Trainor v. HEI Hospitality, LLC , 699 F.3d 19 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 12-1152
LAWRENCE TRAINOR,
Plaintiff, Appellee,
v.
HEI HOSPITALITY, LLC ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Howard, Ripple* and Selya,
Circuit Judges.
Lynn A. Kappelman, with whom Lisa J. Damon, Gerald L. Maatman,
Jr., James M. Hlawek and Seyfarth Shaw LLP were on brief, for
appellants.
Gary M. Feldman, with whom Davis, Malm & D'Agostine, P.C. was
on brief, for appellee.
October 31, 2012
*
Of the Seventh Circuit, sitting by designation.
SELYA, Circuit Judge. A time worn proverb teaches that
"Hell hath no fury like a woman scorned." Much the same dynamic
can be in play when, as in this case, a corporation abruptly
cashiers a member of senior management who believes that he
deserves better.
In this instance the denouement prompted a suit for age
discrimination and retaliation. After a protracted trial, the jury
found the employer guilty of retaliation and returned a seven-
figure verdict in the employee's favor. The district court allowed
the liability finding to stand; trimmed the damages but doubled
what remained; refused to grant either judgment notwithstanding the
verdict or an unconditional new trial; and awarded the prevailing
plaintiff attorneys' fees and an equitable remedy. The employer
appeals.
After careful consideration of a scumbled record, we
conclude that the sum awarded for emotional distress damages, even
after the district court's remittitur, remains grossly excessive.
We order a further remittitur. This order, in turn, affects the
outcome of the doubling of damages undertaken by the district
court. In all other respects, we reject the employer's challenges.
The tale follows.
I. BACKGROUND
We rehearse the facts as the jury supportably could have
found them, guided by the tenet that "when the losing party
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protests the sufficiency of the evidence, the court of appeals must
take both the facts and the reasonable inferences therefrom in the
light most hospitable to the jury's verdict." Casillas-Díaz v.
Palau, 463 F.3d 77, 79 (1st Cir. 2006) (internal quotation marks
omitted).
Plaintiff-appellee Lawrence Trainor, then 59 years of
age, was enticed to join HEI Hospitality, LLC in the fall of 2006
after a long and distinguished career in hospitality management.1
The plaintiff was recruited by HEI's chief operating officer, Ted
Darnall, to become HEI's senior vice-president for acquisitions and
transitions (SVP). Above and beyond assisting with acquiring and
transitioning new hotel properties into HEI's sphere of influence,
the plaintiff also recruited and mentored general managers,
developed a "playbook" to organize integration strategies, and
worked with "priority" hotels.
The terms of HEI's initial offer required the plaintiff
to relocate to Norwalk, Connecticut (where HEI maintains its
headquarters). The plaintiff balked at this requirement, however,
and argued against a move from his home in Marshfield,
Massachusetts because of his wife's health. A compromise was
reached: the plaintiff would spend Mondays (and any other days on
1
The plaintiff sued three defendants: his employer and two of
its subsidiaries, HEI Hospitality Management LLC and Merritt
Hospitality LLC. For ease in exposition, we refer to all three
corporations collectively as "HEI."
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which his presence was needed) in Norwalk and travel from
Marshfield to the properties that demanded his attention during the
balance of the week.
The company's hierarchs were consistently pleased with
the plaintiff's management style and overall job performance: he
received rave reviews from the chief executive officer Gary
Mendell, Darnall, and the senior vice-president for human resources
Nigel Hurst. Storm clouds began to gather in the fall of 2008,
when rumors began about the possibility of restructuring the
executive team. After Brian Meyer was brought in as senior vice-
president of operations, top-echelon executives received an
adjuration about a perceived need to relocate to Norwalk.
In November, Darnall offered the plaintiff a choice:
relocate to Norwalk or assume the general manager's position at a
hotel located in Cambridge, Massachusetts. HEI claims that the
relocation was necessary because it intended to promote the
plaintiff to a regional senior vice-president position. But the
plaintiff was never actually offered such a position (or so the
jury could have found).
During the next two weeks, the plaintiff had follow-up
conversations with both Darnall and Hurst and learned that the
demotion to general manager would be accompanied by a substantial
cut in salary and a discontinuance of his participation in HEI's
company-sponsored investment funds (described in more detail
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infra). Dismayed by this turn of events, the plaintiff engaged
counsel. His lawyer wrote to Mendell on December 4, expressing the
plaintiff's disappointment with the recent developments at HEI.
The letter made clear that the plaintiff was both reluctant to
relocate and distressed by the prospect of being shifted to a
lower-level position. Of particular pertinence for present
purposes, the letter suggested that age discrimination was the
driving force behind HEI's planned restructuring and the
plaintiff's threatened demotion. Upon receiving this missive,
Mendell — by his own admission — was "surprised," was "frustrated,"
and "wasn't happy." He regarded the age discrimination claim as
"preposterous."
The plaintiff had some incidental communication with
Hurst regarding the December 4 letter. Thereafter, he met face-to-
face with Mendell, who told him for the first time that his
position had been eliminated. This discussion left only the
Cambridge job on the table; Mendell made no mention of the regional
senior vice-president position that HEI ostensibly intended to
offer to the plaintiff. The plaintiff began to negotiate the terms
of the lesser position and requested that HEI maintain his current
salary, allow him to continue to participate in all the company-
sponsored investment funds, and keep him involved in a certain
number of acquisitions per year. Mendell countered by offering,
among other things, to increase the salary figure to $200,000
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(still appreciably below the salary then being paid to the
plaintiff) and to permit the plaintiff to vest in two of HEI's
three investment funds.
On December 20, the plaintiff's lawyer wrote to Mendell
expressing dissatisfaction with the counter-proposal and
reiterating the plaintiff's earlier requests. In a telephone
conversation nine days later, Mendell told the plaintiff that he
was "pissed." Seeking to reach common ground, the plaintiff asked
Mendell to give him a written offer anent the new position.
Mendell furnished a written offer later that day, but the offer did
not address any of the plaintiff's demands. It did, however,
include a stipulation that the offer be accepted in writing by
January 2, 2009.
