United States Court of Appeals
For the First Circuit
No. 00-1988
GARY WALTON,
Plaintiff, Appellant/Cross-Appellee,
v.
NALCO CHEMICAL COMPANY,
Defendant, Appellee/Cross-Appellant.
No. 00-2102
GARY WALTON,
Plaintiff, Appellant/Cross-Appellee,
v.
NALCO CHEMICAL COMPANY,
Defendant, Appellee/Cross-Appellant.
No. 00-2196
GARY WALTON,
Plaintiff, Appellant/Cross-Appellee,
v.
NALCO CHEMICAL COMPANY,
Defendant, Appellee/Cross-Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Daniel G. Lilley, with whom Daniel G. Lilley Law Offices,
P.A. was on brief for plaintiff, appellant.
James B. Haddow, with whom Petruccelli & Martin, LLP was on
brief for defendant, appellee.
November 28, 2001
3
CYR, Senior Circuit Judge. Plaintiff Gary Walton
challenges various rulings which led the district court to
dismiss his state-law claim for intentional infliction of
emotional distress against his former employer, Nalco Chemical
Company (Nalco), and to disallow his motion to amend the
complaint to include a defamation claim under Maine law.
In its cross-appeal, Nalco challenges various
evidentiary rulings, as well as the denial of its motion to
dismiss Walton's pendant state-law age-discrimination claim
under the Maine Human Rights Act ("MHRA"). We affirm the
district court judgment.
I
BACKGROUND1
In 1977, Walton joined the staff at Nutmeg
Technologies, Inc. ("Nutmeg"), selling water treatment chemicals
and supplies to industrial and institutional customers in Maine.
Between 1977 and 1994, his annual sales increased from $223,000
to more than $1,000,000. By the time Diversey Water
Technologies, a Nalco subsidiary, announced its intention to
1
All relevant facts are related in the light most favorable
to Walton. See White v. N.H. Dep’t of Corrections, 221 F.3d
254, 259 (1st Cir. 2000) (judgment-as-a-matter-of-law rulings
are reviewed de novo, whereas the evidence and inferences to be
drawn therefrom are viewed in the light most favorable to the
nonmoving party).
4
acquire Nutmeg in October 1996, Walton then sixty years of age,
was earning $61,000 a year as Nutmeg's highest paid Maine
salesman.2
Prior to the time Nutmeg was actually acquired by
Nalco, Walton had explained to Nalco Vice-Presidents Peter
Hallson and Kenneth Yankowski that he wanted to retain his sales
accounts and intended to continue working until at least age
sixty-five. After Hallson and Yankowski acceded to his demands,
Walton entered into an agreement not to compete with Nalco
within his current sales territory for a period of eighteen
months following any termination of his employment with Nalco.
Whereupon Nalco agreed to disburse $5,500 to Walton as a
retention bonus, provided that Walton remained employed by Nalco
as of September 30, 1997.
In June 1997, however, Walton learned that Nalco had
reassigned some of his sales accounts, including the third
largest, to Troy Malbon, a thirty-one-year-old salesman
previously supervised by Walton. On August 20, 1997, Walton met
with Yankowski and Joseph Carney, Walton's direct supervisor, at
their request. Yankowski inquired into Walton's financial
condition, including the value of his residence and personal
2
Since Nalco acquired direct control of Diversey in December
1997, we simply refer to "Nalco."
5
property, then announced that all of Walton's remaining sales
accounts would be transferred to Malbon, effective January 1998.
Finally, Yankowski related two anecdotes about former Nalco
employees who had been demoted or discharged at age sixty-two,
explaining that Nalco had forced one of them to accept early
retirement.
At the same time, Yankowski advised Walton that Nalco
was not prepared to offer him any early-retirement incentive,
suggesting instead that Walton accept part-time employment at
$20,000 per year — less than one-third his salary at the time.
