United States Court of Appeals
For the First Circuit
Nos. 02-2437, 03-2338
GEORGE C.W. GOODMAN,
Plaintiff, Appellant,
v.
BOWDOIN COLLEGE, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Howard, Circuit Judge,
Cyr and Stahl, Senior Circuit Judges.
John J.E. Markham, III, with whom Markham & Read, Collette C.
Goodman and Shea & Gardner, were on brief, for appellant.
James T. Kilbreth, with whom Jacqueline W. Rider and Verrill
& Dana, LLP were on brief, for appellees.
August 17, 2004
HOWARD, Circuit Judge. In a case that began with a
snowball and culminated in a seven-day jury trial, plaintiff George
Goodman challenges the district court’s rulings on two motions for
judgment as a matter of law and contends that the jury instructions
on his breach of contract claim were erroneous. He also appeals
the district court’s denial of his motion for relief from judgment
pursuant to Fed. R. Civ. P. 60(b) on the basis of discovery
misconduct. We affirm.
I. Factual and Procedural Background
The March 19, 1999 Incident
Just after midnight on March 19, 1999, George Goodman, a
student at Bowdoin College in Brunswick, Maine, threw a snowball at
a passing student shuttle van on his way home from a party. The
prank escalated into a verbal and physical confrontation with the
driver of the van, a fellow Bowdoin student named Namsoo Lee. The
specifics of the encounter were hotly disputed in the student
disciplinary proceedings that followed, and remain in dispute
today. It was uncontested, however, that Lee followed a retreating
Goodman and put his hand on Goodman’s shoulder to confront him. It
was also established that Goodman struck Lee in the face several
times, breaking his nose and causing extensive bleeding and
bruising. Ultimately Goodman was dismissed from the school.
Goodman subsequently brought suit in federal court
alleging, inter alia, that the school and some of its
-2-
administrators had discriminated against him on the basis of his
race and had breached an agreement to (1) provide a fundamentally
fair disciplinary process, and (2) comply with their own
established procedures. The discrimination claims never reached
the jury –- the district court entered judgment as a matter of law
in favor of Bowdoin at the close of Goodman’s evidence. See Fed.
R. Civ. P. 50(a). We therefore summarize the facts relevant to
those claims in the light most favorable to Goodman as the
nonmovant. Mangla v. Brown Univ., 135 F.3d 80, 82 (1st Cir. 1998).
As Goodman described it, while walking home with a
friend, Jason Olbres, he threw a snowball at a student shuttle van.
The driver, Lee, reacted angrily after Goodman threw a second
snowball, threatening to run Goodman over with the van and backing
the van onto the sidewalk toward him. Goodman began to walk away
and told Lee to leave him alone, but Lee followed him on foot,
turning him around and punching him in the face. Goodman responded
by punching Lee in the face several times, at one point stopping to
take off his new watch and throw it to Olbres so that Goodman would
not break it or hit Lee with it. Goodman’s fleece jacket was torn
down the front during the scuffle. Lee returned to the shuttle van
to call for help and Goodman returned to his fraternity house,
where he later called campus security to report that he had been
assaulted by the shuttle driver. A campus security officer, Kevin
Conner, took Goodman’s written statement that night and told
-3-
Goodman that his version of the story was consistent with what Lee
had told two Brunswick police officers who had interviewed him at
the hospital.
The next morning, Goodman contacted Sharon Turner, his
advisor in the dean's office. Turner told Goodman that his
statement and Lee’s were at odds. This worried Goodman, who feared
that the college might favor Lee because he was an employee and
because Lee, a Korean national, was a student of color. Goodman
believed -- based on articles published in official school
publications and announcements about events soliciting input on how
to recruit more minority students -- that the college was having
problems attracting students of color. Goodman knew that a big
recruiting weekend for minority students was coming up in a few
weeks and feared that the college would not want to “get rid of”
Lee with such an important event approaching.
The week following the incident was spring break for
Bowdoin students. Lee, who had been treated at a local hospital
immediately after the altercation, returned to Korea to receive
further treatment for a nasal fracture. Goodman went home to
suburban Washington, D.C., and was treated for injuries to his
hand, including a torn ligament. Goodman and his mother, an
attorney, called Mya Mangawang, an assistant dean of student
affairs who was the advisor to the student judicial board (the "J-
Board") that heard disciplinary cases. They told Mangawang that
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the case should not be treated as a routine student disciplinary
proceeding because it involved a student employee. As Goodman
testified at trial, he and his parents were concerned that the
college would use the disciplinary proceedings to blame him and
thus avoid liability for Lee’s actions while acting as an employee
of the college. Goodman hired counsel in Maine.
The Initiation of Disciplinary Proceedings
After spring break, Goodman and Lee were each charged
with violations of the school’s social code for conduct unbecoming
of a Bowdoin student and behavior endangering the health and safety
of others. Goodman met with Mangawang to review the charges.
Mangawang discussed the students who would be available to serve on
the five-person panel and told Goodman that he could remove one
member. One potential panel member was Elizabeth Hustedt, a
student who two years earlier had participated in a disciplinary
hearing at which Goodman had been a witness. Mangawang reviewed
with Goodman a letter that Hustedt and other members of the J-Board
had written to Goodman soon after his testimony in the 1997
proceeding. The letter stated that the panel had concluded that
Goodman, who had not been charged in that case, might have
misrepresented the events that were the subject of the charges.
The letter also stated that “the Judicial Board reserves the right
to take this concern into consideration” if Goodman ever appeared
before the J-Board again. Mangawang told Goodman that she had
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discussed the 1997 letter with Hustedt, who reported that she could
still serve in connection with the Goodman hearing.1 Goodman did
not ask for Hustedt to be removed, opting instead to remove a
student who, he said, had tried to start a fight earlier in the
year with one of his close friends. A third J-Board member, Howard
Spector, did not sit on the panel that heard Goodman’s case.