On Tuesday, December 30, the plaintiff notified a phalanx
of HEI officials, including Darnall and Hurst, that he would be
working remotely that week and taking vacation the following week.
In response, Darnall extended good wishes for the plaintiff's
vacation and stated that he would call in the next few days.
On January 2, 2009, the plaintiff filed a charge of age
discrimination with the Massachusetts Commission Against
Discrimination (MCAD). The plaintiff's lawyer forwarded a copy of
the charge to Mendell. His transmittal letter indicated that the
plaintiff remained "amenable" to working out a solution with HEI.
Mendell received the letter (including the copy of the MCAD charge)
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on January 2. Three hours after he received these materials,
Mendell fired the plaintiff via e-mail. The e-mail explained that
the offer of the Cambridge position expired on January 2 and his
current position no longer existed. Mendell concedes that he did
not even read the details of the age discrimination charge before
cashiering the plaintiff.
The plaintiff, after exhausting administrative remedies,
filed suit in federal district court alleging that HEI had both
discriminated and retaliated against him in violation of applicable
federal and state law. Specifically, the plaintiff invoked the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 623, and
Mass. Gen. Laws ch. 151B, § 4.
After extensive pretrial discovery, an eight-day trial
ensued. The jury returned a special verdict in which it found HEI
liable for retaliation (but not for age discrimination) and awarded
the plaintiff $500,000 in back pay, $750,000 in front pay, and
$1,000,000 for emotional distress. Since the jury determined that
HEI had knowingly violated state law, the court entered an order
doubling the plaintiff's damages. See Trainor v. HEI Hosp'y, LLC
(Trainor I), No. 09-10349, 2011 WL 1670234 (D. Mass. Apr. 14, 2011)
(citing Mass. Gen. Laws ch. 151B, § 9).
HEI responded to the verdict and the multiplication order
with a flood of motions. These included motions seeking
alternative relief: judgment as a matter of law, a series of
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remittiturs, an unconditional new trial, and vacation of the order
for double damages. For his part, the plaintiff moved for an award
of attorneys' fees and renewed an earlier request for an injunction
allowing his continued participation and vesting in certain HEI-
sponsored investment funds. The district court denied HEI's
motions for judgment as a matter of law and a new trial, refused to
remit the awards of either front or back pay, cut the award of
emotional distress damages in half, adhered to its earlier ruling
that double damages were appropriate, and allowed the motion for
attorneys' fees. See Trainor v. HEI Hosp'y, LLC (Trainor II), No.
09-10349, 2012 WL 119597 (D. Mass. Jan. 13, 2012). In a separate
order, the court granted the request for equitable relief. See
Trainor v. HEI Hosp'y, LLC (Trainor III), No. 09-10349, 2012 WL
113384 (D. Mass. Jan. 13, 2012). This timely appeal followed.
II. ANALYSIS
We subdivide our analysis into seven segments, which in
the aggregate address all of HEI's myriad claims of error.
A. Liability.
We start with the district court's denial of HEI's motion
for judgment as a matter of law. See Fed. R. Civ. P. 50(b). This
inquiry engenders de novo review. See Casillas-Díaz, 463 F.3d at
80. When conducting such an inquiry, we must take the evidence and
all reasonable inferences therefrom in the light most flattering to
the nonmovant. Id. at 80-81. In performing this tamisage "we may
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not consider the credibility of witnesses, resolve conflicts in
testimony, or evaluate the weight of the evidence." Wagenmann v.
Adams, 829 F.2d 196, 200 (1st Cir. 1987). A motion for judgment as
a matter of law should be granted "only when the evidence, viewed
from this perspective, is such that reasonable persons . . . could
not have reached the conclusion that the jury embraced." Casillas-
Díaz, 463 F.3d at 81.
In this instance, there is no smoking gun; that is, there
is no direct evidence of retaliation. In such a situation,
succeeding on a claim of retaliation under either federal or
Massachusetts law entails proof that "(1) [the plaintiff] engaged
in protected conduct under federal or [state] law; (2) [he]
suffered an adverse employment action; and (3) a causal connection
existed between the protected conduct and the adverse action."
McMillan v. Mass. SPCA, 140 F.3d 288, 309 (1st Cir. 1998). In
order to make a prima facie showing of these elements, it is not
necessary that the plaintiff succeed on the underlying claim of
discrimination; "[i]t is enough that the plaintiff had a
reasonable, good-faith belief that a violation occurred; that he
acted on it; that the employer knew of the plaintiff's conduct; and
that the employer lashed out in consequence of it." Mesnick v.
Gen. Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991).
Once the plaintiff makes his prima facie showing, the
burden shifts to the defendant to produce evidence of a
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"legitimate, non-retaliatory reason" for the adverse employment
action. McMillan, 140 F.3d at 309. If the defendant produces such
evidence, the burden reverts to the plaintiff to prove that "the
real reason for the decision" was retaliatory. Id.
In the case at hand, the record contains ample evidence
that the plaintiff engaged in protected conduct, namely, his voiced
suspicions about the allegedly discriminatory nature of HEI's
proposed restructuring and his filing of a formal charge of
discrimination with the MCAD. By the same token, it is
transparently clear that adverse employment actions occurred. Not
surprisingly, then, HEI's challenge to the sufficiency of the
plaintiff's proof of retaliation focuses with laser-like intensity
on the causation element.
There is a common-sense aspect to causation: to establish
that an adverse employment action was caused by an employee's
protected activity, the employer's decision to act adversely to the
employee must postdate the protected activity. Muñoz v. Sociedad
Española de Auxilio Mutuo y Beneficiencia, 671 F.3d 49, 56 (1st
Cir. 2012); Sabinson v. Trs. of Dartmouth Coll., 542 F.3d 1, 5 (1st
Cir. 2008). It follows that an employer "need not suspend
previously planned [decisions] upon discovering that a
[discrimination] suit has been filed." Clark Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268, 272 (2001) (per curiam). In an attempt to
bring itself within this safe harbor, HEI asseverates that no
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cause-and-effect relationship can exist here because the adverse
employment actions were a foregone conclusion prior to the
plaintiff's protected conduct. See id.
