United States Court of Appeals
For the First Circuit
No. 02-1732
H. CHARLES TAPALIAN,
Plaintiff-Appellee,
v.
JAMES V. TUSINO,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Patrick J. Costello, with whom James W. Simpson, Jr. and
Merrick, Louison & Costello, LLP were on brief for appellant.
Lauren E. Jones, with whom Mark L. LaBollita, Jones
Associates, John B. Reilly, and John Reilly & Associates were on
brief for appellee.
July 23, 2004
CYR, Senior Circuit Judge. James V. Tusino, the
Superintendent of the Department of Public Works (DPW) for the Town
of Seekonk, Massachusetts ("Town"), appeals from a district court
judgment directing him to pay plaintiff-appellee H. Charles
Tapalian compensatory and punitive damages for violating Tapalian's
equal protection rights in connection with a road reconstruction
project. As we discern no error, we affirm the district court
judgment.
I
BACKGROUND
1. Our review of the record discloses that the jury
rationally could have found the following facts:
In 1989, the Town rejected Tapalian's application
for a permit to construct a subdivision – to be
known as "Pembroke Estates" – because Davis Street,
the lone access road to the subdivision, was too
narrow. Tapalian brought suit against the Town in
state court, and in 1994 the parties entered into
an Agreement for Judgment ("Agreement") whereby
Tapalian agreed as a precondition to the
construction of Pembroke Estates that he would
improve a portion of Davis Street at his own
expense, by "scarifying" the existing road surface
then resurfacing it with a double layer of oil-
-2-
sealed "stone chip" to a paved width of twenty-two
feet. The Agreement further prescribed that
Tapalian's specifications must be approved by the
Town's DPW director.
In 1995, Tusino was appointed the new DPW superintendent
for the Town. In 1997, Tusino, who was unaware of the 1994
Agreement, caused Davis Street to be widened and resurfaced with
"stone chip" at the Town's expense. Early in 1998, after Tusino
had learned of the Agreement, Tapalian and Tusino met for the first
time, at Davis Street, to discuss other Davis Street improvements
(if any) which Tapalian would be required to make before Tapalian
could commence construction of Pembroke Estates. Tusino informed
Tapalian that, as a condition of his approval of the
specifications, Tapalian was to set him up with "two women" who
worked at a nightclub located in a building owned by Tapalian.
Tapalian advised Tusino that he was not about to act as his "pimp."
At their next meeting, Tusino sought to impose upon
Tapalian other more onerous conditions not explicitly contemplated
under the 1994 Agreement. Although Tusino had not consulted with
any engineering expert, he informed Tapalian that he interpreted
the term "scarification" – contained in the Agreement – to require
that Tapalian undertake a costly pulverization of the existing
stone-chip surface which the Town had just installed within the
previous year. Whereas in road-construction parlance scarification
-3-
simply requires that grooves be etched into the old road surface to
ensure adequate adhesion of the newly applied surfacing materials.
In addition, Tusino insisted that Tapalian straighten the
curves in Davis Street, pave the entire street (as distinguished
from the portion specified in the Agreement), and construct three-
foot-deep, gravel-filled trenches on both sides of the resurfaced
roadway, almost three times the depth prescribed by the "industry
standard." Further, Tusino informed Tapalian that he wanted
asphalt as the top coat, whereas the Agreement called for a less
expensive stone-chip surface. Finally, Tusino insisted that
Tapalian conduct unprecedented sieve tests on several gravel
samples and that Tapalian use more expensive gravel. Tusino's
assistant confided to Tapalian's contractor that Tusino was intent
upon "deliberately busting [Tapalian's] balls."
In November 1998, Tapalian commenced a state court action
for contempt against Tusino and the Town, which had superintended
the Agreement, arguing that the imposition of the new conditions
flagrantly violated the terms of the Agreement. The Town in turn
commenced a lawsuit to enjoin Tapalian from cutting trees on the
subdivision land until after he completed the specified updates to
Davis Street.
On December 11, 1998, Tusino wrote to Tapalian, stating
that he had issued an order on December 1 that all road
construction projects in the Town were to cease for the winter.
-4-
Yet, notwithstanding the purported promulgation of this
unprecedented moratorium, on December 17 Tusino issued a permit to
another contractor, Kevin Murphy, to begin work on a nearby road
construction project at the "Middlemarch" subdivision. Moreover,
none of the additional conditions imposed upon Tapalian were
imposed upon Murphy.
