Travers v. Flight Services & Systems, Inc. , 808 F.3d 525 ( 2015 )

United States Court of Appeals
For the First Circuit
Nos. 14-1745
14-1756
JOSEPH TRAVERS,
Plaintiff, Appellee, Cross-Appellant,
v.
FLIGHT SERVICES & SYSTEMS, INC.,
Defendant, Appellant, Cross-Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella, Lynch, and Barron,
Circuit Judges.
Jeffrey M. Rosin, with whom Christopher M. Pardo and
Constangy, Brooks & Smith LLP were on brief, for appellant, cross-
appellee.
Shannon Liss-Riordan, with whom Lichten & Liss-Riordan, P.C.,
was on brief, for appellee, cross-appellant.
December 15, 2015
BARRON, Circuit Judge. A company that provides skycap
services to airlines was defending against a class action lawsuit
when one of the skycaps that the company had employed brought his
own individual suit against the company. The skycap alleged in
his suit that the company had fired him for his role in helping to
organize the class action. A jury eventually found for the skycap
in that unlawful-termination suit. And the company now appeals
both from that verdict and from the District Court's award of
damages and attorney's fees and costs. Because we find no error
in any of the District Court rulings that the company challenges,
we affirm them.
At the same time, the skycap who won the retaliatory-
termination suit cross-appeals. He contends that the District
Court erred by eliminating and not trebling the jury's award of
front-pay damages, failing to grant his request to treble the
emotional-distress damages award that the District Court had
ordered on remittitur, and denying his request for prejudgment
interest. We affirm the District Court's decisions not to treble
and not to grant prejudgment interest on the emotional-distress
damages, but we vacate the District Court's elimination of any
front-pay award and remand for further proceedings. In addition,
we certify a question to the Massachusetts Supreme Judicial Court
regarding the award of prejudgment interest on Travers's back-pay
damages.
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I.
The defendant in both the class action and the unlawful-
termination suit is Flight Services and Systems, Inc. (FSS). This
company provides skycap services for JetBlue at Boston's Logan
International Airport. The skycaps work on the curb just outside
the airport, where they issue boarding passes and check luggage.
The skycaps receive low wages and so, like most waiters and
waitresses, rely on tips for the bulk of their pay.
The named plaintiff in the class action against FSS is
the same plaintiff who brings the retaliatory-termination suit.
He is Joseph Travers, a skycap FSS employed to service JetBlue
customers at Logan.
The class action -- which Travers helped to
organize -- concerns JetBlue's 2008 decision to charge $2 per bag
for luggage checked in via skycap and then to have JetBlue, and
not the skycaps, keep that $2 fee. The complaint -- captioned
"Travers v. JetBlue and FSS" -- contends that the new fee
diminished the tip income skycaps received from customers and
violated both the Massachusetts wage and tips law and the federal
Fair Labor Standards Act (FLSA).
The source of the present dispute is FSS's decision,
while that class action was pending, to fire Travers. Travers
alleges that FSS did not fire him because -- as FSS contends is
the case -- a customer had complained that Travers had solicited
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a tip from her. Travers's suit alleges, instead, that FSS fired
him in retaliation for his role in organizing the skycaps' class
action against JetBlue and FSS and that FSS relied on the tip-
solicitation complaint as a pretext for that retaliatory firing.
Travers's suit further contends that, in consequence, FSS violated
both the FLSA and the Massachusetts wage and tips law, as each of
those laws prohibits a company from taking adverse action against
an employee who seeks to obtain the protection that those laws
provide. See 29 U.S.C. § 215(a)(3); Mass. Gen. Laws ch. 149,
§ 148A.
Before Travers's retaliation suit went to the jury, the
District Court granted summary judgment to FSS. But we then
reversed. Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144,
145 (1st Cir. 2013). We held that, on the summary judgment record,
"a reasonable jury could return a verdict for Travers without
relying on improbable inferences or unsupported speculation." Id.
On remand, the case went to trial, and a jury found FSS
liable for retaliatory termination in violation of both the federal
and state statutes. The jury rendered its verdict in a single
verdict form that did not differentiate between the state and
federal claims or apportion the award between them. The jury
awarded Travers $90,000 in back pay, $450,000 in front pay, and
$400,000 for emotional distress.
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Following the verdict, FSS renewed its previous motion
for judgment as a matter of law, see Fed. R. Civ. P. 50(b), and
also moved in the alternative for a new trial or to amend the
judgment. See Fed. R. Civ. P. 59. The District Court ordered
Travers to remit all but $50,000 of the emotional-distress damages
or face a new trial. And the District Court also eliminated the
entire front-pay award as unsupported by the evidence.
Travers then sought, under separate state statutes, to
have the damages award trebled, to receive attorney's fees and
costs, and to receive prejudgment interest. See Mass. Gen. Laws
ch. 149, § 150; id. ch. 231, § 6B. With respect to trebling, the
District Court agreed to treble the back-pay award to $270,000,
but declined to treble the award for emotional distress. The
District Court also did not order the prejudgment interest that
Travers had requested, though the District Court did grant Travers
attorney's fees in the amount of $176,185 and costs of $7,398.45.
FSS and Travers timely filed these appeals.1
1 We discuss the federal and state claims separately only
insofar as doing so is relevant to our analysis.
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II.
FSS raises five distinct arguments in its appeal, and we
consider each one before turning to Travers's cross-appeal.
A.
FSS's primary argument on appeal is that the District
Court erred in denying FSS's motions for judgment as a matter of
law because "a reasonable jury would not have a legally sufficient
evidentiary basis to find for [Travers]." Fed. R. Civ. P. 50(a)(1).
To win on his retaliation claims at trial, Travers had to show (1)
that he engaged in conduct that the FLSA and Massachusetts wage
and tips law protect when he participated in the class action
against FSS, (2) that FSS subjected Travers to an adverse
employment action when the company fired him, and (3) that FSS
fired him because of his protected conduct. See Claudio-Gotay v.
Becton Dickinson Caribe, Ltd., 375 F.3d 99, 102 (1st Cir. 2004)
(describing elements of a claim under 29 U.S.C. § 215(a)(3)); Smith
v. Winter Place LLC, 851 N.E.2d 417, 421 (Mass. 2006) (interpreting
Mass. Gen. Laws ch. 149, § 148A).
FSS does not dispute that, under both the federal and
the state statutes on which Travers's individual suit rests,
Travers engaged in protected conduct or that FSS subjected him to
an adverse employment action. The dispute concerns only what
caused FSS to fire Travers -- his help in organizing the class
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action or, as the company contends, his solicitation of a tip in
violation of company policy.
To resolve this dispute, we need not decide the precise
standard of causation that a plaintiff must meet to prove unlawful
retaliation under either the state or federal statutes on which
Travers's suit rests. The parties appear to agree, as they did
when this case came before us on summary judgment, that each
statute requires the plaintiff to show "but-for" causation to prove
retaliation. See Travers, 737 F.3d at 147 & n.1.
Thus, our task is straightforward. Because we are
reviewing a renewed motion for judgment as a matter of law
following a jury verdict, we must view the evidence of causation
"in the light most favorable to the verdict" and "affirm unless
the evidence, together with all reasonable inferences in favor of
the verdict, could lead a reasonable person to only one conclusion,
namely, that the moving party was entitled to judgment." Astro-
Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 13 (1st Cir. 2009)
(quotation marks and citations omitted).
FSS argues that it is entitled to judgment as a matter
of law because the trial record provides too little evidence to
support a finding of but-for causation if we exclude -- as FSS
says we must -- one particular piece of testimony that the jury
heard. This testimony came from Travers, and it concerned what
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Travers contends Rob Nichols, a mid-level manager in charge of FSS
operations at Logan, told him.
Travers testified that Nichols told him that FSS's
owners and senior managers told Nichols that the lawsuit "was
costing [the company] a lot of money, and that [Nichols] should
get rid of Travers." Travers went on to testify that Nichols also
advised Travers to drop the lawsuit because, otherwise, Travers
would "probably lose [his] job."
At trial, the District Court rejected FSS's contention
that Travers's testimony concerning Nichols should be excluded as
hearsay. After the jury returned a verdict for Travers, however,
the District Court revisited this ruling in connection with FSS's
motion for judgment as a matter of law. In doing so, the District
Court changed its mind and concluded that Travers's testimony
concerning Nichols should have been struck. But the District Court
still denied FSS's motion for judgment as a matter of law.2
2 Under Federal Rule of Evidence 801(d)(2)(D), testimony about
an out-of-court statement by a non-testifying person is not hearsay
if "[t]he statement is offered against an opposing party" and "was
made by the party's agent or employee on a matter within the scope
of that relationship and while it existed." Travers testified on
direct examination that his conversation with Nichols occurred in
early summer of 2010. But on cross-examination, when FSS's counsel
noted that Nichols had been fired by FSS in the spring of 2010
(and so would not have been employed by FSS in the early summer of
2010), Travers apologized for mixing up the dates. Travers
clarified that the conversation occurred in the spring of 2010
"right before [Nichols] was terminated." Although Travers's
testimony about Nichols was before the jury when it returned its
verdict, the District Court later concluded that Nichols's
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FSS now argues that the District Court was right the
second time that it ruled on whether Travers's testimony concerning
Nichols should have been struck as hearsay. And FSS goes on to
argue that, without that testimony, the record does not permit a
reasonable jury to conclude that FSS fired Travers because of his
role in organizing the class action. See Weisgram v. Marley Co.,
528 U.S. 440, 453-54 (2000) (discussing excising certain
inadmissible evidence from the record for purposes of reviewing a
renewed motion for judgment as a matter of law). Instead, FSS
argues, the evidence that remains shows only that FSS fired Travers
because the company believed Travers had solicited a tip from a
customer.3
In support of that contention, FSS notes that Susan
Collier -- the manager who actually fired Travers -- testified
statement to Travers "was made post-employment" and thus Nichols
had not been an agent of a party-opponent at the time he made these
statements. For that reason, the District Court concluded that
the statements should have been excluded as hearsay.
