United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 95-1039
HELEN RUTH ANDRADE,
Plaintiff, Appellant,
v.
JAMESTOWN HOUSING AUTHORITY, ESTATE OF BARRETT GROSS,
ERNEST ANTHONY, EDWARD HOLLAND, LLEWELYN EATON,
PHYLLIS TIEXIERA AND FREDERICK HILLIER,
Defendants, Appellees.
No. 95-1040
HELEN RUTH ANDRADE,
Plaintiff, Appellee,
v.
JAMESTOWN HOUSING AUTHORITY, ESTATE OF BARRETT GROSS,
ERNEST ANTHONY, EDWARD HOLLAND, LLEWELYN EATON,
PHYLLIS TIEXIERA AND FREDERICK HILLIER,
Defendants, Appellees,
SELF-HELP, INC. AND DEBORAH A. JACKSON,
Defendants, Appellants.
No. 96-1329
HELEN RUTH ANDRADE,
Plaintiff, Appellee,
v.
JAMESTOWN HOUSING AUTHORITY, ESTATE OF BARRETT GROSS,
ERNEST ANTHONY, EDWARD HOLLAND, LLEWELYN EATON,
PHYLLIS TIEXIERA AND FREDERICK HILLIER.
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Torruella, Chief Judge,
Cyr and Stahl, Circuit Judges.
Ernest Barone for Helen Ruth Andrade.
Frank E. Reardon with whom Hassan & Reardon, P.C. was on brief
for Self-Help, Inc. and Deborah Jackson.
James A. Donnelly for Jamestown Housing Authority, et al.
May 1, 1996
STAHL, Circuit Judge. Plaintiff-appellant, Helen
STAHL, Circuit Judge.
Ruth Andrade, filed a five-count complaint in Rhode Island's
federal district court seeking redress for her termination
from employment as an administrative assistant at the
Jamestown Housing Authority ("JHA"). In addition to JHA,
Andrade sued Self-Help, Inc. ("Self-Help"), the sponsoring
agency that placed her at JHA; Deborah Jackson, a Self-Help
employee; Barrett Gross,1 JHA's Executive Director; and
Ernest Anthony, Edward Holland, Llewelyn Eaton, Phyllis
Tiexiera, and Frederick Hillier, all of whom were JHA
Commissioners. At trial, Andrade sought to prove violations
of 42 U.S.C. 1983 (Count II), 42 U.S.C. 1985(3) (Count
III), and state tort (Count IV) and contract (Count V) law.2
At the close of evidence, the district court,
pursuant to Fed. R. Civ. P. 50(a), granted the defendants'
motions for judgment as a matter of law on Counts III, IV and
V, reserved ruling on JHA's Rule 50(a) motion as to Count II,
and submitted Count II to the jury. The jury found JHA,
Gross, and Eaton liable on Count II and awarded compensatory
and punitive damages to Andrade. The parties subsequently
filed motions for attorney's fees, and the district court
referred the motions to the magistrate for a report and
1. Barrett Gross died before the commencement of this
litigation. His estate has been sued as a party defendant.
2. Count I, charging a violation of Title VII, was
voluntarily dismissed by Andrade on the first day of trial.
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recommendation. The magistrate's report and recommendation,
adopted by the court, granted fees to Andrade as prevailing
plaintiff vis a vis JHA, Gross, and Eaton and to Self-Help,
Jackson, Anthony, Holland, Tiexiera, and Hillier as
prevailing defendants.
Andrade appeals the grant of judgment as a matter
of law on Counts IV and V as well as the attorney's fees
award. JHA cross-appeals the denial of the Rule 50(b) motion
on Count II. Self-Help and Jackson cross-appeal the
attorney's fees award. Finding no error, we affirm.
I.
I.
Background
Background
A. The Relevant Facts
Self-Help, a non-profit corporation, operates the
Senior Aide Program ("the Program") in the East Providence
area. The Program, which is funded by the Department of
Labor through the National Council of Senior Citizens
("NCSC"), seeks to employ low-income seniors in non-profit
businesses and municipal agencies as "Senior Aides." Under
the Program, Senior Aides spend a maximum of two years at an
assignment, receiving on-the-job and/or other training, with
a goal of attaining placement in unsubsidized positions
thereafter.
During the summer of 1990, Nancy Newbury, JHA's
Executive Director, contacted Self-Help to inquire about the
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possibility of JHA becoming a host agency under the Program.
Bridget Kelly, Self-Help's Director of the Senior Employment
Program, and Newbury agreed that JHA would create two
administrative assistant positions for Senior Aides at JHA.
Newbury then posted the positions, and Andrade applied.
