United States Court of Appeals
For the First Circuit
No. 03-2718
BRUCE BARON,
Plaintiff, Appellee,
v.
SUFFOLK COUNTY SHERIFF'S DEPARTMENT; SHERIFF OF SUFFOLK COUNTY,
Defendants, Appellants,
DANIEL HICKEY,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Boudin, Chief Judge,
Cyr, Senior Judge,
and Lipez, Circuit Judge.
Kathleen M. Cawley, Assistant General Counsel, Suffolk County
Sheriff's Department, for appellant.
Carolyn M. Conway, with whom DiMento & Sullivan was on brief,
for appellee.
March 29, 2005
LIPEZ, Circuit Judge. Plaintiff Bruce Baron, a former
corrections officer at the Suffolk County House of Correction, was
allegedly harassed and forced to quit his job after he broke a code
of silence by reporting a fellow officer's misconduct. He sued
corrections officer Daniel Hickey, the Suffolk County Sheriff's
Department ("Department"), and Suffolk County Sheriff Richard Rouse
for civil rights violations stemming from that harassment. The
district court awarded summary judgment for Rouse on the grounds of
qualified immunity but denied summary judgment for the Department.
Following a four-day trial, the jury returned a verdict against the
Department and awarded Baron $500,000 in damages. The jury also
found that Hickey was liable for tortious interference with Baron's
contractual relationship with the Department but that the specific
harassment claims against him were time-barred; the jury awarded no
damages against Hickey.
The Department then moved for judgment as a matter of
law, as well as for a new trial and a remittitur of damages. The
court denied these motions. The Department now appeals. Reviewing
its claims, we find only one arguable error in the extensive record
-- namely, a jury instruction that did not identify a specific
individual as the final policymaker who must have condoned the
custom that violated Baron's civil rights. We conclude, however,
that this forfeited claim does not dictate reversal of the jury
verdict under the plain error test set forth in United States v.
Olano, 507 U.S. 725, 735-36 (1993). Accordingly, we affirm.
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I.
We draw on the trial record for background, reciting the
facts in the light most favorable to the verdict. See SEC v. Happ,
392 F.3d 12, 17 (1st Cir. 2004); Wennik v. Polygram Group Dist.,
Inc., 304 F.3d 123, 126 (1st Cir. 2002).
A. Baron's employment at the House of Correction
Baron began working as a corrections officer at the
Suffolk County House of Correction in 1995. On January 27, 1997,
while Baron was on duty, he and a supervisor, Sergeant Walsh,
observed over a television monitor that another officer, Sergeant
William Curtis, was playing cards with inmates in violation of the
institution's policies. Walsh ordered Baron to call Deputy
Superintendent Richard Feeney1 to the unit and show him the
monitor, where Curtis could still be seen playing cards. Baron
complied, thereby essentially reporting Curtis's infraction.
Curtis was suspended for three days as a result.
Almost immediately after this incident, Baron's
colleagues began to harass him in retaliation for reporting
Curtis's card-playing in violation of a tacit "code of silence"
under which corrections officers refrain from reporting each other
for policy violations. Among other things, the corrections
officers shunned him at roll call and referred to him as a "rat."
They displayed posters mocking Baron throughout the facility. One
1
Feeney was promoted to Superintendent in October 1997 and
retired from the Department in 2002.
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poster accused him of being a child molester. During the summer of
1997, Baron also received harassing phone calls at work; once he
left work to find that his car had been defaced with feces and his
tires had been slashed.
Defendant Daniel Hickey, another corrections officer, was
the chief instigator of the harassment, repeatedly threatening
Baron and calling him a rat in front of inmates and other
corrections officers. In one of their more heated encounters in
September 1997, Hickey approached Baron in the cafeteria, said
"Excuse me, this is for the rat fink," and threw cheese onto
Baron's plate. He also called Baron a "low down Jewish rat bastard
coward."
Baron verbally complained to his supervisors and to the
Sheriff's Investigative Division (SID)2 about such harassment on
more than thirty occasions. Although Baron submitted at least
eight written complaints to the SID detailing specific incidents,
he did not keep copies of them and the SID produced only two in
response to this litigation. In one written complaint filed on
September 15, 1997, Baron reported that he had been harassed by
Hickey for eight weeks and "did not know why he has a personal
grudge against me." In the other written complaint in the record,
dated September 16, 1997, Baron reported that "Hickey started
harassing me about being a rat . . . and warning other officers
2
The SID is a division within the Department responsible for
investigating allegations of officer misconduct.
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that I may be monitoring them on camera." The September 16 report
also recounted the cafeteria confrontation between Hickey and
Baron.
SID investigator Neville Arthur collected reports from
Department employees who had been present at the time of the
confrontation in response to Baron's September 16 complaint. In
contravention of Department policy, however, Arthur did not submit
a final written report of his findings. Also in connection with
Baron's complaints, a deputy superintendent interviewed Hickey and
ordered him to leave Baron alone but did not discipline him. On
another occasion, a supervisor responded to Baron's complaints by
telling him to "be a man." Baron was ultimately transferred to the
night shift in October 1997, but the harassment did not abate.
Among other things, officers refused to cover his post for bathroom
breaks, requiring him to relieve himself in a cup or in a yard
adjacent to his post.
Over the ensuing months, as the harassment continued,
Baron was charged with several violations of institution policy.
In December 1997, a female inmate alleged that Baron had sexually
assaulted her. Baron claims that Hickey encouraged the inmate's
allegations in an effort to discredit him; a jury acquitted him on
the assault charge. Baron was also suspended for five days and
placed on employee probation for one year for giving food to an
inmate in violation of prison policy. In February 1998, Baron
collapsed at work from the stress of the harassment and had to be
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taken to the hospital. He subsequently returned to work. In June
1998, Baron violated institution policy by directly informing the
police of an inmate's claim that his girlfriend had been sexually
assaulted, rather than immediately reporting the claim to the
Department. Baron deviated from the internal reporting procedure
because he did not trust his superiors in the Department in light
of the ongoing harassment. As a result of the violation, Baron was
presented with a settlement agreement under which he would be
suspended for ten days. When Baron refused to sign the agreement
because it inaccurately recounted the incident, his suspension was
increased to twenty days. Baron did not serve the suspension
because he called in sick between the time when it was imposed and
September 3, 1998, when he resigned his position. Although the
Department contends that he resigned specifically to avoid the
suspension, Baron claims that he was forced to quit by the
psychological toll of the ongoing harassment.