Walton regarded Yankowski's remarks as warnings designed to
compel him to accept early retirement. In due course, Walton
retained counsel, who informed Nalco on October 3, 1997, that it
had engaged in age discrimination. On October 8, 1997,
Yankowski and Carney instructed Walton to bring additional
information regarding his financial condition, so that his
minimum financial needs could be calculated by Nalco with a
possible view to tendering him a buy-out offer.3
At Yankowski's direction, during another meeting in
November 1997, Walton was required to submit to an employee
3
Around the same time, Yankowski stated in the presence of
Ray Field, another Nalco employee: "We can’t have a man
[Walton] in his sixties sitting on his accounts coasting. We
need to get a young rep in there selling business."
6
evaluation pursuant to a so-called Personnel Regeneration Form;
Walton tested deficient in thirteen of its fifteen categories.
Walton declined to sign the written evaluation and rejected the
proffered employment contract,4 after informing Nalco Vice-
President Richard Murphy, in writing, that he would not sign the
new contract unless Nalco first met with his attorney to discuss
the age-discrimination claims. During this period, Walton
experienced emotional distress and even fantasized about
suicide. In February 1998, Walton was discharged for refusing
to sign the new employment contract tendered by Nalco.
The day after Walton's discharge, a Nalco employee came
to the Walton home to reclaim a piece of testing equipment and
the company car. After rebuffing Walton's request that he be
allowed to retain the testing equipment for its "sentimental
value," the Nalco employee repossessed both the testing
equipment and the company car in the presence of Walton's family
and neighbors. Less than sixty days passed before Walton was
hired by a Nalco competitor and assigned to one of his former
Maine sales districts.
Walton instituted suit in the United States District
Court for the District of Maine, claiming violations of the Age
4
All Diversey employees were tendered new contracts at the
time the two firms merged.
7
Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et
seq., and the fair employment provisions of the MHRA, Me. Rev.
Stat. Ann. tit. 5, § 4571 et seq., as well as intentional
infliction of emotional distress. Nalco counterclaimed that
Walton had breached the noncompetition agreement by accepting
employment with a Nalco competitor. In due course, the district
court denied Walton's motion to amend the complaint to include
a defamation claim, granted partial summary judgment to Nalco on
the issue of Walton's liability under the counterclaim, and
reserved for trial the issue of damages under the counterclaim.
At trial, Nalco's counterclaim was dismissed after all
its evidence on damages had been excluded. The district court
entered judgment as a matter of law for Nalco on the Walton
state-law claim for intentional infliction of emotional
distress. At the conclusion of the trial, the jury returned
verdicts on the ADEA and MHRA claims, awarding Walton $57,872 in
back pay, $250,000 for pain and suffering, and $1,250,000 in
punitive damages. The district court reduced the total jury
award to $357,872, consistent with the limitations prescribed in
the ADEA and the MHRA.
II
DISCUSSION
A. The Walton Appeal
8
1. The Intentional Infliction of Emotional Distress Claim
Walton first contends that there was enough evidence
to establish that Nalco intended to inflict emotional distress
by discharging him. Judgments entered as a matter of law are
reviewed de novo, and will be affirmed "only if, after
scrutinizing the proof and inferences derivable therefrom in the
light most hospitable to [Walton], we determine that a
reasonable factfinder could have reached but one conclusion:
that [Nalco] w[as] entitled to judgment." Fleet Nat'l Bank v.
Anchor Media Television, Inc., 45 F.3d 546, 552 (1st Cir. 1995).5
Walton had the burden to prove that
(1) [Nalco] intentionally or recklessly
inflicted severe emotional distress or was
certain that such distress would result from
[its] conduct; (2) the conduct was so
extreme and outrageous as to exceed all
possible bounds of decency and must be
regarded as atrocious, and utterly
intolerable in a civilized community; (3)
[Nalco's] actions . . . caused [his]
emotional distress; and (4) the emotional
distress . . . was so severe that no
reasonable [person] could be expected to
endure it.
Vogt v. Churchill, 679 A.2d 522, 524 (Me. 1996) (internal
citations and quotation marks omitted). Moreover, it was
5
As we conclude that there was insufficient evidence to
support the "intentional infliction" claim, see infra, we need
not discuss an alternative basis for its dismissal, viz., that
the MHRA preempts all claims for employment-related emotional
distress.
