United States Court of Appeals
For the First Circuit
No. 00-2582
JOHN LARCH,
Plaintiff, Appellee,
v.
MANSFIELD MUNICIPAL ELECTRIC DEPARTMENT,
Defendant, Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Torruella, Circuit Judge,
Gibson,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Leonard H. Kesten, with whom Deidre Brennan Regan and Brody,
Hardoon, Perkins & Kesten were on brief, for appellant.
Alan R. Hoffman, with whom Lynch, Brewer, Hoffman & Sands
LLP were on brief, for appellee.
December 3, 2001
* Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
LIPEZ, Circuit Judge. On February 2, 1998, the Board
of Commissioners of the Mansfield Municipal Electric Department
voted not to renew the contract of the Department's manager,
John Larch. Larch filed a complaint against the Department
under Mass. Gen. Laws ch. 149, § 185(b) (the "Whistleblower
Statute"), and 42 U.S.C. § 1983, alleging that his employment
had been unlawfully terminated in retaliation for his refusal to
obey Commissioner Frank Colella's order that he hire Michael
Forbes, a friend of Colella's, as an apprentice lineman/meter
reader or meter reader. The case went to trial, and the jury
returned a verdict for Larch on the Whistleblower claim,
awarding damages in the amount of $607,977.00. The court added
attorney's fees, costs, and prejudgment interest. The
Department appeals on numerous grounds. We affirm.
I. Background
From March of 1983 to June 30, 1998, John Larch was
manager of the Mansfield Municipal Electric Department (the
"Department" or the "Electric Department"), where he was in
charge of the day-to-day operation of the Department, including
the hiring and discharge of employees. The Board of Selectmen,
who under the town charter were also the Electric Department's
Board of Commissioners (the "Board"), were responsible for
setting Electric Department policy. The three Board members who
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voted not to renew Larch's contract in February of 1998 were
Frank Gerald Colella, Norman Mahana, and William C. Madan.
Madan and Mahana were elected to the Board in March of 1996;
Colella had been elected the previous year. Larch accused these
three Commissioners of acting in concert to retaliate against
him for his decision not to hire Forbes. The two Commissioners
who opposed the motion not to renew Larch's contract were Amos
M. Robinson and Dianne Royle (who replaced Joseph M. Pasquale on
the Board in 1997).
In March of 1998, Larch filed a complaint in Bristol
County Superior Court against defendants Madan, Royle, Colella,
Mahana, and Robinson, as members of the Mansfield Municipal
Electric Department Board of Commissioners, alleging that the
Board's decision not to renew his contract violated the
Massachusetts Whistleblower Statute, Mass. Gen. Laws ch. 149,
§ 185(b), because it was in retaliation for his refusal to
perform an act (hire Forbes) that he reasonably believed would
have been unlawful. Larch claimed that it would have been
unlawful to hire Forbes because under Massachusetts law the
"manager of municipal lighting" shall have "full charge" of "the
employment of . . . agents and servants," Mass. Gen. Laws ch.
164, § 56, and because under the collective bargaining agreement
a union member who expressed interest in the position had
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priority over Forbes. The complaint also alleged breach of
contract and unlawful discharge, and sought declaratory relief.
Larch filed an amended complaint in April of 1998, adding as
defendants Madan, Colella, and Mahana as individuals, and the
Mansfield Municipal Electric Department, and adding a federal
civil rights claim under 42 U.S.C. § 1983. In May of 1998 the
case was removed to the United States District Court for the
District of Massachusetts. In March of 1999 a suggestion of
death was filed as to Mahana.
The central issue at trial, which commenced on June 26,
2000, was whether the Board's decision not to renew Larch's
contract was in retaliation for Larch's decision not to hire
Forbes. Larch's theory of the case was that Colella had ordered
him to hire Forbes, and that when he refused to do so in June of
1996, a majority on the Board (Colella, Madan, and Mahana)
launched a protracted campaign of harassment against him that
culminated in February of 1998 with the vote not to renew his
contract. The Board argued that Colella never ordered Larch to
hire Forbes, but simply recommended him for the position, and
that the non-renewal decision was unrelated to the Forbes
affair.