After Kelly determined that Andrade was eligible for the
Program, Newbury interviewed Andrade and offered her the job.
Andrade accepted.
At trial, Newbury and Kelly both testified that, at
some point during the hiring process, Andrade informed them
that she was receiving workers' compensation benefits and
stated that she would only want to work at JHA so long as the
wages she would receive from Self-Help would not reduce her
existing benefits. Newbury's and Kelly's testimony diverged
on how they responded to this information.
Newbury testified that, with Kelly and Andrade in
her office, she called Andrade's case manager at the Workers'
Compensation Commission ("the Commission") on speakerphone,
and he assured them that Andrade's wages from Self-Help would
not reduce her benefits. Kelly, however, denied such a
conversation took place and testified that she had informed
Andrade that her review of the NCSC Policy and Procedure
Manual ("NCSC Manual") suggested that the benefits would not
be counted in determining her income eligibility under the
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Program, but that Andrade should contact the Commission to
see how it would handle her receipt of wages.
In July 1990, Andrade began work at JHA. Shortly
thereafter, Newbury resigned as Executive Director and
brought charges of racism against JHA, requesting an
investigation of its adherence to fair housing principles.
On April 30, 1991, during hearings before the Jamestown Town
Council, Andrade testified that Commissioner Eaton had made
two racially discriminatory remarks in her presence.
Meanwhile, in March 1991, the Commission sent
Andrade a "Report of Earnings" form, requesting information
about her Self-Help wages. Because Andrade did not return
the form, the Commission sent another in April. On May 1,
1991, when Kelly's successor, Deborah Jackson, went to JHA to
recertify Andrade for her second year of the Program, Andrade
showed Jackson the Report of Earnings form and asked for her
assistance in filling it out. Jackson agreed to look at the
form and took it with her.
While at JHA that day, Jackson also met with Gross
who requested that Self-Help transfer Andrade from JHA for
having testified against Eaton the night before. On May 2,
1991, Gross sent Jackson a letter memorializing their
conversation which requested that she "attempt to transfer
Senior Aid [sic] Helen Andrade from the Authority" and stated
that "Her testimony against one of our commissioners, Mr.
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Eaton, who is ultimately her superior has made her presence
here uncomfortable."
On May 8, 1991, having examined the Report of
Earnings form, Jackson notified Caroline Pellegrino, Self-
Help's Director of Senior Services, that Andrade had not
reported her Self-Help earnings to the Commission.
Pellegrino called the Commission and was informed that it
could hold Self-Help liable for the wages paid to an employee
who was receiving workers' compensation benefits.
Pellegrino, in turn, notified Dennis Roy, Self-Help's
Executive Director, and Roy referred her to Mary Mulvey, an
NCSC representative. Mulvey informed Pellegrino that Self-
Help might also be liable to NCSC for Andrade's wages should
inclusion of her workers' compensation benefits in the income
eligibility assessment render Andrade ineligible for the
Program. Mulvey recommended Andrade's termination pending
resolution of the issue. Roy agreed and had Jackson
telephone Andrade with the news.
Referring generally to a problem regarding
Andrade's receipt of workers' compensation benefits, Jackson
asked Andrade to go home for the day and said that she would
be phoning her with more details. Later that afternoon,
Jackson told Andrade that she was terminated because of her
failure to report her wages to the Commission. Five days
later, Jackson sent Andrade a letter stating that "Your
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failure to notify R.I. Workers [sic] Compensation Department
of your entering the Senior Aide Program is the reason for
the termination."
Having learned of Andrade's termination, Newbury
appeared before Gross and the Commissioners at the next JHA
board meeting and petitioned for Andrade's reinstatement to
her former position. Newbury testified that Commissioner
Hillier responded to her plea by stating that "it would be a
cold day in hell when anybody testifies against us and thinks
they are going to have a job here."
B. Prior Proceedings
Andrade's complaint charged JHA, Gross, the
Commissioners, Self-Help, and Jackson with violations of
Title VII (Count I -- which she later dismissed voluntarily),
42 U.S.C. 1985(3) (Count III), wrongful and tortious
discharge, intentional infliction of emotional distress, and
interference with contract (Count IV); JHA, Gross, and
Commissioners Holland, Hillier, Eaton, and Tiexiera with
violation of 42 U.S.C. 1983 (Count II); and Self-Help with
breach of express and implied contract (Count V). After
discovery, a seven-day jury trial ensued. At the close of
the evidence, all of the defendants sought judgment as a
matter of law under Fed. R. Civ. P. (50)(a) on Counts III and
IV; JHA brought a Rule 50(a) motion on Count II, and Self-
Help brought a Rule 50(a) motion on Count V. The district
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court delivered a detailed oral opinion, granting the motions
as to Counts III, IV, and V, and reserving decision on Count
II until after the jury returned its verdict.