3 FSS notes that, in reversing the District Court's earlier
grant of summary judgment in this case, we relied on the Nichols
evidence. There, we explained that a reasonable jury might rely
on the Nichols evidence to conclude that "retaliatory animus
resided at the apex of the organizational hierarchy" and "spread
to other managers," including the manager that decided to fire
Travers. Travers, 737 F.3d at 147. But our opinion, even on the
summary judgment record, did not contend that the Nichols evidence
was necessary, only that it was sufficient. And, of course we are
now assessing the denial of the motion for a judgment as a matter
of law. Thus, the record before us is different from the one
presented on summary judgment. Nothing in our decision here,
therefore, is at odds with our prior ruling in this litigation.
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that the company fires a skycap every time a passenger complains
in writing that, in the passenger's opinion, the skycap tried to
solicit a tip. And Collier did also state that "if the passenger
takes the time to stop and make a written complaint, it happened,"
and thus that the written complaint the customer filed against
Travers here -- though the customer never testified at
trial -- supplied a foundation for the company's conclusion that
Travers made the solicitation.
But although a jury could have believed the reason that
FSS gave for firing Travers, a jury was not compelled to do so on
this record. For while the remaining evidence does not reveal a
smoking gun proving retaliation -- or even include direct evidence
of a command from on high to fire Travers to disrupt the class
action suit -- the remaining evidence is sufficient to support an
inference of retaliation. See Speen v. Crown Clothing Corp., 102
F.3d 625, 635 (1st Cir. 1996) ("[A] plaintiff need not . . .
produce 'smoking-gun' evidence . . . . There are many veins of
circumstantial evidence that may be mined . . . ."); Wooster v.
Abdow Corp., 709 N.E.2d 71, 76 (Mass. App. Ct. 1999) (stating that
"smoking gun evidence . . . is not required" and that the
"plaintiff's ultimate burden of persuasion may be
satisfied . . . [by] circumstantial evidence" (quotation marks and
citation omitted)).
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To begin with, a jury could disbelieve Collier's
testimony about the necessary consequences that follow -- as a
matter of FSS policy -- from a customer's submission of a written
complaint about an employee's solicitation of a tip. Collier
herself testified that the determination of whether an employee
did solicit a tip requires the exercise of judgment. As Collier
put it, you have to look at the "facts and circumstances of every
case." And the evidence also indicated that FSS undertakes an
investigation following a customer complaint before determining
whether or not tip solicitation actually occurred.
In addition, testimony from Nabil Agba, a former FSS
skycap supervisor in Boston, indicated that termination was not
automatic upon receipt of a complaint and, indeed, could depend on
factors unrelated to whether tip solicitation had, in fact,
occurred. Agba testified that "there was not a standard process"
for who would get fired and who would not following accusations of
tip solicitation. Instead, Agba testified that the general manager
in Boston would base his recommendation to Collier on "the employee
records and the job performance" of the employee and sometimes
would "just chalk-up the accusation to some type of
miscommunication with the passenger" and not fire the skycap.
Notably, Agba clarified that managers' attitudes toward employees
colored the ultimate decision: "From my experience, if they like
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the person, they try to help them and protect them as much as they
can."
Thus, a jury could have reasonably concluded that a
customer complaint about tip solicitation would not automatically
lead to the dismissal of the employee who allegedly made the
solicitation. Instead, a jury could reasonably have found that
factors unrelated to whether the solicitation occurred could bear
on the disciplinary consequences that would follow. And so long
as the jury was free to conclude that FSS had the discretion to
make a judgment whether to fire despite a complaint -- and to make
that judgment for reasons unrelated to whether the solicitation in
fact occurred -- the jury was also free to consider whether some
reason other than the customer complaint tipped the balance, so to
speak, with regard to the decision to fire Travers.
Of course, the record must still contain enough evidence
to support a jury's conclusion that this other reason was the
company's desire to retaliate for Travers's protected conduct.
But we conclude that the jury did have before it enough evidence
to support a reasonable inference in that regard -- even if we
strike from consideration Travers's testimony that Nichols had
told him about the instruction from higher officials to fire
Travers due to his involvement in the class action. For while the
remaining testimony was not as directly probative on that point as
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was the testimony from Travers about what Nichols had supposedly
said to him, the rest of the evidence was still strong enough.
In particular, the jury heard testimony from other FSS
employees -- in management positions -- that indicated that FSS's
owners and senior managers were very concerned about the skycap
class action. Nabil Agba, the former FSS skycap supervisor,
testified that there was "a lot of talk among FSS managers about
[the underlying] lawsuit" and that he "always heard [from the FSS
Boston general manager that] the corporate [leadership] is not
happy about [the skycaps' class action]." And Agba further
testified that FSS's chief executive officer told the local FSS
Boston manager (who then told Agba) that "we can't afford to lose
cases because [the CEO] doesn't like it."
The jury also heard evidence that reasonably linked
those general concerns within management about the class action to
concerns about Travers's involvement in the class action in
particular. For example, the jury had before it evidence that
Susan Collier, the FSS manager who actually fired Travers, was
aware of senior management's concerns about the skycaps' lawsuit
and that she was responsible for addressing those concerns. Her
own testimony showed that she was the point person on FSS's defense
against the lawsuit and that she spoke with FSS's president about
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the case frequently.4 And Collier agreed that the president was
increasingly frustrated with the expense of litigation -- expenses
that she was responsible for minimizing and justifying.
Moreover, Collier's testimony provided support for
concluding that she knew about Travers's leading role in the
skycaps' class action at the time she made the decision to fire
him. Collier herself testified that she knew when she fired
Travers that Travers was a plaintiff. And while she denied knowing
he was the lead plaintiff, the caption for the case for which she
was the point person was "Travers v. JetBlue and FSS."
Against this background, Travers's testimony about a
conversation that he had with an FSS duty manager at Boston Logan
helps to support a reasonable inference of retaliation. According
to Travers, the duty manager, Eqerem Mero, expressly warned Travers
that his job was in jeopardy because of FSS management's dislike
of Travers's role in the skycaps' class action by saying: "These
guys, they're rich. They're powerful. They're dangerous.
They -- you know, you're going to lose your job over this. You
should get out of the lawsuit." And Travers also testified that
Arbin Cote, an FSS assistant manager at Boston Logan, told him
that he "should stop and get out of the lawsuit."
4
Collier even stated in her deposition that she "always"
spoke with the company president about the case, though she
quibbled with "always" in her live testimony.
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This testimony from supervisors and managers about how
Travers's role in the class action placed his job in jeopardy is
especially significant given Travers's testimony about a curious
exchange that he had with the Boston manager who recommended that
Collier fire Travers after that manager had been assigned to
investigate the complaint that Travers had solicited a tip.
Travers testified that, during the tip-solicitation investigation,
he asked that manager, Lisa Varotsis, when he could get back to
work and that she replied, "You know why this is happening."
Travers further testified that he then asked that manager if the
investigation was happening because of his role in the skycaps'
class action, and Varotsis replied, "I can't talk about it," and
walked away.
Thus, on Travers's account, when he confronted the
person responsible in the first instance for deciding whether he
had solicited the tip, she seemingly declined to confirm in the
straightforward way one might otherwise expect that the
tip-solicitation complaint was the actual reason for the
investigation into that complaint. And, indicating that she was
barred from doing so, she refused to comment on whether the real
reason for the investigation was his role in the class action.
See Gómez-González v. Rural Opportunities, Inc., 626 F.3d 654,
662-63 (1st Cir. 2010) ("Pretext can be shown by such weaknesses,
implausibilities, inconsistencies, incoherencies, or
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contradictions in the employer's proffered legitimate reasons for
its action that a reasonable factfinder could rationally find them
unworthy of credence and hence infer that the employer did not act
for the asserted non-discriminatory reasons." (quoting Morgan v.
Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997))); City of Salem
v. Mass. Comm'n Against Discrimination, 693 N.E.2d 1026, 1038
(Mass. App. Ct. 1998) (same), overruled on other grounds by
Trustees of Health & Hosps. of Boston, Inc. v. Mass. Comm'n Against
Discrimination, 839 N.E.2d 861 (Mass. App. Ct. 2005).