During the trial, the court dismissed the claims
against the individual defendants, directed a verdict for the
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Department on the civil rights claim, and directed a verdict for
Larch on the breach of contract claim (with nominal damages).1
The Whistleblower claim went to the jury, which on July 5, 2000,
returned a verdict for Larch in the amount of $607,977.00. In
a subsequent order the district court awarded prejudgment
interest from March 9, 1998, and attorney's fees and costs
pursuant to the Whistleblower Statute.
The Department then moved for judgment as a matter of
law, for a new trial, and to alter or amend the judgment. It
argued that there was insufficient evidence that Larch
reasonably believed that hiring Forbes would have violated the
law; that there was insufficient evidence that his refusal to
hire Forbes was a substantial or motivating factor in the
Board's decision not to renew his contract; that the non-renewal
of Larch's contract was not a "retaliatory action" within the
meaning the Whistleblower Statute; that the district court erred
in admitting into evidence the statements of the deceased
Commissioner Mahana; and that the award of damages was too
speculative and should be reduced. The district court denied
these motions. The Department also moved for reconsideration of
1
The district court found that the Department had breached
its contract with Larch when it unilaterally reduced the
threshold at which purchase orders required Board approval from
$10,000 (the figure in the contract) to $1,000. Larch requested
only nominal damages.
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the court's order concerning attorney's fees and prejudgment
interest. The court granted these motions in part, adjusting
the date from which prejudgment interest would be awarded and
authorizing certain deductions from the attorney's fees award.
The court entered an amended judgment on October 20, 2000,
awarding Larch $607,977.00, plus prejudgment interest in the
amount of $168,498.84, attorney's fees in the amount of
$119,265.00, and costs of $8,523.00. The Department filed a
notice of appeal on November 16, 2000.
II. Sufficiency of the Evidence
Larch claims, and the jury found, that the Department
violated the Massachusetts Whistleblower Statute, Mass. Gen.
Laws ch. 149, § 185(b), which provides, in relevant part:
An employer shall not take any
retaliatory action against an employee
because the employee does any of the
following:
. . .
(3) Objects to, or refuses to
participate in any activity, policy or
practice which the employee reasonably
believes is in violation of a law, or a rule
or regulation promulgated pursuant to law,
or which the employee reasonably believes
poses a risk to public health, safety or the
environment.
The district court instructed the jury that Larch had to prove
(1) "that he objected to or refused to participate in an
activity, policy or practice that he reasonably believed was in
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violation of a law, rule or regulation;" (2) "that his refusal
to participate in the activity played a substantial or
motivating part in the decision not to renew his contract"; and
(3) "that the retaliatory action caused him damages." The
Department argues that there was insufficient evidence for the
jury to make findings one and two.
"We review the district court's denial of [a] motion
for judgment as a matter of law de novo, viewing the evidence in
the light most favorable to [the non-moving party] and drawing
all reasonable inferences in its favor. Our inquiry is whether
the evidence, when viewed from this perspective, would permit a
reasonable jury to find in favor of [the non-moving party] on
any permissible claim or theory." Foster-Miller, Inc. v.
Babcock & Wilcox Canada, 210 F.3d 1, 7 (1st Cir. 2000)
(citations and internal quotation marks omitted). We conclude
that the evidence was sufficient to support the jury's verdict.
(a) Reasonable Belief That Hiring Forbes Would Have Been
Unlawful
Larch testified that he reasonably believed that hiring
Forbes pursuant to Colella's order would have violated three
Massachusetts statutes. Because Larch only had to establish
that he reasonably believed that hiring Forbes would have
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violated one of the statutes he cited,2 we limit our discussion
to Mass. Gen. Laws ch. 164, § 56, which provides that the
"manager of municipal lighting" shall have "full charge" of "the
employment of . . . agents and servants." 3 Larch argues that
hiring Forbes pursuant to Colella's order would have entailed an
unlawful substitution of Colella's judgment for his own. The
Department asserts that Colella never ordered Larch to hire
Forbes, but simply recommended Forbes for the positions.