B. Procedural history
In January 2001, Baron sued Hickey, Sheriff Rouse, and
the Department in Suffolk County Superior Court, alleging, inter
alia, that the retaliatory harassment he suffered for breaching the
Department's code of silence forced his constructive discharge and
violated his First Amendment and due process rights in violation of
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42 U.S.C. § 19833 and state law. The case was removed to federal
district court in January 2001.
After several claims were dismissed on motions for
summary judgment,4 the claims against Hickey and the Department
proceeded to trial in May 2003. The defendants moved for judgment
as a matter of law under Fed. R. Civ. P. 50(a) both at the close of
3
42 U.S.C. § 1983 provides that:
Every person who, under color of any . . . custom . . .
of any State . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law.
4
The court granted summary judgment for the Department on
Baron's claim under the Massachusetts Civil Rights Act, Mass. Gen.
Laws ch. 12, §§ 11H & 11I, finding that it was "not cognizable
under First Circuit precedents." The court initially denied
summary judgment on Baron's common law constructive discharge claim
against the Department but later dismissed the claim upon the
Department's motion for judgment as a matter of law, finding that
the grievance procedures provided under Baron's collective
bargaining agreement were his exclusive remedy for discharge.
Those rulings are not before us.
The court also awarded summary judgment for Sheriff Rouse on
the basis of qualified immunity:
Plaintiff . . . has produced insufficient evidence to
support a claim that the Sheriff acquiesced in the code
of silence in 1997 and 1998. . . . Thus, while there is
evidence that the Suffolk County House of Correction had
a widespread custom and practice of tolerating a code of
silence, based on this record, I conclude that the
Sheriff's hands-off management style did not arise [sic]
to the level of willful blindness or deliberate
indifference to the code of silence during the relevant
time period.
Baron did not appeal this ruling.
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Baron's case and at the close of evidence. In both cases, the
court denied the motion.
Following the four-day trial, the jury returned a verdict
against the Department, finding that Baron had proven that it had
a policy that caused a violation of his civil rights, and awarded
him $500,000 in damages. The jury found that the harassment claims
against Hickey were time barred5 but that he was liable for
tortious interference with a contractual relationship.6 The jury
did not award any damages based on its tortious interference
finding. Accordingly, the court entered judgment in favor of
Hickey7 and against the Department.
The Department now appeals, asserting a panoply of claims
aimed at virtually every aspect of the district court proceedings.
These claims essentially reduce to five major arguments. First,
the Department challenges the district court's conclusion that
Baron engaged in speech protected by the First Amendment. Second,
it asserts that Baron did not establish a basis for municipal
liability because there was no evidence of a custom of condoning a
5
Because there was a three-year statute of limitations on the
harassment claim against Hickey, the first question on the special
verdict form asked the jury whether Baron proved that Hickey had
harassed him past January 4, 1998. The jury answered that question
in the negative.
6
This finding was based on Baron's claim that Hickey's
harassment improperly interfered with his performance of his
employment agreement with the Department.
7
Neither party appeals the judgment with regard to Hickey.
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code of silence and retaliatory harassment, and that even if there
was such a custom, Baron failed to demonstrate that a Department
policymaker was aware of it. Third, the Department takes issue
with the special verdict form given to the jury, arguing that it
does not adequately specify the basis of the jury's verdict.
Fourth, the Department contends that the district court relied on
erroneous evidence in denying its motion for a new trial. Finally,
the Department maintains that there was no basis for the damages
award. We consider these claims in turn.
II.
A. First Amendment
The Department has argued throughout the course of this
litigation that the speech for which Baron was allegedly harassed
-- both the initial reporting of Curtis's infraction and the
subsequent complaints of harassment -- was not protected by the
First Amendment. The district court rejected this protected speech
argument at summary judgment, concluding that although the report
of Curtis's wrongdoing "does not seem to rise to the level of
breach of a public trust," there is an inherent public concern in
"the alleged supervisory tolerance of a pattern of escalating co-
worker harassment launched against a corrections officer for
reporting an infraction by a fellow officer in a prison setting and
then complaining about the harassment." The court summarily
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rejected this argument again at the close of trial in denying the
Department's motion for judgment as a matter of law.8
The Department renews its challenge to the court's
protected speech ruling on appeal.9 Specifically, the Department
asserts that there is nothing in the record to support the court's
finding that Baron's speech was of inherent public interest, and
thus protected speech.10 The Department also attacks the court's
First Amendment jury instructions, assigning error to the court's
8
Baron asserts that the Department failed to preserve this
First Amendment claim at trial. This contention rests on an error
in the electronic docket, which includes two copies of the
Department's motion for judgment as a matter of law based on
Baron's failure to demonstrate that he was constructively
discharged, identified as docket entries 98 and 99. Our review of
the paper record reveals that, in fact, docket entries 98 and 99
are two distinct motions for judgment as a matter of law, one based
on the First Amendment claim (number 98) and one based on the
constructive discharge issue (number 99).
9
Although the court made its protected speech determination in
a summary judgment ruling, it subsequently incorporated the
determination into the trial by referring to the earlier ruling in
its jury instructions. In addressing the Department's protected
speech argument, therefore, we are not reviewing the summary
judgment determination, but rather the ruling as it was
incorporated by reference into the trial by the jury instructions.
10
The Department also argues for the first time on appeal that
not only was Baron's reporting of Curtis not protected speech, but
that it was not speech at all. It emphasizes that Baron merely
directed his superiors' attention to a monitor on which Curtis
could be seen playing cards with inmates, rather than reporting the
incident himself. This claim must fail. Baron testified that he
called his superiors to the monitor on which Curtis could be seen
playing cards; that call, which was indisputably speech,
effectively reported Curtis's infraction in violation of the code
of silence.
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use of the term "constructive discharge" in explaining Baron's
burden of proof to establish a claim.
1. Protected speech determination
To prevail on a § 1983 claim based on a violation of his
First Amendment rights, a public employee like Baron must show that
"(1) his expression involved matters of public concern; (2) his
interest in commenting upon those matters outweighed the
[government employer's] interests in the efficient performance of
its pubic services; and (3) his protected speech was a substantial
or motivating factor in the . . . adverse employment actions."
Lewis v. City of Boston, 321 F.3d 207, 218 (1st Cir. 2003). This
appeal focuses on the first prong, the threshold question of
whether Baron was speaking "not as a citizen upon matters of public
concern, but instead as an employee upon matters only of personal
interest." Connick v. Myers, 461 U.S. 138, 147 (1983). In
answering this question of law, the Supreme Court has instructed
courts to consider "the content, form, and context of a given
statement, as revealed by the whole record." Id. at 147-48.
