United States Court of Appeals
For the First Circuit
Nos. 04-1902; 04-1969
JOHN MCDONOUGH,
Plaintiff, Appellee/Cross-Appellant,
v.
CITY OF QUINCY,
Defendant, Appellant/Cross-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Howard, Circuit Judge,
Coffin and Campbell, Senior Circuit Judges.
David Grunebaum, with whom Jonathan C. Green and Monica E.
Conyngham, City of Quincy Solicitor's Office were on brief, for
appellant/cross-appellee.
Marisa A. Campagna for appellee/cross-appellant.
June 23, 2006
HOWARD, Circuit Judge. A jury sitting in the District of
Massachusetts found that the City of Quincy, Massachusetts,
violated Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e,
et seq., and Mass. Gen. Laws ch. 151B, by unlawfully retaliating
against police officer John McDonough for assisting a fellow
officer in pursuing an employment discrimination claim. The jury
awarded McDonough $300,000 in compensatory damages. The parties
cross-appealed. The City challenges the verdict on several
grounds, including that the action was barred by the claim
preclusion doctrine and that the evidence was insufficient to
support the verdict. McDonough challenges the district court's
refusal to instruct the jury on awarding punitive damages. We
reject the City's appeal but remand for further proceedings
concerning punitive damages.
I. Background
We present the facts in the light most favorable to the
verdict, reserving certain details for the discussion.
See Grajales-Romero v. Am. Airlines, Inc., 194 F.3d 288, 292 (1st
Cir. 1999). McDonough joined the Quincy Police Department in 1969,
subsequently held various ranks and was promoted to lieutenant in
1984. In 1990 he was assigned to command the drug unit, where he
has remained since.
In 1997, McDonough wrote to the then mayor of Quincy,
James Sheets, questioning certain decisions made by police
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department management. In response, Sheets arranged a meeting with
McDonough to discuss his grievances. At the meeting, McDonough
presented Sheets with a packet of materials highlighting his
concerns. One page of the packet included a compilation of
allegations that McDonough had heard from other officers about
sexual harassment by department employees against police officer
Nancy Coletta. Sheets took no action on the Coletta matter.
In late 1999, McDonough learned from other officers that
Coletta was planning to file a sexual harassment lawsuit against
the City. McDonough did not know Coletta but wanted to help her
pursue her claim. He therefore provided Susan Perch, another
officer who knew Coletta, with a copy of the page of allegations
that he previously had presented to Sheets. This page of
allegations was eventually given to Coletta.
On April 25, 2000, the Massachusetts Commission Against
Discrimination held a hearing on Coletta's claim against the City.
Captain William Falco, then administrative assistant to Chief of
Police Thomas Frane, attended the hearing at Frane's request. At
the hearing, Coletta presented the hearing officer with the page of
allegations that McDonough had passed to her and mentioned
McDonough's name.
After the hearing, Falco reported to Frane about the
hearing and indicated that the "police department . . . or city had
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some problems" because of Coletta's suit. Frane instructed Falco
to investigate the matter further.
On May 5th, Falco contacted McDonough to discuss the page
of allegations that Coletta had presented at the hearing.
McDonough explained that he had given it to Mayor Sheets in 1997
and that, if Falco wanted to obtain a copy, he could contact the
mayor's office. Falco unsuccessfully attempted to obtain the page
from the mayor's office.
The members of the drug unit, including McDonough, worked
the night shift and as compensation received fifteen percent higher
pay than day-shift employees. Three days after Falco talked to
McDonough about the Coletta matter, Frane reassigned McDonough to
the day shift. As a result, McDonough lost the pay differential
and was essentially stripped of his supervisory duties because the
officers he supervised worked on the alternate shift. At the time
that McDonough was reassigned, another officer was placed in the
drug unit and assumed most of McDonough's supervisory
responsibilities.
Shortly after the reassignment was announced, McDonough,
who was on medical leave at that time, called Frane to inquire
about the transfer. Frane told him that he had ordered it because
McDonough had "trouble communicating." When McDonough objected to
this characterization, Frane told him "in everyone's life a little
rain must fall. You can always retire." On another occasion,
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Frane told McDonough that he placed him on the day shift because
several city councilors had indicated that they wanted to increase
funding for the drug unit and that he wanted McDonough available to
answer questions from the councilors. At trial, Frane testified
that he had transferred McDonough as part of a department-wide
reorganization and because he wanted to better integrate McDonough
into the department's management team.
McDonough returned from his medical leave in August 2000
and assumed day-shift duties, where he "had no one to supervise"
and "nothing to do." He served in this role without significant
incident until March 8, 2001, when he signed several "court slips"
(authorizing extra pay for officers required to attend court
proceedings) for officers of the drug unit. McDonough learned the
next day that the court slips that he had signed were denied
because he no longer was authorized to sign such slips.
