Blockel v. J.C. Penney Company

United States Court of Appeals
For the First Circuit

No. 02-1927

LAURA M. BLOCKEL,

Plaintiff, Appellee,

v.

J. C. PENNEY COMPANY, INC.,

Defendant, Appellant.

No. 02-1946

LAURA M. BLOCKEL,

Plaintiff, Appellant,

v.

J. C. PENNEY COMPANY, INC.,

Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, Senior U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin and Porfilio,* Senior Circuit Judges.

*
Of the Tenth Circuit, sitting by designation
 Nicholas A. O'Kelly with whom Michael E. Satti, Holly
Quackenbush Darin, and Satti & Ryan, LLP, were on brief for J.C.
Penney.
Marwan S. Zubi with whom Paul Peter Nicolai and Nicolai Law
Group were on brief for Blockel.

July 23, 2003
 COFFIN, Senior Circuit Judge. Defendant-appellant J.C. Penney

Company claims multiple errors in the trial and post-judgment

orders regarding the disability discrimination claims of Laura

Blockel, a former J.C. Penney employee. Blockel also appeals,

alleging error in the district court's calculation of prejudgment

interest. Finding no errors, we affirm the judgment below.

I. Background

A reasonable jury could have found the following facts in

support of its verdict in favor of Blockel.

Laura Blockel was hired by J.C. Penney as a "merchandise

manager trainee" in 1985. She was promoted in the following years,

receiving favorable evaluations and merit pay increases, until she

reached the position of "senior merchandise manager" at the

Sturbridge, Massachusetts, store in 1988. As a senior merchandise

manager, Blockel was responsible for purchasing and managing the

merchandise in a particular area of the store, ultimately the men's

department, and supervising customer service in that area. She

routinely received scores of 2 (on a scale of 1 to 5, 1 being the

highest) on her annual performance evaluations.

In 1995, Blockel was diagnosed with a seizure disorder, major

depression, and post-traumatic stress disorder. In 1997, she was

also diagnosed with bi-polar disorder, schizo-affective disorder,

and dissociative disorder. On several occasions in 1996 and 1997,

Blockel was hospitalized due to her illnesses for up to ten days at

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a time. Her symptoms included seizures, severe depression,

catatonic states, auditory and visual hallucinations, delusions,

and suicidal ideation. She attempted suicide more than once.

In order to control these symptoms, Blockel was treated with

a variety of anti-psychotic, anti-anxiety, anti-depressant, and

mood stabilizing drugs. Her treating psychiatrist, Dr. Zamir

Nestelbaum, testified that without these medications, Blockel would

not have been able to care for herself or work throughout 1996 and

1997. Blockel visited both a psychologist and Dr. Nestelbaum

approximately once a week after her diagnoses.

Stress related to heavy work hours was adjudged by Dr.

Nestelbaum to exacerbate Blockel's symptoms. Consequently, he

provided Blockel with notes for her employer several times in 1996

and 1997, setting restrictions on the number of hours she should

work each day or week. At times she was limited to six hours of

work per day. The manager of the Sturbridge store, James

Eltringham, consistently honored Blockel's accommodation requests.

With these restrictions, Blockel was able to perform all the

essential functions of her job. In fact, she received scores of

"2" on her performance evaluations for the years 1995 and 1996.

In 1996 and 1997, she was invited to take part in the "Entity

Team," a group of five senior managers selected for their superior

merchandising skills.

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 In May 1997, Lois Rainero replaced Eltringham as the manager

of the Sturbridge store. Rainero had previously held the position

of "district personnel manager" and had received training in

handicap discrimination and reasonable accommodations.

In September 1997, Blockel suffered a seizure at work and was

taken to the hospital by ambulance. She remained hospitalized for

a week. Upon returning to work, Blockel told Rainero that she had

been admitted to the psychiatric ward, suffered from mental

illnesses, and was heavily medicated. She also explained that she

felt she would be able to continue fulfilling her job

responsibilities as long as her work hours were limited. She

provided Rainero with a note from Dr. Nestelbaum stating that she

should not work more than forty hours per week.

