Wennik v. Polygram Group Distribution, Inc.

United States Court of Appeals
For the First Circuit

Nos. 01-1092
01-1093
01-2125

PAUL WENNIK,

Plaintiff, Appellee/Cross-Appellant,

v.

POLYGRAM GROUP DISTRIBUTION, INC.,

Defendant, Appellant/Cross-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Boudin, Chief Judge,
Bownes, Senior Circuit Judge,
and Selya, Circuit Judge.

Craig R. Benson, with whom James P. Clark, Rains & Pogrebin,
P.C., Ann Pauly, and Richmond, Pauly & Ault LLP, were on brief, for
defendant.
Harold L. Lichten, with whom Betsy Ehrenberg, Shannon Liss-
Riordan, and Pyle, Rome, Lichten & Ehrenberg, P.C., were on brief,
for plaintiff.

September 10, 2002
 BOWNES, Senior Circuit Judge. Plaintiff-appellee/cross-

appellant Paul Wennik brought suit against his former employer,

defendant-appellant/cross-appellee PolyGram Group Distribution,

Inc., alleging age and mental handicap discrimination and

retaliation in violation of Mass. Gen. Laws ch. 151B.1 A jury

found for Wennik on the handicap discrimination claim and for

PolyGram on the age discrimination claim. PolyGram appeals the

handicap discrimination verdict and the district court’s award of

attorneys’ fees. Wennik cross-appeals on the age discrimination

verdict. We AFFIRM the verdict on both the age and handicap

discrimination claims and REMAND to the district court on the issue

of attorneys’ fees.

I. BACKGROUND

A. Procedural History

Wennik brought suit against PolyGram in state court in

Massachusetts, alleging handicap and age discrimination and

retaliation in violation of Mass. Gen. Laws ch. 151B. The case was

1
In relevant part, Chapter 151B, §4(1B) makes it unlawful for
an employer "because of the age of any individual, to refuse to
hire or employ or to bar or to discharge from employment such
individual . . . unless based upon a bona fide occupational
qualification." Chapter 151B, §4(16) states that it is unlawful
for an employer "to dismiss . . . refuse to hire, rehire or advance
in employment or otherwise discriminate against, because of his
handicap, any person alleging to be a qualified handicapped person
. . . unless the employer can demonstrate that . . . accommodation
. . . would impose an undue hardship to the employer's business."
The retaliation portion of the statute is not at issue in these
appeals.

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removed to federal court on the basis of diversity jurisdiction.

At the close of Wennik’s case, PolyGram moved for judgment as a

matter of law on all Wennik’s claims pursuant to Rule 50 of the

Federal Rules of Civil Procedure. The district court reserved

decision on the motion, and PolyGram renewed the motion at the

close of all the evidence. The district court granted the motion

in part, but allowed the age and handicap claims related to the

field marketing manager position to go to the jury.2 The jury

returned a verdict in favor of Wennik on the handicap

discrimination claim, awarding $323,000 in back pay, $60,000 in

damages for emotional distress, and $21,000 in punitive damages.

The jury found in favor of PolyGram on the age discrimination

claim. After entry of the judgment,3 PolyGram again moved for a

directed verdict pursuant to Rule 50, and the district court again

denied the motion. The district court awarded attorneys’ fees of

$397,328.15 and costs of $8,961.91 to plaintiff.

Following entry of the judgment, the district court

denied Wennik’s motion to alter or amend the judgment so as to

enter judgment on his age discrimination claim.4

2
The court granted the motion with respect to other positions
within the company.
3
The docket indicates that judgment was signed on November 2,
2000, but that the entry date was November 7, 2000.
4
Wennik’s motion also asked the court to multiply the damages
by a factor of at least two but no greater than three, pursuant to
Mass. Gen. L. ch. 151B, § 9.

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 B. Facts

We recite the facts as the jury might have found them,

consistent with the record, but in the light most favorable to the

verdict. See Grajales-Romero v. Am. Airlines, Inc., 194 F.3d 288,

292 (1st Cir. 1999); Sinai v. New Eng. Tel. & Tel. Co., 3 F.3d 471,

472 (1st Cir. 1993).