Goodman testified that Spector, who was an acquaintance of
Goodman’s and the roommate of Olbres (the eyewitness to the
incident), told him that Mangawang had removed him from the panel.
In the week leading up to the J-Board hearing, Goodman
visited Mangawang’s office several times to review the evidence
that would be considered at the hearing. Goodman did not see any
reports from the Brunswick police in the file. This concerned him
because, as far as he knew from Conner (the security officer who
had taken his statement) Lee had told the police that the fight was
his fault and that he did not want to press charges. Goodman,
through his attorney, requested that the responding police officers
prepare a report regarding the incident. On the morning of the
hearing, Goodman brought the report to Mangawang to be included in
1
At trial, Hustedt acknowledged that during her deposition in
this case she testified that she had suspicions about whether
Goodman was honest. She did not recall ever telling Mangawang
about her suspicions, however.
-6-
his file. Mangawang accepted the statement but referred to it as
something Goodman had “crafted.”2
Goodman saw something else in his file that worried him.
Conner’s report described the shuttle van as having one of its
front wheels on the curb on the night of the incident, not backed
up over the sidewalk. Goodman asked Conner to discuss the incident
report with him and Conner agreed to meet the next day as long as
a dean or the head of security was present. The next morning,
Goodman asked Mangawang if he could meet Conner in her office and
Mangawang said no.
During this period, Goodman’s parents called the college
to express their concern over the use of student disciplinary
proceedings to adjudicate a matter involving an employee of the
college. Goodman’s counsel also wrote to counsel for the college,
asserting that Bowdoin was responsible for Goodman’s medical bills
for treatment of his injured hand and giving notice that Goodman
intended to seek damages if the college conducted any proceedings
that had an adverse effect on Goodman’s tenure as a student. At
trial, Goodman acknowledged that these communications were part of
2
When Goodman saw Lee in the dean’s office during this period,
Lee was “warmly received” by the deans, while Goodman’s reception
was always cold. Goodman also described an encounter with
Mangawang the morning after the fight when he went to the dean’s
office to leave a typed statement for his advisor. Mangawang was
hostile to him in her tone of voice and facial expression and
grabbed the statement out of his hand, saying “Is there anything
else you want to say to me?”
-7-
an effort to prevent the disciplinary proceedings from going
forward. Goodman’s father also testified that he believed the
college was so concerned about liability for Goodman’s injuries
that it would have created a proceeding to frame his son.
Testimony at the J-Board Hearings
The J-Board heard the cases against Goodman and Lee on
the evening of April 13, 1999. Each student was permitted to have
a dean or faculty member present for support. Goodman had selected
Turner, who was already assigned to him as an advisor.3 The board
heard Goodman’s case first, with witnesses appearing and testifying
over a period of six or seven hours. Robert Graves, the director
of residential life, was assigned to act as a “complainant” on
Lee’s behalf, and questioned Goodman in a hostile manner. At the
close of Goodman’s hearing, Graves made a closing argument in favor
of finding Goodman responsible.
Goodman’s hearing concluded just after midnight and Lee’s
began immediately thereafter. Karen Tilbor, an assistant dean of
student affairs, was the complainant against Lee. Tilbor arrived
at the beginning of Lee’s hearing and, because most of the
testimony regarding the incident was introduced during Goodman’s
3
Turner left the hearing for a period to attend a meeting.
Goodman had been aware of her scheduling conflict in advance of the
hearing but opted not to pick another advisor. Goodman could not
recall whether Turner was gone for a half hour or longer, but
concluded that “it was pretty clear that she was not going to give
me support.”
-8-
hearing and was not repeated, Tilbor was not present for much of
the evidence regarding Lee's role in the incident. Unlike Graves,
Tilbor did not ask any questions and made no closing statement
other than to repeat the charges against Lee. Goodman asked Tilbor
if the reason she had not asked any questions was that she had not
been present for any of the testimony and “really doesn’t know what
is going on.” Tilbor said she had read the file and, although she
had not heard the testimony in the first hearing, she did not need
clarification on anything else.
During the hearings, the transcripts of which were
admitted at trial, Goodman and Lee each presented their accounts of
the incident and answered questions. Lee prefaced his testimony to
the J-Board by saying he would read from a prepared statement
because English was his second language. He also said that he was
a citizen of the Republic of Korea. In answer to a question about
why he got out of the shuttle, he said he wanted to know why
Goodman had thrown the snowballs:
I thought he had a personal feeling against
me, even though I didn’t know him. I even
thought about, um, oh, he’s being racist or
something like that. I at least wanted to
know, like, why he was doing it.
Lee repeated this sentiment two other times during the hearings.
Twice he expressed surprise that Goodman had not been arrested
after the incident, saying “[i]n Korea, Mr. Goodman would have been
arrested right away, and I thought that would happen here, too.”
-9-
The J-Board heard conflicting testimony on several
issues, including whether Lee backed the van onto the sidewalk and
whether he initially struck Goodman.4 Goodman and Olbres told the
J-Board that Lee had done both of these things,5 and Lee denied the
allegations.6 Conner also described what he saw that night,
stating that he found the shuttle van with its front wheel on the
curb, not backed up toward a tree as Goodman had described it. As
to the second issue, Conner said he had not seen any signs that
Goodman had been punched in the face when he took his statement,
although he had noticed that Goodman had injured his hand. He
stated that, while at the hospital, he heard Lee tell the Brunswick
police that the incident was his own fault,7 and that he had
grabbed Goodman and turned him around. After the Brunswick police
4
Although we review the facts related to the discrimination
claims in the light most favorable to Goodman, the conflicting
testimony given to the J-Board is summarized here to provide an
accurate depiction of the information presented during the
disciplinary proceedings.
