement agreement might

(rarely) be invalid as against public policy, e.g., EEOC v. Astra

USA, Inc., 94 F.3d 738, 744-45 (1st Cir. 1996), but there is no

evident public policy objection to the settlement of Bandera's

claim--if the contract is a valid one. Nor, on this assumption, is

there any evident equitable reason to deny specific performance of

the contract.

This brings us to the issue of validity. The district

court was assuredly correct in saying that in general "'a trial

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court may not summarily enforce a settlement agreement'" if

material facts are in dispute as to the validity or terms of the

agreement, Malave v. Carney Hosp., 170 F.3d 217, 220 (1st Cir.

1999). But by the same token the district court cannot summarily

deny enforcement simply because material facts are in dispute: the

task is to resolve the dispute. And, in this instance, it is

unlikely–-though perhaps not impossible--that the matter could be

resolved without an evidentiary hearing.

The two most obvious issues of fact are whether–-as

Bandera claims–-she was improperly coerced into signing the

agreement and whether–-as she also claims–-there was a

contemporaneous side agreement that the contract would be

renegotiated in her favor after the election. Of course, such

issues are surrounded by legal questions (e.g., when can a party

claim coercion by her own attorney as a defense vis-à-vis a third

party; does the parol evidence rule bar the showing of a side

agreement); but one might need more facts, as well as briefing,

even to address such issues.

Further, although Bandera's asserted subjective beliefs

regarding the settlement likely do not bar enforcement (absent

coercion or a valid side agreement), conceivably she might argue

that some of the terms of the agreement are too indefinite to

support a valid agreement or that Sheets' defeat in the election

frustrated the purpose of the agreement. Neither of these

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arguments seems especially promising but both have been hinted at.

That the signed document contemplated a second more complete

written agreement would not by itself automatically preclude

treating the former as a binding contract.2

This brings us to the defendants' second attack on the

judgment which concerns alleged errors at trial. We address these

claims now for a very obvious reason: although they would be mooted

by a decision upholding the settlement agreement, the possibility

exists that the settlement agreement will not prove a valid bar to

the judgment. If so, it would be time wasting to have a second

appeal to consider claims of trial error which are at this time

fully briefed and equally legitimate challenges to the judgment.

Both of the claims of trial error center around the

testimony of Nancy Coletta, the City of Quincy police officer

called by Bandera. Prior to trial, when Coletta was identified as

a witness for Bandera, defendants anticipated that Coletta among

others would be asked to describe her own experiences with the

police and thus moved in limine for an order limiting or excluding

such testimony on the ground that it was irrelevant or, if

2
An agreement to make a further more detailed agreement could
in some instances not be intended as a binding contract, or might
be too indefinite; but neither is necessarily or even ordinarily
so. Bacou Dalloz USA v. Continental Polymers, Inc., __ F.3d __
(1st Cir. 2003); Ysiem Corp. v. Commercial Net Lease Realty, Inc.,
328 F.32 20, 23 (1st Cir. 2003); Quint, 246 F.3d at 15; Farnsworth
on Contracts § 3.8 (2d ed. 1998).

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relevant, unduly prejudicial under Federal Rule of Evidence 403.

The district judge denied the motion without discussion.

At trial Coletta gave testimony of two different types.

Primarily, she described the harassment to which she herself had

been subject; these episodes included name-calling, exposure to

offensive conversations about sexual matters and to pornographic

magazines, hostile treatment, and her reporting of these incidents

to Frane. She testified that she had suffered major depression as

a result of this behavior.

In addition, Coletta was allowed to testify over

objections by the defense as to how Coletta felt about, and

assessed, Bandera's own allegations. In particular, Coletta

testified:

• that after reading about Bandera's claims
she (Coletta) had told another officer "how
I felt that it was unfair and how I didn't
feel that they were giving you [Bandera] a
chance to show your potential, just like
they hadn't done to me. And that it's the
old-boy network";

• that she (Coletta) had told another officer
that she thought that Bandera's "potential
had been squashed by the men in the
department"; and

• that she had told Bandera that she (Coletta)
had been placed on administrative leave due
to job stress and told her further that
Bandera "had suffered from the same stuff .
. . ."

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 On appeal, the city says that Coletta's testimony was of

minimal relevance but highly prejudicial, see Fed. R. Evid. 403,

that Coletta had no first hand knowledge of what happened to

Bandera and her views constituted inappropriate opinion testimony

by a lay witness, Fed. R. Evid. 701, and that the testimony as to

what Coletta said to other officers or Bandera was inadmissible

hearsay, Fed. R. Evid. 801. We consider separately the two phases

of Coletta's testimony.

Coletta's recitation of her own experiences was relevant.

The most obvious relevance of Coletta's testimony–that she had

suffered similar harassment and reported it to Frane–was to show

liability on the part of supervisory officers such as Frane and

also on the city for a pattern of knowing toleration of harassment

by its subordinates. See, e.g., Hirase-Doi v. U.S. West

Communications, Inc., 61 F.3d 777, 782-84 (10th Cir. 1995).

Whether it might also be relevant for other purposes does not

matter here, and we take no position on the issue. Compare id..