From 1975 to 1996, Wennik worked for PolyGram as branch

manager of the company’s northeast branch, based in Woburn,

Massachusetts. From October 1995 until May 1996, Wennik took a

medical leave of absence due to depression and anxiety disorder, a

psychiatric disability that is the basis for his mental handicap

claim. Just before his leave, in October 1995, Wennik met with

PolyGram’s president and CEO, James Caparro, at which time Caparro

asked Wennik several times if he wished to retire. Wennik said

this was not a viable option for him financially. Wennik returned

to work in May 1996 and continued to serve as branch manager for

the northeast until August 1, 1996. On that day, PolyGram

announced that it was eliminating all nine of its branch manager

positions as part of a company-wide reorganization and creating

four regional director positions in their place.

As a result of the reorganization, Wennik’s position as

northeast branch manager was eliminated. At fifty-nine years of

age, Wennik was the oldest of the nine branch managers. He

expressed support for the reorganization plan and stated his

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willingness to consider retiring. He attempted to negotiate a

greater severance package than what PolyGram was offering, but the

company was unwilling to provide this.

After the reorganization, seven of the nine branch

managers were given new positions within the company without having

to formally apply. Only Wennik and one other branch manager, who

left PolyGram for a job with another company, were not given new

positions. Instead, PolyGram encouraged Wennik to interview for

the newly-created field marketing manager position based in the New

York regional office.

In August 1996, Wennik interviewed for this position with

Ron DiMatteo, the newly-appointed northeast regional director.

Prior to his interview, Wennik inquired about the possibility that

the position be based in Boston, but DiMatteo informed him this was

not an option. During the interview, Wennik expressed concerns

about relocating to New York and again inquired about performing

the job while living in Boston. DiMatteo again informed him that

the company was unwilling to consider such an arrangement. At the

interview, Wennik asked DiMatteo to put the issue of relocation

aside and instead tell him whether he was a good candidate for the

job, at which point he would be able to discuss the issue with his

wife. At another point, however, Wennik claimed he told DiMatteo

during the interview that he had already discussed the issue with

his wife and was willing to relocate. In his post-interview notes,

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DiMatteo indicated that the issue of relocation was left

"undetermined."

During this interview, DiMatteo expressed surprise that

Wennik was applying for the position, stating "When I get over 55,

there’s no way you’ll find me in this business." Although Wennik’s

prior leave of absence was not mentioned in the interview, DiMatteo

was aware that Wennik had taken such a leave. In addition, others

in the company headquarters knew of Wennik’s medical condition.

At the conclusion of the interview, DiMatteo told Wennik

that he would continue interviewing candidates for the position and

that Wennik should contact him if he was willing to relocate.

Wennik did not follow up further with either DiMatteo or any other

company executives about the position. The position was ultimately

offered to and accepted by Kevin Mangini, a twenty-seven year-old

former PolyGram employee, whom DiMatteo had interviewed in November

1996.

II. DISCUSSION

A. Handicap Discrimination Claim

PolyGram argues that the trial court erred in denying its

motion for judgment as a matter of law on the handicap claim

because: (1) the decision-maker had no knowledge of the handicap

and therefore could not have discriminated against Wennik based

upon it; (2) the jury’s verdict for PolyGram on the age

discrimination claim precludes a finding that PolyGram’s

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articulated reasons were pretext for handicap discrimination; and

(3) the evidence was insufficient for a finding that Wennik’s

handicap was the real reason he was not selected for the field

marketing manager position.

This court reviews a 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." Larch v. Mansfield Mun. Elec. Dep’t,

272 F.3d 63, 67 (1st Cir. 2001) (alteration in original) (citation

and internal quotation marks omitted). We conclude that a

reasonable jury could have found in favor of Wennik. Therefore,

the district court did not err in denying PolyGram’s motion.