As to Count V, the court concluded that (i) Andrade
had failed to provide any evidence that an express contract
for a definite duration existed between her and Self-Help,
(ii) the fact that the NCSC Manual and the Self-Help Senior
Employment Program Personnel Policy ("the Self-Help Policy")
limited Andrade's employment at JHA to two years and provided
for an annual recertification review did not establish a
definite term of employment, (iii) Andrade and Self-Help's
mutual mistake as to whether Andrade's earnings would be paid
to the Commission prevented a meeting of the minds, a
necessary element to the formation of a contract, and (iv)
even assuming arguendo that a contract existed, Andrade
suffered no damage in its breach because any earnings that
she was denied would have to have been paid to the
Commission. In ruling on Count IV, the court found that (i)
no cause of action for wrongful discharge exists under Rhode
Island law, (ii) Andrade failed to provide evidence of any
injury of sufficient magnitude to satisfy the element of
intentional infliction of emotional distress requiring
physical manifestation of injury and failed to provide any
expert medical testimony showing a causal connection between
Andrade's symptoms, some of which existed well before her
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termination, and defendants' actions, and (iii) because
Andrade did not have a contract with Self-Help that gave her
an expectation of continued employment, there could be no
tortious interference with that contract.
With only Count II before it, the jury returned a
verdict for Andrade vis a vis JHA, Gross, and Eaton. Hillier
and Tiexiera were found not liable. The jury granted
compensatory damages of $7,183 against the three defendants
and punitive damages of $250 each against Gross and Eaton.
After excusing the jury, the district court returned to the
unresolved Rule 50 motion on Count II. The court denied the
motion, finding that Gross's letter of May 2, 1991 and
Commissioner Hillier's response to Newbury's request to
reinstate Andrade were sufficient to permit a reasonable jury
to find that Andrade was terminated because she testified
against Commissioner Eaton at a public hearing. Thereafter,
the court referred the parties' motions for attorney's fees
to the magistrate for a report and recommendation.
After a hearing, the magistrate found that,
although she was a prevailing plaintiff under 42 U.S.C.
1988, Andrade had succeeded in only one of her five claims,
had received only $7,183 in compensatory damages and $500 in
punitive damages, and had brought frivolous claims. Based on
these findings, the magistrate granted Andrade a modest
attorney's fees award of $2,500. Finding that Counts I, III,
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and IV were frivolous, the magistrate concluded that Self-
Help, Jackson, Holland, Hillier, Anthony, and Tiexiera were
prevailing defendants under 1988 and 42 U.S.C. 2000e-
5(k). Mindful of Andrade's limited financial resources, the
magistrate granted Self-Help and Jackson a $1,000 attorney's
fee for their defense of Counts I and III and Commissioners
Holland, Hillier, Anthony, and Tiexiera a $1,500 attorney's
fee for their defense of Counts I, III, and IV. The district
court adopted the magistrate's report and recommendation.
II.
II.
Discussion
Discussion
A. Judgment as a Matter of Law
1. Andrade's Appeal
On appeal, Andrade contends that the district court
erred in granting judgment as a matter of law on Counts IV
and V of her complaint. After reciting the standard of
review, we consider these contentions separately.
We review the grant of a Rule 50(a) motion for
judgment as a matter of law de novo, under the same standards
as the district court. See Coastal Fuels of Puerto Rico,
Inc. v. Caribbean Petroleum Corp., No. 95-1460, slip op. at 6
(1st Cir. Mar. 12, 1996). The evidence and the inferences
reasonably to be drawn therefrom are considered in the light
most favorable to the non-movant. The court, however, must
"not consider the credibility of witnesses, resolve conflicts
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in testimony, or evaluate the weight of the evidence."
Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir. 1987). A
verdict may be directed only if the evidence, viewed from
this perspective, "would not permit a reasonable jury to find
in favor of the plaintiff[] on any permissible claim or
theory." Murray v. Ross-Dove Co., 5 F.3d 573, 576 (1st Cir.
1993).
a. Contract Claim
Andrade contends that the evidence she submitted on
Count V was legally sufficient to permit a jury to find a
breach of contract, and therefore the district court erred in
granting Self-Help judgment as a matter of law on Count V.
Because we agree with the court below that Andrade did not
prove a prima facie case of breach of contract, we affirm the
court's grant of the Rule 50(a) motion on Count V.