Finally, and also supporting Travers's account, Nabil
Agba testified that he overheard the Boston general manager of FSS
saying -- after Travers had been fired -- that "[t]he plan [to
defend against the class action] was to get more [plaintiffs] to
drop out of the case," and, "after a few months, people started
dropping out." Agba also testified that the general manager spoke
with skycaps one by one about the class action and that skycaps
started dropping out of the case just a few months after Travers
was fired.
There are potentially innocent interpretations of each
of the facts related by these witnesses, even assuming their
testimony should be credited. The lower-level managers' warnings
about what would happen to Travers if he stayed involved in the
class action litigation, for example, could be dismissed as
speculative predictions about what might happen rather than solid
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assessments about management's intentions derived from comments
made by higher-ups within FSS. Similarly, Varotsis's comment that
Travers "kn[e]w why this is happening" could have been a reference
to the customer's accusation of tip solicitation and nothing more,
while her statement that she could not talk about the reason for
the investigation might have been unrelated to a direction from
above and not motivated by a desire to cover up an impermissible
purpose. And Agba's statements about management's plan to get the
class action plaintiffs to drop out -- even if true -- do not
expressly allege that that plan involved an effort to fire
employees on trumped-up grounds.
But while the jury did not have to find for Travers on
the basis of this evidence, the jury did find for him. And for
purposes of this appeal, that is decisive. Whatever holes one
might poke in the evidence that favored Travers's version of
events, that evidence considered as a whole was not so deficient
that no reasonable jury could have relied on it in finding for
Travers. Rather, the jury could reasonably have concluded that
the evident concerns within FSS about the class action suit in
general, and Travers's role in that litigation in particular, made
plausible the direct warnings that Travers says that he received
from supervisors and managers that he would be fired for his
involvement. And Travers's testimony about the company
investigator's seemingly odd reluctance to confirm that the
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tip-solicitation complaint was the reason for the
investigation -- reflected in her comment, "I can't talk about
it" -- lends additional credence to that interpretation of the
evidence. So, too, does the FSS manager's testimony about the
plan to get skycaps to drop out of the class action in the wake of
Travers's firing. See Trainor v. HEI Hospitality, LLC, 699 F.3d
19, 29 (1st Cir. 2012) (affirming denial of motion for judgment as
a matter of law in a retaliatory termination case under the Age
Discrimination in Employment Act "[b]ecause the record supports
conflicting versions of the truth, [so] it became the jury's
function -- not the court's -- to choose between these versions");
cf. Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 171 (1st Cir.
1998) ("Statements by supervisors carrying the inference that the
supervisor harbored animus against protected classes of people or
conduct are clearly probative of pretext" and retaliatory
termination "even if that inference is not the only one that could
be drawn from the comment." (emphasis added) (citations omitted)).
In light of this evidence, we need not decide whether
the tip-solicitation complaint was in fact well founded -- a point
that Travers vigorously contests. It is enough to observe that
the jury could decide for itself, and reasonably so, that FSS had
discretion at the time it chose to fire Travers, notwithstanding
the tip-solicitation complaint, and that FSS chose to exercise
that discretion adversely to Travers because of his role in the
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class action and then relied on the tip-solicitation explanation
as a pretextual cover.5 We thus have no basis on this record to
second-guess the District Court's decision that the jury should
not be second-guessed. Accordingly, we affirm the District Court's
decision to deny the motions for judgment as a matter of law.
B.
Even if the evidence sufficiently supports the verdict
without Travers's testimony concerning Nichols, FSS argues, the
District Court still erred by denying the company's motion for a
new trial under Federal Rule of Civil Procedure 59(a)(1)(A). FSS
identifies the error that requires a new trial as the District
Court's decision to admit Travers's testimony that Nichols had
told him about the retaliatory threat from FSS's chief executive
officer. FSS contends that the verdict must be thrown out because
5 For this reason, we need not dive deeply into what the
evidence shows about how other skycaps who had been accused of tip
solicitation were disciplined by FSS in the past. The parties
sharply dispute whether Travers was treated just like these other
employees. But whatever the record shows about the handful of
cases that are the focus of the parties' dispute on that score,
the record shows that there was conflicting testimony about whether
the company had discretion to fire (or not) an employee who had
solicited a tip. One witness testified that the company had such
discretion and exercised it based on whether the company "like[d]"
the employee. That testimony and the other testimony regarding
FSS's discretion, in our view, provides a basis for a jury to
conclude that FSS had discretion about whether to fire Travers,
even if he had engaged in the same kind of tip solicitation that
resulted in the firing of other employees. For that reason, the
key issue concerns whether the record reasonably supports a finding
that the company exercised this discretion in Travers's case due
to his role in the class action.
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Travers's testimony about Nichols was inadmissible hearsay that
was so highly prejudicial that it irrevocably tainted the jury's
verdict, even if the remaining evidence (standing on its own and
thus untainted by what the jury heard about Nichols's conversation
with Travers) could have been enough to sustain the verdict against
a motion for judgment as a matter of law.
But FSS failed to present this argument about prejudice
in the motion for a new trial that FSS filed in the District Court,
as that motion relied on distinct grounds. See Docket Entry No.
152, at 16-21.6 And even if we were to look past FSS's failure to
raise this argument until now, see Sampson v. Eaton Corp., 809
F.2d 156, 161 (1st Cir. 1987) (concluding that an evidentiary
issue, as a "discretionary matter . . . peculiarly appropriate"
for resolution in the district court, is waived when not raised in
a new-trial motion, and declining to review it further on appeal),
we would review this unpreserved claim only for plain error.
6 FSS did argue below that the Nichols testimony was
improperly admitted into evidence and was prejudicial, but FSS did
so only in connection with its motion for judgment as a matter of
law, in which FSS argued that the absence of Travers's testimony
about Nichols left a fatal hole in Travers's proof of retaliatory
animus. See Docket Entry No. 152, at 12-16. FSS offered no
argument below as to why erroneous admission of the Nichols
testimony tainted the jury such that a new trial was required even
if the evidence remaining was otherwise sufficient to support the
verdict. Instead, FSS's argument for a new trial rested on other
ways in which FSS contends the jury was exposed to material it
should not have been.
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But FSS raised this new-trial argument only by
referencing it in a single sentence in the summary of argument,
and in another lone sentence in the argument section that is
accompanied by a citation to a single case that involved a
preserved evidentiary argument and so did not involve plain-error
review. FSS thus makes no argument on appeal for why we should
conclude the District Court's error here (if indeed there was
error) was clear and obvious, prejudicial, and resulted in a
miscarriage of justice, as we would have to conclude to reverse
under the plain-error standard. See Chestnut v. City of Lowell,
305 F.3d 18, 20 (1st Cir. 2002) (en banc) (per curiam) (applying
plain-error review to unpreserved claim of error in a civil case);
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived.").
True, the District Court did conclude after the trial
that it had erred in allowing the jury to hear the testimony from
Travers about what Nichols told him. But the question on plain-
error review is not whether the District Court was right to find
that its first pass on the hearsay issue was mistaken. The
question is whether the decision to deny the new trial was
obviously wrong -- a standard that would not seem to be met in a
case involving an evidentiary judgment call about the testimony
concerning Nichols that was at least a close one. And even
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assuming the initial evidentiary ruling was plainly wrong, there
still would remain on plain-error review the question whether the
decision to deny a new trial resulted in a miscarriage of justice,
given all of the other testimony that the jury could have relied
on to support Travers's claim of unlawful retaliation.
In the absence of any focused arguments by FSS as to why
the error was obvious or the harm so great as to cause a miscarriage
of justice, we decline to conclude that the company's unpreserved
challenge to the District Court's denial of the motion for a new
trial should succeed. See Wells Real Estate, Inc. v. Greater
Lowell Bd. of Realtors, 850 F.2d 803, 811 (1st Cir. 1988)
("Where . . . the district court's ruling would call into play a
discretionary matter, peculiarly appropriate for that court, it
becomes more important to bring the error first to that court's
attention." (quoting Sampson, 809 F.2d at 161)); see also Zannino,
895 F.2d at 17. We thus affirm the decision to deny the motion
for new trial.
C.
FSS next challenges the jury's award of back pay, which,
after the District Court trebled it, totaled $270,000. See Mass.
Gen. Laws ch. 149, § 150. FSS raises three distinct arguments,
each of which relies on Travers's testimony that he under-reported
his tips to FSS. We reject each argument.
- 22 -
FSS first argues that we must reduce or eliminate the
award because Travers has unclean hands due to his under-reporting
of tip income to FSS. The District Court rejected this argument,
concluding that "it is troubling that there may have been . . . a
whiff of suspected tax fraud . . . but . . . this was not a tax
case and it is not my job to prosecute people for potential tax
violations." We review this decision to withhold an equitable
defense for abuse of discretion, Murphy v. Timberlane Reg'l Sch.
Dist., 22 F.3d 1186, 1189 (1st Cir. 1994), and we find none here.
"The doctrine of unclean hands only applies when the
claimant's misconduct is directly related to the merits of the
controversy between the parties, that is, when the tawdry acts in
some measure affect the equitable relations between the parties in
respect of something brought before the court for adjudication."
Texaco Puerto Rico, Inc. v. Dep't of Consumer Affairs, 60 F.3d
867, 880 (1st Cir. 1995) (quotation marks and citation omitted);
see also N.Y., N.H. & H.R. Co. v. Pierce Coach Lines, 183 N.E.