We recite the legal framework for a handicap

discrimination claim under Massachusetts law where, as here, direct

evidence of discrimination is absent. The employee must first

establish a prima facie case of discrimination by showing he is a

member of a protected class, performed his job at an acceptable

level, was terminated, and the employer nonetheless sought to fill

his job by hiring another individual with similar qualifications.

Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107,

116 (2000). This showing creates a presumption of discrimination,

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which the employer can rebut by articulating a lawful reason or

reasons for its decision and producing credible evidence to show

the reasons advanced were the real reasons. Id. at 116-17. The

employer need not prove that the reasons were nondiscriminatory but

"retains an incentive to persuade the trier of fact that the

employment decision was lawful." Id. at 117 (internal citation and

quotation marks omitted). If the employer fails to meet this

burden of production, the plaintiff is entitled to judgment. Id.

If the employer meets its burden, the burden shifts back to the

employee to show that the basis for the employer’s decision was

unlawful discrimination. Id.

PolyGram’s first argument is that Ron DiMatteo, the

individual responsible for hiring the field marketing manager, had

no knowledge of Wennik’s handicap at the time he made the decision

not to hire him; therefore, Wennik could not have been a victim of

discrimination "because of his handicap," Mass. Gen. Laws ch. 151B,

§ 4(16). After reviewing the record, we conclude that the evidence

was sufficient for a reasonable jury to determine that DiMatteo was

not the sole decision-maker and/or that he knew of Wennik’s

handicap.

PolyGram argues that DiMatteo was solely responsible for

hiring someone to fill Wennik’s position, and that other witnesses

corroborated this assertion. Although John Madison, Wennik’s

supervisor and PolyGram’s executive vice president, was required to

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sign off on DiMatteo’s selection, PolyGram argues that it was

undisputed that DiMatteo bore the sole responsibility for selecting

a candidate to submit to Madison, and that Wennik’s name was not

submitted.

The jury heard evidence from which it could infer that

DiMatteo was not the sole decision-maker in filling the New York

field marketing position, but that this decision was made at a

higher level in the company. Wennik presented evidence that all

the field marketing positions except that for the New York region

had been "slotted in;" that is, these positions were filled with

pre-selected candidates before the announcement of the

reorganization plan within the company. Paul Foley, former

PolyGram sales manager and vice president of sales for the catalog

division in New York, testified that after speaking to DiMatteo, he

was under the impression that Wennik was not a serious candidate

for the job: "[M]y discussions with [DiMatteo] were basically that

he felt that he needed to go through the motions of interviewing

[Wennik], but it was clear to me that they were not -– meaning

they, Ron DiMatteo and -- was not considering [Wennik] seriously."5

Curt Eddy, vice president of marketing, described who "we

selected" for the other four field marketing positions and

testified that "we didn’t" consider Wennik for the New York-based

5
The judge allowed this comment only up to the point that
DiMatteo was going through the motions, but struck the portion
dealing with Foley’s impression.

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position. Although this discussion referred to initial staffing

decisions in March to April 1996, the jury could reasonably have

concluded that the company used the same process seven months later

when it finally filled the field marketing position. Further, West

Coast field marketing manager K.P. Mattson, whose deposition

testimony was read into the trial record, stated that when he asked

DiMatteo why the New York position remained unfilled, DiMatteo

replied, "I wish Caparro and Madison would have shared with me

their blackball list and not wasted my time with all this

interviewing." Although PolyGram points out that this exchange

referred not to Wennik but to another candidate, the jury could

have concluded from this evidence that Caparro and Madison indeed

had a "blackball" list.

Moreover, at trial, the district court explained that it

was allowing the handicap discrimination claim to go to the jury

because:

[A]t least Mr. Foley, and maybe somebody else,
said that Mr. DiMatteo wasn’t making the
decision himself, that he felt as if some
people were . . . "black ball[ed]" . . . . And
that he was just going through the
ropes. . . .

. . . .