Under Rhode Island law, it is well established that
"a promise to render personal services to another for an
indefinite term is terminable at any time at the will of
either party and therefore creates no executory obligations."
School Comm. of Providence v. Board of Regents for Educ., 308
A.2d 788, 790 (R.I. 1973); see also Lamoureux v. Burrillville
Racing Ass'n, 161 A.2d 213, 216 (R.I. 1960); Booth v.
National India-Rubber Co., 36 A. 714, 715 (R.I. 1897).
Although she presented no evidence of an express employment
contract for a fixed period between herself and Self-Help,
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Andrade argues that certain provisions in the Self-Help
Policy and the NCSC Manual, both of which were admitted into
evidence, created a triable issue as to whether she and Self-
Help had an implied contract for a fixed period3 and whether
she could only be terminated for just cause.4
Apparently recognizing it to be an issue of first
impression, however, the Rhode Island Supreme Court expressly
avoided the question of whether to adopt the emerging case
law that employment manuals or policies may give rise to
enforceable contract rights, Roy v. Woonsocket Inst. for
Sav., 525 A.2d 915, 918 (R.I. 1987), and, as a federal court
hearing this state law issue under our supplemental
jurisdiction, we are reluctant to extend Rhode Island's
contract law "beyond its well-marked boundaries." Markham v.
Fay, 74 F.3d 1347, 1356 (1st Cir. 1996); cf. A. Johnson & Co.
v. Aetna Casualty and Sur. Co., 933 F.2d 66, 73 (1st Cir.
1991) (holding that this court, sitting in diversity, should
3. In particular, Andrade claims that the two-year
durational limit upon her employment at JHA and the one-year
recertification review by Self-Help supplied the durational
term.
4. Andrade identifies an "employability plan" that she and
Newbury devised and Self-Help adopted as an additional source
of her alleged contract rights. Testimony, viewed in the
light most favorable to Andrade, revealed that the plan
detailed Newbury's and Andrade's goals for Andrade's
employment at JHA. The ultimate goal identified in the plan
was training Andrade to become a certified housing manager.
Nothing in the plan, however, suggested that Andrade was
guaranteed employment at JHA for a definite term or that she
would only be terminated for cause.
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not "torture state law into strange configurations or
precipitously to blaze new and unprecedented jurisprudential
trails"); Mason v. American Emery Wheel Works, 241 F.2d 906,
909-10 (1st Cir.) (noting that a diversity court must take
state law as it finds it, "not as it might conceivably be,
some day; nor even as it should be"), cert. denied, 355 U.S.
815 (1957). Because Andrade has not convinced us that Rhode
Island would so extend its contract law, we decline to do so
here.
b. Tort Claims
Andrade also contends that she submitted sufficient
evidence to permit a jury to find the torts of intentional
infliction of emotional distress, wrongful and tortious
discharge, and interference with contract, and therefore the
district court erred in granting the defendants judgment as a
matter of law on Count IV. We consider each tort claim in
turn.
Rhode Island recognizes a cause of action for
intentional infliction of emotional distress ("IIED")
patterned after 46 of the Restatement (Second) of Torts
(1965). Champlin v. Washington Trust Co., 478 A.2d 985, 988
(R.I. 1984). To prevail on a claim of IIED, the plaintiff
must prove that the defendant, by extreme and outrageous
conduct, intentionally or recklessly caused the plaintiff
severe emotional distress. Id. at 989. Rhode Island
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requires that to be "severe," the emotional distress must
evoke some physical manifestation. Reilly v. United States,
547 A.2d 894, 898-99 (R.I. 1988); Curtis v. State Dep't for
Children, 522 A.2d 203, 208 (R.I. 1987).
At trial, Andrade testified on direct examination
that as a result of her termination from employment at JHA in
May 1991, she experienced irritated bowels, diarrhea, tension
headaches, and sleeplessness. Andrade stated, however, that
the diarrhea and tension headaches began in the latter part
of 1990, months before her termination. On cross-
examination, Andrade also conceded that prior to the
occurrence of the events alleged in the complaint she had
experienced stomach problems. Specifically, Andrade
acknowledged that she had gastric surgery in 1978, 1980, and
1981 for which she continues to take medication.
Andrade relied exclusively on her own testimony to
prove her IIED claim. The district court, in ruling on the
defendants' Rule 50(a) motion, found that Andrade's testimony
--
that she had experienced these symptoms contemporaneously
with her termination and her termination was the cause of
these symptoms -- was insufficient to prove causation,
particularly given Andrade's prior history of stomach
problems, headaches, and diarrhea. In directing a verdict
against Andrade on the IIED claim, the court cited her
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failure to produce expert medical testimony that her symptoms
were in fact caused by the defendants' conduct.