In the spring of 2000, Tapalian decided to proceed. He
hired a contractor to dismantle the surface of Davis Street and
install a new surface, as Tusino had insisted. Tusino then
superimposed a host of additional, costly conditions. For
instance, he demanded that the road be sprayed with calcium
chloride, a procedure Tapalian's contractor deemed not only
unprecedented but unnecessary. Finally, in the course of these
discussions, Tusino informed Tapalian's contractor that he also
expected to be provided with "a forty-foot boat and two girls."
Meanwhile, in November 2000, Tapalian and the Town
settled the pending contempt action brought by Tapalian, as well as
the Town's claim for injunctive relief, and the parties agreed to
the appointment of an independent engineer to determine whether the
final roadwork met the terms of their 1994 Agreement. Thus, Tusino
was relieved of any oversight authority relating to the Davis
Street project.
Soon after an independent engineer certified in 2000 that
Tapalian was in compliance, Tapalian commenced the instant action
-5-
in federal district court against the Town and Tusino, alleging
that Tusino's actions violated the Equal Protection Clause, see 42
U.S.C. § 1983, and demanding both compensatory and punitive
damages. In due course, Tusino counterclaimed for defamation and
infliction of emotional distress. After determining that the
November 2000 settlement was res judicata, the district court
dismissed the Tapalian claims against the Town. However, the
district court denied the motion for summary judgment filed by
Tusino, in his individual capacity, noting that Tusino had adduced
no evidence that he was in privity with the Town in relation to the
November 2000 settlement. Tapalian v. Town of Seekonk, 188 F.
Supp.2d 136, 140-41 (D. Mass. 2002). Following an eleven-day
trial, the jury found that Tusino had violated Tapalian's equal
protection rights, then awarded Tapalian $58,843 in compensatory
damages and $150,000 in punitive damages. Finally, the jury found
for Tapalian on the two counterclaims brought by Tusino. Tusino
now appeals from the judgment entered upon the jury verdict.
II
DISCUSSION
A. The Sufficiency of the Evidence
First, Tusino contends that he is entitled to judgment,
as a matter of law, because Tapalian failed to adduce sufficient
evidence to establish all elements of his equal protection claim.
Denials of motions for judgment as a matter of law are reviewed de
-6-
novo; and after viewing all the evidence and reasonable inferences
therefrom (as well as credibility determinations) in the light most
favorable to the nonmoving party, we will reverse the district
court "'only if the facts and inferences point so strongly and
overwhelmingly in favor of the movant that a reasonable jury could
not have reached a verdict against that party.'" Santos v. Sunrise
Med., Inc., 351 F.3d 587, 590 (1st Cir. 2003) (citation omitted).
The Equal Protection Clause contemplates that similarly
situated persons are to receive substantially similar treatment
from their government. See Barrington Cove Ltd. P'ship v. R.I.
Hous. and Mortgage Fin. Corp., 246 F.3d 1, 7 (1st Cir. 2001).
Accordingly, in order to establish his claim Tapalian had to adduce
sufficient evidence from which a rational jury reasonably could
conclude that, "compared with others similarly situated, [he] was
selectively treated . . . based on impermissible considerations
such as race, religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to injure
a person." Id. (emphasis added).
The Tapalian claim rests upon the latter prong, viz., an
allegation of malice or bad faith. Normally, such a plaintiff must
establish more than that the government official's actions were
simply arbitrary or erroneous; instead, the plaintiff must
establish that the defendant's actions constituted a "gross abuse
of power." Baker v. Coxe, 230 F.3d 470, 474 (1st Cir. 2000); see
-7-
Rubinovitz v. Rogato, 60 F.3d 906, 912 (1st Cir. 1995) (noting that
"gross abuse of power" may obtain where official harbors personal
hostility toward plaintiff, and undertakes a "malicious
orchestrated campaign causing substantial harm"); see also Village
of Willowbrook v. Olech, 528 U.S. 562, 566 (2000) (Breyer, J.,
concurring) (noting that some otherwise "ordinary violations of
city or state law" may become actionable under the equal protection
clause provided the plaintiff proves "extra factor[s]," such as
"vindictive action," "illegitimate animus" or "ill will"); Esmail
v. Macrane, 53 F.3d 176, 179, 180 (7th Cir. 1995) (finding viable
equal protection claim based upon (i) mayor's "orchestrated
campaign of official harassment directed against [plaintiff] out of
sheer malice" and (ii) "spiteful effort to 'get' [plaintiff] for
reasons wholly unrelated to any legitimate state objective").