There was ample evidence at trial to support a jury
finding that Colella had ordered Larch to hire Forbes. On March
5, 1996, the Board voted to authorize a new position for an
2 The other statutes Larch cited are Mass. Gen. Laws ch.
268A, § 23(b)(2) (government employees shall not use their
official position to secure, for themselves or for others,
"unwarranted privileges . . . of substantial value . . . which
are not properly available to similarly situated individuals");
and Mass. Gen. Laws ch. 150E, § 7(d) (terms of collective
bargaining agreement shall prevail over municipal personnel
ordinances, by-laws, rules, or regulations).
3 Mass. Gen. Laws ch. 164, § 56 reads, in relevant part:
The mayor of a city, or the selectmen or municipal light
board, if any, of a town acquiring a gas or electric plant
shall appoint a manager of municipal lighting who shall,
under the direction and control of the mayor, selectmen or
municipal light board, if any, and subject to this chapter,
have full charge of the operation and management of the
plant, the manufacture and distribution of gas or
electricity, the purchase of supplies, the employment of
attorneys and of agents and servants, the method, time,
price, quantity and quality of the supply, the collection
of bills, and the keeping of accounts.
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apprentice lineman/meter reader. Between March 5 and June 3,
1996, Colella indicated to Larch on at least three occasions
that he expected Forbes, a friend and co-worker of Colella's, to
be hired for the new position. While it was common for
Commissioners to recommend people for open positions, Larch
testified that he believed Colella was ordering him to hire
Forbes. Larch testified that he had decided not to hire Forbes
"as long as [Colella] was telling me to hire him."
Larch did not post the new position when it was
authorized, believing that "we were going to have a problem"
when Colella found out that Forbes was not getting the job. At
the beginning of June, however, Larch learned that Shawn Curran,
a meter reader in the Department, had decided to bid for the
position. Larch believed that Curran's bid would get him "off
the hook" with Colella because the union contract stipulated
that members of the bargaining unit had absolute preference for
open positions. After the June 3 Board meeting, he informed
Colella that the new position would go to Curran. Colella
testified that he was upset by this news.
The next day, Colella indicated to Kym Gaissl, the
Department's Business Manager, that the Selectmen/Commissioners
were the "town fathers," a phrase which, Gaissl testified, the
Commissioners often used to indicate "that they had the right to
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tell people what to do and how to do it." On June 6, Mahana
told Gaissl that Colella was "very upset" about Forbes not
getting the job, and declared: "We are the town fathers and
people should do what we tell them to do." The jury could
reasonably have taken these statements as evidence of an order
rather than a recommendation.
Around June 14, Colella delivered a second job
application from Forbes to Gaissl, this time for either the
apprentice lineman/meter reader position, or the meter reader
position which would open up if Curran was hired into the new
position. On June 18, Colella indicated to Larch that "he was
one of the town fathers and the town fathers had the right to
have who they wanted to hire hired." Larch decided, however,
that there was not enough work to justify filling the meter
reader position. Colella was angry and disappointed when he
heard this news. Just before the June 26 meeting of the Board,
Mahana said to Larch that he and Gaissl had upset Colella, and
that "he or they were going to make our lives miserable until we
made [Colella] happy again." The jury could reasonably have
concluded that the persistent criticism of and interference with
Larch's management of the Department after his decision not to
hire Forbes (see infra) was evidence that Larch had disobeyed an
order rather than merely neglecting to adopt a recommendation.
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The Department offered evidence that Larch had a
longstanding policy of granting an interview to any job
candidate a Board member recommended, and that he had sometimes
hired such candidates in the past. The court's instruction to
the jury made clear the Board's "recommendation" theory: "the
statute does not prohibit job recommendations by a selectman or
commissioner. It is up to you to decide whether the statement
or statements made by selectmen were orders to hire Mr. Forbes
or recommendations." Since the court properly framed the issue
for the jury, a rejection of the Department's "recommendation"
theory is implicit in the jury's verdict for Larch.