9
necessary for the district court, in its "gatekeeper" role, to
determine, in the first instance, "'whether [Nalco's] conduct
may reasonably be regarded as so extreme and outrageous [as] to
permit recovery.'" Champagne v. Mid-Maine Med. Ctr., 711 A.2d
842, 847 (Me. 1998) (citation omitted).
Walton insists that the evidence demonstrated the
requisite "extreme and outrageous" conduct, in that Nalco (i)
abused its position of authority, qua employer; (ii) threatened
his livelihood and professional reputation by attempting to
pressure him to accept a buy-out package; and (iii) subjected
him to undue "humiliation" by, inter alia, transferring his
sales accounts to a less experienced employee, promulgating a
false and demeaning job-performance review, and repossessing
company property from him in the presence of his family and
neighbors.
The district court correctly ruled that Walton's claim6
6 See, e.g., Staples v. Bangor Hydro-Elec. Co., 561 A.2d 499,
501 (Me. 1989) (holding that supervisor, who humiliated employee
during staff meetings, demoted him without cause, and falsely
accused him of professional incompetence, had not engaged in
“extreme and outrageous” conduct); see also Green v. Me. Sch.
Admin. Dist. No. 77, 52 F. Supp. 2d 98, 114 (D. Me. 1999)
(noting that denial of tenure to teacher, though arguably
violative of the retaliation provision in the MHRA, was not
"extreme and outrageous"); Krennerich v. Town of Bristol, 943 F.
Supp. 1345, 1356-57 (D. Me. 1996) (observing that an
intentional-infliction claim, relying solely on wrongful
termination in violation of municipal employee's due process
rights, failed to meet "extreme and outrageous" standard).
10
should be dismissed because the evidence failed, as a matter of
Maine law,7 to demonstrate an intentional infliction of emotional
distress.
2. The Motion to Amend
Walton next contends that the district court erred in
denying, as untimely, his motions to amend his complaint — made
immediately before and after trial — to include a defamation
claim under Maine law. See Fed. R. Civ. P. 15(a), (b). We
review only for abuse of discretion. See Kemper Ins. Cos. v.
Fed. Express Corp., 252 F.3d 509, 512 (1st Cir. 2001); Quaker
State Oil Ref. Corp. v. Garrity Oil Co., Inc., 884 F.2d 1510,
1517 (1st Cir. 1989) (trial court considering proposed amendment
must "examine the totality of the circumstances and exercise
sound discretion in light of the pertinent balance of equitable
considerations"). Although "leave [to amend] shall be freely
7
The cases Walton cites are factually inapposite and
inconclusive. Two cases involved elderly parents’ claims that
their children had engaged in inhumane attempts to evict them
from the family home after the title to the home had been
conveyed to the children by the parents. See Moulton v.
Moulton, 707 A.2d 74, 76 (Me. 1998); Latremore v. Latremore, 584
A.2d 626, 630 (Me. 1990). Such extreme conduct within a family
plainly entailed the infliction of much greater emotional
distress than that involved in the instant employer-employee
relationship. The third case cited by Walton involved an ex-
husband’s unrelenting, seven-month campaign to have his former
spouse's divorce attorney brought up on professional misconduct
charges, and the placement of local newspaper ads publicizing
those unfounded charges. See Vogt, 679 A.2d at 524.
11
given when justice so requires[,]" Fed. R. Civ. P. 15(a),
"parties seeking the benefit of . . . [Rule 15(a)'s] liberality
[must] exercise due diligence; unseemly delay, in combination
with other factors, may warrant denial of a suggested
amendment." Quaker State, 884 F.2d at 1517 (amendments may be
foreclosed where movant’s delay is "extreme" or unexplained).
The first motion to amend the Walton complaint was
submitted eight months after the due date prescribed in the
scheduling order, six months after discovery closed, and one
week prior to the trial date initially established by the
district court.8 Yet Walton offered neither an explanation nor
a justification for the inordinate delays, relying instead on
the naked assertion that Nalco could not have been prejudiced.