Rhode Island case law is silent on the question of
the necessity of expert testimony to prove the causation
element of IIED. Section 46 of the Restatement (Second) of
Torts, on which Rhode Island's IIED claim is patterned, also
fails to provide any clues; nowhere in 46 is the
introduction of expert medical testimony required or even
mentioned. Despite this silence, however, we find that under
the particular facts of this case expert medical testimony
was indispensable to the proof of causation.
Had the district court allowed the IIED claim to go
to the jury at the close of the evidence, the jury would have
been faced with the daunting task of ascertaining the degree
to which Andrade's physical symptoms were the proximate
result of her termination as opposed to her prior gastric
surgeries, chronic maladies, or other outside forces.
Understanding the relationship between Andrade's physical
symptoms and the competing causal factors without the benefit
of medical expertise, however, was beyond the ken of the
jury.5 See Vaughn v. Ag Processing, Inc., 459 N.W.2d 627,
636-37 (Iowa 1990) (holding that expert medical testimony was
5. In so holding, we are not establishing a bright-line rule
that expert testimony is always necessary to prove the
causation prong of IIED. There may very well be situations
where causation is within the common knowledge and experience
of the layperson; this case, however, is not one of them.
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required to establish causation between harassment at work
and physical symptoms "that peaked three months after
[plaintiff] left his employment"); Mayer v. Town of Hampton,
497 A.2d 1206, 1211 (N.H. 1985) (holding that proof of
causation in an IIED claim "will usually be based on expert
testimony"); but see Tanner v. Rite Aid of West Virginia,
Inc., 461 S.E.2d 149, 160-61 (W. Va. 1995) (holding that jury
could properly evaluate IIED claim without expert testimony
despite plaintiffs' prior history of emotional problems).
Because Andrade's own testimony and conclusions regarding the
cause of her physical symptoms, by themselves, were
insufficient to allow a jury to find the requisite nexus
between her distress and the May 8, 1991 termination, an
element of the prima facie case for IIED was not satisfied,
and the district court correctly granted the defendants' Rule
50(a) motion on the IIED claim.
Turning to the remaining tort claims, we note
Andrade's acknowledgment that the Rhode Island Supreme Court
has unequivocally held that no cause of action exists for
wrongful discharge in Rhode Island. Pacheo v. Raytheon Co.,
623 A.2d 464, 465 (R.I. 1993). Nonetheless, Andrade
maintains that she presented sufficient evidence for a jury
to find the nonexistent cause of action. In conjunction with
her wrongful discharge claim, Andrade alleged violations of
Rhode Island's Fair Housing Practices Act and Fair Employment
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Practices Act. Andrade argues that infusing her wrongful
discharge claim with references to independent violations of
state laws made it cognizable. We disagree. Pacheo made
clear that there is no common law tort of wrongful discharge
in Rhode Island and that protection against discharges that
contravene public policy is for the General Assembly, not the
courts.6 623 A.2d at 465. Accordingly, we affirm the
district court's grant of the defendants' Rule 50(a) motion
on the wrongful discharge claim.
Finally, Andrade claims that she presented
sufficient evidence for a jury to find tortious interference
with contract. Our earlier determination that Andrade did
not present sufficient evidence of an enforceable employment
contract, however, is dispositive of this claim as well. In
Rhode Island, the existence of a contract, not surprisingly,
is an element of the tort of interference with contract. See
Smith Dev. Corp. v. Bilow Enters., Inc., 308 A.2d 477, 482
(R.I. 1973). Given Andrade's failure to establish this
element at trial, the district court was correct in taking
the interference with contract claim away from the jury.
Andrade also argues that she has presented
sufficient evidence to prove the similar but distinct tort of
6. We express no view on whether violations of Rhode
Island's Fair Housing Practices Act and Fair Employment
Practices Act, alleged independently of the wrongful
discharge claim, could have been established.
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interference with prospective contractual relations. Andrade,
however, not only failed to raise this argument below, see
United States v. Palmer, 956 F.2d 3, 6 (1st Cir. 1992)
(holding that argument not raised below is waived), she
failed to assert this claim in her complaint. Accordingly,
we refuse to consider this argument.
2. JHA's Cross-Appeal
JHA argues that Andrade did not present sufficient
evidence that it acted to deprive Andrade of her civil rights
in violation of 1983, and therefore the district court
erred in failing to grant its Rule 50(b) post-verdict motion
on Count II. We review the denial of a post-verdict motion
for judgment as a matter of law de novo, see Lama v. Borras,
16 F.3d 473, 477 (1st Cir. 1994), and we must sustain the
court's denial of a Rule 50(b) motion "`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,'" id. (quoting PH Group Ltd. v. Birch, 985 F.2d
649, 653 (1st Cir. 1993)).