How far Coletta's testimony tended to achieve these ends

in the present case might or might not be debatable but it is

simply not discussed by defendants. They make only a generic

objection that the experience of other female officers is

inherently remote and, where (as here) graphic, inherently more

prejudicial than probative. We assume that such a generic

objection is properly preserved, having been made and ruled on at

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pretrial, Crowe v. Bolduc, 334 F.3d 124, 133 (1st Cir. 2003); but

expressed in abstract terms–which is all we have–it is unsound and

was properly rejected.

Coletta's testimony as to her own assessment of Bandera's

experience is quite a different matter. In form it was

hearsay–testimony of what the witness said to another outside of

court and offered for the truth of those out of court

statements–but that is not its main vice. Coletta, after all, was

there to be examined; and her statements would have had about the

same force if she had simply given her naked present assessment of

Bandera's situation instead of describing her earlier, out of court

assessments.

The real problem is that, so far as it appears, Coletta

had no actual knowledge of what had happened to Bandera, and her

assessments of what Bandera reported to have happened and the

psychological impact on Bandera were wholly inappropriate opinion

testimony. Fed. R. Evid. 701; Lynch v. City of Boston, 180 F.3d 1,

16-17 (1st Cir. 1999). Coletta was not qualified as an expert on

anything and her assessments were not the limited kind of opinion

testimony deemed helpful to a jury (e.g., an estimate of car speed

or whether a defendant was intoxicated) but simply jury argument

offered from the witness stand. The testimony should certainly not

have been admitted.

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 If the basic objection–improper opinion testimony by a

lay witness–had been preserved, we might be tempted to reverse.

Quite possibly this phase of the testimony had fairly limited

impact: Coletta's assessment of Bandera's situation was nothing

like so graphic as Coletta's admissible testimony as to her own

experience; her opinions as to Bandera's experience were mildly

phrased; and the jury was far more likely to base its judgment on

Bandera's own detailed recitation of what had happened to her.

Still, whether the testimony's admission could be described safely

as harmless error is open to doubt.

But the objection was not in our view properly preserved.

Admittedly, the newly amended Federal Rules of Evidence sensibly

provide that an objection resolved by a definitive in limine ruling

admitting evidence need not be renewed at trial. F. R. Evid. 103(a)

(2000). But if the district judge ruled definitively on anything,

it was that Coletta and similar witnesses could testify about their

own experience and not that they could assess that of Bandera. This

is evident from the in limine motion itself.

Then at trial when the opinion testimony was offered,

defense counsel said "objection" on several occasions; but few of

the objections were explained and the ones that were had to do with

time frame. Given earlier general attacks on Coletta's testimony

based on relevance and prejudice, we do not think that it was at

all necessarily obvious to the magistrate judge that the new

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objections were to impermissible lay witness opinion. This is

especially so because several of the objections were specifically

about time frame.

The law is clear that an objection, if its basis is not

obvious, is not preserved unless the ground is stated. Fed. R.

Evid. 103(a)(1); United States v. Carrillo-Figueroa, 34 F.3d 33, 39

(1st Cir. 1994). This case is a perfect illustration of why that

rule is a sound one. Coletta's opinion testimony, although clearly

inappropriate, was at the tag end of other testimony to which

different objections had been litigated pretrial. If counsel had

explained why this new testimony differed and was in no way covered

by the district court's in limine ruling, there is a good chance

that the magistrate judge would have excluded it. See Freeman v.

Package Mach. Co., 865 F.2d 1331, 1337-38 (1st Cir. 1988).3

This is not a criticism of counsel. Trials are a rough

and ready business; snap judgments as to unexpected testimony have

to be made all the time. However, the failure to preserve the

objection means review is at most for plain error. Fed. R. Evid.

3
Although the point is not mentioned by defendants, the
magistrate judge may have borne some of the responsibility for this
omission because she told the lawyers that in general they should
simply object and she would hold a bench conference if the basis
for the objection was unclear. This may have been an unwise
direction, United States v. Gomes, 177 F.3d 76, 80 (1st Cir. 1999),
but in any case she readily allowed counsel to approach the bench
to spell out objections and defense counsel could easily have
explained at the bench how the opinion testimony differed from
Coletta's prior testimony about her own experience and why it was
objectionable. Id.

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103(d). As we have noted, it is far from clear that the opinion

testimony was harmful. This doubt alone is enough to bar reversal

under the plain error doctrine: although the error is plain in

retrospect, there is no showing that it probably infected the

outcome or caused a miscarriage of justice. United States v.

Olano, 507 U.S. 725, 736 (1993); Danco, Inc. v. Wal-Mart Stores,

Inc., 178 F.3d 8, 15 (1st Cir. 1999).

To sum up, the judgment must be set aside by the district

court if in further proceedings it is determined that a valid

settlement agreement was established requiring a release of

Bandera's claims in exchange for what was promised in the

agreement. But if the settlement agreement proves in further

proceedings not to be a bar, then the judgment stands. The

prospect of such further proceedings and a further appeal from

their outcome might suggest that compromise of some kind remains in

the parties' best interests.

The judgment of the district court is stayed pending

further order of the district court following the further

proceedings now ordered, and this matter is remanded to the

district court for proceedings consistent with this decision.

It is so ordered.

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