The weakness in HEI's asseveration is that the record
admits of conflicting interpretations about the events that
transpired from November 2008 through January 2009. Although HEI
suggests that a jury could not supportably find retaliation because
the elimination of the plaintiff's position and his eventual
termination were part of a larger plan set in motion long before
the plaintiff engaged in any protected activity, the plaintiff
counters that matters were in flux until after he engaged in the
protected activities.
It is not our province to choose between the competing
scenarios sketched by the parties. Instead, our task is simply to
determine whether the jury acted reasonably in placing its
imprimatur on the plaintiff's version of events. See Casillas-
Díaz, 463 F.3d at 80-81. Unless the evidence compels the
conclusion that HEI's adverse employment actions were preplanned,
our hands are tied. See id. We examine the record from this
standpoint.
The plaintiff contends that two instances of retaliation
occurred: the abolition of the SVP position (which followed on the
heels of his attorney's December 4 letter alleging age
discrimination) and his discharge (which followed HEI's receipt of
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a copy of the MCAD charge by a matter of hours). On the record
before us, we think that the jury reasonably could have found that
either or both of these acts were retaliatory. We discuss them
sequentially.
To begin, the jury reasonably could have found that HEI
never considered the outright elimination of the plaintiff's
position until after it received the December 4 letter. In this
regard, we find significant the plaintiff's testimony that the
abolition of his position was not mentioned either in his November
conversation with Darnall or in any other discussions or
correspondence preceding HEI's action. Similarly, the elimination
of the SVP position was not mentioned in any internal memorandum or
e-mail written in the mid-November to early December time frame.
To cinch the matter, Darnall's November adjuration that the
plaintiff relocate to Norwalk logically contemplated the continued
existence of the SVP position (or so the jury could have found).
In the same vein, the December 4 letter itself made requests that
would necessitate the continued existence of the SVP post.
To be sure, HEI claims that the elimination of the SVP
position was a necessary corollary of its November relocation
request because it intended to offer the plaintiff a different
position as a regional senior vice-president once he moved. But
the jury reasonably could have found that no such intention ever
existed. After all, Mendell never mentioned the regional position
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during the December meeting (when he told the plaintiff that HEI
was eliminating the SVP position) and, similarly, the jury could
reasonably have found that neither Darnall nor any other HEI
hierarch ever offered the plaintiff that position.2
What internal communications there were among HEI's
executives also conduce to the conclusion that no firm plan had
been crafted before December 4 with respect to the fate of the
plaintiff's position. Indeed, some of those communications clearly
envision the plaintiff as continuing to perform his SVP duties.
There is more. The jury received evidence suggesting
that, in the relevant time frame, HEI's executive leadership was
contemplating future acquisition and transition work that would
logically have fueled an ongoing need for the SVP position. For
example, Mendell established a new investment vehicle for the
stated purpose of funding acquisitions in 2009 and 2010, and
Darnall predicted that there might be as many as twelve
acquisitions in 2009. This is especially noteworthy because, as an
HEI executive affirmed: "if HEI were to acquire any new hotels in
2009 or 2010, they would need someone to work on the acquisition
and transition process." The short of it is that the jury
2
In a very real sense, this claim cuts against HEI's
argument; if HEI had intended to offer the plaintiff the regional
position (as it contends), its failure to follow through on this
intention after it received the December 4 letter is an additional
datum supporting the jury's finding that HEI retaliated against the
plaintiff.
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reasonably could have inferred that HEI's ambitious plans for the
near-term acquisition of new hotel properties logically required
continuation of the SVP position.
Taken in the ensemble, the evidence discussed above
undercuts HEI's claim that the position-elimination decision was
set in cement long before December 4.
We reach the same conclusion with respect to the
plaintiff's firing on January 2, 2009. As we explain below, we
believe that the jury could reasonably have concluded that this
event was in retaliation for the filing of the MCAD charge.
To begin, the close temporal proximity between Mendell's
receipt of the MCAD charge and his dismissal of the plaintiff — a
matter of a few hours — itself supports an inference of
retaliation. See Harrington v. Aggregate Indus.-Ne. Region, Inc.,
668 F.3d 25, 32 (1st Cir. 2012). Here, moreover, such an inference
is reinforced by other evidence in the record suggesting that
negotiations were still ongoing between the parties when the axe
fell. While HEI argues that everyone knew that January 2 was a
"drop dead" date and that the plaintiff was aware that his
employment with the company would come to a screeching halt if he
did not sign the outstanding offer by then, the record is much less
conclusive. A number of HEI executives indicated in e-mails sent
during the critical period and in trial testimony that they thought
negotiations were velivolant and would extend beyond January 2.
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The plaintiff certainly labored under this impression; the January
2 transmittal letter stated unambiguously that he remained
"amenable to working with HEI to arrive at a resolution." In
addition, both the plaintiff's January 2 vacation alert and
Darnall's tacit approval of that leave would have been superfluous
had either party believed that January 2 was a "drop dead" date.
This expectation of negotiations yet to come was validated by
evidence of HEI's past practice of giving leeway with respect to
offer letter deadlines. Finally, HEI was unable to produce any
memorandum, e-mail, or other internal writing substantiating its
claim that it planned all along to cashier the plaintiff if he did
not sign the offer by January 2. The absence of such evidence is
a factor that the jury reasonably could consider in deciding this
issue. See Benders v. Bellows & Bellows, 515 F.3d 757, 763-64 (7th
Cir. 2008).
HEI's principal repost is that the elimination of the SVP
position and the plaintiff's subsequent discharge were the natural
consequence of a path staked out well before December 4. In
support, it characterizes Darnall's November conversation with the
plaintiff as one in which an ultimatum was delivered. While the
conversation may be susceptible to that characterization, the
record contains sufficient evidence to permit a finding that it was
not an ultimatum but, rather, the beginning of a dialogue about
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HEI's proposed executive restructuring and the plaintiff's place in
it.