The forty-hour restriction was adhered to in October, but with

the holiday season approaching, Blockel feared that the hours

expected of her would escalate. To ensure that her limitations

would be taken into account, she offered to draft the holiday

schedule, a task she did not customarily perform. Blockel's

proposal limited her scheduled hours to forty per week, but it was

rejected by Rainero as leaving the store short on coverage. The

revised schedule, drafted by another senior merchandise manager,

assigned Blockel between thirty-seven-and-a-half and forty-nine

hours per week. This schedule began October 26.

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 On November 12, Blockel met with Rainero to remind her of the

restriction. Rainero responded that Blockel was not being a team

player, that she would be a burden on the other senior merchandise

managers, and that her career at J.C. Penney would effectively be

over if she did not work her scheduled hours during the holiday

season.

The following day, Blockel left a note for Rainero, to which

Rainero never responded, stating that she loved her job and did not

want to be a burden on her fellow managers. She concluded that she

would try to work the schedule as posted, despite its requirement

that she work more than forty hours per week. Ultimately, Blockel

worked between fifty and sixty hours weekly during November and

December.

Simultaneously, Blockel's symptoms worsened significantly.

Between November 1997 and January 1998, her condition was

progressively downgraded by her doctors. Dr. Nestelbaum attributed

her deterioration to the high number of hours she was working and

her anxiety that reducing her hours would impact her future at J.C.

Penney. In early January 1998, Blockel was hospitalized for ten

days. She took sick leave, informed Rainero that she would not be

returning, and applied for long-term disability benefits.

Sometime in January, district manager Phyllis Seberger met

with Rainero to discuss the evaluations of the senior merchandise

managers, which were finalized in late January. In late February

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1998, Blockel was asked to come to the store for a meeting of the

managers. Blockel protested that she was out on sick leave and not

able to attend but was informed that it was mandatory.

At that meeting, Blockel was presented with her completed

evaluation, in which she was rated a "3". In contrast with

previous years, Blockel was not given the chance to review the

evaluation and provide feedback before it was finalized. After the

evaluation was presented to Blockel, Seberger informed her that a

reduction in force was being implemented at J.C. Penney and that,

because of her "3" rating, she was being terminated. Later,

Blockel retrieved her actual sales numbers and discovered errors in

the computation of her sales and profit figures that formed the

basis for the evaluation and made her performance appear less

favorable.

After her termination, Blockel's sick pay and application for

long-term disability were denied by J.C. Penney because she was no

longer an employee. J.C. Penney eventually reversed its decision

and granted her long-term disability benefits. Blockel also was

granted federal Social Security disability benefits.

In April 1998, Blockel filed claims before the Massachusetts

Commission Against Discrimination (MCAD) alleging that J.C. Penney

violated the protections found in Massachusetts General Laws

Chapter 151B. Due to delays in the MCAD process and the impending

expiration of the statutes of limitations on her claims, Blockel

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filed suit in state court in 2000. J.C. Penney subsequently

removed the lawsuit to federal district court.

In March 2002, a jury rendered a verdict in Blockel's favor,

finding that J.C. Penney failed to reasonably accommodate her and

that it engaged in retaliatory harassment. The jury awarded

Blockel compensatory and punitive damages, as well as back pay, in

the aggregate amount of $563,700. The district court subsequently

awarded her attorney's fees and costs, as well as $28,564.43 in

prejudgment interest on the compensatory damages portion of the

award.

J.C. Penney raises multiple issues in its appeal while Blockel

makes a single claim in her cross-appeal.

II. Notice of Appeal

Preliminarily, Blockel protests that this court does not have

jurisdiction to hear any of J.C. Penney's claims due to a

deficiency in J.C. Penney's designation of the order from which it

appeals.

On March 21, 2002, the jury returned its verdict in favor of

Blockel. On March 25, the district court entered judgment for

Blockel, including prejudgment interest. On April 3, Blockel filed

a motion for attorney's fees and costs as well as additional

prejudgment interest. On April 8, J.C. Penney filed a motion for

judgment notwithstanding the verdict pursuant to Fed. R. Civ. P.

50(b), which, as a recognized type of post-judgment motion,

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extended the time for appealing the March 25 judgment. See Fed. R.

App. P. 4(a)(4)(i).