. . . . I’ve got two people [Foley and
Mattson] corroborating each other. That’s
enough evidence . . . for a jury to conclude
that Mr. DiMatteo did not make the decision
and that he got a veto from someone who knew
about the mental disability.

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The jury could reasonably have concluded that higher officials in

the company had veto power and had placed Wennik on their

"blackball" list.

The jury also heard evidence that others within the

company knew of Wennik’s illness and that DiMatteo knew or could

have inferred that Wennik had a handicap at the time he was not

hired for the position.6 Although DiMatteo testified that at the

time he interviewed Wennik for the position, he was not aware of

his mental difficulties, he acknowledged that he may have discussed

Wennik’s application for the field marketing job with Madison. It

is clear that some other higher officials in the company were aware

of Wennik’s handicap. Madison had known of Wennik’s illness as

early as May 1995 and had discussed it with Caparro. In fact,

Madison told Caparro that Wennik was "having trouble" even before

Wennik himself disclosed his illness to Caparro in October 1995.

Caparro also testified that others had brought to his attention

their difficulties communicating with Wennik and that he met with

Wennik in October 1995 to discuss the concerns being voiced by

PolyGram’s "national folks." At that meeting, Caparro observed

that Wennik was "troubled, . . . anxious, . . . tense and that he

6
While much of this evidence is circumstantial, we have held
that circumstantial evidence alone may be sufficient to support a
finding of knowledge. See Pontarelli v. Stone, 930 F.2d 104, 115
(1st Cir. 1991), abrogated on other grounds by Graphic
Communications Int’l Union, Local 12-N v. Quebecor Printing
Providence, Inc., 270 F.3d 1, 4 (1st Cir. 2001).

-11-
was tighter than ever before." Noting that he was "taken aback

[at] how bothered and troubled [Wennik] was," Caparro suggested to

Wennik that he take some paid time off, through the end of the

year. Foley also testified that word had reached him from within

the company that Wennik was not returning.

Further, during a conference call between DiMatteo and

other branch managers, the managers were told that Wennik "needed

to get away and was on a leave of absence."7 The jury also heard

evidence that DiMatteo and Caparro communicated frequently, and

that a company announcement had been made about Wennik’s leave,

which DiMatteo understood to be for personal reasons. The jury

could have inferred that Wennik’s absence was at some point

discussed with DiMatteo or that DiMatteo could have inferred that

the leave was due to a handicap.

The jury could also have disbelieved DiMatteo’s testimony

based on contradictions of his testimony in the record. For

example, in his affidavit, DiMatteo had stated:

[a]lthough Mr. Wennik’s hesitance to commit to
relocating to New York in order to perform the
field marketing manager position was an issue
in my consideration of his candidacy, it was
not a disqualifying factor. In fact, even if
Mr. Wennik had committed to relocating to New
York, I would not have selected him for the

7
The witness could not recall who made the comment, but
assumed it was Madison or Caparro.

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 position as I believed that Mr. Mangini was
better suited to fill the role.8

At trial, however, DiMatteo explained that because Wennik had not

committed to relocating, he could not consider him as a candidate.

After careful review of the record, we conclude that the

evidence was sufficient for a reasonable jury to determine either

that DiMatteo was not the sole decision-maker in filling the

position or that he had knowledge of Wennik’s handicap or both.

Second, PolyGram argues that the jury’s verdict in its

favor on the age discrimination claim precludes a finding that

PolyGram’s articulated reasons were pretext for handicap

discrimination. Although PolyGram contends that this argument does

not amount to a claim that the verdicts were inconsistent, PolyGram

is, in effect, challenging the jury’s seemingly inconsistent

verdicts on the age and handicap issues. Addressing this argument

would clearly require us to examine the verdict for inconsistency.