McDonough immediately called acting Chief of Police
Terrence Kelly (Chief Frane was on a leave of absence after
suffering a heart attack; he never returned to his position) to
ask why the court slips were denied. Kelly told him that Captain
Robert Crowley, McDonough's direct supervisor, had removed
McDonough's signing authority. McDonough proceeded to explain that
the drug unit was investigating Crowley for potential corruption
and that Kelly therefore had to overrule Crowley's order. Kelly
refused, and McDonough "very heatedly screamed at him" that he
-5-
would go to the newspapers and city hall if Kelly did not act.
McDonough gave Kelly a short deadline to change his position before
Kelly hung up the phone. After this conversation, Kelly described
to Falco the heated exchange with McDonough and told Falco that he
was afraid that McDonough might suffer a heart attack.1 But Kelly
took no immediate action.
Immediately thereafter, McDonough authored a letter to
Kevin Madden, the director of personnel for the department,
alerting him to the court-slip incident and other workplace
grievances. McDonough stated that he had given relevant documents
to another officer to be used in the case of his "sudden or
suspicious death."
After Madden received this letter, he met with Kelly and
Falco to discuss the situation. It was agreed that McDonough
should be placed on paid administrative leave and that his service
weapon should be taken pending a fitness-for-duty evaluation by a
mental health provider.
After the meeting, Kelly and Falco summoned McDonough to
Kelly's office to inform him that he was being placed on
administrative leave. They then took his firearm and told him that
he had to leave the police headquarters immediately and could not
return unless and until he passed a mental health evaluation.
1
It was well-known in the department that McDonough had a
heart condition.
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After McDonough was placed on leave, no one from the department
checked to make sure that McDonough had no other weapons in his
possession, contacted McDonough's family to alert them to the
concerns about his mental health, or arranged to ensure that
McDonough made it home safely.
McDonough subsequently met with a psychiatrist who
concluded that McDonough was fit to return to his post. McDonough
returned to his day-shift position in May 2001 and several weeks
later was returned to the night shift by Falco, who in the interim
had been appointed chief.
In October 2001, McDonough filed this action claiming
that the City had retaliated against him by, inter alia,
transferring him to the day shift and placing him on administrative
leave. After a five-day trial, the court submitted the case to the
jury but declined to allow the jury to consider awarding punitive
damages. The jury returned a general verdict for McDonough and
awarded him $300,000 in lost wages and emotional distress damages.
The City moved for judgment as a matter of law on the ground that
McDonough had not presented sufficient evidence to ground the
jury's retaliation finding and, alternatively, moved to have the
damage award remitted. The district court denied the motion and
entered judgment.
-7-
II. The City's Appeal
A. Claim Preclusion
The City asserts that McDonough's action should have been
dismissed as it was barred under the claim preclusion doctrine as
a result of an unsuccessful Massachusetts state court action that
McDonough filed against the City in 1999. In 1998, McDonough was
passed over for promotion to police captain and subsequently sued
the City in Massachusetts Superior Court, claiming that he had been
denied the promotion in retaliation for his complaint to Sheets in
1997. The case went to trial in 2003, and a state court judge
entered judgment for the City at the close of McDonough's case-in-
chief. The City argues that the state and federal actions are
identical and that the federal action is therefore barred. It
bases this argument on a foundational assertion that both cases
center on the page of Coletta allegations that McDonough first
presented to Sheets at their 1997 meeting.
The district court rejected this argument on the ground
that the federal and state actions are distinct. The court viewed
the state action as based primarily on the alleged retaliatory
conduct by Sheets after the 1997 meeting, while the federal action
is based primarily on retaliation perpetrated by members of the
department after McDonough helped Coletta in 1999. We review this
determination de novo. See Maher v. GSI Lumonics, Inc., 433 F.3d
123, 126 (1st Cir. 2005).
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"Under federal law, a federal court must give to a state-
court judgment the same preclusive effect as would be given that
judgment under the law of the state in which that judgment was
entered." Torromeo v. Fremont, 438 F.3d 113, 115 (1st Cir. 2006)
(internal citations omitted). Thus, the effect the Massachusetts
court's final judgment has on McDonough's federal action is
determined by applying the Massachusetts law of claim preclusion.
Id.
Claim preclusion doctrine in Massachusetts "prohibits
the maintenance of an action based on the same claim that was the
subject of an earlier action between the same parties or their
privies." Bagley v. Moxley, 555 N.E.2d 229, 231 (Mass. 1990).