Not every First Amendment inquiry requires a full Connick
inquiry into form and context, however. There are some situations
where public interest will be apparent from the content of speech
alone:
Where a public employee speaks out on a topic which is
clearly a legitimate matter of inherent concern to the
electorate, the court may eschew further inquiry into the
employee's motives as revealed by the "form and context"
of the expression. On the other hand, public-employee
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speech on a topic which would not necessarily qualify, on
the basis of its content alone, as a matter of inherent
public concern (e.g., internal working conditions,
affecting only the speaker and co-workers), may require
a more complete Connick analysis into the form and
context of the public-employee expression, "as revealed
by the whole record," with a view to whether the
community has in fact manifested a legitimate concern in
the internal workings of the particular agency or
department of government, and if so, whether the "form"
of the employee's expression suggests a subjective intent
to contribute to any such public discourse.
O'Connor v. Steeves, 994 F.2d 905, 913-14 (1st Cir. 1993) (internal
citations omitted).
The district court determined at summary judgment that
"the internal workings of the Sheriff's Department" were a matter
of inherent public concern, and thus found that Baron's speech was
protected without engaging in an extended analysis of its form and
context.11 The Department takes issue with this conclusion, arguing
11
It is not entirely clear from the summary judgment decision
whether the district court's ruling on protected speech applied to
both Baron's reporting of Curtis and his subsequent complaints of
harassment, or only to the latter. The Department contends that
the summary judgment order treated only the latter speech as
protected and that the court committed an additional error when it
referred to both the reporting and the complaints as protected
speech in the jury instructions. We disagree.
Although the district court did raise doubts at summary
judgment as to whether the report was protected speech, it did not
conclusively make such a ruling. An instruction treating the
initial report as protected speech is consistent with the court's
summary judgment statement that "[i]t is essential that corrections
officers be able to speak freely about misconduct." While playing
cards with inmates may be viewed as a relatively minor infraction,
a casual attitude toward reporting "minor" infractions may lead to
more serious infractions going unreported as well. The court's
jury instruction that it had found both Baron's initial reporting
of Curtis and his subsequent complaints of harassment protected was
therefore not plainly erroneous.
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that the content of Baron's expression was not a matter of inherent
public concern because it dealt exclusively with internal working
conditions at the House of Correction. We disagree.
It is true that some speech about internal working
conditions would not be of inherent public interest. For example,
in Connick, the Court considered whether a questionnaire circulated
by an Assistant District Attorney to her colleagues was protected
speech under the First Amendment. Most of the questionnaire dealt
with office transfer policy, employee morale, and the performance
of certain supervisors. The Court concluded that questions related
to discipline and morale were not protected speech:
[W]e do not believe these questions are of public import
in evaluating the performance of the District Attorney as
an elected official. . . . Indeed, the questionnaire, if
released to the public, would convey no information at
all other than the fact that a single employee is upset
with the status quo.
461 U.S. at 148. Based on that holding, we noted in O'Connor that
speech about internal working conditions may not qualify as a
matter of inherent public concern "on the basis of its content
alone," and instead "may require a more complete Connick analysis."
994 F.2d at 914.
As the district court recognized, however, Connick does
not entirely foreclose the possibility that under some
circumstances, speech regarding internal working conditions may be
of inherent public interest. Indeed, the Supreme Court identified
one item on the Connick questionnaire as falling into this
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category: a question asking whether Assistant District Attorneys
"ever feel pressured to work in political campaigns on behalf of
office supported candidates." 461 U.S. at 149. Noting that "there
is a demonstrated interest in this country that government service
should depend upon meritorious performance rather than political
service," the Court found that the political pressure question
involved "a matter of interest to the community upon which it is
essential that public employees be able to speak out freely without
fear of retaliatory dismissal." Id.
The district court concluded that this line of reasoning
applied equally to Baron's repeated reports of harassment in
retaliation for violating the code of silence:
It is apparent that the issue of whether a corrections
officer is willing to "walk the blue line" to report
wrongdoing within the prison walls is a matter of great
interest to the community, and the courts. This problem
is analogous to the situation in which a public employee
feels pressured to work in a political campaign, which
the Supreme Court discussed in Connick. It is essential
that corrections officers be able to speak out freely
about misconduct without the pressure of a "code of
silence" and fear of extreme retaliatory harassment
sufficient to force resignation.
The court also emphasized that "[t]he community has in fact
manifested a legitimate concern in the internal workings of the
Sheriff's Department." As evidence of that concern, the court
cited a series of 2001 Boston Globe newspaper articles chronicling
abuse and mismanagement at the House of Correction, and the Stern
Report, commissioned by Governor Jane Swift in 2001 in response to
mounting allegations of mismanagement of the Suffolk County
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Sheriff's Department, which recommended a number of sweeping
changes to the Department, including an aggressive attack on the
code of silence.12
The Department now argues that the district court should
not have considered these sources because they reflect public
interest several years after the speech at issue here. While it is
true that this specific evidence of public interest post-dates
Baron's speech, there is nothing to suggest that the public would
not have been similarly interested in internal Department
conditions in 1997 and 1998 when Baron repeatedly complained about
retaliatory harassment without a meaningful response from his
superiors. Given that the court's protected speech determination
rested on a finding of inherent public interest, the small time
discrepancy that the Department points to is unimportant. If there
was an inherent public interest in internal Department conditions
in 2001, there is no reason to doubt that the same interest was
present in 1997.
Retaliation against officers who breach a code of silence
among their colleagues at a county House of Correction implicates
the public interest in a way that morale among Assistant District
Attorneys does not. Unlike the speaker in Connick, Baron was
12
The Stern Report was not offered into evidence at trial and
the district court emphasized that it did not consider the report
in evaluating the Department's post-verdict sufficiency of the
evidence claim. It is, however, part of the record on appeal
because of the court's reliance on it at the summary judgment
stage.
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reporting actual wrongdoing on the part of public employees. Cf.
461 U.S. at 148 (employee did not "seek to bring to light actual or
potential wrongdoing"). The wrongdoing Baron complained of,
including officers' violations of prison policy, retaliation for
breaching the code of silence, and prison officials' failure to
investigate or put a stop to that retaliation, affected not only
Baron and his co-workers, but also the prison inmates who were
under the Department's control. Accordingly, Baron's speech
involved a "legitimate matter of inherent concern to the
electorate," O'Connor, 994 F.2d at 913-14, and the district court
properly "eschew[ed] further inquiry into the employee's motives."
Id. The Department's additional arguments regarding the form and
context of Baron's speech are thus inapposite.