836, 837 (Mass. 1933) ("[E]quity will not interfere in behalf of
one who is guilty of illegal or inequitable conduct in the matter
with regard to which he seeks its action . . . ."). FSS cites no
evidence, however, indicating that Travers's under-reporting of
tips affected his equitable relationship with FSS in the context
of this retaliation case, and not just his relationship with the
government in the context of a potential tax complication. Cf.
- 23 -
Atl. Limousine, Inc. v. N.L.R.B., 243 F.3d 711, 715-18 (3d Cir.
2001) (rejecting argument that the National Labor Relations Board
must base its back-pay determination on the tips employees reported
on income tax returns and not the higher amount of tips claimed in
testimony because the harm of discrimination and the harm of tax
avoidance are distinct and can each be remedied in separate
procedures).7 And, even assuming Travers did harm FSS by
under-reporting his tips, FSS does not cite evidence indicating
the magnitude or nature of that harm. Accordingly, we decline to
disturb the District Court's weighing of the equities. We thus
conclude the District Court acted well within its discretion in
rejecting the unclean-hands argument.
FSS next argues that the back-pay damages should be
eliminated under the "after-acquired evidence doctrine," which we
have described as cutting off damages "at the time that the
defendant discovers evidence that would have led it to fire the
plaintiff on legitimate grounds." Johnson v. Spencer Press of
7 FSS cites Hubert v. Consolidated Medical Laboratories, 716
N.E.2d 329 (Ill. App. Ct. 1999), for the proposition that the
unclean-hands defense should prevent Travers from recovering back
pay here. But in Hubert, the plaintiff had engaged in wrongdoing
that was the basis for her claim of having engaged in protected
conduct for which, in retaliation, her employer allegedly fired
her. Id. at 335. The court declined to allow the plaintiff to
recover "from the defendants based on circumstances directly
arising from her own misconduct." Id. But Travers's participation
in the class action, and not his under-reporting of tips to FSS,
is the protected conduct for which a jury held FSS retaliated.
Thus, his wrongdoing is not the basis for FSS's liability.
- 24 -
Maine, Inc., 364 F.3d 368, 382 n.14 (1st Cir. 2004) (emphasis
added); see also City of Springfield v. Civil Serv. Comm'n, 14
N.E.3d 241, 249 n.14 (Mass. 2014) (describing the same doctrine in
state law). But FSS's tip-reporting policy stated only that
failure to file a tip-reporting sheet each pay period "may" lead
to termination. There was no evidence in the record that a skycap
had been terminated for failure to report tips, much less any
evidence indicating that Travers's infractions would have led to
termination. We thus conclude that the District Court did not
abuse its discretion in withholding this equitable remedy. See
Murphy, 22 F.3d at 1189 (reviewing withholding of equitable defense
for abuse of discretion); see also McKennon v. Nashville Banner
Pub. Co., 513 U.S. 352, 360 (1995) (after-acquired evidence is an
equitable doctrine).
Finally, FSS argues that the back-pay award of $90,000
is unsupported by the evidence if we credit the amount of tips
Travers reported to FSS -- sometimes just $40 a day -- rather than
the much higher amounts of $200 to $250 a day that he testified to
receiving. But FSS cites no authority for its assertion that a
jury, in making the loss calculation, could not rely on Travers's
testimony about what he had lost and that a jury was required
instead to rely only on what Travers reported in terms of tip
income. Thus, because evidence that the jury was entitled to
credit supported the back-pay award -- as the jury could have found
- 25 -
that Travers did not report the full extent of his tip income -- we
see no basis for reversal. See Dopp v. Pritzker, 38 F.3d 1239,
1249 (1st Cir. 1994) ("[A] reviewing court will not tinker with
the jury's assessment of money damages [even for economic harms]
as long as it does not fall outside the broad universe of
theoretically possible awards that can be said to be supported by
the evidence."); Beaupre v. Cliff Smith & Associates, 738 N.E.2d
753, 768 (Mass. App. Ct. 2000) (upholding back-pay award as
supported by sufficient evidence where the award was supported by
plaintiff testimony about difference in earnings at old job and
new job and time elapsed since termination); cf. Atl. Limousine,
243 F.3d at 715-17 (concluding that the National Labor Relations
Board is not bound by under-reported tip amount in calculating
lost tip income).
D.
FSS contests the amount of damages ordered for emotional
distress as well. The jury awarded $400,000, but the District
Court then ordered remittitur to $50,000 or a new trial, and
Travers accepted the remittitur and thus the $50,000 amount. FSS
argues, however, that we must knock down this award still lower to
$10,000.
Our review of the award that the District Court chose in
ordering remittitur is highly deferential. In reviewing a district
court's denial of a motion to set aside a verdict as excessive, we
- 26 -
reverse only for an abuse of discretion. Gasperini v. Ctr. for
Humanities, Inc., 518 U.S. 415, 435 (1996); Browning-Ferris Indus.
of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 279 (1989).
"Translating legal damage into money damages is a matter
'peculiarly within a jury's ken,' especially in cases involving
intangible, non-economic losses," and "[w]e will find an abuse of
discretion only if the jury's verdict exceeds 'any rational
appraisal or estimate of the damages that could be based on the
evidence before the jury.'" Trull v. Volkswagen of Am., Inc., 320
F.3d 1, 9 (1st Cir. 2002) (quoting Smith v. Kmart Corp., 177 F.3d
19, 29–30 (1st Cir. 1999)).
And where, as here, the defendant seeks to prune the
jury award further after "the trial court already has invoked its
discretion in granting a remittitur, the scope of review is even
narrower than usual." Sanchez v. Puerto Rico Oil Co., 37 F.3d
712, 724 (1st Cir. 1994) (original alterations omitted) (quoting
Ruiz v. Gonzalez Caraballo, 929 F.2d 31, 34 (1st Cir. 1991)).
"Once a verdict has been trimmed and reshaped at the hands of the
trial judge, an assault on the remaining amount calls upon the
court of appeals not merely to grade the essay, but to grade the
teacher's grading of the essay." Id. (original alterations
omitted) (quoting Ruiz, 929 F.2d at 34). With that in mind, when
we review an accepted order of remittitur for excessiveness,
"[f]urther relief is not warranted unless the award, as remitted,
- 27 -
remains 'so extravagant as to shock the appellate conscience.'"
Trainor v. HEI Hospitality, LLC, 699 F.3d 19, 32 (1st Cir. 2012)
(applying this standard of review to both state and federal
claims).
In contending that the evidence did not support even the
reduced emotional-distress damages award, FSS relies on the
Massachusetts standard for emotional-distress awards. See
Stonehill College v. Mass. Comm'n Against Discrimination, 808
N.E.2d 205, 225 (Mass. 2004) (stating that emotional-distress
awards "should be fair and reasonable, and proportionate to the
distress suffered" and identifying relevant factors in fashioning
an award such as "(1) the nature and character of the alleged harm;
(2) the severity of the harm; (3) the length of time the
complainant has suffered and reasonably expects to suffer; and (4)
whether the complainant has attempted to mitigate the harm"). And
in arguing that further remittitur is required under this standard,
FSS relies on Franceschi v. Hospital General San Carlos, Inc., 420
F.3d 1, 5 (1st Cir. 2005).
But Franceschi held only that a district court did not
abuse its discretion when it ordered remittitur of emotional-
distress damages from $200,000 to $10,000 in a garden-variety
commercial dispute. Franceschi says nothing about whether a
district court abuses its discretion in ordering remittitur down
to $50,000, but not less, in a case of this sort.
- 28 -
Here, there was testimony about the emotional impact on
Travers of FSS's firing him for his efforts to recover in court
for other alleged wrongs of FSS. Specifically, Travers testified
that when he was eventually fired "[i]t hurt a lot" because he
"loved that job," and that he "put in a lot of time" and "prided
[him]self in . . . working there, and for so long, too." He
further testified that, despite his lack of education and low-
income upbringing, this job allowed him to "support [his]
kids" -- and that when he lost the job "it was embarrassing" and
"hard to explain" to people, such as his sick mother.8
Thus, Travers testified that, after the firing, he was
"depressed," "didn't want to take [his] son out" or "do any of the
things [he] usually did," and "didn't want to get up in the morning
some days." He also testified that the stress of trying to pick
up more shifts at other jobs "was a little bit hard[] on [his]
family life," and that it especially led to more fights with his
girlfriend. And, according to Travers's girlfriend, this
8 Travers did testify that his mother had Alzheimer's and that
he was taking care of her during this time. FSS argues this shows
Travers's depression was caused by circumstances independent of
his termination. But the testimony does not compel that
conclusion. The testimony would support a reasonable jury's
conclusion that Travers's depression resulted primarily from being
fired. Most of the testimony about the manifestations of his
depression concerned the effect losing his job had on him.