It is well-established that a party confronted by an

inconsistent jury verdict has an obligation to call the

inconsistency to the trial judge's attention. E.g., Campos-Orrego

8
PolyGram points out that DiMatteo was a disinterested
witness, having been laid off by the company more than a year
before the trial. Even if DiMatteo had been a disinterested
witness, a contention Wennik disputes, the jury was entitled not to
believe him. See, e.g., Walton v. Nalco Chem. Co., 272 F.3d 13,
24-25 (1st Cir. 2001) (jury entitled to disbelieve trial testimony
that one company vice-president discharged plaintiff without
another vice-president’s input); O’Connell v. Esso Std. Oil Co.,
337 Mass. 639, 642 (1958) (jury was not required to believe
testimony of apparently disinterested witness).

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v. Rivera, 175 F.3d 89, 98 (1st Cir. 1999). This Circuit follows

the iron-clad rule that a party "waives [the issue of]

inconsistency if it fails to object after the verdict is read and

before the jury is dismissed." Toucet v. Mar. Overseas Corp., 991

F.2d 5, 8 (1st Cir. 1993) (citations and internal quotation marks

omitted); Bonilla v. Yamaha Motors Corp., 955 F.2d 150, 155-56 (1st

Cir. 1992); Austin v. Lincoln Equip. Assocs., Inc., 888 F.2d 934,

939 (1st Cir. 1989); McIsaac v. Didriksen Fishing Corp., 809 F.2d

129, 134 (1st Cir. 1987). Although PolyGram had ample opportunity

to object to the potential inconsistency, the record is clear that

it failed to do so. It has therefore forfeited this argument.

To the extent that we review PolyGram’s argument for

plain error, we conclude that the circumstances of this case do not

meet the stringent requirement that the alleged error "resulted in

a miscarriage of justice or seriously affected the fairness,

integrity or public reputation of the judicial proceedings." Smith

v. Kmart Corp., 177 F.3d 19, 28 (1st Cir. 1999) (citation and

internal quotation marks omitted); see also Howard v. Antilla, 294

F.3d 244, 251 n.10 (1st Cir. 2002)

Finally, PolyGram argues Wennik failed to produce

sufficient evidence to show that the real reason he was not

selected for the field marketing position was "because of his

handicap." PolyGram contends that Wennik was not selected for the

position because he failed to commit to relocating to New York,

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failed to follow up with DiMatteo after the interview, and

demonstrated a lack of enthusiasm for the position. PolyGram

argues that its articulated reasons for not hiring Wennik are

corroborated in the record and are not pretextual.

PolyGram further contends that Wennik failed to show any

evidence that the "real reason" he was not selected was "because

of" his handicap. The company points to the fact that it took no

adverse action against Wennik because of his condition, gave him

time to get well, kept his job open until he was able to return,

and granted his requested accommodations when he returned to work.

PolyGram also reiterates its argument that DiMatteo was not aware

of Wennik’s handicap at the time the field marketing manager

position was filled. PolyGram argues that Wennik failed to produce

evidence to contradict this or to establish that he would have been

selected for the position "but for" his mental condition. It also

contends that Wennik produced no evidence from which a reasonable

jury could have concluded that the "real reason" Wennik was not

hired was his handicap. In addition, PolyGram points out that the

company initially brought up the idea that Wennik should consider

interviewing for the position. Had the company wanted to

discriminate against Wennik, PolyGram argues, it would not have

encouraged him to interview for the position. PolyGram further

argues that the record contains no indication that Wennik was

suffering from a handicap at the time the field marketing position

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was filled. Nevertheless, the jury also heard evidence that Wennik

still felt upset and anxious and experienced difficulties

concentrating and performing his job when he returned from leave.

Wennik counters that the jury heard sufficient evidence

to conclude that PolyGram did not hire him for the position because

of his handicap. As detailed, supra, the jury heard evidence that

Caparro and/or Madison knew of Wennik’s handicap and had expressed

concerns about his condition. The jury heard about the existence

of a "blackball" list for the field marketing position and could

have inferred that Caparro and/or Madison had placed Wennik on this

list even before DiMatteo interviewed him. The jury also heard

evidence from which it could have inferred that DiMatteo knew of

Wennik’s handicap and/or that he was not the true decision-maker in

filling the field manager position.