5
Olbres told the J-Board that he never saw Lee actually strike
Goodman, but that based on their body language and reactions, he
concluded that Lee had done so. Olbres also acknowledged that he
had consumed approximately six beers that night and was drunk at
the time of the incident.
6
Lee acknowledged backing the van up on the street to speak to
Goodman after he threw the first snowball, but denied backing the
van onto the sidewalk as Goodman reported.
7
Two of Lee’s friends also told the J-Board that, while at the
hospital, Lee expressed regret at having left the shuttle.
-10-
officers heard Lee’s story, they concluded that the incident was
“mutual combat” and declined to locate Goodman for questioning.8
Goodman and Lee also presented character witnesses.
Goodman’s witness, a friend who had known him for three years, told
the J-Board that Goodman’s account of the incident had stayed the
same since he first heard it, and that he would be surprised if
Goodman had been the instigator of the fight. Lee’s witness stated
that Lee was a responsible person and a great leader, citing as an
example that Lee had been class president for nine years in his
school in Korea. He knew Lee through the campus Korean Student
Association, a group that benefitted greatly from Lee’s
participation. He said that Lee was entering the military in Korea
the next year instead of deferring his service until after college
because Lee felt a commitment to his country and because his family
would have difficulty paying for him and his sister to attend
college at the same time. The witness also said that Lee was not
someone who resorted to violence for any reason and that he
attributed this to Lee’s “high regards toward Korean traditions,
which are morality, harmony, and having respect for others.”
8
One of the responding police officers prepared a brief
written account of her investigation at the request of Goodman’s
attorney, and this report was included in Goodman’s J-Board file.
The officer stated that “Lee pushed [Goodman] and [Goodman] in
return punched Lee in the face.” She also confirmed that the
incident had been determined to be mutual combat.
-11-
The J-Board asked Goodman whether he accepted personal
responsibility for Lee’s injuries. Goodman stated that he felt
terrible about what happened to Lee and repeated several times that
he was walking away when he was confronted. He said, “I was
defending myself and I don’t think I have any responsibility for
what happened . . . for what has happened for . . . to him”
(emphasis added).
Goodman made a closing statement. He began by saying
I know [Lee] said that maybe I was being
racist towards him. That is completely false.
I’ve lived in Vietnam, I’ve traveled in Japan,
I’ve been in China, Indonesia. I mean, my
father used to teach at Georgetown in Foreign
Affairs and specialized in East Asian Studies.
And, I mean, I have more respect and enjoyment
out of that culture than I can explain.
Racist comments coming out of him thinking
that I am racist in any way is completely just
wrong.
J-Board Decision and Review
The J-Board deliberated that night. Two members of the
panel who testified at the federal trial stated that the issue of
race played no role in their decision. The J-Board held Goodman
responsible for the charges against him and recommended that he be
dismissed from the school, permanently and immediately. In a
written statement of reasons prepared for internal use (Goodman did
not receive a copy of the document at the time), Hustedt stated
that “[t]he inconsistencies in [Goodman’s] story that,
specifically, did not match [Conner’s] account (van placement is
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key here) we found particularly alarming.” She identified three
factors that contributed to the J-Board’s finding that Goodman was
a threat to the Bowdoin community and that dismissal was an
appropriate punishment:
(1) the severity of the beating
(2) [Goodman] accepted no personal
responsibility for his actions
(3) [Goodman] has a prior for which he was
placed on probation9
(emphasis original). The J-Board cleared Lee of the charges
against him. Hustedt testified that it did so because it concluded
that Lee had not thrown any punches and had not operated the
shuttle recklessly.
The decisions went to Craig Bradley, the dean of student
affairs, for his review. Bradley testified that he considered the
evidence presented to the J-Board and conducted his own
investigation, which included conversations with Goodman, Lee, and
Conner. Bradley also spoke to Dr. Meryl Nass, Lee’s treating
doctor at the local hospital. At trial, Dr. Nass testified that
she told Bradley that she had seen hundreds of cases of injuries
from fights and hundreds of broken noses but that the injuries in
Lee’s case were more significant than what she would normally see
in a fight between high school or college students. She
characterized the injuries as being more like what she would see in
9
In 1997, Goodman was put on temporary “social probation”
after admitting to setting off firecrackers in a dormitory hallway.
-13-
a more serious fight involving an adult or someone who had
experience in physical altercations.
As was his common practice, Bradley did not review the J-
Board’s decisions regarding responsibility for the incident. But
he reduced Goodman’s sanction to an indefinite dismissal with the
possibility of re-application after two years and ultimately
permitted Goodman to finish the semester before leaving campus.
Goodman’s father wrote a letter to the president of the college,
Robert Edwards, stating that he could only conclude that his son
was being punished (1) because of “an improper vendetta . . . for
some past undisclosed offense,” (2) because of reverse
discrimination, (3) because the college was attempting to cover up
its own liability, or (4) for all of these reasons.