- 29 -
depressed mood persisted for "a couple of months, three, four,
five months."9
As a result of this testimony, Franceschi provides no
basis for finding error in this case. Nor does the other case on
which FSS places great weight, DeRoche v. Massachusetts Commission
Against Discrimination, 848 N.E.2d 1197, 1203 (Mass. 2006). There,
the Supreme Judicial Court found the evidence to be insufficient
to support a $50,000 award for emotional distress. But the Supreme
Judicial Court explained in DeRoche that the plaintiff in that
case had not introduced evidence linking his emotional distress to
the retaliatory act and that "[t]here was no testimony . . . the
plaintiff was compelled to curtail his life activities in any way
due to stress from the . . . retaliatory action." Id. Here, by
contrast, Travers did testify that his emotional distress stemmed
from the retaliatory firing. Travers and his girlfriend also
testified about the impact his emotional distress had on his family
and daily activities, including his relationship with his
girlfriend and his child and his ability to get out of bed.
9 Travers's girlfriend also testified that Travers's
termination "impact[ed] him very dramatically": he used to "like[]
to do things with [his family]," but after his termination
"everything change[d]." He "didn't enjoy nothing with [the family]
anymore" and became "nasty" such that she had to "shut the door
and leave him alone." And, the girlfriend testified, Travers went
from always playing with his son after work to not wanting to even
get out of bed.
- 30 -
In sum, FSS cites no precedent that leads us to conclude
that the District Court abused its discretion by knocking the award
down only as far as it did, and not still further. And while the
evidence of emotional distress was not particularly strong in this
case,10 it was not so lacking that the reduced award of $50,000
shocks the appellate conscience. See Trainor, 699 F.3d at 32.
Accordingly, we affirm the emotional-distress damages award set
forth in the order of remittitur and accepted by Travers.
E.
The last of FSS's challenges concerns the District Court
order that granted Travers $176,185 in attorney's fees and
$7,398.45 in costs. See Mass. Gen. Laws ch. 149, § 150. FSS
argues for a fee reduction because Travers's attorney allegedly
engaged in misconduct during the trial.
FSS rightly observes that "[i]t is well settled in this
circuit that the district court has the duty and responsibility to
supervise the conduct of attorneys who appear before it, and
10
FSS supports its argument for further remittitur by noting
that Travers presented no expert testimony regarding his emotional
distress. But "expert testimony . . . is useful but not essential
to support an award of emotional distress damages." Boston Pub.
Health Comm'n v. Mass. Comm'n Against Discrimination, 854 N.E.2d
111, 117 (Mass. App. Ct. 2006); see also Molloy v. Blanchard, 115
F.3d 86, 93 (1st Cir. 1997) (concluding, for federal claim, that
expert testimony on emotional distress is not required where lay
testimony is "within the common knowledge and experience of the
layperson"). And here the lack of expert testimony does not lead
us to conclude the District Court abused its discretion in
declining to order further remittitur.
- 31 -
that . . . [d]enial of attorneys' fees may be a proper sanction"
for attorney misconduct. Culebras Enters. Corp. v. Rivera-Rios,
846 F.2d 94, 97 (1st Cir. 1988); see also Wong v. Luu, 34 N.E.3d
35, 45 (Mass. 2015) (holding that "[t]he inherent powers necessary
to preserve the court's authority to accomplish justice include
the power to sanction an attorney" for misconduct by assessing
fees). But we review "the district court's [attorney conduct]
supervisory rulings under an 'abuse of discretion' standard" when
determining whether fees should be offset for attorney misconduct,
Culebras Enters. Corp., 846 F.2d at 97; see also Wong, 34 N.E.3d
at 46, and we conclude that, under this deferential standard, the
District Court did not abuse its discretion in concluding that
there was no attorney misconduct that required a reduction of the
attorney's fees award.
The first of the three alleged examples of attorney
misconduct that FSS identifies as a basis for reducing the award
on appeal concerns the closing arguments by Travers's counsel.
FSS contends she inappropriately argued that the jury should draw
a negative inference from FSS's failure to locate or subpoena the
woman who complained that Travers solicited a tip from her. But
the District Court characterized these statements as typical over-
zealousness -- not bad-faith acts. And we can see no reason to
conclude that the District Court abused its discretion in so
finding.
- 32 -
FSS also points to Travers's testimony about Nichols in
seeking to reduce the award. FSS contends that Travers's counsel
knew the testimony was inadmissible but sought to admit it anyway.
But the District Court disagreed, and we do not think the District
Court abused its discretion in so deciding. In fact, the District
Court itself appeared to view the evidentiary issue as close, as
it initially declined to strike the testimony before then reaching
the opposite conclusion after trial.
Finally, FSS points to one aspect of Travers's counsel's
line of questioning of Nabil Agba, the former FSS skycap
supervisor. Travers's counsel asked Agba whether he had ever heard
that Lisa Varotsis, the general manager in Boston, was considering
giving Travers his job back. FSS argues that Travers's counsel
was thus suggesting to the jury that FSS had made a settlement
offer, even though Federal Rule of Evidence 408(a) restricts the
admission of settlement offers. But while the District Court
struck certain parts of the testimony Agba provided in response to
this line of questioning, the District Court also ruled that Rule
408(a) was beside the point. The District Court found that there
was no evidence that Varotsis ever sent or saw a settlement offer,
and thus no ground for concluding that the counsel was seeking to
do an end run around the rule by asking the questions she did.
FSS points to nothing that shows the District Court abused its
- 33 -
discretion in so finding and thus to nothing that shows counsel
did engage in misconduct in seeking to admit the testimony.
For these reasons, we affirm the District Court's
decision not to reduce or eliminate the attorney's fee award for
alleged attorney misconduct.11
III.
We now turn to Travers's cross-appeal. Travers presents
three challenges to the District Court's handling of the case. He
argues that the District Court erred first in entirely eliminating
and not trebling front-pay damages, next in failing to treble the
$50,000 emotional-distress award, and finally in denying
prejudgment interest. But before taking up each contention, we
note that FSS argues that we may not review any of them. And that
is because FSS contends that Travers accepted the District Court's
offer of remittitur in order to avoid a new trial.
In making this threshold argument, FSS points to the
Supreme Court's opinion in Donovan v. Penn Shipping Co., Inc., 429
U.S. 648, 649 (1977), which held that "a plaintiff cannot appeal
the propriety of a remittitur order to which he has agreed." But
11FSS also argues the fees and costs award should be reduced
to zero because Travers under-reported his tips to FSS during his
employment. But we agree with the District Court, which concluded
that "[w]hile Travers may have created future complications for
himself with the Internal Revenue Service . . . , there is no
authority that I am aware of (and none is cited) that would punish
the lawyer for the tax defalcations of her client in a case that
had nothing to do with tax issues . . . ."
- 34 -
as we will explain in the course of addressing Travers's
challenges, each one may be resolved either independently of, or
notwithstanding the application of, the Donovan rule.
A.
Travers argues first that the District Court abused its
discretion when it ruled that the jury's $450,000 front-pay award
was "based wholly on speculation" and thus must be rejected in its
entirety. Before addressing the merits of that contention, though,
we must address FSS's argument that Travers's acceptance of
remittitur stands in the way.
The reason that FSS is wrong on this point is simple.
Remittitur must be accepted in order to be effective. See Mejias-
Quiros v. Maxxam Prop. Corp., 108 F.3d 425, 429 (1st Cir. 1997)
(remanding "for a new trial on medical costs unless Mejías accepts
a remittitur"). But the record reveals that Travers never accepted
the elimination of the front-pay award and that the District Court
then separately rejected the front-pay award as a matter of law
because it was too speculative.
Specifically, in addressing FSS's motion for a new
trial, the District Court did rule that it would grant the motion
if the "plaintiff reject[s] a remittitur of damages." The District
Court then listed, alongside a reduction in emotional-distress
damages, the complete elimination of front-pay damages. Travers
responded by accepting remittitur. But in doing so, Travers
- 35 -
clearly accepted the reduction of the emotional-distress damages
but characterized the elimination of front pay as a partial
judgment as a matter of law that Travers expressly neither accepted
nor rejected. See Docket Entry No. 174. Then, in the course of
denying FSS's motion for reconsideration, the District Court
announced that it stood by "its decision to eliminate the
front[-]pay award of $450,000 altogether and to order a remittitur
of the $400,000 award of emotional-distress damages to $50,000
(which plaintiff has accepted)." Docket Entry No. 184 at n.1.
The District Court thus apparently acknowledged that Travers had
accepted remittitur as to the emotional-distress damages alone and
that the court was entering a separate judgment rejecting the
front-pay award as a matter of law.
Against this background, we construe the District
Court's elimination of front-pay damages as a partial judgment as
a matter of law under Federal Rule of Civil Procedure 50. See de
Jesus v. Banco Popular de Puerto Rico, 918 F.2d 232, 235 (1st Cir.
1990) ("If the court believed that the jury's verdict was
unsupported by the evidence, it could have granted judgment
notwithstanding the verdict to defendant. If it believed that the
verdict was supportable, but that the jury's award of damages was
grossly excessive, it could have fixed a remittitur amount."); see
also Hill v. Marshall, 962 F.2d 1209, 1217 (6th Cir. 1992). And
we review a grant of judgment as a matter of law de novo and affirm
- 36 -
only if, taking the evidence in the light most favorable to the
non-moving party, no reasonable jury would conclude that there
could be a front-pay award in this case. See Irvine v. Murad Skin
Research Labs., Inc., 194 F.3d 313, 316 (1st Cir. 1999) (discussing
the Rule 50 standard).