On June 27, the district court issued a memorandum and order

denying J.C. Penney's Rule 50(b) motion and granting Blockel's

motion for fees and costs, but denying her request for additional

prejudgment interest. On July 2, the court entered a judgment that

read: "Pursuant to the memorandum and order of the court entered on

June 27, 2002, judgment for the plaintiff with attorney's fees

awarded in the amount of $71,514.67 and costs awarded in the amount

of $4,706.11." On July 18, J.C. Penney filed a notice of appeal,

specifying the July 2 entry as the judgment appealed from.

See Fed. R. App. P. 3(c)(1)(B) (requiring an appellant to

"designate the judgment, order, or part thereof being appealed" in

the notice of appeal).

Blockel maintains that the July 2 order resolved only the

amount of the attorney's fees and costs. Blockel thus urges us to

read J.C. Penney's notice of appeal as limited to issues concerning

attorney's fees and costs, exclusive of the judgment and issues

raised post-judgment. Citing Town of Norwood v. New England Power

Co., 202 F.3d 408 (1st Cir. 2000), Blockel notes that a notice of

appeal naming only the denial of a post-judgment motion generally

does not bring the original judgment before an appellate court.

See id. at 415.

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 Nevertheless, the requirements of Rule 3(c) are to be

construed liberally. See Kotler v. Am. Tobacco Co., 981 F.2d 7, 11

(1st Cir. 1992) (citing Smith v. Barry, 502 U.S. 244, 248 (1992);

Foman v. Davis, 371 U.S. 178, 181-82 (1962)). "Noncompliance with

'mere technicalities' will not defeat appellate jurisdiction," id.

(quoting Foman, 371 U.S. at 181), "so long as the litigant's filing

'is the functional equivalent of what the rule requires,'" id.

(quoting Torres v. Oakland Scavenger Co., 487 U.S. 312, 317

(1988)). Moreover, the rule of Norwood is "not inflexible."

LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 839 (1st Cir. 1993); see

also Norwood, 202 F.3d at 415 (stating that because the "failure to

name the underlying judgment is usually a slip of the pen and

rarely causes any prejudice to the other side," courts often

"rescue the technically defaulted portion of the appeal").

Further, we review the notice of appeal in the context of the

entire record. See Chamorro v. Puerto Rican Cars, Inc., 304 F.3d

1, 3 (1st Cir. 2002); John's Insulation, Inc. v. L. Addison &

Assocs., Inc., 156 F.3d 101, 105 (1st Cir. 1998). "[T]he core

purpose of a notice of appeal is to 'facilitate a proper decision

on the merits.'" Chamorro, 304 F.3d at 3 (quoting Foman, 371 U.S.

at 182).

We do not construe J.C. Penney's appeal to be limited to the

issue of attorney's fees. The district court's reference, in its

July 2 judgment, to the June 27 memorandum and order, is not

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limited to that portion of the order dealing with fees and costs.

Although the court's intention is not absolutely clear, the July 2

judgment can plausibly be read to incorporate the entirety of the

June 27 memorandum and order denying J.C. Penney's motion for

judgment notwithstanding the verdict.

Moreover, reviewing the record as a whole, J.C. Penney

consistently sought merits-based reviews during and after trial, it

filed a request for a full trial transcript contemporaneously with

filing its notice of appeal, and its brief to this court addressed

the underlying merits. See, e.g., Norwood, 202 F.3d at 415

(considering fact that appellant presented same arguments on merits

below as on appeal). Thus, J.C. Penney's intent to appeal the

merits of the underlying judgment was sufficiently clear to provide

this court with jurisdiction to review the issues raised in its

Rule 50(b) motion.1

III. Denial of Motion for Judgment Notwithstanding the Verdict

The jurisdiction issue resolved, we review the district

court's denial of a motion for judgment notwithstanding the verdict

de novo. See Rodowicz v. Mass. Mut. Life Ins. Co., 279 F.3d 36, 41

(1st Cir. 2002). "Our review is weighted toward preservation of

the jury verdict; [w]e must affirm unless the evidence was so

1
Although Blockel is correct that J.C. Penney's notice of
appeal does not state the court to which the appeal was taken,
technically a violation of Rule 3(c)(1)(C), we decline to eschew
jurisdiction based on such an inconsequential omission because the
only avenue of appeal from the district court is to this court.