Even if Colella did order Larch to hire
Forbes, the Department argues that Larch could not have
reasonably believed that hiring Forbes pursuant to Colella's
order would have violated Mass. Gen. Laws ch. 164, § 56, because
the statute bars the Board, not individual Board members, from
interfering with the manager's power to hire and discharge
employees. The Department cites Golubek v. Westfiel d G a s &
Electric Light Board, 591 N.E.2d 682, 683 (Mass. App. Ct. 1992),
for the proposition that Mass. Gen. Laws ch. 164, § 56 is not
violated unless a board action infringes on the prerogatives of
the manager. Golubek does not, however, support that reading of
the statute. It is simply a case where an action by the board
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was found to have violated the statute. Golubek states that
under § 56 the hiring power is "vested in the manager alone."
Id. at 684 (emphasis added). The town's own counsel, moreover,
advised the Board on September 4, 1997, that "[t]he [Electric]
Department manager has exclusive authority to hire and discharge
employees."4 In light of Golubek, the opinion of town counsel,
and the plain language of the statute (manager of municipal
lighting shall have "full charge" of hiring employees), the jury
could have found that Larch reasonably believed that to hire
Forbes at Colella's direction would have violated Mass. Gen.
Laws ch. 164, § 56.5
The Department suggests that Larch's failure to tell
Colella that it would be illegal to hire Forbes pursuant to his
order indicates that Larch did not believe he was being asked to
do anything illegal. The jury could have found, however, that
Larch kept this belief to himself to avoid a confrontation with
Colella.
4 Although this opinion post-dates the Forbes episode, it
is evidence of the reasonableness of Larch's interpretation of
the statute.
5 Since a reasonable belief that hiring Forbes upon
Colella's order is enough to establish a violation of the
statute, we do not have to decide whether Colella's conduct in
fact violated § 56.
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(b) Substantial or Motivating Factor in the Decision Not to
Renew
The Department argues that there was insufficient
evidence that Larch's decision not to hire Forbes was a
substantial or motivating factor in the decision not to renew
his contract. Viewing the evidence in the light most favorable
to Larch, and drawing reasonable inferences in Larch's favor,
there is ample evidence to support a jury finding that the Board
made its non-renewal decision in retaliation for Larch's refusal
to hire Forbes. See Foster-Miller, 210 F.3d at 7.
On June 4, 1996, the day after Colella learned that
Forbes would not be getting the apprentice lineman/meter reader
position, Colella called Gaissl and said that he wanted to
cancel the purchase of a backhoe for the Department which the
Board had approved unanimously at the June 3 meeting. Colella
said to Gaissl: "John's done it to me again, he's not going to
hire this kid. . . . I'm looking like an idiot. . . . I'm
really, really mad." That same day, Colella told Gary D'Ambra,
an Electric Department employee, that he was upset and
frustrated that Larch had decided not to hire Forbes, and that
he was "all done with John Larch." On June 6 Mahana, who was
often seen passing time with Colella and Madan at a local pub
and outside a local ice cream store, told Gaissl that Colella
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was "very upset" about Forbes not getting the job. An
"extremely irate" Mahana communicated with Gaissl again on June
10, telling her that "he didn't know who the hell John Larch
thought he was, but he'd been doing it his way for a long time
and that wasn't going to happen anymore . . . that he would kick
his ass out of town and . . . make life miserable for the
department." Mahana told Gaissl that he would take away the
backhoe, take away Larch's car allowance, relocate the office
staff, and stop all overtime in the Department.
Larch, Gaissl, and Commissioner Pasquale testified
that, in contrast to previous Board meetings, which had been
professional and businesslike, the tone of the June 26 Board
meeting was hostile and antagonistic toward Larch. Most of the
meeting was devoted to Colella, Mahana and Madan grilling Larch
about alleged problems in the Department. Colella questioned
Larch about provisions in his contract providing for life
insurance and a vehicle for his official use, and moved to
reverse the Board's earlier decision to purchase a backhoe for
the Department. Mahana interrogated Larch about the
Department's longstanding practice of making payments to the
Town, suggested that the Department should be moved out of its
office condominium, criticized Larch for generating too much
revenue, questioned the granting of preferential electric rates
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to the high school, and mentioned ("I just want the public to
know") a debt the Department owed. Madan then questioned Larch
about alleged electrical problems in the industrial park.