Walton nonetheless insists that his post-trial motion
to conform the complaint to the evidence is distinguishable, in
that Nalco implicitly consented to the trial of his defamation
claim. By way of example, Walton points to evidence that Nalco
personnel falsely represented that he was incompetent, and
8
Cf., e.g., Jordan v. Hawker Dayton Corp., 62 F.3d 29, 33
(1st Cir. 1995) (no abuse of discretion where amendment was
filed four months after scheduling order deadline and a few days
prior to close of discovery); Quaker State, 884 F.2d at 1517-18
(motion to amend filed within three weeks of deadline for filing
summary judgment motions held untimely where "[t]he facts upon
which the proposed [amendment] rested were known to [the movant]
all along").
12
contends that falsity is an element of his defamation claim.
His characterization misses the mark.
"'Consent to the trial of an issue may be implied if,
during the trial, a party acquiesces in the introduction of
evidence which is relevant only to that issue.'" United States
v. Davis, 261 F.3d 1, 59-60 (1st Cir. 2001) (emphasis in
original; citation omitted). In the present case, however,
where evidence of the alleged falsifications by Nalco
representatives was independently material to establish pretext
on the Walton age-discrimination claims under the ADEA and MHRA,
the district court did not abuse its discretion by denying
Walton's amendatory motions.
B. The Nalco Cross-Appeal
1. Proof of the Maine Human Rights Commission Charge
The cross-appeal is predicated on the contention that
Nalco was entitled to judgment as a matter of law, on the MHRA
age-discrimination claim brought by Walton, because Maine law
allows neither damages nor attorney fees unless the plaintiff
"alleges and establishes" that the MHRC has taken final action
on the administrative charge or issued a right-to-sue letter.
See Me. Rev. Stat. Ann. tit. 5, § 4622 (1)(C); see also Gordan
13
v. Cummings, 756 A.2d 942, 944-45 (Me. 2000). 9 The district
court ruled that Nalco waived its contention by (i) failing to
raise it, either in its answer or as an affirmative defense, and
(ii) engaging in "trial by ambush" by withholding its objection
until the close of Walton's evidence.
The Maine Supreme Judicial Court (“SJC”) has yet to
determine the proper allocation of burdens of proof under
section 4622. Consequently, we must make "an informed prophecy
of what the [SJC] would do in the same situation," seeking
"guidance in analogous state court decisions, persuasive
adjudications by courts of sister states, learned treatises, and
public policy considerations identified in state decisional
law." Blinzler v. Marriott Int’l, Inc., 81 F.3d 1148, 1151 (1st
Cir. 1996). We review statutory interpretations de novo. See
Laaman v. Warden, N.H. State Prison, 238 F.3d 14, 16 (1st Cir.
2001).
Section 4622, by its plain language, precludes any
characterization of the MHRC exhaustion issue as a mere
affirmative defense,10 since it explicitly states that the
9The Nalco cross-appeal, if successful, would reduce
Walton’s net recovery from $357,872 to $115,744, the maximum
allowable under the ADEA. See 29 U.S.C. §§ 216, 626(b).
10Walton’s citations to case law holding that various
statutory limits on damages are affirmative defenses, which may
be waived unless pleaded, are inapposite. See Jakobsen v. Mass.
14
plaintiff, rather than the defendant, must "plead[]" the
requisite MHRC filing. Cf. Fed. R. Civ. P. 8.11 On the other
hand, the section 4622 requirement, strictly speaking, is not an
element of the statutory age-discrimination claim, since it does
not preclude a jury finding of discrimination, but merely limits
the types of recovery available to prevailing plaintiffs.12
Since section 4622 more closely resembles a condition
precedent, cf. Jensen v. Frank, 912 F.2d 517, 520 (1st Cir 1990)
(noting that Title VII exhaustion requirement is "condition
precedent" to suit); MHRC v. Local 1361, UPIU AFL-CIO, 383 A.2d
369, 375 (Me. 1978) (observing that Title VII case law may
provide guidance in interpreting MHRA), it is governed by Fed.