Goodman appealed Bradley’s decision to the Administrative
Committee, a group led by Edwards. Goodman submitted a written
appeal arguing, inter alia, that the disciplinary proceedings had
been improper because of numerous alleged deviations from the
judicial procedures described in the student handbook.10 He also
10
Goodman’s allegations included: Mangawang improperly
encouraged recused J-Board member Howard Spector to decline
Goodman’s request to be a character witness; the J-Board allowed
prejudicial references to the fact that Goodman had hired an
attorney; Mangawang improperly reminded Hustedt of the 1997 letter
regarding Goodman’s prior testimony before the J-Board; Graves
should have given Goodman a letter describing the factual
underpinnings of the charges against him; Mangawang should have
conducted a more thorough investigation of the charges; Mangawang
improperly prevented Goodman from speaking with Conner; a student
letter to the editor of the school paper discussing the incident
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contended that the J-Board had no jurisdiction over the case
because the fight occurred on a public street. In addressing that
issue, Goodman wrote that the college had a conflict of interest in
deciding the case because Lee had been acting as an employee at the
time of the incident, and that “any adverse actions taken against
[Goodman] necessarily improve the College’s position as [Lee’s]
employer.” Goodman did not mention the issue of race or racial
discrimination.
At Edwards’s request, Bradley submitted a response to
Goodman’s appeal. Goodman objected, arguing that such a submission
was not authorized by the judicial procedures. Goodman filed a
reply. He elaborated on his allegation that the college was
operating under a conflict of interest, noting:
The determination of the Judicial Board and
the Dean’s Office that I was wholly
responsible for this incident is so far
removed from what any reasonable, independent
judgment would be that you can hardly blame me
for assuming that the aim to insulate
themselves from legal liability led to what
can only be called a “show” trial for me.
He accused the college of having used the disciplinary proceedings
“to cover up [its] own fault.” As Goodman testified at trial,
although he complained about Lee’s comments during the hearing that
implied that Goodman’s actions could have been motivated by racism,
he never informed Bradley or the Administrative Committee that he
may have prejudiced the J-Board; and the J-Board’s sanction for
Goodman was unprecedented.
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believed the defendants were treating him differently on account of
race.
The Administrative Committee unanimously affirmed
Bradley’s decision in a report dated May 27, 1999. According to
Edwards, the committee never discussed the issue of race during its
deliberations. It concluded that the sanction was appropriate
because it involved an unprecedented injury to a student.
Goodman’s dismissal was the harshest sanction on record for a
student found responsible for a fight.
On May 22, 2000, Goodman brought suit against Bowdoin in
federal court in Maine, alleging racial discrimination under
federal and state law, 42 U.S.C. § 1981, 42 U.S.C. § 2000d, and Me.
Rev. Stat. Ann. tit. 5, §§ 4601-02; breach of contract11; and
negligence. He also named Edwards, Bradley, Mangawang, Graves, and
Tilbor as defendants in two claims for tortious interference with
contract. Goodman sought damages and injunctive relief reinstating
him as a student in good standing. In the summer of 2001, Goodman
reapplied to Bowdoin and was admitted. He returned to campus in
September 2001.
11
Goodman alleged that Bowdoin had breached its agreement, as
set forth in the student handbook, to provide a fundamentally fair
disciplinary proceeding and to comply with its own established
procedures. On appeal, the parties do not dispute the existence of
a contractual relationship between Goodman and Bowdoin.
-16-
Trial
In February 2002, Goodman presented his case to a jury.
Scott Roman, a former Bowdoin student, testified that he had seen
Goodman entering their fraternity house just after the March 19,
1999 incident and that they exchanged greetings as Roman left the
building. Roman began walking across campus and came upon the
shuttle van, with Lee and the security officers nearby. The van
was backed up onto the sidewalk with its rear end just three to
four feet from some trees. Roman had to detour onto the grass to
get by the van, which was blocking the sidewalk.12 Roman discussed
what he had seen with Goodman, and Mangawang later brought him in
to meet with her to discuss being a witness. She told him to be
available by phone or email during the hearing. Goodman spoke with
him before the hearing but did not say anything about whether Roman
should be present. Roman was not contacted on the night of the
hearing, and did not appear before the J-Board. Four other
witnesses appeared before the J-Board on Goodman’s behalf, however,
and Goodman did not express any concern over Roman’s absence.
Goodman acknowledged at trial that he had not been prevented from
having anyone testify at the J-Board hearing that he wanted to have
12
Roman testified that he remembered the back end of the van
on the sidewalk, with Lee and the security guards standing at the
passenger side in the street. He also testified that it was
possible that the van was actually facing the sidewalk, not backed
onto it.
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testify.13 He also stated that even after he had seen the J-Board’s
statement of reasons for its decision, including its conclusion
that van placement was “key,” he did not mention Scott Roman in his
response to the Administrative Committee.
Olbres gave the jury his eyewitness account of the
incident, much of which supported Goodman’s version of events. He
stated that the shuttle had backed up towards him and Goodman,
coming very close to hitting them and forcing him to move off the
sidewalk to avoid being hit. Olbres also testified that he felt
pressured into testifying at trial and that the Goodmans had on
many occasions tried to shape his recollection of what happened on
the night of the incident.
The jury also heard from Michael Brown, a campus security
officer who had responded to Lee’s call for help. In response to
a pretrial interrogatory, Brown had described finding the van with
its rear wheels on the lawn area as though it had been backed up.
In a supplemental interrogatory response, Brown stated that he had
not studied the position of the shuttle van, which he only saw from
a distance, but that it was at an angle with one end on the
sidewalk. He also stated that Conner’s observations of the van
were more reliable than his own because Conner was in close
13
Likewise, Goodman testified that he had not been prevented
from telling the J-Board anything that he had told the jury during
the course of the trial and that he was able to tell his version of
the events fully and completely to the J-Board during the hearing.
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proximity to the van. At trial, Brown testified that he could only
recall that the van was at an angle near a private residence on the
street where the incident occurred. He could not recall the
specific angle or location.