In subsequent meetings, the Board continued to undercut
Larch's authority to run the Department. On October 7, 1996,
the Board voted to require its approval for contracts with
outside consultants and purchase orders over $1,000, and to put
the Department's non-union employees under the Town's personnel
policy. On November 4, 1996, Madan and Colella suggested that
too many Department employees had cell phones and beepers, and
Colella said he wanted the number of cell phones reduced to
three. On April 2, 1997, Madan questioned the Department's
provision of bottled water to its employees.
On May 5, 1997, the Board denied Larch's request that
an employee who was performing two jobs at the same time receive
a wage increase of $2 per hour, and voted to have the Town's
accountant do the Department's books. On May 15, 1997, the
Board encouraged a Department employee to appeal an adverse
personnel decision to the Town Manager. On June 2, 1997,
Colella declared that he was "very upset" that two Department
employees had been denied vacation time (because other employees
had requested the same dates), and indicated that the Board
should make final decisions concerning vacation time in the
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Department. On September 29, 1997, the Board voted to eliminate
all scheduled overtime in the Department, except with the
approval of the Chairman of the Board. On January 12, 1998,
Madan criticized Larch for letting Department employees go home
early on December 24.
On February 2, 1998, the Board voted not to renew
Larch's contract. At the meeting, Madan explained simply that
there had been "a lot of mismanagement" in the Electric
Department. Although Madan was more specific at trial about the
reasons for not renewing Larch's contract, there was evidence
that the explanations were pretextual. Madan pointed to the
Department's lack of a personnel policy, but there was evidence
that the Department used the Town's personnel policy, with a few
exceptions, and that the Board knew of this practice. Madan
cited outages in the industrial park, but there was evidence
that these problems were minor. Madan testified that the Board
was concerned about the Department's finances, but there was
evidence that the Department had substantial accumulated profits
($8,000,000 as of April 1997), that relatively modest losses in
1996 and 1997 were due to a rate cut designed to reduce the
Department's profits and to unexpected events, and that a 1997
financial audit stated that "the Department is in good financial
shape and is managed well." Madan cited an employee's theft of
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$500 from the Department, but there was evidence that the
detection of this small theft indicated that the theft-detection
system was functioning as it should. Madan also criticized
Larch's handling of a hostile work environment claim by an
employee, Rose McCarthy, against Business Manager Gaissl, but
Larch testified that the Town's labor counsel had indicated that
some of the incidents were too far back in time to act on, and
had recommended that Larch await the results of McCarthy's
litigation against the Department before deciding how to
proceed.
In sum, the jury could reasonably have concluded that
the persistent criticism of Larch's management of the
Department, starting with the June 26, 1996, meeting and
culminating with the non-renewal decision on February 2, 1998,
amounted to the Board majority making good on the threat, issued
at the time of Larch's decision not to hire Forbes, to "make
life miserable for the department" and "kick [Larch's] ass out
of town," and that the reasons the Department offered for not
renewing Larch's contract were pretextual.
III. Non-Renewal as Retaliatory Action
The Department argues that the decision not to renew
Larch's contract does not constitute the "retaliatory action"
proscribed by the Whistleblower Statute. Mass. Gen. Laws ch.
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149, § 185(b). The statute defines "retaliatory action" as "the
discharge, suspension or demotion of an employee, or other
adverse employment action taken against an employee in the terms
and conditions of employment." Id., § 185(a)(5). The
Department argues that non-renewal of an employment contract
does not fall under the statutory definition.
The Department has waived this argument, which first
appeared in its renewed motion for judgment as a matter of law:
A renewed motion for judgment as a matter of
law under Rule 50(b), like the similar
motion made under Rule 50(a) before the
submission of the case to the jury, must
state the grounds on which it was made.