R. Civ. P. 9(c), see 5 Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure § 1302, (2d ed. 1987) ("[Rule
Port Auth., 520 F.2d 810, 813 (1st Cir. 1975). Unlike section
4622, statutory "caps" on damages do not depend upon any pre-
suit conduct by the plaintiff, but merely delimit arbitrarily
the maximum exposure to damages for any defendant.
11As the section 4622 requirement is nonjurisdictional, it
may be waived. Cf. O’Rourke v. City of Providence, 235 F.3d
713, 725 (1st Cir. 2001) (noting that Title VII exhaustion
requirement is nonjurisdictional). Here, however, the issue is
whether Nalco waived the requirement.
12If section 4622 were an element of an MRHA claim, arguably
Nalco could have delayed, until the close of Walton’s evidence,
before moving for a Rule 12(b)(6) dismissal, which may even be
raised for the first time at trial. See Fed. R. Civ. P. 8 &
12(h)(2).
15
9(c)] is applicable in all actions in the federal courts, even
when the pleading practice in the state in which the court is
sitting is different.").
Federal Rule of Civil Procedure 9(c) provides as
follows:
In pleading the performance or occurrence of
conditions precedent, it is sufficient to
aver generally that all conditions precedent
have been performed or have occurred. A
denial of performance or occurrence shall be
made specifically and with particularity,
but when so made the party pleading the
performance or occurrence has the burden of
proving it.13
Fed. R. Civ. P. 9(c). "Rule 9(c) has the effect of forcing
defendant to raise the issue [of noncompliance with a condition
precedent] whenever he believes there actually is a question
about performance." 5 Wright & Miller § 1304; id. § 1302 ("Rule
9(c) is designed to eliminate the detailed and largely
unnecessary averments that resulted under common law procedure,
and to prevent nonmeritorious dismissals for failure to plead
the fulfillment of conditions precedent that are not at issue in
the suit.").
13
Rule 9(c) governs not only contractual conditions
precedent, but statutory conditions precedent as well, such as
section 4622. See 5 Wright & Miller § 1303 n.1; see also, e.g.,
Weir v. United States, 310 F.2d 149, 155 (8th Cir. 1962); cf.
Vasys v. Metro. Dist. Comm’n, 438 N.E.2d 836, 840 n.4 (Mass.
1982).
16
As we have noted, supra, section 4622 explicitly
requires that the plaintiff plead the requisite MHRC filing.
Consequently, provided the complaint includes a general averment
that all conditions precedent to suit or recovery have been met,
and the "defendant does not deny the satisfaction of the
preconditions specifically and with particularity, then the
plaintiff’s allegations are assumed admitted, and the defendant
cannot later assert that a condition precedent has not been
met." Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992,
1010 (11th Cir. 1982).14
Accordingly, the appropriate inquiry in the present
case is whether either the original or amended complaint
included an adequate "general averment" that Walton had met all
conditions precedent to the recovery of damages under the MHRA,
even though neither complaint explicitly alleged that Walton had
filed an MHRC charge. The original complaint alleged that
Walton had satisfied "all conditions precedent to jurisdiction
under the ADEA," including the timely filing of a discrimination
14
Some courts have held that where a plaintiff utterly fails
to plead a general averment, the defendant need not assert
"failure of performance" as an affirmative defense in order to
preserve the issue, but instead may raise the issue for the
first time at trial. See 5 Wright & Miller § 1304; see also 2
James W. Moore, Moore's Federal Practice § 9.04[1] (3d ed. 1997)
("Neither Rule 9(c) nor Rule 8(a)(2) expressly requires that the
performance or occurrence of conditions precedent be pled at all
by a claimant.").
17
charge with the EEOC. Moreover, Count 1 — the ADEA claim —
alleged “damages, including, but not limited to loss of income,
loss of benefits, liquidated damages, attorneys' fees, costs,
prejudgment interest, and declaratory and injunctive relief."
Further, the prayer for relief in Count 1 demanded "all
available remedies under the Maine Human Rights Act including
reinstatement, back pay and penal damages . . . [and] such other
relief and further relief as the Court deems just and proper."