Under both state and federal law, front-pay awards, like
all damages awards, "may not be determined by speculation or guess,
must be causally related to the defendant's wrongdoing, and . . .
should not . . . ma[k]e [the plaintiff] more than whole." Conway
v. Electro Switch Corp., 523 N.E.2d 255, 257 (Mass. 1988)
(citations omitted); see also Powers v. Grinnell Corp., 915 F.2d
34, 43 (1st Cir. 1990) (front-pay award should not be "too
speculative"). Still, some level of uncertainty regarding the
future is inevitable and so "[m]ere uncertainty" does not bar
front-pay damages. Conway, 523 N.E.2d at 257; see also Trainor v.
HEI Hospitality, LLC, 699 F.3d 19, 31 (1st Cir. 2012) (observing
that "crafting a front pay award necessarily entails some degree
of [permissible] speculation"). Finally, front-pay damages, as an
award for future damages, "must be reduced to present value" to
account for the difference in the value of money in the future and
the value of money today. Conway, 523 N.E.2d at 257 n.3; see also
Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 961 (1st Cir. 1995)
(noting that "in calculating damages for front pay, [an expert]
correctly chose to discount the amounts representing the
- 37 -
plaintiffs' future wages at an appropriate interest rate in order
to determine the present value of the future stream of income to
which each plaintiff would have been entitled").
Travers defends the $450,000 jury award by multiplying
twenty years of future employment12 by $25,000 in lost tips per
year13 and then subtracting $50,000 to discount those lost future
12 Travers arrives at this twenty-year figure apparently on
the basis of his testimony that, if he had not been fired, he
planned on staying "[a]nother 20 years. You know, skycaps work
for 20, 30, 40 years at the curb. I don't see me leaving. It was
a good job," and on the testimony of other skycaps who testified
they had been skycaps for years, including one who testified that
he had been a skycap for twenty-nine years by the time of trial.
13 Travers bases this number on his testimony that he took a
new skycap job, after being fired by FSS. He testified that that
job resulted in about $100 less in tips per shift and two fewer
shifts per week, for a loss of at least $500 per week over a fifty-
week work year. And the District Court accepted that Travers had
estimated in his testimony that he would lose about $25,000 per
year as a result of being fired.
We note that Travers also testified that he was able to
somewhat increase his hours and hourly wage at yet another job
after being fired by FSS. The increase in hours, however, was
only temporary, and at the time of trial Travers testified that he
was working within the same range of hours per week (18 to 20) on
this other job as he was before being fired (15 to 20), with a
modest increase in his hourly rate (from $17 to $20.75). In
defending against Travers's cross-appeal on the front-pay issue,
FSS does not argue that Travers's slightly increased earnings from
this other job undermine the estimation of $25,000 in losses per
year or contribute to the speculative nature of the original front-
pay award. And, in any event, we note that a calculation using
Travers's highest estimation of his hours per week at this job
before being fired (20) and his lowest estimation of his hours per
week at the same job after FSS fired him (18), even after
accounting for the increase in hourly wages, shows only a modest
impact of $1,675 on his yearly earnings, assuming a fifty-week
work year. Given that Travers's loss estimation of $25,000 per
year was based on the lower end of the tips per day that Travers
estimated earning and did not include his $2.63 hourly wage, we
- 38 -
earnings to present value. We agree with the District Court that
awarding the full projected loss for the full twenty-year term
Travers asserted he wanted to work would go beyond acceptable
uncertainty and constitute unsupported speculation.
The Supreme Judicial Court has upheld larger awards of
front pay over similarly long time horizons, but it has done so in
cases involving considerably more detail about the likelihood of
future earnings than was established here. See, e.g., Haddad v.
Wal-Mart Stores, Inc., 914 N.E.2d 59, 69-72 (Mass. 2009) (upholding
$733,307 award for nineteen years of front pay, where expert
testified about wage difference between old and new jobs,
difficulty finding a new job with a similar salary to the old job,
likely tenure at employer based on excellent work reviews,
remaining time until retirement, and present-value discount
calculations); see also Kelley v. Airborne Freight Corp., 140 F.3d
335, 355-56 (1st Cir. 1998) (upholding under Massachusetts law a
$1 million, fourteen-year front-pay award, a "hotly contested
issue at trial," based on plaintiff's assertion he would work until
sixty-five, the six-year proximity to his being fully vested in
pension plan, and expert evidence from both sides regarding
difficulty finding a better job). In fact, Travers does not
conclude that (at least absent any argument to the contrary)
whatever impact Travers's increased earnings at his second job had
does not affect our analysis here.
- 39 -
identify a single Massachusetts case that supports upholding a
$450,000 award over a twenty-year time horizon based only on the
plaintiff's testimony that he desired to work another twenty years,
that others in that position at the company had similarly long
tenures, and his testimony about current lost income. Travers
cites Weber v. Community Teamwork, Inc., 752 N.E.2d 700 (Mass.
2001), as an example of the Supreme Judicial Court upholding a
large front-pay award based on a fifteen-year period of assumed
continued employment. But there, the court expressly reserved
judgment on the sufficiency of the evidence underlying that award.
Id. at 718. Accordingly, we agree with the District Court that
the $450,000 front-pay award was too speculative to stand.14
But the District Court did not merely reject a $450,000
front-pay award. The District Court ordered the complete
elimination of front-pay damages, notwithstanding the evidence of
the losses Travers testified that he would sustain going forward
and notwithstanding his testimony that he had intended to stay in
14 Travers cites both federal and state cases for the general
standard of how speculative a jury award may be before being struck
as a matter of law under both federal and state law. But he relies
primarily on Massachusetts cases -- while citing some non-
Massachusetts state cases as persuasive authority -- in arguing
that the application of that standard in this case should have
resulted in leaving the jury's front-pay award unchanged.
Accordingly, we have considered only Massachusetts law in
concluding that the District Court was warranted in rejecting as
a matter of law the full amount of the front-pay award in this
case.
- 40 -
his job at FSS had he not been fired. That evidence, however, was
sufficient to permit a reasonable jury to award some front-pay
damages greater than zero. See Handrahan v. Red Roof Inns, Inc.,
680 N.E.2d 568, 577 (Mass. App. Ct. 1997) (finding excessive a
$487,800 front-pay award over thirty years based on self-reported
intention of employee but remanding for recomputation, not
elimination, of front pay); see also Trainor, 699 F.3d at 31
(affirming front-pay award, at least partially under federal law,
based on estimation of loss and plaintiff's testimony that he would
continue to work for three years). Accordingly, we vacate the
District Court's order eliminating the jury's front-pay award and
remand for the District Court to consider the issue anew.
B.
Travers next contends that the District Court erred in
not trebling the remitted emotional-distress damages award of
$50,000 on the basis of a Massachusetts statute.15 See Mass. Gen.
Laws ch. 149, § 150. That statute provides that an employee, like
Travers, may bring a suit "for any damages incurred, and for any
15 The damages Travers seeks to treble under state law are
based on both federal and state claims and the damages were not
apportioned between them. But "[w]hen federal and state claims
overlap, the plaintiff may choose to be awarded damages based on
state law if that law offers a more generous outcome than federal
law," Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 146 (1st Cir.
2009). FSS makes no argument challenging Travers's right to seek
trebling under state law notwithstanding that the damages rely
partially on a federal claim.
- 41 -
lost wages and other benefits" and that, if the plaintiff prevails,
the plaintiff "shall be awarded treble damages, as liquidated
damages, for any lost wages and other benefits." Id. Travers
contends that this statute applies to the emotional-distress
damages because, although he acknowledges that they are not "lost
wages," damages compensating for emotional distress are an "other
benefit[]" of employment.
We need not decide whether, as FSS contends, that -- in
consequence of Donovan -- Travers's acceptance of remittitur
precludes him from seeking the trebling of these damages. And
that is because we find no basis for concluding that, under
Massachusetts General Laws ch. 149, § 150, payment of damages for
emotional distress is a "benefit[]" of employment.
Travers cites no case law or legislative history
indicating that the Massachusetts legislature had in mind the
counterintuitive meaning that he assigns on appeal to the word
"benefit[]," and we have found none. Travers cites cases that
interpret other Massachusetts statutes that make emotional-
distress damages subject to trebling. But those statutes all
permit trebling for "damages" -- a broadly encompassing term that
rather clearly includes emotional-distress damages -- rather than
limited categories of damages that do not generally include
emotional-distress damages plus "other benefits." See, e.g.,
Mass. Gen. Laws ch. 93A, § 9(3A). In fact, the contrast between
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the use of the word "damages" in those statutes and "benefit[]" in
this one highlights the problem with Travers's proposed reading of
this statute.
Thus we, like the District Court, do not believe the
Massachusetts state courts would conclude that emotional-distress
damages are subject to trebling under ch. 149, § 150.16
C.
Finally, relying on a Massachusetts statute, Travers
seeks prejudgment interest on the $90,000, pre-trebling portion of
the back-pay award and on the award of emotional-distress damages.