-11-
strongly and overwhelmingly inconsistent with the verdicts that no

reasonable jury could have returned them." Id. at 41-42 (internal

quotations omitted).

A. Blockel's Prima Facie Case

J.C. Penney contends that Blockel failed to make out her prima

facie case in multiple respects. The company argues that Blockel

failed to prove: first, that she was a "qualified handicapped

person" under the Massachusetts statute; second, that her

impairments constituted a "disability"; and third, that J.C. Penney

refused to accommodate her.

i. Waiver

Blockel argues preliminarily that J.C. Penney has waived all

arguments regarding the sufficiency of the evidence because its

initial motion for judgment as a matter of law, brought pursuant to

Rule 50(a) at the close of evidence, was not made with sufficient

specificity. We note, however, that J.C. Penney's Rule 50(a)

motion was cut short by the judge's pronouncement that the motion

was considered filed and denied.2 Although generally it is

2
The exchange occurred as follows:
COUNSEL: Your Honor, one matter the defendant has not – we
did want to proceed with our motions for directed verdict on
certain issues.
THE COURT: I never noticed that you filed one at the close of
plaintiff's evidence. I said at the time that I believed after the
evidence was complete.
COUNSEL: I believe that we –
THE COURT: Motion for directed verdict has been filed, and
it's on the record, and the Court denies it.

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incumbent upon a party to enunciate the specific basis for a motion

for judgment as a matter of law, see Fed. R. Civ. P. 50(a)(2),

here, the district court foreclosed J.C. Penney's opportunity to

make its arguments with any specificity. Under these circumstances

J.C. Penney cannot be faulted for failing to provide more detail.

See, e.g., Wilson Sporting Goods v. David Geoffrey & Assocs., 904

F.2d 677, 683 (Fed. Cir. 1990)(stating that "[i]t would be unfair

to require counsel to have developed a statement of evidentiary

shortcomings which the magistrate obviously did not want to hear"),

overruled in part on other grounds by Cardinal Chem. Co. v. Morton

Int'l, 508 U.S. 83 (1993).

But Blockel's second waiver argument holds more force.

Blockel contends that in its subsequent Rule 50(b) motion for

judgment notwithstanding the verdict J.C. Penney enunciated only

the first of the three particular sufficiency arguments it makes on

appeal.

In its Rule 50(b) motion, J.C. Penney did contend that Blockel

had not made out a prima facie case. Specifically, however, it

argued only that Blockel failed to prove her status as a "qualified

handicapped person." J.C. Penney did not make the arguments that

Blockel failed to prove that she had a disability or that J.C.

Penney refused to accommodate her. As we have said many times

before, unless an issue is raised squarely before the district

court, it can be reviewed only for plain error. See, e.g., In re

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Rauh, 119 F.3d 46, 51 n.7 (1st Cir. 1997) ("We consider arguments

raised for the first time on appeal only in exceptional

circumstances threatening a 'clear miscarriage of justice.'"

(quoting Playboy Enters., Inc. v. Public Serv. Comm'n of Puerto

Rico, 906 F.2d 25, 40 (1st Cir. 1990)). We find no such error

here.

J.C. Penney contends that raising the overarching issue of

whether Blockel had made out her prima facie case was sufficient to

preserve its arguments on each aspect of Blockel's prima facie

case. Our precedent, however, indicates that more specificity is

required. In Pstragowski v. Metropolitan Life Insurance Co., 553

F.3d 1 (1st Cir. 1997), we stated that "a party who moved for a

directed verdict may obtain appellate review only on the specific

ground stated in the motion." Id. at 3; see also Lynch v. City of

Boston, 180 F.3d 1, 13 (1st Cir. 1999) (stating that the rule

requires that grounds for a motion must "be stated with sufficient

certainty to apprise the court and opposing counsel of the movant's

position" (internal citation omitted)). Further, on the venerable

principle of "expressio unius est exclusio alterius," J.C. Penney's

inclusion of one particular argument regarding Blockel's prima

facie case indicated to both Blockel and the court that this was

the sum total of its arguments on this front. We therefore

consider only whether Blockel met her burden of showing her status

as a protected handicapped employee.