"[C]laim preclusion makes a valid final judgment conclusive on the
parties or privies, and bars further litigation of all matters that
were or should have been adjudicated in the action." Id. "There
are three essential elements to the doctrine of claim preclusion:
(1) the identity or privity of the parties to the present and prior
actions; (2) identity of the cause[s] of action; and (3) a prior
final judgment on the merits." Bui v. Ma, 818 N.E.2d 572, 579
(Mass. App. Ct. 2004). Causes of action are identical if they
"derive[] from the same transaction or series of connected
transactions." TLT Const. Corp. v. A. Anthony Tappe, 716 N.E.2d
1044, 1052 (Mass. App. Ct. 1999). "What factual grouping
constitutes a transaction is to be determined pragmatically, giving
-9-
weight to such factors as whether the facts are related in time,
space and origin or motivation, whether they form a convenient
trial unit, and whether their treatment as a unit conforms to the
parties' expectations." Mancuso v. Kinchla, 806 N.E.2d 427, 438
(Mass. App. Ct. 2004).
There is no question that the parties to the state and
federal actions are the same and that the state action resulted in
a final judgment on the merits adverse to McDonough. Thus, the
only issue is whether the causes of action share sufficient
identity.
We agree with the district court that they do not. The
transaction on which the state action was based was McDonough's
failure to be appointed captain in 1998, which he attributed to
retaliation orchestrated by Sheets for exercising his First
Amendment rights in 1997. The transactions on which the federal
suit is based were McDonough's transfer and his placement on
administrative leave, which he claims were ordered by members of
the department after they learned in 2000 that he had assisted
Coletta in her lawsuit. McDonough's suits against the City were
premised on separate acts of protected conduct that occurred years
apart. Moreover, the allegedly retaliatory actions were ordered by
different City agents over a several year period. These
differences support the district court's ruling that the federal
action is not barred. See, e.g., Gonzalez-Pina v. Rodriguez, 407
-10-
F.3d 425, 430 (1st Cir. 2005) (concluding, in an employment
discrimination case, that "subsequent conduct, even if it is of the
same nature as the conduct complained of in a prior lawsuit, may
give rise to an entirely separate cause of action"); Herrmann v.
Cencom Cable Assocs. Inc., 999 F.2d 223, 226 (7th Cir. 1993)
(Posner, J.) (concluding that claim preclusion did not bar two
tangentially related employment claims because the essential facts
underlying the claims were distinct); Manning v. City of Auburn,
953 F.2d 1355, 1359 (11th Cir. 1992) (ruling that claim preclusion
did not bar a second employment discrimination claim, where the
facts underlying the second suit had not occurred when the first
suit was filed).2
The page of allegations that McDonough gave to Sheets
was, of course, relevant evidence in each case. But the district
court correctly recognized that this is too tenuous a connection to
warrant a finding of claim preclusion and to deprive McDonough of
his day in court. See Herrmann, 999 F.2d at 226 (refusing to find
claim preclusion when the claims had only limited shared facts);
see also Andersen v. Chrysler Corp., 99 F.3d 846, 853 (7th Cir.
1996) (cautioning that a claim preclusion analysis should not
2
In addition, the causes of action do not present a convenient
trial unit. The key witnesses for the state action were Sheets and
McDonough, while the federal action required several department
witnesses and substantial documentary evidence about police
department procedure and policies. See Catullo v. Metzner, 834
F.2d 1075, 1078 (1st Cir. 1987).
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proceed at too high a level of generality because of the risk of
unfairly precluding a litigant from having her day in court).
B. Sufficiency of the Evidence
The City argues that it was entitled to judgment as a
matter of law because McDonough failed to present sufficient
evidence to warrant the jury's retaliation finding. It claims that
the evidence demonstrates, at most, that the actions taken against
McDonough "were based on personal conflicts with [City] officials,"
and that such evidence is inadequate to sustain a retaliation
verdict. The district court rejected this argument, concluding
that there was sufficient proof from which a jury could infer that
the City's actions against McDonough were motivated by retaliatory
animus stemming from his assisting Coletta.
We review de novo the denial of the City's motion for
judgment as a matter of law, see Marrero v. Goya of P.R., 304 F.3d
7, 14 (1st Cir. 2002), and we examine the evidence presented at
trial in the light most favorable to McDonough. See White v. N.H.
Dep't of Corr., 221 F.3d 254, 259 (1st Cir. 2000). We "may not
consider the credibility of witnesses, resolve conflicts in
testimony or evaluate the weight of the evidence." Katz v. City
Metal Co., 87 F.3d 26, 28 (1st Cir. 1996). Our review "is weighted
toward preservation of the jury's verdict, for we must affirm
unless the evidence was so strongly and overwhelmingly inconsistent
with the verdict[] that no reasonable jury could have returned
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[it]." Crowley v. L.L. Bean, Inc., 303 F.3d 387, 393 (1st Cir.
2002).