Finally, the amended complaint made crystal clear that
Count 1 of the original complaint had been brought under both
the ADEA and the MHRA and that Walton was demanding "damages,
including, but not limited to, loss of income, loss of benefits,
liquidated damages, attorneys' fees, costs, prejudgment
interest, and declaratory and injunctive relief." (Emphasis
added.) Yet Nalco neither opposed the motion to amend the
complaint, nor submitted an amended answer.15
15At trial, Nalco maintained that it had preserved its
objection by pleading, in its original answer, the general
defense of "failure to state a claim" pursuant to Rule 12(b)(6).
See Fed. R. Civ. P. 12(b)(6). Absent any indication of the
case-specific basis for the objection, however, its Rule
12(b)(6) objection was insufficient to place a condition
precedent, such as section 4622, in issue. See EEOC v. Standard
Forge & Axle Co., 496 F.2d 1392, 1395 (5th Cir. 1974) (noting
that, where Title VII claimant carried burden under Rule 9(c),
with general averment that "all conditions precedent to the
institution of this lawsuit have been fulfilled[,]" defendant
was not entitled to dismissal for want of more definite
statement, pursuant to Rule 12(e), since defendant never denied
18
Under the liberal "notice pleading" standards, see Fed.
R. Civ. P. 8(e)(1) & (f), these original and amended complaints
met the "general averment" requirements prescribed by Rule 9(c).
Although the complaints neither explicitly alleged compliance
with all preconditions to recovery under the MHRA, nor with the
requirement that an MHRC charge be filed, such compliance was
plainly implicit. Cf., e.g., Kiernan v. Zurich Cos., 150 F.3d
1120, 1123 (9th Cir. 1998) (holding it sufficient to satisfy
"the loose guidelines of Rule 9(c)" that plaintiff allege that
insurance policy was in "full force and effect," thus by
implication that all conditions precedent to valid policy were
met).
First, Walton alleged that he had filed an EEOC charge.
Second, it is common practice to file simultaneous EEOC and MHRC
plaintiff's satisfaction of conditions precedent, "specifically
and with particularity"); Vasys, 438 N.E.2d at 840 n.5 ("A bare
allegation, in a responsive pleading, that the complaint fails
to state a claim upon which relief can be granted (as was made
by the defendant in its answer) would not be sufficient to
preserve a claim" that plaintiff failed to satisfy a condition
precedent.); see also Brooks v. Monroe Sys. for Bus., Inc., 873
F.2d 202, 205 (8th Cir. 1989) ("[M]ere assertion [in answer] of
'failure to state a claim' was not specific enough to [preserve]
the issue" as to whether plaintiff failed to file an EEOC
charge.); see also 5 Wright & Miller § 1304 ("A party who
intends to controvert the claimant's general allegation of
performance [of a condition precedent] thus is given the burden
of identifying those conditions he believes are unfulfilled and
wishes to put into issue; he cannot raise an issue of
nonperformance by a general denial or by asserting that the
plaintiff has failed to state a claim for relief.").
19
charges. Furthermore, by explicitly demanding MHRA damages,
both in the original and amended complaints, Walton plainly
placed Nalco on reasonable notice that he was claiming
compliance with section 4622. Indeed, at trial Nalco’s counsel
acknowledged: "I’ll be candid to say I did not have in mind
this [affirmative defense] when I drafted the answer."16
Consequently, the parties proceeded to trial with no hint
whatsoever that section 4622 compliance was in dispute.
Accordingly, the district court correctly rejected the motion
for judgment as a matter of law on the MHRA claim.
The Age-Discrimination Claim Evidence
Nalco contends that the evidence was insufficient to
support the jury verdicts on the ADEA and MHRA claims. We
review these Rule 50 motions de novo, drawing all reasonable
inferences in favor of the prevailing party. See Negron v.