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 ii. "Qualified Handicapped Person"

The Massachusetts anti-discrimination statute defines a

"qualified handicapped person" as a "handicapped person who is

capable of performing the essential functions of a particular job,

or who would be capable of performing the essential functions of a

particular job with reasonable accommodation to his handicap."

Mass. Gen. Laws ch. 151B, § 1(16). J.C. Penney claims that Blockel

was not a "qualified handicapped person" because she did not prove

that she was able to perform the essential functions of her job

from October through December 1997. J.C. Penney's argument rests

on Blockel's testimony that she could not do the job of merchandise

manager in forty hours a week. Specifically, she testified:

Q. And what I'm curious about is are you saying that by
restricting your hours to only 40 hours a week you could
not do the essential functions of your job as a
merchandiser?
A. That's right.

J.C. Penney relies primarily upon August v. Offices Unlimited,

Inc., 981 F.2d 576 (1st Cir. 1992). In August, when the record was

"fatally bereft of indication" that the disabled plaintiff could

perform his job even with an accommodation, this court affirmed

summary judgment for the employer on the plaintiff's employment

discrimination claims. See id. at 581-82.

Here, Blockel presented other evidence sufficient to allow the

jury to conclude that working more than forty hours per week was

not an essential function of Blockel's position. For example,

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Rainero testified that senior merchandise managers were not

required to work more than forty hours a week. In addition, a

senior merchandise manager testified that it would be possible for

managers to perform their duties, even during the holiday season,

within a forty hour schedule. Blockel also presented evidence of

her past superior performance despite hourly work restrictions.

Even assuming that Blockel understood the question and taking

her response that she could not perform the job in forty hours at

face value, in light of the countervailing evidence, the sum of the

evidence was not "so strongly and overwhelmingly inconsistent" with

the jury verdict, Rodowicz, 279 F.3d at 41-42 (internal citations

omitted), that the verdict must be overturned.

Here, Blockel asserted that she was a qualified individual at

the time that she asked for the forty hour week accommodation. In

contrast with the facts of August, all of Blockel's disability

insurance and benefit claim forms report total disability as

beginning later, in January 1998 – after her requests for

accommodation were denied. Thus, the jury had sufficient support

to deem Blockel a "qualified individual with a handicap."

B. Retaliation

Next, J.C. Penney claims that the jury erred in finding for

Blockel on her retaliation claim. Under Massachusetts law, it is

unlawful to "coerce, intimidate, threaten, or interfere with

another person in the exercise or enjoyment of any right granted or

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protected" by the Massachusetts anti-discrimination statute. Mass.

Gen. Laws ch. 151B, §4(4A). To succeed in a retaliation claim, "'a

plaintiff must establish the basic fact that he was subjected to an

adverse employment action because of his protected activity.'"

Pontremoli v. Spaulding Rehab. Hosp., 747 N.E.2d 1261, 1264 (Mass.

App. Ct. 2001)(quoting Lewis v. Gillette, Co., 22 F.3d 22, 24 (1st

Cir. 1994)).

J.C. Penney argues that Blockel did not prove a link between

a protected activity and any adverse action. The company also

contends that Rainero and Seberger had no knowledge of the

reduction in force when they completed Blockel's evaluation.

Blockel persuasively marshals the facts in support of the jury

verdict. Relying on testimony indicating that Seberger was likely

aware of the planned reduction in force by the time Blockel's

evaluation was finalized and that the evaluation was based on

faulty numbers, the jury could have inferred that Blockel suffered

an adverse action. There was evidence that slipping from a "2" to

a "3" rating would, even in the absence of the reduction in force,

reduce any annual pay increase. Moreover, in this case, the "3"

rating did in fact result in her termination. The same evidence

also could have led the jury to conclude that the adverse action

was based on Blockel's protected activity of repeatedly seeking an

accommodation.

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 Ultimately, the determination of whether or not retaliation

occurred within the meaning of the statute was a factual

determination within the province of the fact finder. See, e.g.,

Lipchitz v. Raytheon Co., 751 N.E.2d 360, 366 (Mass. 2001) (stating

that whether discrimination occurred, when the issue is "raised by

the parties' conflicting evidence as to the defendant's motive, is

not for a court to decide on the basis of briefs and transcripts,

but is for the fact finder after weighing the circumstantial

evidence and assessing the credibility of the witnesses" (internal

citations omitted)).