The jury also heard evidence from which it could have

concluded that PolyGram’s stated reasons for not hiring Wennik were

pretextual and that its true reason was handicap discrimination.

The jury heard that Wennik was qualified and enthusiastic about the

job and had excelled and earned respect in his former position.

The jury further heard evidence from which it could have inferred

that PolyGram "maneuvered to establish a pretextual basis for"

refusing to hire him for the position. See, e.g., Walton, 272 F.3d

at 23-24 (jury could have found defendant orchestrated pretextual

performance complaints from employer’s administration of assessment

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form to plaintiff after receiving letter for plaintiff’s attorney);

Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 56

(1st Cir. 2000) (memo detailing legitimate grounds for discharge

drafted after it became apparent former employee was bringing

suit).

Wennik adduced evidence that the field marketing position

for which he applied was the only one of Polygram’s five field

marketing positions for which the company conducted competitive

interviews; the company "slotted" candidates into the other four

positions without interviewing them. The jury also heard evidence

from which it could have inferred that PolyGram shifted its

position with respect to why it did not hire Wennik for the

position. A significant portion of PolyGram’s Equal Employment

Opportunity Commission (EEOC) position statement detailed its

concerns with Wennik’s job performance.9 At trial, however,

DiMatteo testified that the reasons Wennik was not hired were his

lack of enthusiasm and unwillingness to relocate to New York.

Despite this, DiMatteo acknowledged in his deposition that he would

not have hired Wennik even if Wennik had been willing to relocate.

9
Although PolyGram contends in this position statement that
Wennik’s unwillingness to relocate to New York removed him from
consideration for the field marketing position, the jury could
reasonably have inferred that the extensive discussion about
PolyGram’s concerns with Wennik’s job performance played at least
some role in the decision not to hire him for the position.

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He also acknowledged that Wennik had far more experience than the

candidate PolyGram ultimately hired for the position.

We conclude that Wennik presented sufficient evidence

from which a reasonable jury could find that PolyGram’s proffered

reasons for not hiring him for the position were pretextual and

that the real reason was handicap discrimination. We therefore see

no error in the district court’s denial of PolyGram’s motion for

judgment as a matter of law on Wennik’s handicap discrimination

claim.

B. Age Discrimination Claim

Wennik contends that the trial court erred in denying his

motion to alter or amend judgment for two reasons. First, Wennik

argues that a finding of discrimination based on his mental

handicap necessitates a finding of discrimination based on his age.

In effect, he argues the verdicts are inconsistent and the

inconsistency should be resolved in his favor. Second, Wennik

asserts that he should have prevailed on the age discrimination

claim based on the direct evidence he presented.

We review the trial court's decision denying a motion to

alter or amend a judgment for manifest abuse of discretion. Jorge

Rivera Surillo & Co. v. Falconer Glass Indus., 37 F.3d 25, 27 (1st

Cir. 1994). We discern no abuse of discretion here.

Wennik first argues that this Court should read as

consistent the jury's answers to the verdict questions, and in

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doing so, should enter judgment in his favor on the age claim. He

contends that, read together, the jury answers to the verdict

questions are actually consistent. He argues that although the

jury found that age was a motivating factor in PolyGram’s decision

not to hire Wennik, the company would have made the same decision

not to hire him regardless of his age, because of his mental

handicap. This contention is specious. Were we to accept it, we

would be rejecting outright the jury's finding that there was no

age discrimination.

Alternatively, Wennik argues that the jury answers to the

verdict questions are inconsistent because the jury found that age

was a motivating factor in the decision not to hire him for the

position, yet concluded that PolyGram would have made the same

decision not to hire him regardless of his age. Additionally,

Wennik argues, the jury found that the reasons PolyGram offered for

not hiring Wennik were pretextual and that the real reason for the

decision was discrimination based on mental disability. Wennik

argues that this Court should resolve the inconsistency in his

favor by concluding that the jury intended to find age

discrimination.