As to the issue of race, Goodman presented the testimony
of Timothy Foster, an associate dean of student affairs who had
been Lee’s advisor during the disciplinary proceedings. Foster
testified that, during one of his meetings with Lee before the J-
Board hearings, he discussed Lee’s options for addressing the
incident outside the J-Board proceedings. He told Lee that he
could pursue criminal charges with the local police and that if the
incident had “racial components” to it, Lee could seek the
assistance of the Maine Human Rights Commission. According to
Foster, Lee’s father was concerned that if Lee took any action
outside the college proceedings, Lee could encounter problems with
his student visa and be deported.
Foster also told the jury that he had been part of a task
force seeking to increase minority admissions at Bowdoin. He
explained that the group had nothing to do with recruitment of
international students such as Lee, who were classified in a group
separate from students of color for the purposes of admissions and
diversity programs. He conceded, however, that students such as
Lee increase diversity because of their different experiences, and
that increasing diversity is a goal of the college. Bradley also
-19-
testified and confirmed that, as documented in a report assessing
the college’s commitment to diversity between 1992 and 1997, the
college sought to increase its rates of matriculation for students
of color. The report discussed several categories of students of
color, including international students.
At the close of Goodman’s evidence, the defendants moved
for judgment as a matter of law on the claims of racial
discrimination, arguing that Goodman had not shown any causal link
between race and his dismissal from the school. The district court
agreed, concluding that there had been no direct or circumstantial
evidence of racial animus and that no reasonable jury could
conclude that the events leading to Goodman’s dismissal were
motivated by racial considerations.
The district court also granted the defendants’ motion
for judgment as a matter of law on the claims against three of the
school administrators for tortious interference with contract. It
sent the tortious interference claims against Mangawang and Bradley
to the jury, along with Goodman’s claims of negligence and breach
of contract. The jury found in favor of the defendants on all
counts. After unsuccessful motions for judgment as a matter of law
and for a new trial, Goodman appealed.
Nearly a year after the judgment, Goodman moved for
relief from judgment pursuant to Fed. R. Civ. P. 60(b), alleging
that the college improperly failed to identify or produce certain
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contemporaneous notes alleged to have been taken by security
officer Kevin Conner during his investigation of the March 19, 1999
incident. The district court denied the motion without a hearing,
concluding that Goodman had not shown any misconduct by the
defendants or their counsel and that Goodman bore the ultimate
responsibility for any failure to discover the notes (if they ever
existed) because he had failed to depose Conner or subpoena any
notes he may have had. Goodman also appealed this ruling.
II. Analysis
A. Racial Discrimination
We begin with the district court’s entry of judgment as
a matter of law in favor of the defendants on Goodman’s claims of
racial discrimination. See Fed. R. Civ. P. 50. We review the
ruling de novo, construing the facts in the light most favorable to
Goodman as the nonmovant. See Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000). We do not assess credibility or
weigh the evidence. Id. If, from this vantage, the evidence “is
such that reasonable minds could not differ as to the outcome,”
Mangla v. Brown Univ., 135 F.3d 80, 82 (1st Cir. 1998), judgment as
a matter of law is proper. A nonmovant must present more than a
“mere scintilla” of evidence to raise a triable issue of fact
precluding the entry of judgment. Marcano-Rivera v. Pueblo Int’l,
Inc., 232 F.3d 245, 251 (1st Cir. 2000).
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The district court found no direct or circumstantial
evidence of racial animus toward Goodman, a necessary component of
his claims under 42 U.S.C. § 1981, 42 U.S.C. § 2000d, and Me. Rev.
Stat. Ann. tit. 5, §§ 4601-4602.14 See, e.g., Tolbert v. Queens
Coll., 242 F.3d 58, 69 (2d Cir. 2001) (noting that to establish a
claim under § 1981 or § 2000d, plaintiff must demonstrate, inter
alia, that the defendant discriminated on the basis of race, the
discrimination was intentional, and the discrimination was a
substantial or motivating factor for the defendant's actions).
Arguing that this constituted error, Goodman recites a series of
facts allegedly established at trial. Stripped of Goodman’s
argumentative flourishes, these include the facts that Lee
acknowledged to the police that he was at fault; the J-Board
questioned Lee several times about his admission of fault; Lee
admitted to backing the van up and pursuing Goodman on foot as he
was walking away and telling Lee that he did not want to fight; Lee
left the shuttle in violation of college rules; Lee admitted making
the first physical contact with Goodman; the police determined the
fight to be “mutual combat”; Lee is an Asian student from Korea;
Foster discussed with Lee the option of seeking relief from the
14
Although no binding precedent interprets Me. Rev. Stat. Ann.
tit. 5, §§ 4601-4602 as creating a private right of action, this
issue is not before us on appeal, and Goodman has not suggested
that any lesser showing would be required for a racial
discrimination claim under Maine law than under federal law.
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Maine Human Rights Commission15; no member of the J-Board asked Lee
why he wondered if Goodman’s throwing of a snowball might be a
racist act; Graves questioned Goodman and Olbres with zeal; Tilbor
was not present for most of the consolidated hearings and did not
make any closing argument or question the witnesses; Mangawang
removed a board member from the J-Board panel because she knew he
was friends with Goodman’s eyewitness; Mangawang did not remove
Hustedt, who in a proceeding two years earlier had signed a letter
questioning the truth of testimony Goodman had provided; Goodman
was dismissed for two years; Goodman’s punishment was the harshest
ever for a fight; and Lee was fully exonerated. We accept these
facts as true for the purposes of evaluating Goodman’s claims of
racial discrimination.16
15
Goodman argues that he proved that Foster was concerned that
Lee might be deported if Lee was found to be at fault and thus “not
retained as one of Bowdoin’s valued minorities.” This assertion is
not supported by the record. Foster testified that Lee’s father
feared that Lee’s student visa status could be put in jeopardy as
a result of the incident, and that Foster had no opinion on the
issue.