C. Back Pay Award

Third, J.C. Penney charges that the jury's award of $128,700

in back pay to Blockel was unsupported. J.C. Penney alleges that

Blockel's claim that she was totally disabled and could not take

part in any meaningful employment as of January 8, 1998, precludes

her from receiving a back pay award. The company also suggests

that even if Blockel were eligible for lost wages, she failed to

fulfill her duty to mitigate her damages by seeking alternative

employment.

The Massachusetts discrimination statute provides for actual

damages, and the statute is to be construed liberally. Mass. Gen.

Laws ch. 151B, § 9. Compensatory damages may include those that

make "the aggrieved party whole, . . . including those which are

the natural and probable consequences . . . of the illegal

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conduct." Conway v. Electro Switch Corp., 523 N.E.2d 255, 257

(Mass. 1988) (internal quotations omitted). When an employee's

total disability is caused by an employer's failure to reasonably

accommodate her, the loss of employment can be an element of

special damages that the jury may consider in fashioning a remedy

for the failure to accommodate. See, e.g., Langon v. Dep't of

Health & Human Servs., 959 F.2d 1053, 1061-62 (D.C. Cir. 1992).

In this case, the jury could have found that Blockel's total

disability resulted from J.C. Penney's violation of its statutory

duties. Given such a finding, Blockel was entitled to the pay she

would have received but for J.C. Penney's mistreatment.

As for Blockel's duty to mitigate, J.C. Penney is correct that

Blockel was required to mitigate her damages to the extent

possible. See Conway, 523 N.E.2d at 257. Nevertheless, Blockel

was entitled to recover what she would have been paid had she not

become disabled, reduced by the amount of any disability benefits.

See Troy v. Bay State Computer Group, Inc., 141 F.3d 378, 382 (1st

Cir. 1998). Moreover, Blockel mitigated her damages by obtaining

J.C. Penney long-term disability and Social Security disability

benefits. J.C. Penney offered no evidence that there were

employment opportunities available to Blockel. Thus, there was no

discernible error in the jury's back pay award to Blockel.

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D. Punitive Damages

J.C. Penney's final argument regarding the court's denial of

its motion for judgment notwithstanding the verdict is that the

jury's punitive damages award of $350,000 should be set aside as

insupportable.3 J.C. Penney also claims error in the court's

instructions on punitive damages.

The Massachusetts anti-discrimination statute authorizes an

award of punitive damages, see Mass. Gen. Laws ch. 151B, § 9, and

such damages may be awarded "where a defendant's conduct warrants

condemnation and deterrence." Bain v. City of Springfield, 678

N.E.2d 155, 162 (Mass. 1997). In an employment discrimination

case, punitive damages may be granted for "outrageous" conduct,

where the defendant displays "'evil motive or . . . reckless

indifference to the rights of others.'" Dartt v. Browning-Ferris

Indus., Inc., 691 N.E.2d 526, 537 (Mass. 1998) (quoting Restatement

(Second) of Torts § 908(2) (1979)). Juries have "wide discretion"

to determine the amount of punitive damages, and trial courts have

similar discretion to affirm the jury's award of damages. See

3
J.C. Penney makes the additional argument that the court
erred by refusing to grant it a reasonable care defense instruction
pursuant to Burlington Industries v. Ellerth, 524 U.S. 742 (1998),
and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Because
J.C. Penney did not raise this argument in its Rule 50(b) motion,
we do not address it but note that Massachusetts appears not to
have adopted a reasonable care defense. See Myrick v. GTE Main
Street Inc., 73 F. Supp. 2d 94 (D. Mass. 1999)(citing College-Town
v. Mass. Comm'n Against Discrimination, 508 N.E.2d 587 (Mass.
1987)).

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McMillan v. Mass. Soc'y for the Prevention of Cruelty to Animals,

140 F.3d 288, 306 (1st Cir. 1998) (citing Fishman v. Clancy, 763

F.2d 485, 489-90 (1st Cir. 1985)).

J.C. Penney contends that the court's instructions led the

jury astray by not requiring it to make specific findings as to

whether J.C. Penney was willful or reckless. It suggests that the

court's instructions implied to the jury that punitive damages were

a foregone conclusion by focusing on the amount rather than whether

they would be appropriate.