Like PolyGram, however, Wennik has forfeited his

inconsistency argument. As discussed, supra, the rule is clear

that Wennik was required to object to the alleged inconsistency

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after the verdict was rendered and before the jury retired. The

record is clear that he did not do so.10

Wennik’s second argument is that he should have prevailed

on the age claim based on the direct evidence of age discrimination

he presented. Direct evidence "consists of statements by a

decisionmaker that directly reflect the alleged animus and bear

squarely on the contested employment decision." Kirk v. Hitchcock

Clinic, 261 F.3d 75, 79 (1st Cir. 2001) (citations and internal

quotation marks omitted). The evidence to which Wennik points is

a disputed comment DiMatteo made during Wennik’s interview for the

field marketing position: "When I get over 55, there's no way

you'll find me in this business."

Despite the district court's finding that Wennik

presented direct evidence of age discrimination, we conclude that

this comment was not direct evidence. See, e.g., Fernandes v.

Costa Bros. Masonry, 199 F.3d 572, 583 (1st Cir. 1999) (finding

business owner's statements: "I don't need minorities, and I don't

need residents on this job" and "I don't have to hire you locals or

Cape Verdean people" did not constitute direct evidence and

concluding that "a statement that can plausibly be interpreted two

different ways–one discriminatory and the other benign–does not

10
Wennik's objection to a jury instruction when the jury asked
for clarification on the word "based" is insufficient to preserve
the inconsistency argument. Further, as stated, supra, this is not
a case where the circumstances meet the stringent requirements of
the plain error test.

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directly reflect illegal animus and, thus, does not constitute

direct evidence of racial discrimination."). Accordingly, we

reject Wennik’s direct evidence argument.

C. Attorneys’ Fees

At the close of the trial, the district court instructed

the parties to use Alfonso v. Aufiero, 66 F. Supp. 2d 183 (D. Mass.

1999) and Guckenberger v. Boston Univ., 8 F. Supp. 2d 91 (D. Mass.

1998), as guides in addressing the issue of fees and costs. On

November 16, 2000, Wennik’s counsel submitted a request for

attorneys’ fees. The application included affidavits from each of

the attorneys, along with a "detailed accounting" of their time

spent on the case based on their "contemporaneous time records."

PolyGram opposed this motion on various grounds. On December 2,

2002, the district court issued a decision on Wennik’s motion,

instructing that "[t]he parties shall attempt to work out fair and

reasonable attorneys’ fees and costs" and citing to Alfonso and

Guckenberger. Thereafter, counsel for both sides discussed the

application for fees and costs. After this conversation,

PolyGram’s counsel sent a letter to Wennik’s counsel, confirming

that Wennik would "not be submitting a revised fee proposal in

response to the Court’s order that the parties attempt to work out

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fair and reasonable attorneys’ fees and costs . . . ." Wennik’s

counsel did not object to the letter.11

After reviewing Wennik’s counsel’s request for attorneys’

fees, PolyGram took the position that the fees were excessive. In

response, Wennik’s counsel retained attorneys to represent them in

the matter and submitted a request for a briefing schedule to the

district court. Wennik’s counsel also produced a new set of

"renewed and revised" "contemporaneous time records," which

included a new thirty-nine page document listing entries from

March 17, 1998 through October 23, 2000. Although the new records

did not indicate which attorney provided the services described,

they contained new and more detailed entries about work performed

on the days in question. PolyGram opposed Wennik’s revised motion

for attorneys’ fees, arguing that the district court should not

have accepted the revised time sheets, or, in the alternative, that

the fees should have been significantly reduced under Alfonso and

Guckenberger.

On July 3, 2001, with virtually no explanation as to its

reasoning, the district court granted most of Wennik’s motion for

fees and costs, awarding $397,328.15 in fees and $8,961.91 in

11
In his brief, Wennik’s counsel objects to the introduction
of the letter for various reasons. Even if the court were to
consider the letter, however, the supplemental records do not
violate its terms. The letter merely stated that counsel would not
submit further material in response to the district court’s order
that the parties attempt settlement.