16
Goodman’s summary of the facts purportedly ignored by the
district court also includes some critical characterizations of the
evidence. Goodman states, for instance, that he “unarguably
proved” that Bowdoin “highly values its racial minorities and
foreign students, attaching significant institutional importance to
‘retaining’ such students once they arrive”; Lee was therefore a
“prized student”; Foster “injected race” into the case by
suggesting that because Lee was Asian, he could report the fight to
the Maine Human Rights Commission; Lee “used his race and national
origin repeatedly to excuse his behavior and to overtly play to
sympathies by suggesting that Goodman was a racist for throwing
snowballs”; Lee’s only explanation for his “confession” of fault
was his race; Lee suggested to the J-Board that his acceptance of
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Goodman contends that these facts give rise to a
reasonable inference of discrimination and that his discrimination
claims therefore should have gone to the jury. He faults the
district court for discussing only a few of the factual issues he
raised in ruling from the bench and for weighing these facts in a
process of reasoning "that is surely the province of the jury.”
Invoking (without expressly citing) the familiar McDonnell Douglas
paradigm,17 Goodman contends that this evidence made out a prima
facie case of discrimination and could have grounded a reasonable
finding that the reasons the defendants gave for disciplining him
were a pretext for unlawful racial discrimination.18
fault “had to be interpreted in a way unique to the high cultural
standards of Korea”; the J-Board “accepted Lee’s racial
explanations” for why he pursued Goodman and why he confessed; and
because Lee was exonerated “despite having confessed,” a reasonable
jury could find that the J-Board “accepted his racial defense.”
These purported facts, some of which fail to describe the record
accurately, are mere arguments. We are not bound to accept them as
true.
17
In the context of employment discrimination claims, if a
plaintiff establishes a prima facie case of discrimination, the
employer must articulate a legitimate, nondiscriminatory basis for
its conduct. See Benoit v. Technical Mfg. Corp., 331 F.3d 166,
173-74 (1st Cir. 2003)(citing McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802, 804-05 (1973)). The plaintiff must then demonstrate
that the employer’s proffered explanation was pretext for
intentional discrimination. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142-43 (2000).
18
As an initial matter, Goodman misunderstands the showing he
was required to make to reach the jury. Goodman contends that he
only needed to present “specific facts adequate to show or raise a
plausible inference that [he was] subjected to race-based
discrimination,” quoting Dartmouth Review v. Dartmouth College, 889
F.2d 13, 17 (1st Cir. 1989). But the Dartmouth Review standard,
-24-
Assuming, arguendo, both the applicability of the
McDonnell Douglas framework and that Goodman has presented a prima
facie case of discrimination, we turn our attention to the issue of
pretext. See Hillstrom v. Best W. TLC Hotel, 354 F.2d 27, 31 (1st
Cir. 2003). According to Goodman, the only justification presented
to counter his allegation of disparate treatment was the J-Board’s
finding that Goodman’s story about the van backing up toward him
was not credible. He argues that this must have been a pretext
because most of the evidence presented at trial indicated that on
the night of the incident, the shuttle van was seen in a position
that corroborated his version of events.
Goodman’s analysis fails to grapple with the most
fundamental explanation for his dismissal proffered by Bowdoin,
namely that he injured another student severely. The J-Board’s
recommendation of dismissal was not premised on a finding that
Goodman lied about Lee backing the shuttle van toward him; it
rested on findings that Goodman had given Lee a severe beating,19
since overruled in Educadores Puertorriquenos En Accion v.
Hernandez, 367 F.3d 61, 66-67 (1st Cir. 2004) (rejecting heightened
pleading standards in civil rights cases), is inapposite. In this
case, Goodman opposed a motion for judgment as a matter of law (not
a motion to dismiss), and was required to demonstrate a “legally
sufficient evidentiary basis,” Fed. R. Civ. P. 50(a), for a
reasonable jury to find that he had been subjected to intentional
discrimination and that this discrimination was a substantial or
motivating factor for the defendants' actions. See Reeves, 530
U.S. at 149; Tolbert, 242 F.3d at 69.
19
Hustedt testified at trial that the J-Board concluded “this
was a very serious incident and it warranted a very severe
-25-
that Goodman had not taken responsibility for the beating, and that
Goodman had committed a prior offense.20 The Administrative
Committee affirmed the J-Board’s findings and concluded that
dismissal was appropriate under these circumstances. Goodman fails
to address this non-discriminatory explanation for the Committee's
conduct, much less demonstrate that it was false and that the true
reason for his dismissal was discriminatory.
We take a similar approach to Goodman’s argument that
race and national origin were Lee’s only “defense” on “several key
points,” and that his punishment and Lee’s exoneration can thus
only be explained as the product of discrimination. The record in
Goodman’s disciplinary proceeding, which we have reviewed with
care, paints a different picture. Even cast in the light most
favorable to Goodman, the J-Board considered a wealth of
conflicting evidence regarding the conduct of Lee and Goodman on
sentence.”
20
In his factual summary in his opening brief, Goodman stated,
without elaboration, that Lee’s injuries were not severe, because
Lee “had a broken nose ‘minimally depressed fracture . . . of 1-2
mm.’” He also stated that he had accepted responsibility for his
actions, citing expressions of regret that were accompanied by a
statement that he did not think he had any responsibility for what
had happened to Lee. Goodman did not dispute that he had a prior
offense in his disciplinary record, but stated that “he had long
since satisfied the probationary term.” Goodman did not address
these J-Board findings in arguing the issue of pretext. His only
arguments regarding the severity of Lee’s injuries and his
acceptance of responsibility, even if relevant, were raised for the
first time in his reply brief and are therefore forfeited. See
Andresen v. Diorio, 349 F.3d 8, 13 (1st Cir. 2003).