Caleb Brett U.S.A., Inc., 212 F.3d 666, 668 (1st Cir. 2000). We
must affirm unless the evidence was "so strongly and
16
In addition, there is no serious dispute that Walton
received a right-to-sue letter from the MHRC, as a copy was
attached to his opposition. Accordingly, the Nalco cross-appeal
reduces to the technical contentions that the letter was neither
authenticated nor introduced in evidence. Thus, there was no
substantial contention that Walton in fact failed to comply with
section 4622. Cf. Harris v. Int’l Paper Co., 765 F. Supp. 1509,
1525 (D. Me. 1991) ("Civil penalties are not available in this
case because Plaintiffs failed to file a complaint with the MHRC
before bringing suit in this Court.") (emphasis added).
20
overwhelmingly" inconsistent with the verdicts that no
reasonable jury could have returned them. See id. (citation
omitted). This demanding standard was not met.
Nalco contends that Walton was discharged due to his
refusal to sign the employment agreement tendered to him, and
that his age was immaterial. The record evidence nonetheless
reasonably permitted a contrary inference. Walton adduced
competent evidence that Vice-President Yankowski, who attempted
to intimidate Walton into accepting early retirement, had
related several anecdotes regarding former employees of Walton's
vintage who had been forced into early retirement by Nalco.
More particularly, Yankowski stated to another Nalco employee:
"We can't have a man in his sixties [viz., Walton] sitting on
his accounts coasting. We need to get a young rep in there
selling business." Walton thus presented competent evidence of
an age-based animus by a Nalco decisionmaker. See Kirk v.
Hitchcock Clinic, 261 F.3d 75, 79 (1st Cir. 2001) (noting that
direct evidence of discriminatory animus may consist of
"'statements by a decisionmaker that directly reflect the
alleged animus and bear squarely on the contested employment
decision'") (citation omitted).
Moreover, Walton adduced evidence that Nalco maneuvered
to establish a pretextual basis for discharging him. See
21
Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46,
56 (1st Cir. 2000) (noting that pretext may be established with
evidence that "nondiscriminatory reasons were after-the-fact
justifications, provided subsequent to the beginning of legal
action"). After Nalco received a letter, from Walton's
attorney, claiming age discrimination, Joseph Carney, Walton's
direct supervisor, administered the so-called Personnel
Regeneration Form to Walton at Yankowski's direction, which
purported to show that Walton was not a competent salesman. At
trial, however, Walton adduced compelling evidence of his
competence as a salesman, evidence Nalco conveniently excluded
from consideration in its final evaluation. For example, Nalco
never received a client complaint regarding Walton's work
performance. Moreover, Walton had long been the "highest
grossing" salesman in his territory, and consistently enjoyed
exceptional customer loyalty as evidenced by the fact that he
had never lost a client in more than twenty years. Furthermore,
his supervisor testified that Walton was "outstanding at
building relationships with his customers." Additionally,
rather than demonstrating laxity in developing new business, the
sales volume generated by Walton increased by 92% even as Nalco
was transferring 20% of Walton's client accounts to Malbon, his
designated replacement. Moreover, even though the performance
22
evaluation prepared by Nalco assigned Walton a "deficient"
rating in regard to producing a business plan, it omitted
mention that Walton already had been excluded from Nalco
meetings at which new sales prospects were divided amongst his
fellow sales associates. In addition, though Walton was rated
"deficient" in recordkeeping, Nalco adduced no sales reports
supporting its assessment.
Finally, given the record evidence before it, the jury
reasonably could have found that Nalco orchestrated the
Personnel Regeneration Form as pretextual support for its age-
based decision to discharge Walton. See Santiago-Ramos, 217
F.3d at 56 (noting that memo setting forth legitimate grounds
for discharging employee, prepared after it became apparent that
former employee was initiating litigation, could be considered
"pretextual post hoc justifications because [grounds] were only
provided in anticipation of litigation").
2. Admission of Age-related Remark by Yankowski
Nalco contends that the Yankowski statement — "[w]e
can't have a man in his sixties sitting on his accounts
coasting. . . . [w]e need to get a young rep in there selling
new business" — was irrelevant to the issue of age animus,
because Walton did not prove that Yankowski played any
23
decisionmaking role in the discharge.17
Evidentiary rulings are reviewed for abuse of
discretion. Invest Almaz v. Temple-Inland Forest Prods. Corp.,
243 F.3d 57, 69 (1st Cir. 2001). Evidence that discriminatory
remarks were made by persons in a position to influence the
challenged employment action may suffice to establish pretext.