The jury was instructed to consider McDonough's claim
under the McDonnell-Douglas burden-shifting framework. See
McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). Under
McDonnell-Douglas, the plaintiff must make a prima facie showing
that (i) he engaged in protected conduct, (ii) he was thereafter
subject to an adverse employment action, and (iii) a causal
connection exists between the protected conduct and the adverse
action. See Ramirez Rodriguez v. Boehringer Ingelheim
Pharmaceuticals, Inc., 425 F.3d 67, 84 (1st Cir. 2005). If the
plaintiff makes this showing, the burden of production shifts to
the defendant to articulate a legitimate, nondiscriminatory reason
for its employment decision. See id. Finally, if the defendant
presents such a reason, the plaintiff must demonstrate that the
defendant's proffered reason is pretext masking illegal
retaliation. See id. Evidence that the defendant's reason was
pretext may, but need not, ground a finding of liability. Fite v.
Digital Equip. Corp., 232 F.3d 3, 7 (1st Cir. 2000).
The City has not presented in its main brief a developed
argument that McDonough failed to establish a prima facie case of
retaliation. It focuses instead on the evidence that McDonough
presented to undermine the City's asserted reasons for taking the
challenged employment actions. As discussed above, the jury was
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presented with two adverse employment actions: McDonough's
reassignment to the day shift and his placement on administrative
leave. We consider whether McDonough presented sufficient evidence
of pretext such that the jury could conclude that retaliation was
the real motive for each of the challenged actions.3
Chief Frane ordered McDonough's transfer to the day shift
within days of learning that McDonough had assisted Coletta in
pursuing her sex discrimination claim. At trial, the City claimed
that Frane's decision to transfer McDonough was part of a
department-wide reorganization and that the timing was
coincidental.
There is "no mechanical formula" for determining pretext,
Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 39 (1st Cir. 2003)
(internal citation omitted), and we have recognized that pretext
can be proven in many ways, see Santiago-Ramos v. Centennial P.R.
Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000). One way is for
the plaintiff to show that the employer gave "different and
arguably inconsistent explanations" for taking the adverse
employment action. Dominguez-Cruz v. Suttle Caribe, Inc., 202
F.3d 424, 432 (1st Cir. 2000).
3
The City does not argue that these actions were insufficient
to establish a retaliation claim on the basis that they were not
severe enough "to dissuade a reasonable worker from making or
supporting a charge of discrimination." Burlington Northern &
Santa Fe Railway v. White, 548 U.S. --, 2006 WL 1698953, at *10
(June 22, 2006).
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Here, there was evidence that Frane provided several,
arguably inconsistent, explanations for transferring McDonough.
When McDonough first confronted Frane about the transfer, Frane
told him that it was because he had "trouble communicating" and
that, if he did not like it, he "could retire." Several months
later, when McDonough again asked Frane why he had been
transferred, Frane stated that "some city councilors wanted to put
additional funding into the drug unit," and that the transfer was
intended to help secure this funding. At trial, Frane testified
that the transfer was part of a "major transformation" of the
department and that it was designed to integrate McDonough into the
department's management team. These shifting explanations provided
a basis for the jury to conclude that the reason the City presented
at trial was false.
Moreover, there was testimony from two police captains,
who attended management meetings with Chief Frane just before the
transfer, that there was no discussion of restructuring the drug
unit. The jury could have concluded that this evidence was
inconsistent with the City's contention that the transfer decision
was a part of a systemic restructuring process. See Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (stating
that a jury can find pretext where "the employer's proffered
explanation is unworthy of credence").
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There also was evidence from which the jury could have
found pretext masking retaliation in the City's claim that it
placed McDonough on administrative leave because it perceived him
to be a safety risk. Acting Chief Kelly, the person who decided to
place McDonough on leave, testified that it was common knowledge
that McDonough often became highly emotional but that he would
quickly calm down. This testimony was given during Kelly's account
of his conversation with McDonough that led him to be primarily
concerned that McDonough might have a heart attack. Kelly admitted
that he did not perceive McDonough to be a safety threat when this
conversation occurred. Moreover, no one in the department
investigated McDonough's letter to Madden to determine the basis
and motivation for his statements. From this evidence, the jury
could infer that Kelly, Madden, and Falco used McDonough's phone
call and letter to establish a pretextual safety rationale for the
decision to put McDonough on administrative leave.
In addition, a jury could view the actions that Kelly and
Falco took when they informed McDonough that he was being placed on
leave as tending to undermine the asserted safety rationale. Falco
testified that he was so concerned about the possibility of
McDonough becoming violent that he wore a bullet-proof vest to the
meeting at which Kelly informed McDonough of the decision to place
him on leave. But Kelly did not take any such precautions for
himself or his secretary who was sitting directly outside of the
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door to the office in which the meeting was held. Nor did Kelly or
Falco arrange to have an officer on alert in case the meeting
turned violent. And, after the meeting, no one at the department
checked to see if McDonough had other weapons in his possession,
alerted McDonough's family that he was a potential danger to
himself or others, or arranged to ensure that McDonough traveled
home safely. Indeed, the next contact between the department and
McDonough did not occur until several days later, when someone from
the department called to provide him with the details of his
fitness-for-duty evaluation. Though the inference is not
inevitable, the jury reasonably could have concluded that this is
not how experienced police officers would have handled placing an
officer on leave if they truly believed that he posed a safety
risk. See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 167 (1st
Cir. 1998) (stating that pretext may be proven by showing
"weaknesses, implausibilities, incoherencies, or contradictions in
the employer's proffered legitimate reasons").