So, too, the evidence permits the conclusion that HEI
never intended to create any path that would lead ineluctably to
the termination of the plaintiff's employment. After all, HEI had
an ongoing need for an executive with the plaintiff's expertise (or
so the jury could have found); it consistently gave him sterling
performance reviews; and a host of HEI executives testified that
they were eager to retain his services, notwithstanding any
restructuring that might take place. It was not until the
plaintiff engaged in protected activities that negotiations began
to unravel. And it was not until the filing of the MCAD charge
infuriated Mendell that the plaintiff found himself out in the
cold.
Let us be perfectly clear. Although the record is
susceptible to a conclusion that HEI, before any protected activity
occurred, had staked out a path that committed it to the
elimination of the SVP position and the plaintiff's ouster if he
would not accept a demotion to the Cambridge job, the record is
equally susceptible to the opposite conclusion. Because the record
supports conflicting versions of the truth, it became the jury's
function — not the court's — to choose between these versions. See
Noonan v. Staples, Inc., 556 F.3d 20, 30 (1st Cir. 2009).
Accordingly, HEI is not entitled to judgment as a matter of law.
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B. Mitigation of Damages.
HEI asserts broadly that the plaintiff failed to satisfy
his obligation to mitigate damages and that, therefore, the
district court erred in refusing to remit all of the damage awards
on this ground. We begin our appraisal of this assertion by
remarking on the obvious: a district court has discretion to order
a remittitur if such an action is warranted in light of the
evidence adduced at trial. See Kelley v. Airborne Freight Corp.,
140 F.3d 335, 355 (1st Cir. 1998). In exercising this discretion,
the court is obliged to impose a remittitur "only when the award
exceeds any rational appraisal or estimate of the damages that
could be based upon the evidence before it." Wortley v. Camplin,
333 F.3d 284, 297 (1st Cir. 2003) (internal quotation marks
omitted). We review the grant or denial of a remittitur for abuse
of discretion. Reyes-Garcia v. Rodriguez & Del Valle, Inc., 82
F.3d 11, 14-15 (1st Cir. 1996).
A failure to mitigate damages is in the nature of an
affirmative defense and the defendant, therefore, must carry the
devoir of persuasion on this issue. See Quint v. A.E. Staley Mfg.
Co., 172 F.3d 1, 15-16 (1st Cir. 1999). This requires a showing
that "(i) though substantially equivalent jobs were available in
the relevant geographic area, (ii) the claimant failed to use
reasonable diligence to secure suitable employment." Id. at 16;
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see Black v. Sch. Comm. of Malden, 341 N.E.2d 896, 900-01 (Mass.
1976).
We agree with the district court, see Trainor II, 2012 WL
119597, at *3, that there was sufficient evidence to support a jury
determination that HEI failed to carry this burden. The plaintiff
testified that, in an effort to find work after the sudden
termination of his employment, he networked with former employers
and colleagues, canvassed the industry, and tried to exploit other
contacts. He also interfaced with executive search firms, utilized
available internet resources, and perused trade journals. How much
is enough is generally a question of fact, and we think that a jury
could reasonably have concluded — as this jury did — that no more
was exigible to defeat a claim of failure to mitigate. See, e.g.,
Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 557 (6th Cir.
2006); Achilli v. John J. Nissen Baking Co., 989 F.2d 561, 565 (1st
Cir. 1993).
HEI tries to parry this thrust by positing that the
plaintiff's refusal to accept the Cambridge position necessarily
betokened a failure to mitigate. But the jury could reasonably
have concluded that the negotiations concerning this position were
cut short by Mendell's abrupt termination of the plaintiff's
employment and that, therefore, the option no longer remained open.
At any rate, a plaintiff is not required to mitigate damages by
accepting a position that is substantially below his wonted pay
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grade and skill set. See, e.g., Ford Motor Co. v. E.E.O.C., 458
U.S. 219, 231-32 (1982) (holding that a claimant need not "accept
a demotion" in order to mitigate damages).
To sum up, we conclude that the record contains
sufficient evidence of the plaintiff's due diligence in attempting
to find alternative employment to defeat HEI's claim of failure to
mitigate. Given this conclusion, we discern nothing remotely
resembling an abuse of discretion in the district court's refusal
to trim any of the damage awards on mitigation grounds.
C. Front Pay.
HEI makes two other arguments directed at the district
court's failure to remit the jury's front pay award. We consider
these arguments separately.
1. Availability. In what is logically a threshold
argument, HEI challenges the availability of front pay as a matter
of law. Because this challenge raises a purely legal question, it
engenders de novo review. See Perry v. Blum, 629 F.3d 1, 8 (1st
Cir. 2010).
The centerpiece of HEI's argument is the proposition
that, as a matter of law, front pay is not available when a
plaintiff has received the benefit of an award of double or treble
damages. This proposition is all bleat and no wool.
HEI claims that this proposition is venerated in First
Circuit precedent. This claim is specious. The seminal case on
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which HEI relies is Wildman v. Lerner Stores Corp., 771 F.2d 605(1st Cir. 1985). There, the plaintiff had received an award of
double damages and the district court had denied front pay. Id. at
616. While we affirmed the denial of front pay, our decision in no
way hinted, let alone held, that multiplied damages and front pay
are mutually exclusive. Rather, we based our ruling on the wide
discretion vested in the district court with respect to awards of
front pay — a discretion that could be exercised to take account of
the inherently speculative nature of front pay. See id.; see also
Lussier v. Runyon, 50 F.3d 1103, 1109 (1st Cir. 1995) (discussing
Wildman); Powers v. Grinnell Corp., 915 F.2d 34, 42-43 (1st Cir.
1990) (same). This same principle animated our decisions in the
other cases highlighted by HEI. See, e.g., Rodriguez-Torres v.
Caribbean Forms Mfr., Inc., 399 F.3d 52, 67 (1st Cir. 2005); Carey
v. Mt. Desert Island Hosp., 156 F.3d 31, 40-41 (1st Cir. 1998).
In any event, the cases upon which HEI relies strike a
common chord. In each of them, the district court denied front
pay,3 and we upheld that denial. See, e.g., Rodriguez-Torres, 399
F.3d at 67; Carey, 156 F.3d at 40-41. By their own terms, those
3
In many situations, front pay is an equitable remedy rather
than an element of damages. See Johnson v. Spencer Press of Me.,
Inc., 364 F.3d 368, 380 (1st Cir. 2004). Here, however, the
parties and the district court treated front pay as an element of
damages to be submitted to the jury. Neither party has suggested
that the court, rather than the jury, should have been the arbiter
of front pay in the first instance. Thus, we do not pursue the
point further.