That law provides: "In any action in which a verdict is
rendered . . . for pecuniary damages for personal injuries to the
plaintiff or for consequential damages . . . there shall be added
by the clerk of court to the amount of damages interest thereon at
the rate of twelve per cent per annum from the date of commencement
of the action even though such interest brings the amount of the
16
Travers also argues that the District Court erred by
refusing to treble the front-pay award. But we decline to reach
this question of state law. The District Court eliminated the
front-pay award entirely and has not yet had an opportunity to
grant or reject on the merits a motion to treble front pay. Should
a remitted front-pay award result on remand, we leave it to the
parties to address and the District Court to decide whether front
pay qualifies for trebling under the Massachusetts statute as "any
lost wages and other benefits." See Mass. Gen. Laws ch. 149, §
150.
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verdict or finding beyond the maximum liability imposed by law."
Mass. Gen. Laws ch. 231, § 6B (emphasis added).17
As a threshold matter, FSS argues, in perfunctory
fashion, that Travers may not raise this issue to us because he
accepted remittitur. But we conclude that Donovan is no obstacle
to our review of Travers's claim for prejudgment interest on the
back-pay award and we also conclude that Travers's claim for
prejudgment interest on the emotional-distress damages award fails
for reasons independent of the Donovan bar. For reasons we will
give below, the disposition of Travers's claim for prejudgment
interest on the back-pay award depends on the resolution of a close
question of Massachusetts law, and so we certify that question to
the Massachusetts Supreme Judicial Court. Finally, we conclude
that the claim for prejudgment interest on the emotional-distress
17 FSS does not argue that this statute has no application to
the Massachusetts wage and tips law by virtue of that law being an
employment law. And we note that, in any event, the Massachusetts
Court of Appeals has applied this statute to claims of unlawful
employment retaliation under Massachusetts' statutory employment
law. See Salvi v. Suffolk Cty. Sheriff's Dep't, 855 N.E.2d 777,
788 (Mass. App. Ct. 2006); see also Blockel v. J.C. Penney Co.,
337 F.3d 17, 29 & n.4 (1st Cir. 2003) (same). Finally, "[s]tate
law customarily governs prejudgment interest determinations on
state law claims." Blockel, 337 F.3d at 29. Although Travers
seeks prejudgment interest here under state law on an unapportioned
award made under both a federal and state claim, we have explained
before that "[w]hen federal and state claims overlap, the plaintiff
may choose to be awarded damages based on state law if that law
offers a more generous outcome than federal law." Tobin, 553 F.3d
at 146. FSS makes no argument that Travers may not seek
prejudgment interest under state law due to the underlying federal
claim.
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damages was not properly presented in Travers's motion for
prejudgment interest below.
The record reveals that Travers, in accepting
remittitur, did not waive his claim for prejudgment interest on
the back-pay award.18 When Travers asked the District Court below
to award prejudgment interest, Mass. Gen. Laws ch. 231, § 6B, the
District Court concluded that it "d[id] not need to decide" that
issue because it did not yet know whether Travers would accept
remittitur or instead opt for a new trial. Travers then accepted
remittitur, but he did not expressly waive his claim for
prejudgment interest in so accepting. Indeed, the category of
damages for which Travers seeks prejudgment interest -- back
pay -- was not even reduced in the order of remittitur or a new
trial.
Moreover, after Travers accepted remittitur and the
question of prejudgment interest on the new award became relevant,
Travers renewed his request for prejudgment interest. The District
Court then denied the request on the merits and with no mention of
18 Travers waived any claim to prejudgment interest on front
pay. In his first motion for prejudgment interest, he expressly
stated that he "does not seek prejudgment interest on his award of
front pay," and, perhaps to explain his decision, he cited Salvi
v. Suffolk County Sheriff's Department, 855 N.E.2d 777, 788 (Mass.
App. Ct. 2006) ("We conclude that prejudgment interest may not be
added to an award of damages for lost future earnings and
benefits." (original alterations omitted) (quoting Conway, 523
N.E.2d at 390-91)).
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the claim to prejudgment interest having been waived by Travers's
earlier acceptance of remittitur as to a different category of
damages. Given this record, we decline to conclude that FSS's
bare invocation of Donovan suffices to provide a ground for
preventing Travers from seeking prejudgment interest on the back-
pay award. See Zannino, 895 F.2d at 17 ("[I]ssues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").
Turning to the prejudgment-interest statute itself,
Travers argues that its plain text makes prejudgment interest
mandatory because of the word "shall" and that the District Court
therefore had to award prejudgment interest on the back-pay award.
FSS, in reply, notes that Massachusetts revised the trebling
provision applicable to the back-pay award, Mass. Gen. Laws ch.
149, § 150 (§ 150), in 2008 to make trebling mandatory rather than
discretionary and to characterize treble damages under § 150 as
"liquidated damages." FSS argues that, through this revision, the
Massachusetts legislature necessarily expressed its intent that
these treble damages compensate for the loss due to delay that
prejudgment interest otherwise would provide for and thus
(presumably) that the Massachusetts mandatory treble-damages
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statute displace the Massachusetts mandatory prejudgment-interest
statute in cases like this one.19
Thus, we must decide whether the present treble-damages
statute partially repealed the prejudgment-interest statute as to
cases in which a party has been awarded treble damages under the
former and is eligible for prejudgment interest under the latter.
Rather than resolve this question ourselves, however, we certify
the question to the Massachusetts Supreme Judicial Court (SJC)
pursuant to Mass. S.J.C. Rule 1:03, as the question is
determinative of Travers's demand for prejudgment interest on his
back-pay award, and, for the reasons that follow, the "course [the]
state court[] would take is [not] reasonably clear" here, given
the absence of controlling precedent and the "close and difficult
legal issues" involved. Easthampton Sav. Bank v. City of
Springfield, 736 F.3d 46, 51 (1st Cir. 2013).
The key issue is whether the 2008 amendment was intended
to signal, through the transformation of § 150 from a discretionary
19
FSS contends that prejudgment interest under Mass. Gen.
Laws ch. 231, § 6B may not be awarded on a base amount whenever
treble damages under § 150 are awarded on that amount. FSS thus
makes no argument that, to the extent back-pay damages were awarded
pursuant to the federal claim, our decision in Linn v. Andover
Newton Theological School, 874 F.2d 1 (1st Cir. 1989), bars the
recovery of prejudgment interest on the back-pay award. See id.
at 7-8 (barring prejudgment interest where liquidated damages on
back-pay award arose from federal claim and prejudgment interest
on back-pay award arose from state claim). We consequently treat
any argument based on Linn as waived. See Zannino, 895 F.2d at
17.
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to a mandatory trebling regime and the inclusion of the words "as
liquidated damages," that treble damages serve a compensatory
purpose rather than a purely punitive one. If so, then it would
seem improper to award prejudgment interest on top of the damages
awarded under § 150 in light of the substantial precedent that
indicates that compensatory treble damages cover the value of
prejudgment interest. See, e.g., Brooklyn Sav. Bank v. O'Neil,
324 U.S. 697, 707, 715 (1945) (stating that liquidated damages
under the FLSA "constitute[] compensation for the retention of a
workman's pay [as a result of "the delay in payment of sums due
under the Act"] which might result in damages too obscure and
difficult of proof for estimate other than by liquidated damages"
and therefore duplicate the value of prejudgment interest);
Matamoros v. Starbucks Corp., 699 F.3d 129, 140 (1st Cir. 2012)
(stating that, within the context of the FLSA, "liquidated damages
[awarded under § 150] are not punitive damages"); Powers v.
Grinnell Corp., 915 F.2d 34, 41 (1st Cir. 1990) ("[A]n award of
liquidated damages 'usually will be far greater than would be
necessary to compensate for delay -- far greater, that is, than an
award of prejudgment interest.'" (citation omitted)); Feygina v.
Hallmark Health System, Inc., No. MICV2011–03449, 2013 WL 3776929,
at *6-8 (Mass. Super. July 12, 2013) (collecting cases and noting
that § 150 "compensate[s] . . . for all direct and consequential
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damages," including "all harm caused by [the] employer's unlawful
delay in paying all wages owed to [the employee]").
A reason to conclude that the 2008 amendment changed the
nature of treble damages from punitive to compensatory is that the
Massachusetts legislature may have intended such a transformation
to help avoid a constitutional concern raised by making trebling
mandatory rather than discretionary. This interpretation draws
support from Massachusetts precedent that indicates that, to
comport with the federal guarantee of due process, punitive treble
damages may be awarded only if there is a finding of heightened
culpability on the part of the defendant. See, e.g., Wiedmann v.
The Bradford Group, Inc., 831 N.E.2d 304, 313 (Mass. 2005),
superseded by statute on other grounds, Mass. Gen. Laws ch. 149,
§ 150 ("[T]reble damages are punitive in nature, allowed only where
authorized by statute, and appropriate where conduct is
outrageous, because of the defendant's evil motive or his reckless
indifference to the rights of others." (quotation marks and
citation omitted)); Goodrow v. Lane Bryant, Inc., 732 N.E.2d 289
(Mass. 2000) ("To [award punitive damages] absent evidence of
heightened culpability would very likely constitute an 'arbitrary
or irrational deprivation[] of property,' and thus would be
constitutionally impermissible." (citation omitted)). And such a
reading of the purpose of the 2008 amendment also would help
explain the addition of the words "as liquidated damages." That
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addition would then serve as an indication that the legislature
intended for the treble damages to be compensatory rather than
punitive.