In assessing pretext, "everything depends on the
individual facts." Thomas v. Eastman Kodak Co., 183 F.3d 38, 57
(1st Cir. 1999). As such, we are "particularly cautious" about
setting aside a jury's determinations that an employer's proffered
explanation was pretext. Hodgens, 144 F.3d at 167.
"Determinations of motive and intent, particularly in
discrimination cases, are questions better suited for the jury."
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Mulero-Rodriguez v. Ponte, 98 F.3d 670, 677 (1st Cir. 1996). While
the jury could have accepted the City's explanations for its
actions, we cannot say that it was irrational for the jury to have
concluded that the explanations were pretextual and that
retaliation was the motivation for the City's actions.4
C. Trial-Error Claims
1. Evidentiary Claims
The City challenges several evidentiary rulings. We
review these claims for an abuse of discretion. See Ramirez v.
Debs-Elias, 407 F.3d 444, 449 (1st Cir. 2005). Erroneous
evidentiary rulings are harmless if it is highly probable that the
error did not affect the outcome of the case. See Rodriguez-
Hernandez v. Miranda-Velez, 132 F.3d 848, 855 (1st Cir. 1998).
The City's first claim is that the district court abused
its discretion by declining to allow it to introduce evidence that
McDonough had lost his previous lawsuit against the City.5 See
supra at 8. The City argues that this evidence was relevant
because it showed that McDonough was litigious and had a history of
bringing meritless lawsuits.
4
We also reject the City's contention that we should order a
new trial. As discussed above, the evidence was adequate for the
jury to find retaliation. See Marrero, 304 F.3d at 14 (stating
that a new trial should only be ordered if "the outcome is against
the clear weight of the evidence such that upholding the verdict
will result in a miscarriage of justice").
5
The court did allow the City to introduce the fact that there
was a prior lawsuit between McDonough and the City.
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Because the "charge of litigiousness is a serious one,
likely to result in undue prejudice against the party charged[,]"
Outley v. City of New York, 837 F.2d 587, 592 (2d Cir. 1988),
ordinarily proof that the plaintiff filed prior similar lawsuits is
admissible to show the plaintiff's litigiousness only if there is
also evidence that the prior lawsuits were fraudulently filed,
see McCormick on Evidence, § 196 at 691 (5th ed. 1999). Here,
there is evidence that McDonough filed one prior lawsuit against
the City after he was denied a promotion. But, while that lawsuit
was unsuccessful, there is nothing suggesting that it was
fraudulently filed. See Mathis v. Phillips Chevrolet, Inc., 269
F.3d 771, 776-77 (7th Cir. 2001) (concluding that there was no
abuse of discretion in declining to admit evidence of prior
lawsuits where the evidence was in dispute whether the prior suits
were fraudulently brought or merely unsuccessful). The district
court did not abuse its discretion in excluding evidence about the
result of McDonough's prior lawsuit against the City.
The City next contends that the district court improperly
precluded it from questioning McDonough about his contentious
relationship with the mayor and the police department. We disagree
with the City's characterization of the district court's ruling.
The City was permitted to ask McDonough about his strained
relationships with certain department officials, to introduce the
fact that McDonough had sued the City on a prior occasion, and to
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present documents highlighting various points of dispute between
McDonough and the department. The ruling in question involved the
court telling the City to "move on" after counsel had asked
McDonough several repetitive questions about his relationship with
Captain Falco.
Under Fed. R. Evid. 403, the district court retains
discretion to "prevent the needless presentation of cumulative
evidence." Donovan v. Burger King Corp., 672 F.2d 221, 225 (1st
Cir. 1982). The court provided the City with ample opportunity to
highlight McDonough's sour relationship with the City. It was
within the court's discretion to draw the line where it did.
The City's third evidentiary argument is that the
district court abused its discretion by permitting McDonough to
present a chalk to the jury stating that Coletta had settled her
lawsuit for $500,000. Even if this information should not have
been presented to the jury, the City did not timely object to the
chalk, and the court sua sponte explained that the jury should not
infer anything from the amount of the Coletta settlement. "We have
held, [that] the potential for prejudice . . . [often] can be
satisfactorily dispelled by appropriate curative instructions," as
"[j]urors are presumed to follow such instructions, except in
extreme cases." United States v. Richardson, 421 F.3d 17, 41 (1st
Cir. 2005). Given the tangential relevance of the Coletta
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settlement and the court's timely limiting instruction, we are
confident that the verdict was not swayed by the chalk.