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decisions are inapposite to the case at hand, in which we are asked
to set aside a ruling upholding an award of front pay.
If more were needed — and we doubt that it is — the
purposes of front pay and multiplied damages are so disparate that
a per se rule of mutual exclusivity makes no sense. The purpose of
a front pay award is to help to make a plaintiff whole. Lussier,
50 F.3d at 1112 n.10. Conversely, multiplication of damages, at
least under Mass. Gen. Laws ch. 151B, § 9, is "essentially punitive
in nature." Fontaine v. Ebtec Corp., 613 N.E.2d 881, 889 (Mass.
1993) (internal quotation marks omitted). In other words, the
multiplication factor is meant to punish the wrongdoer for
egregious conduct. It follows that there is no principled basis to
bar front pay simply because multiplied damages are in prospect.
Since HEI's argument for precluding front pay as a matter
of law is premised on an incorrect reading of the cases and is
jurisprudentially unsound, we reject it.
2. Evidentiary Sufficiency. In declining to remit the
front pay award, the district court concluded that the plaintiff
would have worked at HEI until the end of 2013 (or so the jury
could have found). See Trainor II, 2012 WL 119597, at *4. HEI
insists that there was insufficient evidence to support a rational
conclusion that, absent the plaintiff's unlawful termination, he
would have worked at HEI through 2013. Addressing this challenge
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requires us to take the evidence bearing on front pay in the light
most favorable to the plaintiff. See Kelley, 140 F.3d at 355.
In the last analysis, a front pay calculation is a
prediction of a series of future events. To that extent, crafting
a front pay award necessarily entails some degree of speculation.
See Lussier, 50 F.3d at 1109. Here, however, the task of
vaticination is made simpler by the plaintiff's age: at the time of
trial (March of 2011), the plaintiff was 63 years old. This means
that his normal retirement year (age 65) was only two years away.
Moreover, there was no evidence of any corporate policy mandating
early retirement.
The plaintiff testified flatly that he intended to work
at HEI until the end of 2013. This statement of intent was
supported by circumstantial evidence; his professed work expectancy
was coterminous with both the year of his eligibility for full
Social Security benefits and the year in which he would vest at the
80% level in the last of HEI's investment funds. Based on this
testimony, the jury's forecast of the emoluments that this three-
year period would yield was reasonable.
In an effort to undermine the plaintiff's testimony on
this point, HEI proffered evidence suggesting that the pace of its
acquisitions had slowed beginning in 2009. Thus, the company might
not have been able to justify the SVP position on a going-forward
basis. But this evidence was not compelling; the jury also heard
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evidence that HEI not only had plans for growth but also had the
capital needed to implement those plans. What is more, the SVP
position included responsibilities beyond those arising out of
acquisitions and transitions. There is no reason to believe that
those responsibilities were made irrelevant by the passage of time.
Choosing between competing inferences that plausibly can
be drawn from a body of evidence is principally a task for the
factfinder. See Noonan, 556 F.3d at 30. Drawing all reasonable
inferences in favor of the verdict, see Casillas-Díaz, 463 F.3d at
79, we conclude, without serious question, that the evidence was
sufficient to support the jury's award of front pay through 2013.
D. Emotional Distress.
Despite the fact that the district court cut the award of
emotional distress damages in half (from $1,000,000 to $500,000),
HEI maintains that even the reduced amount is grossly excessive.
We approach this inquiry mindful that "translating legal damage
into money damages — especially in cases which involve few
significant items of measurable economic loss — is a matter
peculiarly within a jury's ken." Sanchez v. P.R. Oil Co., 37 F.3d
712, 723 (1st Cir. 1994) (alteration and internal quotation marks
omitted). This is not to say, however, that emotional distress
damages are immune from judicial review. They are not. See, e.g.,
Koster v. Trans World Airlines, Inc., 181 F.3d 24, 34 (1st Cir.
1999). But judicial review of such awards is circumspect — and
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that review is even more constrained where, as here, the trial
court has already pared the original jury award. See Sanchez, 37
F.3d at 723-24. Further relief is not warranted unless the award,
as remitted, remains "so extravagant as to shock the appellate
conscience." Id. at 724; see Conde v. Starlight I, Inc., 103 F.3d
210, 214-16 (1st Cir. 1997) (remitting a previously remitted award
of damages for future lost income); Gumbs v. Pueblo Int'l, Inc.,
823 F.2d 768, 773-75 (3d Cir. 1987) (remitting a previously
remitted award of emotional distress damages).
In this case, it cannot be gainsaid that the plaintiff
suffered emotionally by reason of his firing. Both he and his wife
vouchsafed that the abrupt termination of his relationship with HEI
changed him as a person; he became withdrawn and lost interest in
activities that formerly gave him pleasure. His wife added that,
up until his firing, he had always enjoyed his work in the hotel
industry and found his job rewarding. Moreover, the damming of his
income stream forced him to deplete his retirement savings, and he
became greatly concerned about his family's financial security.
These vicissitudes, in turn, put a strain on his marriage.
Even so, the plaintiff did not introduce any evidence
that he received medical treatment, counseling, or other similar
attention for his despondency. While evidence from a physician or
other mental health professional is not a sine qua non to an award
of damages for emotional distress, the absence of such evidence is
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relevant in assessing the amount of such an award. See Koster, 181
F.3d at 35. Here, moreover, the plaintiff proffered no evidence
that he suffered any physical infirmity as a result of his ouster.
The only relevant evidence is anecdotal and, to some extent, self-
serving.
We do not mean to minimize the toll that the loss of a
job can take, even apart from serious health concerns. Here,
however, the evidence of emotional distress is so thin that the
remitted award of $500,000 seems vastly out of proportion. We
hold, therefore, that a further remittitur is required.