During its deliberations on Count II, the jury
asked the court how to distinguish JHA from the individual
Commissioners. The district court responded that the action
of a majority of the five Commissioners constituted an action
of JHA. JHA argues therefrom that because the jury only
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found one of the Commissioners liable when it needed to find
three Commissioners liable in order to find that JHA acted,
the jury could not have found JHA liable as it did. Because
we find that Andrade provided ample evidence from which the
jury could have concluded that JHA violated 1983, we affirm
the district court's denial of JHA's Rule 50(b) motion.
Andrade presented three significant pieces of
direct evidence: (1) Gross's May 2, 1991, letter to Jackson
requesting Andrade's transfer from JHA because of her
testimony against Commissioner Eaton at a public hearing, (2)
Andrade's tape recording of her May 1, 1991, conversation
with Gross, during which he stated that "[I]t's [Andrade's
testimony] been a problem with the Commissioners. The
Commissioners, the five Commissioners, hire and fire me and,
in essence, they hire and fire you, or they hire and transfer
you . . . ," and (3) Commissioner Hillier's refusal at a JHA
Board Meeting to consider reinstating Andrade due to her
testimony against Commissioner Eaton. Assuming arguendo that
under 1983 a majority of the Commissioners was needed for
JHA to have acted, the jury could have inferred from this
evidence that (1) a majority of the Commissioners shared
Gross's views or two of the Commissioners present at the
Board Meeting shared Commissioner Hillier's views,7 (2)
7. Indeed, no evidence was presented that any Commissioner
publicly renounced Hillier's comment.
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these same Commissioners had authorized their Executive
Director, Gross, to request Andrade's transfer in retaliation
for her testimony, and (3) Gross's May 1, 1991, conversation
with Jackson as memorialized in his May 2, 1991, letter
caused Self-Help to terminate Andrade.
To the extent that JHA is also complaining that the
verdict is inconsistent in that it finds only one
Commissioner liable at the same time as it finds JHA liable,
that argument is waived because of JHA's failure to make a
timely objection to the alleged inconsistency. See Bonilla
v. Yamaha Motors Corp., 955 F.2d 150, 155-56 (1st Cir. 1992)
(holding that a party waives the issue of inconsistency if it
fails to object after the verdict is read and before the jury
is dismissed).
B. Attorney's Fees
We review a fee award only for mistake of law or
abuse of discretion, see Krewson v. City of Quincy, 74 F.3d
15, 17 (1st Cir. 1996), and accord deference to the district
court's "extremely broad" discretion in this area, Lipsett v.
Blanco, 975 F.2d 934, 937 (1st Cir. 1992). "[B]ecause
determination of the extent of a reasonable fee necessarily
involves a series of judgment calls, an appellate court is
far more likely to defer to the trial court in reviewing fee
computations than in many other situations." Lipsett, 975
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F.2d at 937. Here, Andrade as well as Self-Help and Jackson
challenge the court's fee award.
1. Andrade's Appeal
Andrade challenges the fee award on three grounds.
She argues that the district court misapplied the law and
abused its discretion in (1) setting the hourly rate at $125,
(2) reducing her fee award for partial success, and (3)
awarding attorney's fees to Self-Help, Jackson, Holland,
Anthony, Hillier, and Tiexiera as prevailing defendants. We
consider each challenge in turn.
a. Reasonableness of Hourly Rate
In his report and recommendation, adopted by the
district court, the magistrate set a reasonable hourly rate
for Andrade's counsel at $125. Andrade's counsel suggested
an hourly rate of $200 for his services, citing his
experience, a $200/hr. rate he had received in a similar
case, and affidavits from two civil rights attorneys in the
community attesting that they charged $175/hr. The
magistrate, however, noted that JHA, Gross, and the
Commissioners requested a $125 hourly rate and Self-Help and
Jackson requested a rate within the $100 to $125 range. The
magistrate set the rate for Andrade's attorney at $125/hr.,
reasoning that $200/hr. is not a reasonable rate for civil
rights litigation in the Providence, Rhode Island, area,
Andrade had not provided adequate support for the higher
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rate, and no reason presented itself why Andrade's attorney's
rate should be more than the defense attorneys' rates.
Andrade argues on appeal that in basing her counsel's fee on
the amounts proposed by the defendants, the magistrate failed
to apply the prevailing community rate for federal civil
rights litigation and to account for the contingency and
delay-in-payment factors that distinguish her counsel's rate
from that of the defense attorneys.