2. Constructive discharge jury instruction
The Department also contends that it is entitled to a new
trial based on the district court's instructions to the jury on the
elements of Baron's First Amendment claim. As the Department
concedes, it forfeited this claim by failing to timely object to
the instructions as required by Fed. R. Civ. P. 51(c). The
district court cited this failure as the basis for refusing to
consider the Department's challenge when it was raised for the
first time in a post-trial motion. The Department now renews its
claim before us.
A petitioner's "failure to object when the court issued
the [jury] instruction constitute[s] a forfeiture of her right to
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object on appeal." Flynn v. AK Peters, Ltd., 377 F.3d 13, 25 (1st
Cir. 2004). Under Fed. R. Civ. P. 51(c)(2)(A), a timely objection
to jury instructions must be raised before the instructions are
delivered. "Our interpretation of Rule 51 is quite strict."
Connelly v. Hyundai Motor Co., 351 F.3d 535, 544 (1st Cir. 2003).
"There is a good reason for this strictness. We enforce our
object-or-forfeit rule 'to compel litigants to afford the trial
court an opportunity to cure [a] defective instruction and to
prevent the litigants from ensuring a new trial in the event of an
adverse verdict by covertly relying on the error.'" Flynn, 377
F.3d at 25 (quoting Cross v. Cleaver, 142 F.3d 1059, 1068) (8th
Cir. 1998)) (alteration in original). Accordingly, we review the
Department's forfeited claim only for plain error. See Fed. R.
Civ. P. 51(d)(2); Babcock v. Gen. Motors Corp., 299 F.3d 60, 63-64
(1st Cir. 2002).
The Department assigns error to the district court's
references to Baron's "constructive discharge" in explaining the
necessary elements of his First Amendment claim. It contends that
these references gave jurors the mistaken impression that the court
had already determined that Baron was constructively discharged,
when in fact it remained part of Baron's burden of proof to make
that showing. A review of the full jury instructions, however,
clearly belies this claim. The court explained that:
The second element of plaintiff's claim is that he was
constructively discharged . . . and that this
constructive discharge deprived him of his constitutional
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right of free speech under the First Amendment and his
right of due process under the Fourteenth Amendment.
. . .
In order to find that the plaintiff has been
constructively discharged, he must prove by a
preponderance of the evidence that his working conditions
were so difficult and so unpleasant that a reasonable
person in his shoes would have felt compelled to resign.
In order to prevail, Mr. Baron must prove that based on
an objective assessment of the conditions under which he
was expected to work, it was so difficult as to be
intolerable.
The court then went on to explain the remaining elements of Baron's
First Amendment claim:
In order to prove his First Amendment claim against the
Department, Mr. Baron must establish two elements of his
claim: First, that his acts or speech were protected by
the free speech clause of the First Amendment; and
second, that those acts of speech were a substantial or
motivating factor in his constructive discharge.
Coming on the heels of the instruction regarding the requisite
findings for a constructive discharge, the use of the term
"constructive discharge" in this and the ensuing instructions in no
way suggests that the court had already concluded that Baron had
been constructively discharged. The instruction was not plainly
erroneous.
B. Municipal Liability
It is well-settled that municipalities may not be held
liable for the constitutional violations of their employees in a
§ 1983 suit based on a respondeat superior theory of liability.
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Rather,
"it is when execution of a government's policy or custom . . . by
those whose edicts or acts may fairly be said to represent official
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policy, inflicts the injury that the government as an entity is
responsible under § 1983." Id. at 694. In a § 1983 suit based on
an official policy promulgated by officials with final policymaking
authority, attribution to the municipality is easily established.
Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). But
"[u]nlike a 'policy,' which comes into existence because of the
top-down affirmative decision of a policymaker, a custom develops
from the bottom-up." Britton v. Maloney, 901 F. Supp. 444, 450 (D.
Mass. 1995), aff'd in part and rev'd in part on other grounds, 196
F.3d 24 (1st Cir. 1999). In a § 1983 suit premised on custom,
then, we must first determine whether the custom is fairly
attributable to the municipality. Bordanaro v. McLeod, 871 F.2d
1151, 1156 (1st Cir. 1989). This standard is met when a custom is
"so well settled and widespread that the policymaking officials of
the municipality can be said to have either actual or constructive
knowledge of it yet did nothing to end the practice." Id.; see
also City of St. Louis v. Praprotnik, 485 U.S. 112, 130 (1988)
(plurality opinion). If a custom is attributable to the
municipality, we must also inquire whether it was "the cause of and
the moving force behind the deprivation of constitutional rights."
Bordanaro, 871 F.2d at 1156.
The Department contends that the verdict against it
cannot stand because Baron did not demonstrate the prerequisites
for municipal liability set forth in Monell and Bordanaro.
Specifically, it insists that Baron presented insufficient evidence
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to establish that the ongoing harassment he suffered was the result
of a custom or policy of which a policymaker had actual or
constructive knowledge. We disagree.
1. Evidence of custom
We review de novo the district court's denial of a motion
for judgment as a matter of law. Tapalian v. Tusino, 377 F.3d 1,
5 (1st Cir. 2004). "In undertaking this review, we look to all
evidence in the record, drawing all reasonable inferences therefrom
in the nonmovant['s] favor, and resist the temptation to weigh the
evidence or make our own credibility determinations." Zachar v.
Lee, 363 F.3d 70, 73 (1st Cir. 2004). We will affirm the denial
unless no reasonable person, viewing the evidence in this light,
could have reached a verdict for the nonmoving party. Id. A
challenge to the denial of a motion for a new trial faces a similar
uphill battle; we review the denial only for an abuse of
discretion. Rivera Castillo v. Autokirey, Inc., 379 F.3d 4, 13
(1st Cir. 2004).
The Department moved for judgment as a matter of law
during the trial, and for judgment as a matter of law or a new
trial after the verdict, asserting that Baron had not shown a
custom within the Department of retaliating against corrections
officers for breaches of a code of silence. The district court
summarily rejected the trial motions and disposed of the post-trial
motion in a written order that thoroughly explained its reasoning.
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The Department disputes the district court's post-trial
explanation that there was sufficient evidence to establish a
custom of "condoning the use of harassment to enforce the code of
silence against 'rats.'" It points out that Baron testified only
to his own experience. Unlike other cases involving similar
claims, there was no evidence here that other House of Correction
officers had suffered such retaliation or that other complaints had
not been adequately investigated. Cf., Jeffes v. Barnes, 208 F.3d
49, 53 (2d Cir. 2000). Absent such evidence, the Department
contends, a jury could not reasonably have concluded that Baron's
harassment was attributable to a municipal custom.