Since the post-submission motion is nothing
more than a renewal of the earlier motion
made at the close of the presentation of the
evidence, it cannot assert a ground that was
not included in the earlier motion.
9A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2537, at 344-45 (2d ed. 1994) (footnotes omitted);
accord Correa v. Hospital San Francisco, 69 F.3d 1184, 1196 (1st
Cir. 1995) ("The movant cannot use [a renewed motion for
judgment as a matter of law] as a vehicle to introduce a legal
theory not distinctly articulated in its close-of-evidence
motion for a directed verdict."). The Department rightly points
out that "whether there had been retaliation" was a central
issue at trial, but neglects to mention that until the
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Department's post-verdict motion it had played out as a factual
issue, not a legal one. We also note that the Department failed
to object to the jury instruction on retaliation, which stated:
"A decision not to renew an employment contract is an adverse
employment action under the statute." In failing to bring its
contrary reading of the statute to the court's attention until
after the verdict had been rendered, the Department waived the
argument it now seeks to advance.
IV. Admission of Mahana's Statements
The Department argues that the district court erred in
admitting the statements of the deceased Commissioner Mahana,
such as "[w]e are the town fathers and people should do what we
tell them to do," and that "he would kick [Larch's] ass out of
town and . . . make life miserable for the department." The
district court admitted Mahana's statements as admissions of the
Department, pursuant to Fed. R. Evid. 801(d)(2)(D), which
excludes from the hearsay rule statements offered against a
party and made "by the party's agent or servant concerning a
matter within the scope of the agency or employment, . . .
during the existence of the relationship." The Department
argues that Mahana's statements do not qualify as nonhearsay
under Rule 801(d)(2)(D) because threatening the manager of the
Electric Department in this fashion was not within the scope of
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his employment. It points out that the statements were neither
authorized by the Department nor made for the purpose of
furthering its interests.
We review a district court's admission of evidence for
abuse of discretion. See United States v. Gilbert, 181 F.3d
152, 160 (1st Cir. 1999). There was no abuse of discretion
here:
To qualify as nonhearsay under Rule
801(d)(2)(D), a statement must concern "a
matter within the scope" of the declarant's
agency or employment. The statement itself
is not required to be "within the scope of
the declarant's agency. Rather, it need
only be shown that the statement be related
to a matter within the scope of the agency."
5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal
Evidence, § 801.33[2][c], at 801-69 (2d ed. 2001) (footnotes
omitted). While Mahana's job description obviously did not
include making life miserable for the Electric Department, the
statements were related to a matter within the scope of his
employment: oversight of the Department. See White v.
Honeywell, Inc., 141 F.3d 1270, 1276 (8th Cir. 1998)
(supervisor's racial slur against employee admissible against
employer as statement "concerning a matter within the scope of
the employment" under Fed. R. Evid. 801(d)(2)(D)). The district
court properly admitted Mahana's statements as nonhearsay under
Rule 801(d)(2)(D).
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V. The Sexual Harassment Evidence
The Department argues that the district court erred in
excluding certain details of the sexual harassment allegations
against Business Manager Gaissl that Madan cited as a reason for
not renewing Larch's contract. The excluded testimony was that
Department employees had discussed the smell of semen. Although
the court admitted testimony about other alleged sexually-
charged conduct at the Department, it concluded that the
testimony it decided to exclude would be "just too much for a
jury." The Department also argues that it should have been
permitted to ask Gaissl if she was personally involved in the
alleged incidents, and to ask Larch whether Gaissl had
acknowledged the truth of some of the allegations.
We review the district court's exclusion of evidence
under Fed. R. Evid. 403 for abuse of discretion. 6 See United
States v. Reeder, 170 F.3d 93, 107 (1st Cir. 1999). "'[O]nly
rarely - and in extraordinary circumstances - will we, from the
vista of a cold appellate record, reverse a district court's on-
the-spot judgment concerning the relative weighing of probative
6 Federal Rule of Evidence 403 provides: "Although
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence."
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value and unfair effect.'" Id. (quoting Williams v. Drake, 146
F.3d 44, 47 (1st Cir. 1998) (alteration in original)).