A review of the record reveals that the judge's instructions

were consistent with Massachusetts law and did not in any way

presuppose an award of punitive damages. The judge instructed the

jury that if it found that Blockel proved by a preponderance of the

evidence that J.C. Penney discriminated against her with malice or

reckless indifference to her rights, it was authorized but not

required to award punitive damages. The court reiterated: "In this

case, as I said, you may award punitive damages only if you find

that J.C. Penney Company, Inc., engaged in discriminatory practice

or practices with malice or reckless indifference to the rights of

Ms. Blockel . . . ." The judge went on to define the terms

"malice" and "recklessness" and advise the jury on the factors to

be considered in the event of an award.

With regard to the propriety of the punitive damages award,

among the pieces of evidence upon which the jury could reasonably

-21-
have relied were the following: Rainero's knowledge that Blockel's

doctor felt her health would be at risk if she were not granted an

accommodation, her denials of Blockel's requests despite her

training in personnel management and reasonable accommodation of

disabilities, and her possible motivation to deny Blockel's

accommodation requests because Blockel's performance would reflect

on her own.

IV. Prejudgment Interest

Finally, we reach the sole issue raised in Blockel's cross-

appeal. Blockel contends that the district court erred in refusing

to award her prejudgement interest for the period during which her

claims were pending before the MCAD.

State law customarily governs prejudgment interest

determinations on state law claims. See Conetta v. Nat'l Hair Care

Ctrs., Inc., 236 F.3d 67, 77 (1st Cir. 2001). Because this is a

question of interpretation of a Massachusetts statute, we review

the issue de novo. See, e.g., United States v. Rostoff, 164 F.3d

63, 66 (1st Cir. 1999).

Blockel raises an interesting issue: whether an individual

who files a claim before the MCAD, but later files a claim in

court, may obtain prejudgment interest for both periods -- that

during which the claim was pending before the MCAD and that during

which the claim was pending in court.

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 Under the Massachusetts statutory scheme, employees claiming

discrimination must first file a complaint with the MCAD. See

Mass. Gen. Laws ch. 151B, § 5. Blockel filed her complaint with

the MCAD in April 1998. Two years later, in April 2000, the MCAD

determined that probable cause existed. Blockel promptly requested

certification to public hearing, the next step in the process. See

Mass. Regs. Code tit. 804, § 1.20(3). She repeatedly urged the

MCAD to certify before November 12, 2000, the date on which the

statute of limitations would expire and bar her from bringing her

statutory claims in court. See Mass. Gen. Laws ch. 151B, § 9.

At an October 5, 2000, certification meeting, a representative

of the MCAD suggested the possibility of a tolling agreement

between the parties that would allow the case to remain at the

MCAD. According to a letter from Blockel to the MCAD, J.C. Penney

refused to enter a tolling agreement. As the statute of

limitations deadline became imminent, Blockel filed suit in state

court. J.C. Penney subsequently removed the case to federal

district court.

After the jury verdict in her favor, the district court

awarded Blockel prejudgment interest on the back pay and

compensatory damage awards at twelve percent per year, the rate

mandated by state law, see Mass. Gen. Laws ch. 231, § 6B, beginning

from the date on which Blockel filed her claim in state court. The

court denied Blockel's request that prejudgment interest also be

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awarded for the period during which her claim was pending before

the MCAD.

Massachusetts law states clearly that prejudgment interest is

to be awarded from the "commencement of the action." Mass. Gen.

Laws ch. 231, § 6B (stating that "there shall be added by the clerk

of the court to the amount of damages interest thereon at the rate

of twelve per cent per annum from the date of commencement of the

action"); see also Fontaine v. Ebtec Corp., 613 N.E.2d 881, 892

(Mass. 1993) (reiterating that "the plaintiff is entitled to

prejudgment interest on his compensatory damages from the

commencement of the action").4 Nevertheless, the question remains

whether "commencement of the action" can be construed to mean the

time at which Blockel filed her claim with the MCAD.

Massachusetts law does not explicitly answer this question.