As Baron points out, however, the Department's position
unduly minimizes Feeney's testimony. Feeney was the deputy
superintendent, fourth-in-command in the Department, in January
1997 when the harassment of Baron began. He was promoted to
superintendent, third-in-command and in charge of day-to-day
operations at the House of Correction, in October 1997 while the
harassment was ongoing. Feeney testified at trial that "there are
some officers that are reluctant to report things, and when they
do, they're evasive and vague in their reports." Baron's attorney
then asked Feeney to read from his earlier deposition, in which the
following exchange took place:
Q: Are you aware of any code of silence between fellow
officers reporting violations on each other?
A: Yes.
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Q: What is it, the code of silence?
A: Lack of reporting to protect each other.
Q: When Officer Baron reported Sergeant Curtis, did he
violate that?
A: Yes.
Feeney was then asked if there would be consequences if an officer
were to report another officer. He answered, "There could be."
Cf. Sharp v. Houston, 164 F.3d 923, 935 (5th Cir. 1999)
(recognizing that a code of silence "can be perpetuated only if
there is retaliation for violations of it"). Feeney also testified
that Baron had complained to him about the harassment.
That other Department employees denied at trial the
existence of a code of silence would not preclude a reasonable
trier of fact from crediting Feeney's statements as evidence of a
custom. The jury could have found that Feeney's statements,
together with Baron's testimony that the harassment began almost
immediately after he reported Curtis, demonstrated a custom of
retaliation to enforce a code of silence.13 See Blair v. City of
13
As we explain below, a jury could have found not only that
this custom of retaliatory harassment existed, but also that it was
attributable to the Department. The evidence supporting such a
finding forecloses the Department's argument that Baron failed to
establish that a Department custom caused officers to harass him.
Baron's testimony also supported a finding that the harassment led
to his constructive discharge, given the heavy physical and
emotional toll that it inflicted on his personal and family life.
See infra Section E. Baron therefore established the requisite
"affirmative link" between a municipal custom and the
constitutional deprivation. See Bordanaro, 871 F.2d at 1157
(citing Okla. City v. Tuttle, 471 U.S. 808, 823 (1985)); see also
Tuttle, 471 U.S. at 824-25 & n.8.
-22-
Pomona, 223 F.3d 1074, 1079-80 (1st Cir. 2000) (former police
officer's charges that he suffered ongoing harassment after
reporting corruption on special police task force, if believed by
jury, were sufficient to establish "custom of chastising
whistleblowers"). Indeed, as the district court recognized, "the
jury could reasonably have inferred from the failure of numerous
defense witnesses (like corrections officers) to corroborate
Baron's testimony that such a custom would make it extremely
difficult to substantiate any allegations against it." As an
example, the court cited testimony by corrections officer Hubert
Holtzclaw, regarding the cafeteria confrontation between Hickey and
Baron, that "Hickey didn't slam cheese on the table in front of
Baron, but instead placed a handful of napkins on the table as a
gesture of good will." The court noted that "[t]he jury could
reasonably have inferred that this testimony was incredible (even
Hickey conceded that he bore no good will toward Baron), and was
prompted by a desire not to testify against a fellow officer." In
light of such difficulties in corroborating a code of silence,
Baron's testimony takes on additional weight and Feeney's admission
regarding his knowledge of the code is all the more significant.
The Department also challenges Baron's claim of a custom
by invoking the rule that a single unconstitutional incident is
insufficient to impose municipal liability under § 1983; instead,
a plaintiff has to offer "considerably more proof than a single
-23-
incident . . . to establish . . . the requisite fault on the part
of the municipality." Tuttle, 471 U.S. at 824. In considering
this issue, the district court stressed that the "single incident"
rule "is not immutable." It pointed to decisions recognizing that
"serial misconduct" directed at a single victim may be sufficient
to establish municipal liability, and concluded that this was such
a case. The Department asserts that these serial misconduct cases
are inapposite because this case involved only "one current
employee complaining to one investigator about his work
conditions."
This description of the case is not consistent with the
record. As the district court explained, the evidence makes this
case more akin to the serial misconduct cases than to cases
implicating the single incident rule:
Plaintiff presented evidence of a head-in-the-sand
attitude by the SID. . . . [T]he jury could reasonably
have found that SID made only a perfunctory inquiry,
failed to write a report or even keep a file, and declined
to impose any sanctions or take any proactive steps to
stop the harassment. The jury could find that Baron made
dozens or even scores of complaints . . . most of which
was [sic] in essence ignored or lost by supervising
officers in SID. Further, Neville Arthur, the SID officer
with whom Baron filed most of his complaints, testified
that he had no knowledge of derogatory "posters" ever
being hung around the Department. This testimony, in
light of the three such posters [targeting Baron] admitted
into evidence and other supervisors' unabashed
acknowledgment that such posters were a regular feature of
the workplace within the Department, may reasonably have
lent support to the finding that there was an unofficial
custom at the Department of turning a blind eye to
workplace harassment . . . .
. . .
-24-
. . . The harshness of the defendant's sanctions
against Baron for minor policy infractions was also
evidence of the Department's turning a cold shoulder to
his plight and affirmatively joining in the peer pressure
to force him out. Most significantly, the defendant
threatened termination when Baron reported an assault on
an inmate's girlfriend directly to the police rather than
immediately to supervisors whom he later informed. Even
though Baron was on probationary status, the jury could
have found that the threatened sanction was draconian,
under the circumstances, and forced him out.14
Baron reported multiple incidents of harassment,
including physical threats and property destruction, to his
superior officer, to SID investigator Arthur, and to Feeney. Baron
also met with union president Michael Powers and Deputy
Superintendent Marie Lockhart in January 1998 to report the ongoing
harassment. This is not a case, then, of attributing liability to
the municipality based on a single incident of isolated employee
conduct. Rather, the record demonstrates a pattern of ongoing
harassment that the jury could have found high-ranking Department
officials were aware of and did not stop. Compare Kibbe v. City of
Springfield, 777 F.2d 801, 805-06 (1st Cir. 1985) (actions of
multiple police officers in connection with the pursuit and arrest
of a single suspect were adequate basis for municipal liability
because "the widespread activity here is more likely to reflect the
operating procedures of the police department than would a single
14
This passage is also the basis of another challenge by the
Department, namely that the court erred in citing this point
regarding sanctions in denying the motion for a new trial. See
infra Section D.
-25-
incidence such as occurred in Tuttle") with Tuttle, 471 U.S. at
811, 823-24 (one shooting by a single police officer was
insufficient to establish municipal liability for inadequate
officer training). The Department was therefore not entitled to
judgment as a matter of law or a new trial on the basis of
insufficient evidence of the code of silence.