As a part of our decisional calculus, we have looked to
awards in comparable cases. Although our central focus in
reviewing an award of damages must be the evidence in the case
subjudice, see Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 579
(1st Cir. 1989), "[a]wards in comparable cases are instructive,"
Aponte-Rivera v. DHL Solutions (USA), Inc., 650 F.3d 803, 811 (1st
Cir. 2011). A review of cases with comparable facts corroborates
our conclusion that $500,000 is grossly excessive here. See, e.g.,
Aponte-Rivera, 650 F.3d at 811-12 (upholding a district court's
remittitur of emotional distress damages to $200,000 where
employee, although experiencing some distress due to
discrimination, did not introduce testimony by medical experts,
experienced no "outward manifestations of emotional distress," and
did not undergo long-term depression or medical treatment (internal
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quotation marks omitted)); Rodriguez-Torres, 399 F.3d at 63-64
(upholding a $250,000 award of damages for emotional distress where
plaintiff experienced a drastic life change, financial
difficulties, marital problems, and depression).
This brings us to the question of what the award should
be. This court adheres to the "maximum recovery rule," which
permits us to direct a remittitur geared to the maximum recovery
for which there is evidentiary support (subject, of course, to the
plaintiff's right to reject the remittitur and instead elect a new
trial on the disputed damages claim). See Koster, 181 F.3d at 36.
After a careful review of the record and a compendium of analogous
cases, we conclude that the upper limit of the universe of
reasonable outcomes — the plaintiff's maximum recovery — is
$200,000. Consequently, we remand to the district court with
directions to vacate the award of $500,000 for emotional distress
and order a new trial on that issue unless the plaintiff agrees to
accept a further remittitur of $300,000. Once the plaintiff takes
a position as to remittitur, the district court should revise its
previous doubling of damages accordingly.
E. The Multiplication Order.
The district court submitted the case to the jury by
means of a special verdict form, see Fed. R. Civ. P. 49(a), and the
jury accompanied its finding of retaliation with a special finding
that HEI knew or had reason to know that its retaliatory actions
-26-
violated state law. Based on this special finding, the court
doubled the damages award. See Trainor I, 2011 WL 1670234. HEI
assigns error to this ruling.
Massachusetts law provides for double damages in an age
discrimination case (including a retaliation case) if "the act or
practice complained of was committed with knowledge, or [the
defendant had] reason to know, that such act or practice violated
[Mass. Gen. Laws ch. 151B, § 4]." See Mass. Gen. Laws ch. 151B,
§ 9. The special finding upon which the district court relied was
tailored to this standard.
The primary thrust of HEI's assignment of error is that
this special finding is inconsistent with another special finding
memorializing the jury's conclusion that HEI had not willfully
violated federal law. HEI contends that the standards underlying
the two questions — knowingly violating Massachusetts law and
willfully violating federal law — are effectively the same and
that, therefore, the special findings are inconsistent. HEI first
raised this contention in a post-trial motion, and the district
court rebuffed it on the ground that no inconsistency existed.
Trainor II, 2012 WL 119597, at *7.
We need not linger long over HEI's ipse dixit. HEI
waived its right to challenge the alleged inconsistency because it
failed to mount a timely objection. When the jury returned with an
affirmative answer to the question about knowing violation of state
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law and a negative answer to the question about willful violation
of federal law, HEI had both an opportunity and an obligation to
point out any inconsistency. Yet, HEI did nothing; its counsel sat
silent and did not call the district court's attention to the
matter. The first time that HEI saw fit to mention any alleged
inconsistency was when it filed its post-trial motions (well after
the court had awarded double damages and dismissed the jury).
Courts, like the Deity, tend to help those who take steps
to help themselves. So it is here: with respect to special
verdicts, "[t]he law is perfectly clear that [parties]
. . . waive[] any claim of internal inconsistency by failing to
object after the verdict [is] read and before the jury [is]
discharged." Peckham v. Cont'l Cas. Ins. Co., 895 F.2d 830, 836
(1st Cir. 1990) (internal quotation marks omitted). We have
described this rule as "iron-clad." Wennik v. Polygram Grp.
Distrib., Inc., 304 F.3d 123, 130 (1st Cir. 2002). The resultant
waiver forecloses HEI from challenging the court's multiplication
of damages based on any purported inconsistency between the two
special findings.
In an effort to escape from the consequences of its
waiver, HEI suggests that because the verdict in this case was
returned pursuant to Federal Rule of Civil Procedure 49(a), it had
no duty to call the inconsistency to the district court's attention
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prior to the jury's discharge.4 This suggestion flies in the teeth
of settled precedent in this circuit. See, e.g., Andrade v.
Jamestown Hous. Auth., 82 F.3d 1179, 1189 (1st Cir. 1996); Peckham,
895 F.2d at 836 (holding that party waived its right to object to
inconsistency in context of Rule 49(a) special verdict).5
4
Rule 49(a)(1) provides that:
The court may require a jury to return only a special
verdict in the form of a special written finding on each
issue of fact. The court may do so by:
(A) submitting written questions susceptible of a
categorical or other brief answer;
(B) submitting written forms of the special findings
that might properly be made under the pleadings and
evidence; or
(C) using any other method that the court considers
appropriate.
Fed. R. Civ. P. 49(a).
5
We recognize that this Rule 49(a) waiver issue has split the
circuits. See 9 James Wm. Moore, Moore's Federal Practice
§ 49.11[6] (2012) (collecting cases). In creating this split, some
courts have held that no waiver arises despite the failure to
object to a putative inconsistency before the jury leaves the box.
See, e.g., Pierce v. S. Pac. Transp. Co., 823 F.2d 1366, 1370 (9th
Cir. 1987); Ladnier v. Murray, 769 F.2d 195, 198 & n.3 (4th Cir.
1985). But we are "firmly bound" by past panel holdings in this
circuit, United States v. Clark, 685 F.3d 72, 79 (1st Cir. 2012),
and therefore must adhere to our own precedent. This body of
precedent inarguably requires that parties object to verdict
inconsistencies prior to the jury's discharge on penalty of waiver.