In determining a reasonable hourly rate, the
Supreme Court has recommended that courts use "the prevailing
market rates in the relevant community" as the starting
point. Blum v. Stetson, 465 U.S. 886, 895 n.11 (1984)
(defining "prevailing market rates" as "those prevailing in
the community for similar services by lawyers of reasonably
comparable skill, experience and reputation"). While an
attorney may inform the court's analysis by providing
evidence of her customary billing rate and of prevailing
rates in the community, the court is not obligated to adopt
that rate. Moreover, the court is entitled to rely upon its
own knowledge of attorney's fees in its surrounding area in
arriving at a reasonable hourly rate, see Nydam v. Lennerton,
948 F.2d 808, 812-13 (1st Cir. 1991); United States v.
Metropolitan Dist. Comm'n, 847 F.2d 12, 19 (1st Cir. 1988),
as well as the defense attorneys' rates, cf. Liberty Mut.
Ins. Co. v. Continental Casualty Co., 771 F.2d 579, 588 (1st
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Cir. 1985) (comparing plaintiff's counsel's fee estimate to
defendant counsel's estimate in attempting to ascertain how
much of jury's damage verdict was based on fees that should
not have been allowed).
The magistrate in the present case did not stray
from these principles in determining a reasonable hourly
rate. To the contrary, he determined the prevailing market
rate for federal civil rights litigation by utilizing his
knowledge and experience of the Providence, Rhode Island,
market while considering the customary rates of Andrade's
counsel, the defense attorneys, and two Providence civil
rights attorneys. Accordingly, we cannot say that the
district court, in adopting the magistrate's report and
recommendation, misapplied the law or abused its discretion
in setting an hourly rate of $125 for Andrade's counsel.
As for Andrade's contention that the magistrate's
reliance on the defense attorneys' rates failed to account
for her counsel's contingency and delay-in-payment factors,
the Supreme Court has held that an attorney's contingent risk
is ordinarily subsumed (at least to some extent) in the
"lodestar" calculation, City of Burlington v. Dague, 505 U.S.
557, 562-63 (1992), which is determined by multiplying the
total number of hours reasonably spent by a reasonable hourly
rate, Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (holding
that the lodestar provides the basis for determining a
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reasonable fee). In particular, the Dague Court found that
an attorney's contingent risk results in part8 from the
difficulty of establishing the merits of the claim, and this
difficulty is ordinarily reflected in the lodestar, i.e., "in
the higher number of hours expended to overcome the
difficulty, or in the higher hourly rate of the attorney
skilled and experienced enough to do so." Dague, 505 U.S. at
562-63. Accordingly, for Andrade's argument to survive, she
must establish that the magistrate improperly assessed either
one or both of these two factors. Upon reviewing the record,
we perceive no such error.
Andrade cannot complain about the magistrate's
determination of the first prong of the lodestar because he
accepted as reasonable the 211.90 hours that her counsel
requested. Nor can she complain about the second prong
because we have already found the magistrate's choice of the
$125/hr. rate to be reasonable. Because we find that the
difficulty of the 1983 claim was fully reflected in the
number of billable hours recorded by Andrade's counsel and
his special skill and experience was reflected in the
reasonableness of the hourly rate, Andrade's contingency
argument must fail.
8. An attorney's contingent risk also results from "the
legal and factual merits of the claim." Dague, 505 U.S. at
562. The Court, however, expressly found that this factor
"should play no part in the calculation of the [fee] award."
Id. at 563.
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b. Amount of Award
In determining the amount of Andrade's fee award,
the magistrate carefully followed the multi-factor analysis
laid out in Hensley v. Eckerhart, 461 U.S. 424, 429-37
(1983), the seminal case on awarding attorney's fees under
the Civil Rights Attorney's Fees Awards Act of 1976, codified
at 42 U.S.C. 1988. The magistrate began his analysis by
calculating the lodestar. See Hensley, 461 U.S. at 433.
Multiplying 211.90 hours by $125, the magistrate reached a
lodestar of $26,487.50.
After finding that Andrade's five claims were
interrelated because they involved a common core of facts,
see id. at 434-36, the magistrate then weighed the factors
that might lead to an adjustment of the lodestar upward or
downward, beginning with the crucial "results obtained"
factor, id. at 434. Noting that Andrade prevailed on only
one of her five claims and the jury awarded her only a very
modest amount of compensatory and punitive damages, the
magistrate concluded that Andrade had achieved an extremely
limited degree of success. Concluding that three of her five
claims were frivolous, the magistrate then found that
Andrade's fees and expenses would have been significantly
reduced had she "conducted a meaningful evaluation of the
case" and elected to bring only her non-frivolous claims.