1. The "Similarly Situated" Standard
The determination as to whether individuals are
"similarly situated" for equal protection purposes is an amorphous
one. See Barrington Cove, 246 F.3d at 8. "'The test is whether a
prudent person, looking objectively at the incidents, would think
them roughly equivalent and the protagonists similarly situated.
Much as in the lawyer's art of distinguishing cases, the "relevant
aspects" are those factual elements which determine whether
reasoned analogy supports, or demands, a like result. Exact
correlation is neither likely nor necessary, but the cases must be
-8-
fair congeners. In other words, apples should be compared to
apples.'" Id. (citation omitted).
Tusino contends on appeal (i) that Tapalian has adduced
no evidence that the Davis Street project was similarly situated in
all relevant respects to the Murphy road project in the nearby
Middlemarch subdivision, (ii) that Tapalian's own investigator
testified that there was "no comparison" between the two projects,
and, thus, (iii) that Tapalian failed to establish that Tusino's
imposition of different specifications for the two projects
violated Tapalian's equal protection rights. These contentions
fail.
The evidence adduced at trial did not preclude a rational
jury from finding that Davis Street is similar to other road
construction projects in Seekonk. See Santos, 351 F.3d at 590.
Thus, this is one of those relatively rare cases in which the jury
could directly compare an apple to an apple. The district court
instructed the jury to compare the Davis Street project with the
projects of "other individuals, including the Town of Seekonk and
the town contractors." (Emphasis added.) As Tusino tendered no
objection to the jury instruction, it became the law of the case.
See Foster-Miller, Inc. v. Babcock & Wilcox Canada, 210 F.3d 1, 8
(1st Cir. 2000).
The distinctions suggested by Tusino – between Davis
Street and Middlemarch – rest principally upon his premise that the
-9-
former project required heightened construction specifications
because the public would utilize Davis Street more extensively than
the Middlemarch Road. His public-welfare justification is belied,
however, by the evidence that the Town itself had upgraded and
widened Davis Street as recently as 1997, yet had not considered it
necessary, in the interests of public safety, that it upgrade Davis
Street to the more stringent specifications Tusino sought to impose
upon Tapalian only a few months later, during early 1998. To cite
but one instance, the Town admittedly did not dig roadside trenches
to a depth of three feet. Thus, in light of the unobjected-to jury
instruction, the jury remained free to infer that conditions at
Davis Street were not such a special case, but instead were
substantially similar to other road construction sites in Seekonk.
2. The "Selective Treatment" Standard
Tusino contends that his motion for judgment as a matter
of law should have been granted because Tapalian adduced no
evidence which would compel a jury to conclude that Tusino lacked
a rational basis for according different treatment to the Davis
Street project. Tusino asserts (i) that the Agreement explicitly
provided that "[a]ll specifications for the paving of the Improved
Davis Street . . . shall be as approved by the Director of the
Seekonk [DPW]," and (ii) that the heightened specifications he
imposed upon Tapalian were based upon his good-faith interpretation
-10-
of certain ambiguous terms in the Agreement. Each of these
contentions is seriously flawed.
First, from the outset Tusino has misperceived the
applicable standard of review. It is not necessary that the
Tapalian evidence compel a jury finding of selective treatment, but
simply that it permit such a rational inference. See Santos, 351
F.3d at 590.
Second, as previously stated, see supra Section II.A.1,
the "public-safety" rationale Tusino offers for imposing stringent
conditions upon Tapalian is undermined by the more lax
specifications of the Town's earlier upgrade. Whatever ambiguities
it may contain, the Agreement reasonably cannot be construed as
according Tusino carte blanche to impose any specifications he
deemed appropriate, including those which served no legitimate
governmental purpose. See Esmail, 53 F.3d at 180.
Finally, yet most importantly, the trial record is laden
with the language of personal malice and "bad faith" retaliation,
aimed at punishing Tapalian immediately following his rejection of
Tusino's request that Tapalian supply him with "two women."
Although Tusino denies having made any such request, those
credibility determinations were for the factfinder. See Santos,
351 F.3d at 590. By way of corroboration, Tapalian's contractor
testified that Tusino subsequently stated that he wanted "a forty-
foot boat and two girls." Moreover, the jury heard the testimony
-11-
of three women who had been propositioned by Tusino, at a time when
Tusino was seeking sexual favors in exchange for jobs and/or his
approval of construction projects. Moreover, even Tusino's own
assistant stated that Tusino was "deliberately busting [Tapalian's]
balls." Since we must presume that the jury believed these
witnesses, as it was entitled to do, it rationally could infer that
Tusino had engaged in a "malicious orchestrated campaign causing
substantial harm," thereby constituting a gross abuse of power.