Although many Massachusetts cases consider various issues regarding

prejudgment interest, the parties have cited, and we have found,

4
Although § 6B governs "damages for personal injuries,"
Blockel makes the argument that her claims did not fall within §
6B, but rather within § 6H, covering actions in which damages are
awarded but interest is not otherwise provided by law. This
argument does not advance her cause. First, § 6H refers back to §
6B to determine the rate of prejudgment interest and also assigns
the date of origin of interest to be the "date of commencement of
the action." Second, § 6B appears intended to cover a broad
variety of claims alleging injury to person or property. See,
e.g., Shawmut Cmty. Bank, N.A. v. Zagami, 586 N.E.2d 962, 966
(Mass. 1992) (stating that "the language of [ch. 231, § 6B] does
not refer to any specific tort but rather applies in general to a
wide range of actions causing injury to the person or to property"
and noting that § 6B had been applied in cases ranging from
nuisance to breach of duty of fair representation).

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none directly on point. See, e.g., Gill v. North Shore

Radiological Assoc., 430 N.E.2d 1210, 1212 (Mass. 1982) (holding

that "commencement of the action" should be construed to allow

interest dating back to the date on which the original complaint in

the action was filed, regardless of the fact that defendant was

joined at a later date); Bernier v. Boston Edison Co., 403 N.E.2d

391, 401 (Mass. 1980) (stating that "the statute seems to yield to

the belief that a plaintiff should not be favored with interest

until he has complained to the court of the injury"); McCarthy v.

The Ground Round, Inc., 1998 Mass. Super. LEXIS 552, at *4 (Mass.

Super. Ct. Oct. 15, 1998) (holding that when a case was filed in

federal court but voluntarily dismissed so that the claim could be

refiled in state court, the victorious plaintiff was entitled to

prejudgment interest from the date that the action commenced in

federal court).

None of the cases indicate that interest may accrue from the

date that a pre-court agency action is filed. In fact, all operate

within the context of various court proceedings. In our view,

although the term "commencement of the action" is capable of the

interpretation argued by Blockel, it seems to us to fit more

comfortably within the context of court proceedings.5 We are also

5
Courts have variously defined "action" as: "a lawful demand
of one's right in a court of justice," Smith-Webster Co. v. John,
259 F. 549, 551 (3d Cir. 1919); "the pursuit of a right in court,
without regard to the form of procedure," Ginzberg v. Wyman, 172
N.E. 614, 615 (Mass. 1930); and "[j]udicial remedy for the
enforcement or protection of a right," White v. White, 186 N.E.

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mindful of the fact that the establishment of state remedies and

penalties involves the kind of line drawing not usually congenial

to federal court proceedings.

Blockel relies on the concept that interest "may be used to

make the aggrieved party whole." Conway, 523 N.E.2d at 258 n.7

(citing Bournewood Hosp., Inc. v. Mass. Comm'n Against

Discrimination, 358 N.E.2d 235, 242 (Mass. 1976)). As the district

court pointed out, however, Conway did not address the particular

issue at hand, but instead stands for the basic proposition that

plaintiffs are entitled to prejudgment interest on back pay awards

from the date of the filing of the complaint.

Blockel also points out that the MCAD routinely awards

interest on cases it brings to conclusion in favor of plaintiffs.

Nevertheless, in so doing, it does not rely on the authority of

Mass. Gen. Laws ch. 231, § 6. Although the MCAD may well look to

that provision for guidance in calculating the rate of prejudgment

interest, it ultimately derives its authority from the statute

governing its own processes. See College-Town, 508 N.E.2d at 595

(noting that the MCAD "is given broad authority to remedy

discrimination, and that authority extends to awarding interest to

make victims whole for their damages," citing Mass. Gen. Laws ch.

151B, § 5). Finally, even though Blockel makes a compelling

argument that principles of equity favor her, the fact remains that

349, 351 (Ind. Ct. App. 1933) (internal citation omitted).

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her claim was brought under a finely tuned Massachusetts statute

and was not of an equitable nature.

In the end, we can see no indication in Massachusetts

statutory or case law that when a claim is removed from the MCAD's

jurisdiction and then proceeds in a court action that prejudgment

interest could be awarded for the time the case was pending before

the MCAD. Thus, we perceive no error of law in the district

court's ruling.

V. Conclusion

For the foregoing reasons, the judgment of the district court

is affirmed.

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