2. Policymaker determination
To establish municipal liability, a plaintiff must
demonstrate not only that a custom caused a deprivation of his
rights, but also that the challenged practices were "so widespread
or flagrant that in the proper exercise of [their] official
responsibilities the [municipal policymakers] should have known of
them." Bordanaro, 871 F.2d at 1157. The Department now argues
that the jury verdict cannot stand because Baron and the court
failed to identify a specific Department policymaker who knew of
the custom of a code of silence enforced by retaliatory harassment
and who condoned it or acquiesced in it.
The Department sought judgment as a matter of law at
multiple points during the trial. It did not, however,
specifically assert the claim now before us, as is indicated by the
court's response when the Department finally did raise the issue in
a post-trial motion: "The defendant argues that there was no
evidence with regard to who is a policymaker of the Sheriff's
Department. . . . This was not an issue pressed at trial." Baron
-26-
had presented evidence that Feeney, the Department deputy
superintendent and superintendent during the relevant period, was
aware of the code of silence and consequences for violating it, and
was also aware of Baron's harassment complaints. Feeney testified
that he was third-in-command in the Department and was responsible
for overseeing the day-to-day operations of the House of
Correction. This testimony suggested that Baron believed Feeney to
be the relevant policymaker for purposes of this litigation. The
Department gave no indication at trial that it disagreed with that
assessment.
The Department's proposed jury instructions were
similarly mute as to who it believed was the final policymaker for
purposes of establishing municipal liability. It failed to object
in the pre-charge conference or in open court to the court's
instruction to the jury that "for purposes of determining the
liability of the Sheriff's Department, the Department was the
official entity responsible for establishing final policy with
respect to investigating complaints of employee misconduct and
imposing appropriate discipline." It was not until after the jury
returned its verdict that the Department pressed the policymaker
issue for the first time, arguing that it was entitled to a new
trial on the basis of this jury instruction. Because the
Department forfeited its objection on this point by failing to
raise it in a timely manner, our review is only for plain error.
-27-
See Fed. R. Civ. P. 51(d)(2). Under this standard, we will notice
an error only if it is clear and prejudicial, and if "a miscarriage
of justice would otherwise result." Olano, 507 U.S. at 735-36
(internal quotation marks deleted).
The Department assigns error to the district court's
identification of "the Department" as the relevant policymaker,
arguing that the failure to identify a specific final policymaker
within the Department was erroneous because it allowed the jury to
find municipal liability if any Department employee knew of Baron's
harassment claims. This overstates the point. Although the
district court's instruction would be error if understood this way,
see Monell, 436 U.S. at 694 (concluding that "a municipality cannot
be held liable under § 1983 on a respondeat superior theory), it
must be read as qualified by the court's later statement that
liability could be imposed only if "Department policymakers" were
aware of the custom of retaliation and Baron's situation. It is
highly unlikely that the jury interpreted the phrase "Department
policymakers" to mean "any Department employee," particularly in
light of evidence that the Department superintendent, not just
"any" employee, was aware of Baron's complaints.
Yet, even this qualified version of the court's statement
might be too broad under the case law because it is only a policy
made by the final policymaker that exposes a municipality to
liability, see, e.g., Silva v. Worden, 130 F.3d 26, 31 (1st Cir.
-28-
1997) (explaining that municipal liability for acts taken pursuant
to a policy "attaches only where the decisionmaker possesses final
authority to establish municipal policy with respect to the action
ordered") (internal quotation marks and emphasis omitted).
Therefore, in a case alleging an affirmative wrongful policy (as
opposed to a custom acquiesced in), the court would have to
identify an individual or body as the final policymaker, and the
jury would have to determine whether the policy at issue could be
attributed to that policymaker. See Jett v. Dallas Indep. Sch.
Dist., 491 U.S. 701, 737 (1989).
However, Baron claims not that an individual or body
adopted an unconstitutional policy but that the Department had a
custom tolerated by policymakers who should have intervened to
correct it. In this custom context, our past language has
sometimes referred to policymakers in the plural, rather than to a
final policymaker. See, e.g., Silva, 130 F.3d at 32 (rejecting a
§ 1983 claim based on custom because there was not "sufficient
evidence that the City's policymaking officials could be said to
have had actual or constructive knowledge of the practice"). The
requirement in the affirmative policy cases that the district court
identify a final policymaker may therefore not apply in those cases
based on custom. See Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir.
2003) (explaining that in a § 1983 suit based on custom, the
plaintiff "must prove the existence of a longstanding practice or
-29-
policy to the satisfaction of the factfinder" but that in a suit
premised on an act by a person with final policymaking authority,
"the court must decide, as a matter of state law and before the
case may be submitted to the jury, whether the person who committed
the violation had final policymaking authority"); but see Jett, 491
U.S. at 737 (noting the requirement that the court identify a final
policymaker without distinguishing between § 1983 suits based on
custom and those based on policy). We need not resolve this
question here; under the plain error standard, it is enough that
any error in the district court's reference to "Department
policymakers" without identification of a specific final
policymaker is not clear.
Moreover, even if the district court should have
identified a final policymaker in this custom case, the Department
is not entitled to a new trial because it cannot show prejudice
resulting from the error. In a post-trial ruling, the district
court concluded without explanation that the superintendent and
deputy superintendent set policy for the jail in the relevant
areas, implying that it believed Feeney was the relevant
policymaker. See Praprotnik, 485 U.S. at 123 (policymaker is
official responsible for making policy "in that area of the
[municipal entity's] business"). If Feeney did set final policy
for the House of Correction, the Department was not prejudiced by
the verdict because he admitted that he knew that the code of
-30-
silence existed, that there could be consequences for violating it,
and that Baron had complained of harassment. In other words, the
jury could have found that Feeney had knowledge of the custom that
resulted in a deprivation of Baron's constitutional rights and that
he acquiesced in the custom by failing to take actions to stop it.
The Department asserts, however, that Sheriff Rouse, not
Feeney, was the final policymaker under state law. Although there
is no evidence on this issue in the record, it seems self-evident
that the sheriff is the final policymaker within the Department as
a matter of law. See Mass. Gen. Laws ch. 126, § 16;15 cf. Jeffes,
15
Under Massachusetts law,
The sheriff shall have custody and control of the jails
in his county, and, except in Suffolk county, of the
houses of correction therein, and of all prisoners
committed thereto, and shall keep the same himself or by
his deputy as jailer, superintendent or keeper, and shall
be responsible for them.
Mass. Gen. Laws ch. 126, § 16. The state legislature amended the
exception for the Suffolk County House of Correction in 1991,
conditioning a 1992 appropriation for county corrections on the
following basis:
[N]otwithstanding [Mass. Gen. Laws ch. 126] . . . the
current Suffolk County House of Correction and the new
Suffolk County House of Correction shall be under the
sole and exclusive control of the sheriff of Suffolk
County who shall administer the same in the same manner
and with the same authority as found in the statutes
which govern the administration of the Suffolk County
Jail.