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costs. The district court declined to accept the addition of ten

extra hours that appeared in the revised records but not in the

originals.

We review an award of fees and costs for abuse of

discretion. Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992);

Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir. 1984).

This Court has "a duty to review carefully the basis for the award

and to ensure that the amount is reasonable." Grendel’s Den, 749

F.2d at 950. To allow for "meaningful appellate review," the

district court must provide a "clear explanation of its reasons for

the fee award." Id. "Conclusory statements concerning

reasonableness are insufficient to withstand appellate

review. . . . The attorney’s account of the value of the legal

services and the amount of time spent must be scrutinized with

care." Id. (citations omitted).

PolyGram argues that the district court failed to provide

any "thoughtful rationale" for its decision as required under Deary

v. City of Gloucester, 9 F.3d 191, 197 (1st Cir. 1993), Grendel’s

Den, 749 F.2d at 950, and Alfonso, 66 F. Supp. 2d at 192

("thoughtful analysis"). It also argues that the district court

erred in allowing Wennik’s counsel to submit revised billing

records in response to PolyGram’s claims that counsel’s original

records were deficient. Finally, it argues that the district court

erred by failing to discount vague, non-compensable, and/or

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duplicative time entries, resulting in an award of fees to which

Wennik was not entitled. PolyGram cites examples of an award for

twenty-eight hours of work by one attorney on a single day;

seventeen hours counsel spent waiting at the courthouse while the

jury deliberated, see Alfonso, 66 F. Supp. 2d at 193 (noting that

counsel were free to leave and/or work on other matters while

waiting for a verdict); and time awarded, without any discounting,

for three attorneys and one paralegal’s presence during most days

of the trial, Hart v. Bourque, 798 F.2d 519, 523 (1st Cir. 1986)

("the time for two or three lawyers in a courtroom or conference,

when one would do, ‘may obviously be discounted’").

Wennik disputes PolyGram’s contention that the district

court failed to provide reasons for the award, arguing that

although the court’s decision was concise, it made the requisite

findings as to the major issues before it. Wennik further argues

that the court did not abuse its discretion in accepting counsel’s

revised time entries. He also contends that his counsel’s entries

were not imprecise or vague, and offers alternative explanations

for the argument that the court awarded fees for non-compensable

time, such as the twenty-eight hour work day for one attorney.

We see no abuse of discretion in the district court’s

acceptance of Wennik’s counsel’s revised time records. PolyGram

points to no case law that bars the acceptance of such time

records. In fact, the cases suggest that acceptance of revised

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time records is not uncommon. See, e.g., Alfonso, 66 F. Supp. 2d

at 191 (acknowledging, without comment, plaintiff’s submission of

"more detailed descriptions of the work performed); Bull v. Coyner,

No. 98 C 7583, 2001 WL 630669, at *3 n.2 (N.D. Ill. 2001) (using

revised time records to calculate attorney time); Torf v.

Metromedia Paging Servs., No. CV-93-4031, 1996 WL 118559, at *4-5

(E.D.N.Y. 1996) (taking into consideration plaintiff’s attorney’s

revised time records in denying plaintiff’s motion to reconsider

denial of attorneys’ fees). Rule 54 of the Federal Rules of Civil

Procedure requires the filing of a fee petition within fourteen

days of entry of judgment. Particularly in light of this short

time frame, we see no abuse of discretion where the court accepted

a party’s additional details of time records in a case that covered

four years of litigation.

The district court’s decision, however, generally was not

illuminating in its reasoning on the grant of the fee award. Given

the discrepancies, including the award for twenty-eight hours of

work in one day by one attorney, and the case law requiring the

district court to explain its rationale for a fee award, we vacate

the award and remand this issue to the district court for a

redetermination of attorneys’ fees and/or an explanation of its

reasoning.

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III. CONCLUSION

We AFFIRM the verdict on the handicap and age

discrimination claims and REMAND to the district court on the issue

of attorneys’ fees. No costs for either party on appeal.

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