Rubinovitz, 60 F.3d at 912.1
1
Tusino asserts on appeal that the Tapalian equal protection
claim is barred by the res judicata effect of the November 2000
settlement of the lawsuits between the Town and Tapalian, since
Tusino substantially controlled that litigation. See In re
Iannochino, 242 F.3d 36, 46 (1st Cir. 2001) (finding privity "'if
a nonparty either substantially controlled a party's involvement in
the initial litigation or, conversely, permitted a party to the
initial litigation to function as his de facto representative'")
(citation omitted). As Tusino failed to raise this argument in his
Rule 50(a) motion at the close of the evidence, it is deemed waived
on appeal. See Larch v. Mansfield Mun. Elec. Dep't, 272 F.3d 63,
71-72 (1st Cir. 2001) (noting that party cannot raise an argument
in a post-verdict Rule 50(b) motion which was not first raised in
its Rule 50(a) motion at the close of the evidence). Moreover,
even if the issue had not been waived, Tusino identifies no
evidence to demonstrate how he controlled the prior litigation, see
Tapalian, 188 F. Supp.2d at 140-41 (denying Tusino's motion for
summary judgment based on res judicata defense, and noting that
party asserting "substantial control" and "virtual representation"
theories supporting res judicata has a demanding burden of proof),
and it strains credulity to presume that Tusino substantially
controlled litigation wherein the resultant settlement forced him
to recuse himself from further oversight of the Davis Street
project in favor of an independent engineer. Thus, we can perceive
no plain error. See Chestnut v. City of Lowell, 305 F.3d 18, 20
(1st Cir. 2002) (en banc) ("Failures to object, unless a true
waiver is involved, are almost always subject to review for plain
error.").
-12-
B. Punitive Damages
Next, Tusino urges us to reduce or vacate the $150,000
punitive damages award. Challenges to punitive damages awards are
reviewed de novo, and are to be affirmed unless "'we find it
"certain" that the amount in question exceeds that necessary to
punish and deter the alleged misconduct.'" Rivera-Torres v. Ortiz-
Velez, 341 F.3d 86, 102 (1st Cir. 2003), cert. denied, 124 S. Ct.
1875 (2004).
In this regard, Tusino first contends that a juror's
post-verdict comments, which appeared in a local newspaper, suggest
that the jury improperly awarded high punitive damages in order to
deter the Town, rather than Tusino. We do not consider post-
discharge comments made by jurors to the press, since but for an
"extraneous influence" exception not applicable here, a party is
prohibited from impugning a jury verdict by probing the mental
processes of the jurors. See United States v. Connolly, 341 F.3d
16, 34 (1st Cir. 2003); Lacy v. Gardino, 791 F.2d 980, 985 n.1 (1st
Cir. 1986); Fed. R. Evid. 606(b).
Second, Tusino complains that Tapalian failed to adduce
evidence of Tusino's financial circumstances, whereby the jury
might have been enabled to determine that he could not afford a
high punitive damages award. The present argument ignores the
principle that it is the defendant's burden – not the plaintiff's
– to adduce evidence of the defendant's lack of financial
-13-
resources, see Brown v. Freedman Baking Co., 810 F.2d 6, 11 (1st
Cir. 1987); Fishman v. Clancy, 763 F.2d 485, 490 (1st Cir. 1985);
see also Provost v. City of Newburgh, 262 F.3d 146, 163 (2d Cir.
2001), and Tusino concededly failed to meet that burden.
Finally, Tusino contends that the evidence adduced at
trial does not support the great disparity between the $58,843
compensatory damages award and the $150,000 punitive damages award.
In assessing the reasonableness of a punitive damages award, we
consider (i) the degree of reprehensibility of the defendant's
conduct; (ii) the ratio between the punitive damages and the actual
and potential damages; and (iii) the comparison between the
punitive damages figure and other civil and criminal penalties
imposed for comparable conduct. See Davis v. Rennie, 264 F.3d 86,
116 (1st Cir. 2001). The first criterion (reprehensibility) is by
far "the most important indicium," id., and, after careful
consideration, we have no hesitation in concluding that the
prolonged personal vendetta Tusino conducted against Tapalian for
having rejected Tusino's requests amply demonstrates the requisite
degree of reprehensibility. With respect to the two latter
criteria, the 3:1 ratio between the $58,843 compensatory damages
award and the $150,000 punitive damages award does not approach the
"shock the conscience" standard.
Affirmed.
-14-