-26-
the night of the incident, and concluded that Lee had been injured
and had not thrown a punch. Goodman’s suggestion that race is the
only possible explanation for the difference in outcomes between
his case and Lee’s case is unavailing. See Rathbun v. Autozone,
Inc., 361 F.3d 62, 76 (1st Cir. 2004) (finding inadequate showing
of discrimination where female plaintiff and male co-workers sought
different promotions at different times; “The test is whether a
prudent person, looking objectively at the incidents, would think
them roughly equivalent and the protagonists similarly situated.”).
We reject Goodman’s effort to upset the judgments on his race
discrimination claims.21
B. Breach of Contract
Before Goodman’s case went to the jury, he moved for
judgment as a matter of law on his claims for breach of contract.
See Fed. R. Civ. P. 50(a). He argued that the college had breached
21
In doing so, we note that the J-Board decision was not the
last stop in Goodman’s disciplinary proceeding. Goodman, who had
the advice of counsel, chose to focus his appeal to the
Administrative Committee on the college’s purported conflict of
interest and lack of jurisdiction over his case. His submissions
to the Administrative Committee never suggested that he was the
subject of racial discrimination.
Finally, we give no weight to Goodman’s unelaborated assertion
that his discrimination claims should have gone to the jury because
the district court allowed the jury to consider Bowdoin’s cultural
diversity policy in connection with the contract claim and noted
that the policy was “alleged to be a predicate for discrimination
in a disciplinary proceeding.” See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990) (“It is not enough merely to mention a
possible argument in the most skeletal way, leaving the court to do
counsel’s work, create the ossature for the argument, and put flesh
on its bones.”).
-27-
its contractual obligation to provide fundamentally fair
disciplinary proceedings and to comply with the procedures outlined
in the student handbook. These alleged breaches included (1)
disciplining Goodman on the basis of conduct that occurred on a
public sidewalk; (2) permitting the Dean’s Office to respond to his
written appeal to the Administrative Committee; (3) permitting
Mangawang to sit in on the J-Board’s deliberations in Goodman’s
case; (4) appointing deans to act as complainants; and (5)
permitting Mangawang to remove Spector from the J-Board hearing
panel.
The district court denied Goodman’s motion, concluding
that the jury should determine whether any of the alleged
violations rendered the proceedings unfair or inconsistent with the
provisions of the handbook. The jury found in favor of Bowdoin on
Goodman’s breach of contract claims and judgment entered on
February 27, 2002. Eleven business days later, Goodman filed a
renewed motion for judgment as a matter of law, purporting to
respond to the judgment entered on February 27. By margin order,
the district court denied Goodman’s renewed motion “for lack of
merit and because it was untimely filed.”
Under Fed. R. Civ. P. 50, Goodman was required to renew
his motion for judgment as a matter of law within ten days of the
entry of judgment, exclusive of weekends and holidays. See Fed. R.
Civ. P. 50(b), 6(b). The ten-day limit is mandatory and the
-28-
district court lacks discretion to enlarge it. See Vargas v.
Gonzalez, 975 F.2d 916, 917 (1st Cir. 1992) (per curiam) (citing
Fed. R. Civ. P. 6(b)); see also Davignon v. Clemmey, 322 F.3d 1, 10
(1st Cir. 2003). Goodman does not dispute that his renewed motion
was filed more than ten days after the entry of judgment on
February 27, 2002, but instead contends that a subsequent amendment
of the judgment in November 2002 affecting only his unrelated
negligence count rendered his motion timely because the period
should have run from the date of the “superseding judgment.”22
At the time Goodman renewed his motion, he was on notice
that the district court was contemplating an amendment to the
judgment as to the negligence claim only. In response to Bowdoin’s
argument before the district court that Goodman’s renewed motion
was untimely, Goodman attempted to use the court’s reconsideration
of the negligence issue to his advantage, suggesting that it
“suspended the entry of judgment” until that issue was resolved.
But Goodman failed to mention this theory of timeliness in his
renewed motion or otherwise to reserve his rights to contest a
subsequently amended judgment. His renewed motion addressed only
22
As to the negligence claim, the jury found that Lee had acted
negligently, but that this did not cause any damages to Goodman.
The February 27, 2002 judgment was entered erroneously in Goodman’s
favor on this count. The amended judgment, which was entered on
November 6, 2002, corrected this error but was identical to the
earlier judgment in all other respects. Cf. Cornist v. Richland
Parish Sch. Bd., 479 F.2d 37, 39 (5th Cir. 1973) (calculating ten-
day period based on date of amended judgment where the amendment
“disturbed or revised legal rights and obligations”).
-29-
the February 27, 2002 judgment, without qualification.23 We find
no merit in Goodman’s post hoc explanation for his tardy filing,
and we affirm the district court’s finding that Goodman’s renewed
motion for judgment as a matter of law was untimely.
C. Jury Instructions
Goodman’s next assignment of error is that his claims for
breach of contract went to the jury with instructions so inaccurate
that he deserves a new trial. Our review of the challenged
instructions considers the big picture, asking whether the charge
in its entirety –- and in the context of the evidence –- presented
the relevant issues to the jury fairly and adequately. See United
States v. Tom, 330 F.3d 83, 91 (1st Cir. 2003); United States v.