The district court admitted the evidence of sexual
harassment for the limited purpose of permitting the Department
to establish the factors that influenced the Board's decision
not to renew Larch's contract. The court weighed the probative
value of the evidence against the potential for unfair
prejudice, and let in almost all of the sexual harassment
allegations. It declined to let the Department inquire into
Gaissl's personal involvement in the incidents, on the ground
that "we're not going to have mini trials on each one of those
allegations." There was no abuse of discretion in the court's
decision not to conduct a "mini trial" on the issue of sexual
harassment, or in its exclusion of some limited testimony on
that issue that it believed would be unduly prejudicial to
Larch. Indeed, the argument to the contrary is frivolous.
VI. Excessive Damages
The Department argues that it was error to award
damages based on the assumption that Larch's contract would be
renewed until he reached the age of 65. It noted that Larch had
worked under a series of two- and three-year contracts, which
the Board could elect not to renew with or without cause. The
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Department therefore suggests that the proper measure of damages
would be one additional employment contract.
We review the district court's decision not to reduce
the jury's award of damages for abuse of discretion. Blinzler
v. Marriott Int'l, Inc., 81 F.3d 1148, 1161 (1st Cir. 1996).
"An award of damages will not be deemed unreasonably high . . .
as long as it comports with some rational appraisal or estimate
of the damages that could be based on the evidence before the
jury," and is not "grossly excessive, inordinate, shocking to
the conscience of the court, or so high that it would be a
denial of justice to permit it to stand." Id. (citations and
internal quotation marks omitted).
The Department argues that the award of damages beyond
the period of one additional employment contract should be
overturned because it was "necessarily speculative." However,
the Supreme Judicial Court of Massachusetts ("SJC") has stated
that "the law of the Commonwealth has traditionally allowed, as
an element of tort damages, compensation for the loss of
capacity to generate prospective earnings. Mere uncertainty in
the award of damages is not a bar to their recovery . . . ."
Conway v. Electro Switch Corp., 523 N.E.2d 255, 257 (Mass. 1988)
(citation and footnote omitted) (interpreting the Massachusetts
employment discrimination statute). This principle applies
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under the Whistleblower Statute, which provides that "[a]ll
remedies available in common law tort actions shall be available
to prevailing plaintiffs." Mass. Gen. Laws ch. 149, § 185(d).
In Kelley v. Airborne Freight Corp., 140 F.3d 335 (1st
Cir. 1998), we upheld an award of $1,000,000 in front pay
damages under the Massachusetts employment discrimination
statute, Mass. Gen. Laws ch. 151B, § 9. We explained:
An award of front pay, constituting as it
does, an estimate of what a plaintiff might
have earned had s/he been reinstated at the
conclusion of trial, is necessarily
speculative. Massachusetts law is clear
that uncertainty in the award of future
damages does not bar their recovery, and we
have said that the generousness of a jury's
award does not alone justify an appellate
court in setting it aside [unless] it is
shown to exceed any rational appraisal or
estimate of the damages.
Id. at 355 (citations and internal quotation marks omitted); see
also Cummings v. The Standard Register Co., 265 F.3d 56 (1st
Cir. 2001) (upholding an award of 14 years of front pay under
Massachusetts law).
Although the SJC in Conway cautioned that "damages may
not be determined by speculation or guess," 523 N.E.2d at 257,
the jury's award of $607,977 in compensatory damages was based
on evidence presented at trial. Larch was 55 years old when his
employment terminated in June of 1998. He had served as manager
of the Electric Department for 15 years under a series of two-
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and three-year contracts. The last three contracts contained a
clause that would automatically renew the contract for an
additional two- or three-year term unless the Board gave notice
of non-renewal within four months of the contract's end. Larch
testified that he had intended to work at the Electric
Department until he reached the age of 65.
Larch had received positive evaluations of his job
performance in December of 1993 and January of 1995.