1991 Mass. Acts ch. 138, § 362 (line item 8910-0030); see also
Suffolk County Sheriff's Department, Sheriff Andrea J. Cabral, at
http://www.scsdma.org/sheriffOffice/sheriffBio.html (sheriff is
"responsible for the operation of the House of Correction") (last
-31-
208 F.3d at 58 (under New York law, the county sheriff is final
policymaker with respect to conduct of staff members toward fellow
officers). Emphasizing that Baron did not present any evidence
regarding the Sheriff's actual knowledge of the code of silence and
retaliatory harassment, the Department contends that a legal
determination that the Sheriff was the final policymaker
conclusively establishes prejudice. On this point, the Department
is wrong.
It is true that Baron did not demonstrate that the
Sheriff actually knew of the custom that led to his constructive
discharge. Although Rouse may not have had actual knowledge of the
custom, however, municipal liability can also be based on a
policymaker's constructive knowledge -- that is, if the custom is
so widespread that municipal policymakers should have known of it.
Bordanaro, 871 F.2d at 1157. If the jury had been instructed that
Rouse was the policymaker, it might have agreed that there was
insufficient evidence to establish that he acquiesced in or
condoned enforcement of the code of silence. On the other hand,
the jury might also have concluded that if Superintendent Feeney
was aware of the code of silence as third-in-command in the
Department, constructive knowledge was also attributable to Rouse.16
visited Mar. 3, 2005).
16
We do not view this conclusion as precluded by the district
court's award of qualified immunity to the Sheriff at the summary
judgment stage, nor does it appear that the Department has advanced
that argument. The court premised its qualified immunity ruling on
-32-
Prejudice in this case is far from clear. Pursuant to the plain
error standard, the Department has the burden of establishing
prejudice. The uncertainty of the prejudice is also fatal to its
claim. See Acevedo-Garcia v. Monroig, 351 F.3d 547, 571 (1st Cir.
2003) (declining to award a new trial where "prejudice to the
aggrieved party is not manifest on the face of the record").
Nor has the Department established that it would be a
miscarriage of justice to allow the verdict to stand. The Stern
Report urged an "aggressive attack on the code of silence,"
explaining that "[s]taff [in the Department] consistently expressed
concern that if they reported misconduct of fellow staff, they
could expect retaliation from their peers." The fact that this was
a consistent concern among Department employees demonstrates that
the existence of the code of silence and the possibility of
retaliatory harassment were well-known throughout the Department
during Rouse's tenure. In short, the code of silence charged by
Baron was real and pervasive. Viewing the verdict against this
background, we conclude that the jury instruction's failure to
identify a policymaker was not an error (if an error at all) that
the fact that Baron had not "shown any incident, report, complaint,
or testimony that demonstrates that the Sheriff was on notice of
the code of silence and the need to address it in 1997 and 1998."
Significantly, the court also acknowledged "evidence that the
Suffolk County House of Correction had a widespread custom and
practice of tolerating a code of silence." A jury could have
attributed constructive knowledge of this "widespread custom" to
the Sheriff despite the court's finding that he did not have
sufficient knowledge of it to incur personal liability.
-33-
"seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings." Olano, 507 U.S. at 736 (quotation marks
omitted).
C. Special verdict form
Question Five on the special verdict form asked the jury
whether Baron "prove[d] that the Suffolk County Sheriff's
Department had a custom, policy, or practice that caused a
violation of his civil rights," to which the jury answered "Yes."
The Department took issue with this question for the first time in
a post-trial motion, arguing that it was faulty because it did not
inquire whether the verdict rested on a violation of Baron's First
Amendment rights or his due process rights. Maintaining that there
was insufficient evidence to support a finding based on Baron's due
process theory, the Department emphasizes the rule that "[a] new
trial ordinarily is required when a special verdict finding
encompasses multiple facts and claims some of which should not have
been submitted to the jury . . . [because] it is impossible to tell
whether consideration of the improperly submitted claims may have
affected the verdict." Lattimore v. Polaroid Corp. 99 F.3d 456,
468 (1st Cir. 1996).
Although we have previously considered the possibility
that a party forfeited a claim based on this rule by failing to
request a special verdict, see Davis v. Rennie, 264 F.3d 86, 106-07
(1st Cir. 2001), we recently rejected the application of plain
-34-
error review in this context. See Gillespie v. Sears, Roebuck &
Co. 386 F.3d 21, 31 (1st Cir. 2004). Instead, we concluded that "a
uniform obligation to ask for a special verdict, or have relevant
claims of error forfeit by appellant, is not warranted." Id.
Seizing upon this new trial prospect, the Department
argues that Baron's due process claim should not have been
submitted to the jury because Baron did not have a property
interest in his position when he was constructively discharged.
See Galloza v. Foy, 389 F.3d 26, 33 (1st Cir. 2004) (due process
rights extend only to public employees who have a property interest
in continued employment as determined by local law and terms of
employment). Specifically, the Department asserts that Baron lost
his property interest in his position when he was placed on
probation in December 1997 because one term of his probation was
that "any violation of Department policy . . . shall constitute
just cause for his immediate termination." The Department reasons
that Baron then violated Department policy during the probationary
period (resulting in the twenty-day suspension that was pending
when Baron resigned), and therefore was subject to immediate
termination at the time of his resignation. As such, the
Department contends, there was no process due and the jury should
not have been allowed to consider this as a basis for municipal
liability.
-35-
We need not determine whether the due process claim
should have been put before the jury, however, because we are
reasonably sure that the verdict rested on the adequately supported
First Amendment theory rather than on the due process theory. See
Gillespie, 386 F.3d at 30 ("Recognizing that a jury is likely to
prefer a better supported theory to one less supported, we have
generously applied the harmless error concept to rescue verdicts
where we could be reasonably sure that the jury in fact relied upon
a theory with adequate evidentiary support."). This conclusion is
based on a review of the jury instructions and the special verdict
form as a whole. In explaining Question 5, the court offered the
following summary:
In order to prevail against the [Department] here, Mr.