Finally the City argues the district court wrongly
admitted out-of-court statements by Falco and Madden concerning the
decision to place McDonough on administrative leave. The City
contends that these statements were hearsay and could not be
received as admissions under Fed. R. Evid. 801(d)(2)(D) because the
declarants were not "policymakers," (which the City would limit in
this case to the chief of police and the mayor).
For a statement to be an admission under Fed. R. Evid.
801(d)(2)(D), it must be made by a party, a party's agent, or a
servant within the scope of an agency or employment. See Gomez v.
Rivera Rodriguez, 344 F.3d 103, 116 (1st Cir. 2003). The employee's
station within the organization is not relevant to the Rule
801(d)(2) analysis. See Woodman v. Haemonetics Corp., 51 F.3d
1087, 1093-94 (1st Cir. 1995) (rejecting argument that statements
by "first-line supervisor" with no firing authority could not be
admissions under Rule 801(d)(2)(D)). The relevant inquiry is
whether the employee's statement was made within the scope of
employment. See id.
Here, there is no question that Falco and Madden made the
challenged statements within the scope of their employment. Both
were department officials involved in personnel management, and the
statements related to a possible personnel action against
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McDonough. See id. (concluding that statement by employee involved
in the plaintiff's termination was admissible under Fed. R. Evid.
801(d)(2)(D)). The statements were properly admitted.6
2. Jury Instruction
In addition to challenging the transfer and leave
decisions, McDonough presented evidence that he was subject to
adverse employment actions by being denied the use of a department
car, by not having his supervisory responsibility restored after he
was returned to the night shift, and by being denied the authority
to sign court slips. After the close of the evidence, the district
court directed a verdict for the City on these claims and only
permitted the jury to consider the transfer and leave allegations.
The City contends that the district court's charge did not
adequately explain that McDonough's claim was limited to those
allegations. We review this claim for abuse of discretion. See
Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d 121, 133 (1st Cir. 2004).
The court's instructions were more than adequate to
explain the nature of McDonough's claims. The court explained:
[T]his case [is] grounded in two
incidents. One, the transfer of Mr.
6
The City also challenges the propriety of McDonough's closing
argument. It did not, however, object below, and therefore we
review for plain error. See Santos v. Sunrise Med. Ctr., 351 F.3d
587, 592-593 (1st Cir. 2003). There was no such error, for there
is no reason to think that any of the challenged statements came
close to causing the City substantial prejudice. See Smith v.
Kmart Corp., 177 F.3d 19, 25-26 (1st Cir. 1999) (describing plain
error as "a rare species in civil litigation").
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McDonough . . . from nights to days .
. . and later on a determination that
he was to surrender his firearms and stay
on administrative leave until he went to
a psychiatrist and was certified for
duty in that period of time.
Later, the court instructed that "this case is about" McDonough
being "taken from nights and placed on days" and being placed on
"administrative leave." The instructions were more than sufficient
to apprise the jury of the actionable theories.
D. Damages
The City argues that the district court erred by
declining to reduce McDonough's $300,000 damages award because the
award was "grossly excessive" and "shocking to the conscience." We
review the district court's denial of remittitur for an abuse of
discretion. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S.
415, 433 (1996). "We will not disturb an award of damages because
it is extremely generous or because we think the damages are
considerably less." Koster v. Trans World Airlines, 181 F.3d 24,
34 (1st Cir. 1999). Rather, the defendant must establish that the
award "is so grossly disproportionate to any injury established by
the evidence as to be unconscionable as a matter of law." Id.
The award in this case comprised both economic and
emotional distress damages. McDonough lost some salary due to the
City's actions, but acknowledges on appeal that the bulk of the
award was for emotional distress. McDonough testified that he had
been a Quincy police officer for over thirty years and that he
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"loved [his] job." In light of his commitment to his job as a
police officer, McDonough claimed that the City's actions caused
him substantial humiliation and damage to his reputation. As a
result of this trauma, McDonough claimed that his relationship with
his family suffered. He testified that he became easily enraged at
his grandchildren and was therefore no longer able to see them. He
also made his wife and sisters cry and cried himself on occasion.
McDonough's testimony is similar to the evidence in other
cases where we have sustained comparable emotional distress awards
against excessiveness challenges. In Koster, for example, we
allowed a $250,000 award where the plaintiff testified that the
employer's conduct caused him to suffer anxiety and insomnia and
damaged his family life. Id. at 35-36. Also in Rodriguez-Torres
v. Caribbean Forms Mfg., Inc., 399 F.3d 52, 64 (1st Cir. 2005), we
affirmed a $250,000 emotional distress award where the plaintiff
testified that employment discrimination had caused her marriage to
suffer and had put her into a depression "for quite some time." In
neither of those cases did the plaintiff seek medical treatment or
have long-term physical symptoms as a result of the employer's
actions.