Consistent with that conclusion, in Matamoros v.
Starbucks Corp., we did characterize the amended version of § 150
as providing for liquidated damages that were compensatory rather
than punitive in concluding that the new mandatory trebling
statute -- which provides for the award of treble damages without
a finding of heightened culpability -- did not raise due process
concerns. See 699 F.3d 129, 140 (1st Cir. 2012) ("Because an award
of treble damages pursuant to the current version of [§ 150] is
neither an award of punitive damages nor fairly analogous to such
an award, [defendant's] due process concerns are misplaced.").
And we note that the only Massachusetts precedent that addresses
this specific question -- whether the treble-damages statute, as
amended, displaced the mandatory prejudgment-interest statute --
directly follows this course of reasoning. See Feygina, 2013 WL
3776929, at *6-8.
But were we to construe § 150 in this way, we would be,
in effect, countenancing an implied repeal of the prejudgment-
interest statute. The bar to finding an implied repeal of a
preexisting statute, however, is high. Under Massachusetts law,
"[a] statute is not to be deemed to repeal or supersede a prior
statute in whole or in part in the absence of express words to
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that effect or of clear implication." Com. v. Harris, 825 N.E.2d
58, 67 (Mass. 2005) (alteration in original) (quoting Com. v.
Hayes, 362 N.E.2d 905, 909 (Mass. 1977)). That is because "it is
by no means clear that, as between two successive acts whose
literal interpretations clash, the earlier must yield to the
latter. Indeed, the later statute is often intended to defer to
the earlier." Hayes, 362 N.E.2d at 909 (alteration in original)
(citation omitted). Where the Massachusetts courts "encounter
legislative silence on how . . . two statutes should relate to
each other," therefore, they seek to give effect to both "to the
greatest extent possible." Harris, 825 N.E.2d at 67.
Yet here the "express words" of § 150, as amended, do
not make any reference to the prejudgment-interest statute or to
its repeal. Nor is there any legislative history that provides
meaningful guidance on this question. And while we did
characterize the treble damages available under the present
version of § 150 as compensatory in addressing the federal due
process claim presented in Matamoros, see Matamoros, 699 F.3d at
140, a recent Massachusetts Court of Appeals case -- which post-
dates Matamoros -- describes these treble damages as punitive and
thus in terms that arguably would raise no double recovery concern.
See Weber v. Coast to Coast Medical, Inc., 985 N.E.2d 1212, 1216
n.7 (Mass. App. Ct. 2013) (stating in the context of § 150 that
"an award of treble damages, whether in an exercise of discretion
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or mandatorily, is nevertheless punitive"); see also Blake v. CRNC
Operating LLC, No. 15–ADMS–10011, 2015 WL 5783645, at *1 n.4.
To be sure, in Brooklyn Savings Bank v. O'Neil, 324 U.S.
697 (1945), the Supreme Court considered the propriety of ordering
prejudgment interest on a back-pay award where the applicable
federal statute contained a liquidated-damages provision that
required the doubling of that award. And the Court concluded that
the liquidated damages were intended to compensate for the obscure
costs that arise from the delay in sums due under the federal act
and thus did include the value of prejudgment interest. See
Brooklyn Sav. Bank, 324 U.S. at 714-15. For that reason, the Court
held that awarding prejudgment interest in that case was improper.
See id.
But Brooklyn was not interpreting -- as we must -- the
potential conflict between a statute mandating treble damages and
a statute mandating prejudgment interest. Indeed, Brooklyn does
not seem to have involved a prejudgment-interest statute at all.20
20 If prejudgment interest were to have been available in
Brooklyn, such interest would only have been awarded as a result
of a traditional common-law remedial doctrine making prejudgment
interest available for compensatory damages under claims arising
out of federal law where prejudgment interest would be consonant
with "an appraisal of the congressional purpose in imposing [the
obligation]" and where there was no expression of "an unequivocal
congressional purpose that the obligation shall not bear
interest." Rodgers v. United States, 332 U.S. 371, 373-74 (1947)
(characterizing Brooklyn as a case involving this common-law
remedial doctrine and making no mention of a prejudgment-interest
statute).
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Thus, unlike in Brooklyn, we are faced with a question of state
law and two mandatory state statutes -- one for liquidating damages
and another for awarding prejudgment interest -- neither of which
purport to make an exception for the other.
In sum, a state legislature drafting a liquidated-
damages provision on a clean slate might well intend to compensate
for the loss due to delay in recovery of a judgment and thereby
displace an implied common-law remedy of prejudgment interest.
See id. It is less clear to us, however, that the Massachusetts
legislature did so intend in amending this treble-damages statute,
which was altered in the shadow of an otherwise applicable
mandatory prejudgment-interest statute. Cf. Hutka v. Sisters of
Providence in Wash., 102 P.3d 947, 960 n.52 (Alaska 2004) (noting
Alaska does not follow Brooklyn under state law). And that is
particularly so given that existing law at the time of the 2008
amendment permitted the application of both treble damages and
prejudgment interest to a damages award. See DeSantis v. Com.
Energy Sys., 864 N.E.2d 1211, 1219-22 (Mass. App. Ct. 2007)
(affirming award of treble damages under § 150 and award of
prejudgment interest on award of back-pay damages prior to the
2008 amendment). Indeed, under an implied-repeal view, the 2008
amendment would have the odd effect of reducing the amount of
damages awarded in the cases where the defendant's conduct is most
egregious.
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Thus, due to the lack of clarity of the statute and the
absence of controlling precedent, as well as the potentially far-
reaching impact that the resolution of this question would have,
Easthampton Sav. Bank, 736 F.3d at 52-53, we conclude that
certification to the SJC is appropriate to determine whether
Travers may be awarded prejudgment interest on his award of back-
pay damages, in conjunction with his award of liquidated damages
on the back-pay damages. For these reasons, we certify the
following question to the SJC pursuant to its Rule 1:03:
Did Mass. Gen. Laws ch. 149, § 150 impliedly repeal Mass.
Gen. Laws ch. 231, § 6B as to cases in which a party was
awarded liquidated damages under § 150 and is eligible
for prejudgment interest under § 6B, such that the award
of prejudgment interest is precluded?
We would further welcome the advice of the SJC on any other
relevant aspect of Massachusetts law that it believes would aid in
resolution of this dispute.
As noted above, Travers also argues that he should
receive prejudgment interest on the $50,000 emotional-distress
award, but this claim fails, notwithstanding our view of how the
SJC would apply the prejudgment-interest statute. And that is
because of Travers's failure to raise this issue below.
Travers asked for prejudgment interest on both the
back-pay and emotional-distress awards in his first motion, Docket
Entry No. 135, at 2, which the District Court did not decide on
the merits. In his renewed motion for prejudgment interest,
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however, Travers asked only for prejudgment interest on the back-
pay award. See Docket Entry No. 195, at 13. It was this renewed
motion that the District Court denied and that we are asked to
review on appeal. Under these circumstances, we think Travers
came close to voluntarily waiving his right to prejudgment interest
on the emotional-distress award. But even treating his failure as
forfeiture, we conclude that the District Court did not plainly
err.
Assuming it would be clear and obvious error affecting
Travers's substantial rights not to award prejudgment interest
under the Massachusetts prejudgment-interest statute, Travers has
not met his burden of showing that the error resulted in a
miscarriage of justice. Travers agreed to remit all but $50,000
of the emotional-distress damages award, and it is unclear if, in
doing so, he was also electing to accept that remitted award as
inclusive of the prejudgment interest that he had requested earlier
on that award. That Travers intended such an all-inclusive
election is made somewhat more likely by the fact that Travers did
not ask for prejudgment interest on the emotional-distress award
in his renewed motion, after accepting remittitur, whereas he had
asked for such prejudgment interest earlier. And Travers makes no
argument to us on appeal for why affirming the denial of
prejudgment interest on the emotional-distress award would result
in a miscarriage of justice in his case. As "it is rare indeed
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for a panel to find plain error in a civil case," Chestnut, 305
F.3d at 20, we conclude, for these reasons, that this case is not
that rare case.
IV.
For these reasons, we AFFIRM the District Court's denial
of FSS's motions for judgment as a matter of law, the District
Court's denial of FSS's motion for a new trial, the District
Court's denial of FSS's motion to further reduce the jury's award
of back pay, the District Court's remittitur order on
emotional-distress damages, and the District Court's award of
attorney's fees and costs to Travers. We also AFFIRM the District
Court's decision not to treble the remitted award of
emotional-distress damages as well as its decision not to grant
prejudgment interest on the emotional-distress damages. But we
VACATE the District Court's order eliminating front-pay damages
and we REMAND for further proceedings consistent with this opinion.
The Clerk of this court is directed to forward to the
SJC, under the official seal of this court, a copy of the certified
question and our opinion in this case, along with copies of the
briefs and appendix filed by the parties. We retain jurisdiction
over this one issue pending the SJC's response.
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