Baron must prove that he was harassed during the course
of his employment by coworkers; two, that one substantial
reason for the harassment was because he reported another
officer's conduct . . . or because he reported coworker
harassment; three, that a practice of retaliating against
officers who breached a code of silence existed at the
House of Correction; four, that a practice of retaliation
against officers for breaching the code was so well
established and widespread that Department policymakers
must have known about it; five, that the Department
policymakers were aware of a widespread practice of
officer retaliation based on violation of a code of
silence and took no steps to end or discourage the
practice; six, that the failure of the Department
policymakers to eliminate employee retaliation caused the
harm suffered by Mr. Baron; seven, that the Department
policymakers were aware of the type and extent of the
harassment suffered by Mr. Baron and did nothing to end
it; eight, that the conditions were so intolerable that
they forced Baron to resign; and finally, that the
constructive termination caused him damages.
-36-
This instruction, which specifies that the harassment must have
resulted from Baron's protected speech, set forth the elements of
a claim based on the First Amendment; it did not suggest that the
jury could return a verdict for Baron based solely on a finding
that his due process rights had been violated. There is thus
little danger that the jury's answer to Question 5 rested on the
latter theory, and there is no need for a new trial on that basis.
D. Other trial issues
The Department also assails the district court's denial
of its motion for a new trial on the grounds that the ruling relied
on erroneous facts. Again, we review the court's denial of a
motion for a new trial for abuse of discretion. Rivera Castillo,
379 F.3d at 13.
The Department first challenges the district court's
statement that, "[T]he only time SID investigated [Baron's
complaints] was when [Lieutenant Robert] Pizzi, an officer, filed
a written report." It claims that, in fact, the SID had already
begun investigating in response to Baron's written complaint, and
it interviewed Pizzi in connection with that investigation. While
the court may have misstated this fact, that misstatement does not
remotely require a new trial because there was ample other evidence
to support the verdict that a custom of condoning retaliatory
harassment caused Baron's constructive discharge. See Johnson v.
Spencer Press of Me., Inc., 364 F.3d 368, 375 (1st Cir. 2004)
-37-
(noting that a court should grant a new trial only if the verdict
is "against the clear weight of the evidence") (internal quotation
marks omitted).
Next, the Department takes aim at the district court's
statement that "[t]he harshness of the defendant's sanctions
against Baron for minor policy infractions was also evidence of the
Department's turning a cold shoulder to his plight and
affirmatively joining in the peer pressure to force him out." The
Department argues that Baron's policy infractions were not "minor"
and asserts that the district court prevented it from exploring the
severity of Baron's misconduct at trial. Specifically, the
Department emphasizes that the court cut off questioning of Captain
John Scaduto regarding the severity of Baron's infraction of giving
food to an inmate. The Department also attacks the court's
statement that "the defendant threatened termination when Baron
reported an assault on an inmate's girlfriend." It contends that
the court erred in attributing the threat of termination to the
Department, when in fact it came from the union representative
negotiating Baron's discipline settlement rather than from the
Department itself. The Department asserts that together, these
errors indicate that the district court abused its discretion in
denying the motion for a new trial.
In a post-verdict motion for a new trial, the evidence is
viewed in the light most favorable to the verdict. Stuart v.
-38-
United States, 337 F.3d 31, 37 (1st Cir. 2003). Regardless of who
threatened Baron with termination, Baron was given a ten-day
suspension for a policy infraction, and that suspension was
increased to twenty days when Baron refused to sign the ten-day
agreement because it contained inaccuracies. The policy infraction
leading to this suspension was Baron's decision to inform the
Boston Police Department of a reported sexual assault without first
telling his superiors. As the court recognized, the jury may have
viewed the Department's response to this infraction as draconian.
The denial of a new trial on this basis was not an abuse of
discretion.
E. Damages
In a post-trial motion, the Department asserted that it
was entitled to a new trial or remittitur because the $500,000
damages award was unsupported by the evidence. The court rejected
this motion, concluding that, "While Baron hardly put in any
evidence of economic damages at all, there was considerable
testimony from him concerning the stress and anguish induced by the
harassment. . . . In light of the length, extent, and viciousness
of the harassment Baron suffered, the jury award was not
unreasonable." The Department renews its claim before us.
Emphasizing that Baron presented little evidence of economic
damages and no evidence of medical consequences of the harassment,
-39-
the Department contends that allowing the $500,000 award to stand
would be a miscarriage of justice.
"Where defendants properly preserve a challenge to the
amount of compensatory damages awarded by the jury, our inquiry is
limited to determining whether the trial court abused its
discretion in refusing to set aside the verdict as excessive."
Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 102 (1st Cir. 2003)
(quotation marks omitted), cert. denied, 124 S. Ct. 1875 (2004).
"In reviewing an award of damages, the district court is obliged to
review the evidence in the light most favorable to the prevailing
party and to grant remittitur or a new trial on damages only when
the award 'exceeds any rational appraisal or estimate of the
damages that could be based upon the evidence before it.'" E.
Mountain Platform Tennis, Inc. v. Sherwin-Williams Co., 40 F.3d
492, 502 (1st Cir. 1994) (quoting Kolb v. Goldring, Inc., 694 F.2d
869, 872 (1st Cir. 1982)); see also Consolo v. George, 58 F.3d 791,
795 (1st Cir. 1995) (noting that damages award "cannot be disturbed
unless the award exceeded any rational appraisal or estimate of the
damages . . . or was grossly excessive, inordinate, shocking to the
conscious of the court, or so high it would be a denial of justice
to permit it to stand") (quotation marks omitted).
The district court instructed the jury that, "You can
award damages [against the Department] for pain and emotional
suffering, emotional distress, as well as economic damages."
-40-
Although Baron presented little evidence of economic damages, his
testimony demonstrated that the harassment had taken a heavy
emotional toll on him. Over the course of many months, Baron was
subjected to vicious threats and physical intimidation. He
received harassing phone calls that included taunts about his wife,
who suffered from multiple sclerosis and was confined to a
wheelchair. Posters displayed throughout the House of Correction
labeled him a rat and suggested that he was a child molester. His
car was smeared with feces and his tires were slashed. Other
officers refused to cover his post for restroom breaks, forcing
himself to relieve himself in a cup. This harassment affected his
health, requiring him to be taken to the hospital after collapsing
from stress. Baron testified that by the summer of 1998, he "was
doing terrible," suffering from headaches, and could not sleep. He
also testified that the harassment affected his family life,
causing him to be short-tempered with his children and with his
ailing wife. Ultimately, the harassment took such a serious toll
that he was forced to quit his job. In light of these facts, an
award of $500,000 does not "exceed[] any rational appraisal or
estimate of the damages" in this case, Sherwin Williams, 40 F.3d at
502 (quotation marks omitted), and we will not disturb it.
Affirmed.
-41-
Baron v. Suffolk County Sheriff's Department
Court: Court of Appeals for the First Circuit
Date filed: 2005-03-29
Citations: 402 F.3d 225
Copy Citations