After subtracting the economic damages that McDonough
likely received, McDonough's emotional distress damages are very
close to the awards that we permitted to stand in Koster and
Rodriguez-Torres. Given this precedent, the deferential standard
of review, and "the esoteric nature of damages for emotional
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distress," the award in this case, while high, is not so high that
we should disturb it.7 Koster, 181 F.3d at 36.
III. McDonough's Cross-Appeal
In his cross-appeal, McDonough argues that the district
court erred by declining to instruct the jury on punitive damages.
We review de novo the decision to decline a punitive damages
instruction. See Che, 342 F.3d at 41.
The Supreme Court established the standard for punitive
damages under Title VII in Kolstad v. American Dental Ass'n, 527
U.S. 526 (1999). Under Kolstad, a finding of intentional
discrimination, which is the basis for a compensatory damages
award, does not by itself establish a basis for awarding punitive
damages. 527 U.S. at 534. Rather, the plaintiff must make the
7
The City also contends that remittitur is required because
the jury's $300,000 award was the maximum amount allowed under
Title VII. 42 U.S.C. § 1981a(b)(3). According to the City, only
cases of extreme emotional distress can support an award at or near
the Title VII cap. This argument fails as "nothing in the language
of the statute suggests that the cap on damages is intended . . .
to alter the standard of judicial review for [damage] awards."
Luciano v. Olsten Corp., 110 F.3d 210, 221 (2d Cir. 1997). "The
statutory cap is not the limit of a damages spectrum, within which
the judge might recalibrate the award given by the jury." Deters v.
Equifax Credit Inform. Servs., Inc., 202 F.3d 1262, 1273 (10th Cir.
2000); EEOC v. W&O, Inc., 213 F.3d 600, 617 (11th Cir. 2000)
(same). In any event, McDonough was also awarded these damages
under Mass. Gen. Laws ch. 151B, which does not have a damages cap.
See LaBonte v. Hutchins & Wheeler, 678 N.E.2d 853, 862 (Mass.
1997).
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additional showing that the employer acted with malice or reckless
indifference to federally protected rights.8 Id. at 536.
The district court was therefore correct to treat the
question of whether to instruct on punitive damages as distinct
from whether there was sufficient evidence to allow the jury to
find a Title VII violation. See Che, 342 F.3d at 41. But with
the benefit of hindsight, we part ways with the district court in
its conclusion that no reasonable jury could award punitive damages
on the evidence presented.
The City argues that there was no evidence that its
agents acted with reckless indifference to McDonough's Title VII
rights because it presented legitimate non-retaliatory reasons for
its actions. This argument fails because the jury found that the
City (through its agents) intentionally retaliated against
McDonough and therefore rejected these reasons as the basis for the
City's actions. There was proof introduced by McDonough that the
department published an anti-discrimination policy and provided
8
The plaintiff must also show that there is a basis for
imputing the bad acts of the employer's agent to the employer. One
way for the plaintiff to do this is by demonstrating that the agent
was acting in a managerial capacity and committed the bad acts
within the scope of his employment. Id. at 542-43. The employer
may also avoid punitive damages liability by demonstrating that it
has made good-faith efforts to comply with Title VII. Id. at 545-
46. The City does not defend the district court's ruling by
arguing either that the City's agents were not managerial employees
acting within the scope of employment or that it sustained the
good-faith compliance defense as a matter of law. See Romano v. U-
Haul Int'l, 233 F.3d 655, 670 (1st Cir. 2000) (the burden of
demonstrating good-faith compliance is on the employer).
-26-
anti-discrimination training for its workforce. See Rodriguez-
Torres, 399 F.3d at 65 (stating that a punitive damages instruction
was appropriate where the employer posted signs notifying employees
about the anti-discrimination laws).9 Moreover, the retaliating
employees were all high-ranking department officials involved in
personnel management. In light of the important role that Title
VII plays in modern personnel management, we cannot conclude on
this record that a reasonable jury would be compelled to find that
these officials were unaware that retaliating against an employee
for assisting with another employee's sexual harassment claim
violates federal law. See Powell v. Alexander, 391 F.3d 1, 20 (1st
Cir. 2004) (stating that city solicitor, by nature of her position
as an attorney, knew or should have known that retaliating against
a public employee for filing a lawsuit is unlawful); DiMarco-Zappa
v. Cabanillas, 238 F.3d 25, 38 (1st Cir. 2001) (stating that "the
extent of federal statutory and constitutional law preventing
discrimination . . . suggests that defendants had to know that such
discrimination was illegal"). The evidence was therefore adequate
for a rational jury to conclude that the City acted with reckless
indifference to McDonough's Title VII rights.
As discussed above, malice and reckless indifference
concern, not the employer's awareness that it is discriminating,
9
Conversely, in an appropriate case, an employer might seek to
admit this type of evidence on the question of the employer's good
faith efforts at compliance, but that issue is not raised in this
appeal. See supra at n.8.