See, e.g., Straughn v. Delta Airlines, Inc., 250 F.3d 23, 35
(1st Cir. 2001). The jury was entitled to disbelieve the trial
testimony that Richard Murphy unilaterally discharged Walton
without consultation or input from Yankowski, who was one of
Walton's superiors and the vice president for Nalco's eastern
sales division. See Febres v. Challenger Caribbean Corp., 214
F.3d 57, 60-61 (1st Cir. 2000). Yankowski initiated not only
the conversations regarding Walton's retirement plans, but also
the telltale age-related anecdotes. Moreover, when Walton's
attorney advised Yankowski of the age-discrimination claims, it
was Yankowski who directed Carney to administer the so-called
Personnel Regeneration Form to Walton, see supra, whose grossly
inaccurate results strongly suggested a pretextual basis for the
Walton discharge. Three months after the Personnel Regeneration
17By failing to renew its motion in limine at trial, Nalco
waived its contention that the challenged testimony was unduly
prejudicial, hence excludable under Federal Rule of Evidence
403. See O'Rourke v. City of Providence, 235 F.3d 713, 727 (1st
Cir. 2001).
24
Form was administered to Walton, his employment was terminated.
The jury reasonably could have inferred, without
difficulty, that Yankowski played a pivotal role in the
termination decision implemented by Vice-President Murphy, and
that the statement Yankowski made to Ray Field, see supra note
3, was both directly related and temporally proximate to the
challenged employment action. See Fernandes v. Costa Bros.
Masonry, Inc., 199 F.3d 572, 583 (1st Cir. 1999) (observing that
comment by decisionmaker — "I don't have to hire you locals or
Cape Verdean people" — was not mere "stray remark" where
employer refused to rehire people of Cape Verdean descent). 18
The district court did not abuse its discretion by admitting the
Yankowski testimony.
3. Exclusion of the "Lost Profits" Evidence
Finally, Nalco contends that it was an abuse of
discretion for the district court to exclude the evidence it
proffered in support of its counterclaim for damages, viz., the
profits allegedly lost due to Walton's post-discharge
solicitation of former Nalco clients in violation of the
noncompetition agreement. Specifically, Joseph Carney, the
18
Although the exact date of the Yankowski remark is
unclear, it occurred in 1997. Cf. McMillan v. Mass. SPCA, 140
F.3d 288, 301 (1st Cir. 1998) (finding that remarks made several
years before challenged employment decision were temporally
remote).
25
Nalco district sales manager for Maine, sought to tender a lay
opinion as to the net profits lost by Nalco. The opinion was
predicated exclusively upon Carney's lay review of corporate
reports reflecting the gross profits generated by Nalco in its
Maine sales district. Carney concededly possessed no personal
or independent knowledge as to how the Nalco corporate data were
compiled. Moreover, these corporate reports contained data
pertaining exclusively to 1997, but none relating to the crucial
1998-99 period.
A trial court ruling excluding lay-opinion testimony
is reviewed for a "clear abuse of discretion." United States v.
Vega-Figueroa, 234 F.3d 744, 755 (1st Cir. 2000); see Fed. R.
Evid. 701. As we have explained, Rule 701 "permits the
rendering of lay opinion testimony when [it] is (a) 'rationally
based upon the perception of the witness,' and (b) 'helpful to
a clear understanding of the witness' testimony or the
determination of a fact in issue.'" Lynch v. City of Boston,
180 F.3d 1, 16 (1st Cir. 1999) (citation omitted). "[T]he
modern trend favors the admission of opinion testimony provided
it is well founded on personal knowledge and susceptible to
cross-examination." Vega-Figueroa, 234 F.3d at 755. The
district court acted well within its broad discretion in
excluding the Carney opinion testimony, which was based neither
26
on personal knowledge nor apposite data.
Affirmed.
27