See, e.g., Jamestown Hous. Auth., 82 F.3d at 1189; Coastal Fuels of
P.R. v. Caribbean Petroleum Corp., 79 F.3d 182, 201-02 (1st Cir.
1996); Peckham, 895 F.2d at 836.
-29-
HEI also argues that it cannot be charged with a waiver
because, when the jury returned its verdict, the district court
never inquired as to whether any party wished to comment. This
argument is untenable. It is the obligation of a litigant to bring
a question of verdict inconsistency to the court's attention, not
the other way around. See, e.g., Austin v. Lincoln Equip. Assocs.,
Inc., 888 F.2d 934, 939 (1st Cir. 1989). As we have said in a
different context, "[t]he law ministers to the vigilant not to
those who sleep upon perceptible rights." Puleio v. Vose, 830 F.2d
1197, 1203 (1st Cir. 1987).
That ends this aspect of the matter. Given HEI's waiver,
it is not necessary for us to pursue the merits of HEI's
inconsistency argument.6
F. Attorneys' Fees.
After the jury verdict, the lower court determined that
the plaintiff, as a prevailing party, was entitled to attorneys'
fees under both federal and state law. See 29 U.S.C. §§ 216(b),
626(b); Mass. Gen. Laws ch. 151B, § 9. The court proceeded to
6
We note in passing that HEI's claim that the answers are
inconsistent is in the nature of a deathbed conversion. In both
its proposed jury instructions and its proposed special verdict
form, HEI asked the district court to treat separately the issues
of knowing violation of state law and willful violation of federal
law. Moreover, HEI lodged no objection to the court's submission
of the two questions to the jury as separate and distinct matters.
Setting aside the verdict on the basis of a belated claim of
inconsistency would appear to "place a premium on agreeable
acquiescence to perceivable error as a weapon of appellate
advocacy." Merchant v. Ruhle, 740 F.2d 86, 92 (1st Cir. 1984).
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compute the time productively spent by the plaintiff's lawyers,
applied reasonable hourly rates, performed a lodestar calculation,
and awarded the plaintiff $533,553.15 in fees.7 Trainor II, 2012
WL 119597, at *8-14. HEI challenges the fee award on only a single
ground: the inclusion of hours spent with respect to the
unsuccessful age discrimination claim.
We limit our discussion to cases — like this one — to
which fee-shifting statutes pertain. Even then, however,
plaintiffs generally may not recover attorneys' fees on
unsuccessful claims. See Hensley v. Eckerhart, 461 U.S. 424, 440
(1983); Lipsett v. Blanco, 975 F.2d 934, 940 (1st Cir. 1992). But
this generalization — like virtually every generalization — admits
of exceptions. One such exception holds that attorneys' fees may
be awarded with respect to work performed on unsuccessful claims if
those claims are interrelated with successful claims. Lipsett, 975
F.2d at 940; Aubin v. Fudala, 782 F.2d 287, 291 (1st Cir. 1986)
(Breyer, J.). Thus, if an unsuccessful claim includes "a common
core of facts" or is premised on a "related legal theor[y] linking
[it] to the successful claim," the award "may include compensation
for legal work performed on the unsuccessful claim[]." Garrity v.
Sununu, 752 F.2d 727, 734 (1st Cir. 1984) (internal quotation marks
omitted).
7
This award included expenses. For ease in exposition, we
refer only to attorneys' fees, subsuming expenses within this
rubric.
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We review a district court's award of attorneys' fees for
abuse of discretion. See Spooner v. EEN, Inc., 644 F.3d 62, 66
(1st Cir. 2011). A material error of law is, of course, an abuse
of discretion. See id. When passing upon the interrelatedness of
claims, we have ceded particularly great respect to the trial
court's views. "This deference is motivated by our conviction that
the decision as to how to separate the wheat from the chaff in a
fees contest, within broad limits, is a matter for the district
court's discretion." Lipsett, 975 F.2d at 941 (internal quotation
marks omitted).
Applying this deferential standard of review, we discern
no misuse of discretion in the district court's refusal to exclude
the time committed to the age discrimination claim. The court
plausibly reasoned that the successful retaliation claim and the
unsuccessful age discrimination claim shared a common legal theory.
Trainor II, 2012 WL 119597, at *9. In order to succeed on the
retaliation claim, the plaintiff had to prove, in the parlance of
the jury instructions, that he "reasonably and in good faith
believed that HEI was engaged in discrimination [based on age]."
Seen in this light, work performed on the age discrimination claim
was intertwined with, and contributed materially to, the eventual
success of the retaliation claim. Mindful of this
interconnectedness, it would be "difficult to divide the hours
expended on a claim-by-claim basis." Hensley, 461 U.S. at 435.
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HEI resists this conclusion, expostulating that the
retaliation claim relied only on the testimony of a few individuals
and, thus, made the work performed on the two claims susceptible to
easy separation. This expostulation glosses over the district
court's finding of interrelatedness predicated on the need to make
a good faith showing of likely age discrimination in order to
prevail on the retaliation claim. While it might be possible to
parse the record in the way that HEI suggests, this possibility is
of no consequence due to the district court's supportable finding
that a sufficient nexus existed between the successful retaliation
claim and the unsuccessful age discrimination claim.
We add that "[w]hen interrelatedness is in question, the
overall degree of the prevailing party's success is an important
datum." Lipsett, 975 F.2d at 941. In this litigation, the
plaintiff achieved what only can be described as a smashing success
and, therefore, he should "recover a fully compensatory fee."
Hensley, 461 U.S. at 435.
For these reasons, the district court did not abuse its
discretion when it refused to exclude from the fee award time
related to the prosecution of the unsuccessful age discrimination
claim. See Passantino v. Johnson & Johnson Consumer Prods., Inc.,
212 F.3d 493, 517-18 (9th Cir. 2000) (finding retaliation claims
"inextricably intertwined" with discrimination claims for purposes
of an interconnectedness analysis).
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G. Equitable Relief.
HEI's final plaint concerns the district court's post-
trial order, which allows the plaintiff a right to participate and
vest in the three company-sponsored investment funds. To place
this peevish plaint into proper perspective, we limn the
background.