Commissioner Pasquale testified that he had rated Larch "above
average" in most categories. Commissioner Royle also testified
that Larch had been performing well. Larch testified that his
efforts to obtain new employment during the time between his
termination and the trial (he cited specific positions for which
he had applied) had been unsuccessful. He testified that
because of deregulation, utilities were laying off employees
rather than hiring, and that the current phase of deregulation
would continue for 10 years.
There was also evidence that the non-renewal of Larch's
contract and Madan's charge of "a lot of mismanagement" in the
Department were reported in the local media. Pasquale, a human
resources professional, testified that prospective employers
would likely take into account the allegations of mismanagement
surrounding the termination of Larch's tenure at the Department.
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Based on this evidence, a reasonable jury could have
found, as this jury did, that Larch's damages amounted to the
discounted value of the benefits and compensation he would have
received if he had worked until age 65, less the discounted
value of the pension payments he would receive because of his
termination.7 There is nothing "grossly excessive" or "shocking
to the conscience" about this calculation of Larch's damages.
Blinzler, 81 F.3d at 1161.
VII. Attorney's Fees
We review an award of attorney's fees for abuse of
discretion. Coutin v. Young & Rubicam Puerto Rico, Inc., 124
F.3d 331, 336 (1st Cir. 1997). The Department argues that the
district court erred in awarding Larch attorney's fees because
the court, in an order explaining its decision not to award
Larch multiple damages, observed that "[t]his case did not
involve invidious discrimination, corruption, or self-dealing,
but misguided cronyism involving a commissioner with a 'big
heart.'" The Department reasons that since the court declined to
award multiple damages on this basis, it should also have
declined to award attorney's fees.
The Massachusetts Whistleblower Statute provides that
"[t]he court may . . . order payment by the employer of
7 An actuary estimated these figures for the jury at trial.
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reasonable costs, and attorneys' fees." Mass. Gen. Laws ch.
149, § 185(d)(5). As the statute confers broad power to award
attorney's fees, without setting forth criteria for deciding
when to award them, and its evident purpose is to protect
employees who are found to have been subject to retaliation for
refusing to engage in unlawful conduct, as was Larch, we have no
basis for questioning the district court's exercise of its
discretion to award attorney's fees in this case.
VIII. Prejudgment Interest
The Department argues that the district court erred in
awarding Larch pre-judgment interest on "the entire amount" of
the damages award.8 The Department has waived this argument.
Subsequent to the jury's verdict for Larch, the district court
issued an order stating that, "having received no opposition to
the plaintiff's letter . . . which outlines the plaintiff's
understanding regarding interest on the judgment," the court was
awarding Larch prejudgment interest on the entire amount of the
judgment at a rate of 12%, from the date the complaint was filed
(March 9, 1998). The Department then filed a motion for
reconsideration of the district court's order, asserting that
prejudgment interest should have been awarded not from the date
8 The Department does not make clear what alternative it
proposes to prejudgment interest on "the entire amount" of the
award.
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of the complaint, but from the date plaintiff first sustained
damages (June 30, 1998, the final day of his employment at the
Department). The district court granted this motion, and the
parties then stipulated that prejudgment interest would run from
June 30, 1998.9
The Department's argument on appeal, that the court
erred in awarding prejudgment interest on the entire amount of
Larch's damages, was never raised below. In Eastern Mountain
Platform Tennis, Inc. v. The Sherwin-Williams Co., Inc., 40 F.3d
492 (1st Cir. 1994), the defendant argued on appeal that
prejudgment interest should not have been awarded on future lost
profits. We held that the defendant had waived the argument
because it had not made the argument before the trial court.
See id. at 504. "The law in this circuit is crystalline: a
litigant's failure to explicitly raise an issue before the
district court forecloses that party from raising the issue for
the first time on appeal." Boston Beer Co. Ltd. P'ship v. Slesar
Bros. Brewing Co., Inc., 9 F.3d 175, 180 (1st Cir. 1993).
Affirmed.
9 The stipulation reads: "The parties have agreed to
resolve their outstanding dispute regarding the prejudgment
interest and now stipulate that the Court should award
prejudgment interest calculated from June 30, 1998, up to and
including the date of said amended judgment."
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