Taylor, 54 F.3d 967, 976 (1st Cir. 1995) (“[W]e look at the charge
as a whole, not in isolated fragments.”). In doing so, we apply a
de novo standard of review, except to the extent that the alleged
error is merely a matter of form or wording. See Tom, 330 F.3d at
91. In that case, we review the district court’s choice of
language for abuse of discretion. See id.; see also Johnson v.
Spencer Press of Maine, Inc., 364 F.3d 368, 378 (1st Cir. 2004)
23
Goodman treated the February 27, 2002 judgment as final in
other contexts without qualification and we see no reason to view
it otherwise. By way of example, in a motion pursuant to Fed. R.
Civ. P. 60(b), Goodman asked for relief from the February 27, 2002
judgment and described the date of the filing (February 25, 2003)
as “[t]he last day on which a motion can be filed, since it must be
filed, at the latest, within one year from the date of the
judgment.” Goodman made no mention of any superseding judgments.
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(“It is the district court’s prerogative to craft the ‘particular
verbiage’ that it will use in its jury instructions.”); Gray v.
Genlyte Group, Inc., 289 F.3d 128, 133 (1st Cir. 2002). An
erroneous jury instruction warrants a new trial if “the preserved
error, based on a review of the entire record, can fairly be said
to have prejudiced the objecting party.” Levinsky’s, Inc. v. Wal-
Mart Stores, Inc., 127 F.3d 122, 135 (1st Cir. 1997).
Goodman alleges two errors in the jury charge. First, he
claims that the district court failed to instruct the jury to
consider whether Bowdoin had breached its agreement to follow its
own disciplinary procedures. This argument misstates the record.
In discussing the breach of contract claim, the court told the jury
that the contractual relationship between Goodman and Bowdoin
included Bowdoin’s promises to be bound by “the standard of
fundamental fairness in the conduct of judicial proceedings, the
requirement of impartiality in those proceedings, and the
requirement that it substantially follow its delineated procedures
in the handbook for adjudicating [Goodman’s] case” (emphasis
added). The court further instructed that Goodman had alleged that
Bowdoin had “violated his contractual right to have a fundamentally
fair and impartial proceeding and to have Bowdoin substantially
follow its delineated procedures, and that that resulted in damage
to him. It is for you the jury to decide if there were breaches
[and], if so, what damages flowed from those breaches” (emphasis
-31-
added). These instructions more than adequately conveyed the
point.
Second, Goodman alleges that the district court
improperly instructed the jury on the standard for interpreting the
contract between Bowdoin and Goodman. Recognizing that there is an
absence of precedent from the Maine Law Court on this issue,
Goodman argues that the district court should have instructed:
"The proper standard for interpreting the contractual terms is that
of 'reasonable expectation -– what meaning the party making the
manifestation, the university, should reasonably expect the other
party to give it.'" (quoting Mangla, 135 F.3d at 83). The district
court in fact told the jury that it “should apply a standard of
reasonable expectations of the parties in the circumstances,” and
later that it should determine whether the disciplinary procedures
used in Goodman’s case fell “within the range of reasonable
expectations of one reading the rules.”
Even if we assume that the instruction Goodman proffers
correctly states the governing law, Goodman has not proven that the
district court’s instructions deviated from the applicable standard
in any meaningful way. Contrary to Goodman’s claim that the court
“invited the jury to make its own rule for what was right here,”
the jury was told to consider the reasonable expectations of the
parties –- in this case, the reasonable expectations of the student
and the university. Though not identical to the Mangla standard,
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which asked what meaning the university should reasonably expect
the student to give certain contract provisions, the court’s
instructions sufficed to put the same considerations before the
jury.
D. Rule 60(b)
In a separate appeal, consolidated for the purposes of
our review, Goodman challenges the district court’s denial of his
post-trial motion for relief from judgment under Fed. R. Civ. P.
60(b). In his motion, Goodman stated that he had hired a private
investigator who interviewed campus security officer Kevin Conner
after the trial. Conner, who had since left his position at
Bowdoin and moved away, acknowledged keeping contemporaneous notes
in spiral notebooks while employed by Bowdoin and at the time of
the March 19, 1999 incident. Conner reported that the notebooks
were probably at the home of his former wife, where he had left
some of his personal belongings.
Goodman’s motion alleged that Conner’s notebooks could
contain critical information about the placement of the shuttle van
on the night of the incident that might support his version of the
events. Asking the district court to impute to Bowdoin the
collective knowledge of all of its employees, Goodman contended
that Bowdoin’s failure to produce or identify Conner’s notes
constituted discovery misconduct so serious that it justified
relief from judgment under Fed. R. Civ. P. 60(b)(3). See Fed. R.
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Civ. P. 60(b)(3) (permitting relief from judgment in cases of
“fraud . . ., misrepresentation, or other misconduct of an adverse
party”).
The district court denied Goodman’s motion, stating that
Goodman had failed to demonstrate that Bowdoin had ever possessed
the notes or that it had “improperly refused or failed to produce
them pursuant to [its] discovery obligations prior to trial.” We
agree. Goodman, who failed even to depose Conner or to subpoena
any notes that might have been outside Bowdoin’s immediate grasp,
has not shown that he is entitled to the extraordinary remedy of
relief through a Rule 60(b)(3) motion. See Karak v. Bursaw Oil
Corp., 288 F.3d 15, 19, 21 (1st Cir. 2002) (stating that misconduct
must be shown by clear and convincing evidence and must have
prevented a full and fair presentation or preparation of the
movant’s case); see also United States Steel v. M. DeMatteo Constr.
Co., 315 F.3d 43, 53 (1st Cir. 2002). Goodman has not presented
any evidence that misconduct even occurred, let alone that it rose
to a level warranting relief from judgment.
Affirmed.
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