When HEI initially recruited the plaintiff, it offered
him the opportunity — consistent with its praxis vis-à-vis selected
senior executives — to participate in certain company-sponsored
investment funds. Two such funds existed at the time (Funds I and
II), and HEI developed a third in 2008 (Fund III). These private
equity funds serve a dual purpose. First, they are designed to
furnish a source of fresh capital for HEI's continued growth.
Second, they provide both an investment opportunity and a profit-
sharing vehicle for investor-employees.
The trial record does not contain the actual
documentation for Funds I, II, or III. The parties, however, have
offered summary descriptions of how the funds operate. It appears
that, once an investor-employee receives a return of his equity
plus a cumulative six percent return, he has a right to share in
excess returns generated by the fund as a whole (called "promote
funds"). An employee's right to receive promote funds vests
according to a set schedule. To the extent that an investor-
employee leaves HEI before fully vesting in a particular fund, his
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unvested share of promote funds is forfeited and redistributed
within the fund.
At the time of his dismissal, the plaintiff had invested
$50,000 in Fund I and $50,000 in Fund II. He also had subscribed
a like amount for Fund III, but had not paid the entire
subscription price because an outstanding balance had not been
called.
The opportunity to participate in these investment
vehicles was much coveted and viewed as a fringe benefit (and,
thus, as part of an executive's compensation package). HEI made
the opportunity available only to selected employees — a grouping
that included the plaintiff. The promise that he could participate
in the funds was a critical factor in the plaintiff's decision to
join HEI.
When HEI showed him the door, the plaintiff stood to lose
his right to participate fully in Fund III and to earn the full
extent of the promote funds. Consequently, he sought an injunction
to allow him to fulfill his subscription to Fund III and to
continue vesting in all the promote funds. As both sides in this
litigation agree, equitable relief of this sort is reserved for the
court. See Sharkey v. Lasmo (AUL Ltd.), 214 F.3d 371, 373-75 (2d
Cir. 2000). The district court granted equitable relief: it
allowed the plaintiff to continue vesting in all three funds as
though he were employed by HEI through January of 2014, and ordered
-35-
HEI to treat the plaintiff during that interval as any other
executive still participating in the funds. Trainor III, 2012 WL
113384. With respect to Fund III, the court conditioned the relief
granted on the plaintiff's timely completion of his subscription
when and as future capital calls were made. Id.
In appealing this order, HEI asserts that the order
contravenes the contractual provision that halts vesting and
disallows further participation in the funds upon termination of
employment. Notwithstanding this contractual term, we conclude
that the challenged order is within the scope of the district
court's broad power to make a prevailing plaintiff whole.
"[W]e review a district court's choice of equitable
remedies for abuse of discretion . . . ." Rosario-Torres v.
Hernandez-Colon, 889 F.2d 314, 323 (1st Cir. 1989) (en banc). We
will not set such an order aside unless "we are left with a firm
conviction that [the court] has committed a meaningful error in
judgment." Id. (internal quotation marks omitted).
Under both the federal and state laws governing age
discrimination cases (including retaliation cases), prevailing
plaintiffs are entitled not only to money damages but also to
injunctive relief where appropriate. See 29 U.S.C. § 626(b) ("In
any action brought to enforce this chapter the court shall have
jurisdiction to grant such legal or equitable relief as may be
appropriate . . . ."); Mass. Gen. Laws ch. 151B, § 9 (stating that,
-36-
in employment discrimination cases, a plaintiff may sue for
"damages or injunctive relief or both"). Under both regimes, the
trial court is ceded wide discretion to make a prevailing plaintiff
whole. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19
(1975); Bournewood Hosp., Inc. v. MCAD, 358 N.E.2d 235, 242 (Mass.
1976).
We decry no abuse of discretion here. The plaintiff
considered his right to participate fully in the company-sponsored
investment funds as part of his compensation package and, at least
in part, he planned his retirement around his vesting schedule.
The plaintiff's expectations were reasonable under the
circumstances. The district court saw the funds for what they were
and, in order to make the plaintiff whole, it appropriately ordered
HEI to continue to treat him, for a finite period, as if he had not
been wrongfully discharged.
The relief that the district court granted is not
unorthodox. Both parties agree that HEI's investment funds are
analogous to pension plans. Equitable relief to maintain pension
plan benefits is within the universe of options available to a
district court in its effort to ensure that a plaintiff is made
whole. See, e.g., Banks v. Travelers Cos., 180 F.3d 358, 365 (2d
Cir. 1999) (explaining that reinstating pension rights falls within
the panoply of available equitable remedies); Geller v. Markham,
635 F.2d 1027, 1036 (2d Cir. 1980) (similar).
-37-
Employees who — like the plaintiff — are near the
endpoint of their normal work expectancy are especially vulnerable
to the loss of retirement benefits. Where, as here, such an
employee is unlawfully discharged, the district court has both the
authority and the discretion to grant equitable relief to make him
whole. The lower court's exercise of this authority in the case at
hand is well within the bounds of that discretion.8
III. CONCLUSION
This case was tried cleverly, by skilled counsel on both
sides, before an able judge and an impartial jury. The briefs on
appeal are stellar. When all is said and done, however, the record
is freighted with ambiguities. The jury resolved those ambiguities
in favor of the plaintiff. Doing so was the jury's prerogative —
indeed, its duty — and we cannot disturb the jury's resolution
unless the record compels a contrary conclusion. With the lone
exception that we have noted, it does not.
We need go no further. For the reasons elucidated in the
foregoing pages, we affirm the judgment below, with only a single
exception: we vacate the previously remitted award of emotional
distress damages and direct the district court to order the
plaintiff either to remit all of that award in excess of $200,000
8
In resisting the order for equitable relief, HEI repeats its
argument that the December 31, 2013 retirement date is based on
speculation. We already have examined this argument and found it
wanting, see supra Part II(C)(2), and it would serve no useful
purpose to repastinate this well-plowed soil.
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or else undergo a new trial on that issue. The district court also
must adjust its award of multiplied damages to reflect the
plaintiff's response to this remittitur.
Affirmed in part, vacated in part, and remanded. Two-thirds costs
shall be taxed in favor of the plaintiff.
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