-27-
but the employer's knowledge that it is acting in violation of
federal law. In Kolstad, the Supreme Court provided examples of
situations in which intentional discrimination does not give rise
to punitive damages. 527 U.S. at 536-37. Such situations may
occur where the employer believes that it can lawfully
discriminate, where the theory of discrimination is novel or
poorly recognized, or where the employer believes that its
discrimination falls within a statutory exception. Id.; see Farias
v. Instructional Sys., Inc., 259 F.3d 91, 102 (2d Cir. 2001)
(concluding that no punitive damages instruction was warranted
under Kolstad in a retaliation case where the employer took the
retaliatory act on advice of counsel that its conduct was lawful).
A jury could conclude that the City's conduct falls into none of
these categories. Accordingly, the jury should have been permitted
to consider awarding punitive damages for the Title VII violation.10
This conclusion obliges us to consider the scope of our
remand. McDonough contends that retrial must be limited to the
punitive damages question. In support of this argument, he cites
10
The result is the same under Mass. Gen. Laws ch. 151B.
Punitive damages are authorized under Massachusetts law where the
conduct is "outrageous because of the defendant's evil motive or
his reckless indifference to the rights of others." Dartt v.
Browning-Ferris Indus., 691 N.E.2d 526, 537 (Mass. 1998). For the
reasons stated above, the evidence was sufficient for a jury to
have concluded that the City acted with "reckless indifference" to
McDonough's rights under the Massachusetts anti-discrimination
laws. See id. (suggesting that punitive damages would have been
warranted if there was evidence that employer knowingly violated an
anti-discrimination law).
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Che, 342 F.3d at 31, where we remanded solely for a retrial on
punitive damages while allowing an emotional distress award to
stand.
The Fifth Circuit has identified a potential problem in
remanding a case for a trial limited solely to punitive damages
where the first jury awarded emotional distress damages. See
Hardin v. Caterpillar, Inc., 227 F.3d 268, 272 (5th Cir. 2000). As
the court explained, "the difficulty inheres in the very nature of
a jury's decisionmaking." Id. Emotional distress damages are "the
classic black box decision" because the precise sum of emotional
damages cannot be independently quantified. Id. A jury awards
such damages based on the degree of emotional harm that it believes
that the plaintiff endured. But, especially where there is limited
evidence of the plaintiff's physical symptoms, this award is
closely linked to the jury's view concerning the defendant's
unlawful conduct. See id. In other words, the jury's conclusion
about the plaintiff's level of emotional trauma might well reflect
its view concerning the reprehensibility of the defendant's
conduct. See id. This potential overlap creates a risk that the
plaintiff will recover twice for the reprehensibility of the
defendant's conduct, if a second jury is allowed to consider only
punitive damages. See id.; see also Coastal Fuels of P.R. v.
Caribbean Petroleum Co., 79 F.3d 182, 201 (1st Cir. 1996) ("The law
abhors duplicative recoveries.").
-29-
This is not to say that a serious risk of double recovery
exists in every case. In Che, for example, the emotional distress
award was relatively low ($125,000), given the evidence of
emotional injury. See 342 F.3d at 36 (the plaintiff suffered
several diagnosed mental and physical disorders). In those
circumstances, we determined that it was permissible to remand for
a retrial limited to punitive damages. Id. at 34. But in reaching
this conclusion, we recognized that this ruling was discretionary
and that an "appellate court has broad discretion to remand for a
new trial on all, or only some of the issues in the case." Id.
As Hardin recognized, whether a retrial limited to
punitive damages would be fair must be decided case by case. See
227 F.3d at 273. The emotional distress award in this case, unlike
the award in Che, was generous in light of the limited evidence
that McDonough presented. Some reason for concern therefore
exists, a concern that was absent in Che, that the high award may
partly reflect punishment for what the jury may have concluded was
the degree of reprehensibility of the City's conduct. See Horney
v. Westfield Gage Co., 77 Fed. Appx. 24, 33 (1st Cir. 2003)
(unpublished disposition) (concluding that a retrial limited to
punitive damages may be unfair because the issues of intent,
emotional distress damages, and punitive damages were "so
intertwined"). That said, the district court is in a better
position to make the judgment call because it viewed McDonough's
evidence of emotional distress first hand. See id. at 33. If the
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district court determines that the punitive damages issue should
not be tried alone, the court should so indicate and provide
McDonough the opportunity to accept the $300,000 compensatory award
and withdraw his punitive damages claim. See id.
IV. Conclusion
The district court's ruling denying McDonough's request
for an instruction on punitive damages is reversed and the case is
remanded for further proceedings consistent with this opinion. In
all other respects, the court's rulings are affirmed. Costs are
taxed in favor of Appellee/Cross-Appellant John McDonough.
So ordered.
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