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Based on these considerations, the magistrate downwardly
adjusted the lodestar to $2,500.
On appeal, Andrade argues that the $2,500 fee award
compensated her attorney for a meager twenty hours of work,
far too few to litigate a federal civil rights suit from
complaint to jury verdict. Accordingly, she claims that this
ninety-one percent reduction of the lodestar, from $26,487.50
to $2,500, was a misapplication of Hensley and an abuse of
discretion. We disagree.
Hensley makes clear that where multiple claims are
interrelated and a plaintiff has achieved only limited
success, awarding her the entire lodestar amount would
ordinarily be excessive. Id. at 436. Hensley, therefore,
counsels that, while "[t]here is no precise rule or formula
for making these determinations," a court "may attempt to
identify specific hours that should be eliminated, or it may
simply reduce the award to account for the limited success."
Id. In short, the test that emerged from Hensley is that a
court should award only that amount of fees that is
reasonable in relation to the results obtained. Id. at 435,
438-40 (counselling district courts to "focus on the
significance of the overall relief obtained by the plaintiff
in relation to the hours reasonably expended on the
litigation").
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Although we may not have chosen to reduce the size
of Andrade's fee award so appreciably, we need not interfere
with a fee award if the district court's determinations
"seem[] plausible, given what has transpired in the
litigation." Metropolitan Dist. Comm'n, 847 F.2d at 18. In
the present case, the magistrate carefully weighed the
correct factors and arrived at a result barely within a
supportable range. See generally Farrar v. Hobby, 506 U.S.
103, 115 (1992) (holding that when a 1983 plaintiff obtains
only nominal damages of one dollar, "the only reasonable fee
is usually no fee at all"); Lewis v. Kendrick, 944 F.2d 949,
954-56 (1st Cir. 1991) (denying all fees where plaintiff
recovered only $1,000 and submitted a request for a $50,000
fee award); Zook v. Brown, 865 F.2d 887, 895-96 (7th Cir.
1989) (affirming a 75% reduction in attorney's fees for
limited success). In determining a reasonable fee in
relation to the results Andrade obtained, the magistrate
justifiably considered Andrade's success in only one out of
five claims as well as the frivolity of three of her five
claims, see Part II.B.1.c. infra. He was equally entitled to
take into account the relative size of the damage award and
fee request. See Foley v. City of Lowell, 948 F.2d 10, 19-20
(1st Cir. 1991). Considering the combined weight of these
three factors and mindful of the district court's intimate
knowledge of the litigation and its nuances, we cannot say
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that the court's adoption of the magistrate's reduction of
the lodestar was an abuse of discretion.
c. Award of Fees to Prevailing Defendants
Under 1988, a district court may award attorney's
fees to a prevailing defendant upon a finding that
plaintiff's action "was frivolous, unreasonable, or without
foundation, even though not brought in subjective bad faith."
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978).
For a claim to be "frivolous" under 1988, it must be
frivolous when originally raised in the district court. See
id. at 421-22; Casa Marie Hogar Geriatrico, Inc. v. Rivera-
Santos, 38 F.3d 615, 619-20 (1st Cir. 1994). Andrade
challenges the magistrate's award of attorney's fees to Self-
Help, Jackson, Holland, Anthony, Hillier, and Tiexiera,
arguing that her 1985(3) claim and common law tort claims
were colorable and therefore the district court erred in
granting attorney's fees to the prevailing defendants.
Noting that Andrade failed to allege in her
complaint that her discharge was based on "some racial or
otherwise class-based invidiously discriminatory animus,"
Griffin v. Breckenridge, 403 U.S. 88, 102 (1971), a crucial
element of 1985(3), and Andrade conceded that the claim was
"facially defective," the magistrate concluded that Andrade's
1985(3) claim was frivolous when brought. The magistrate
also found the tort claims of Count IV to be frivolous for
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essentially the same reasons that the district court granted
the Rule 50(a) motion on Count IV. We consider each count
separately in assessing the magistrate's frivolity findings.
A cause of action under 1985(3) has four
elements: (1) two or more persons must conspire, (2) to
deprive, either directly or indirectly, any person or class
of persons of the equal protection of the laws or of equal
privileges and immunities under the laws, (3) one or more of
the conspirators must have done or caused to be done an act
in furtherance of the object of the conspiracy, and (4) the
plaintiff must have suffered either an injury to person or
property or a deprivation of a constitutionally protected
right or privilege as a result of the conspiracy. See
Griffin, 403 U.S. at 102; Romero-Barcelo v. Hernandez-Agosto,
75 F.3d 23, 34 (1st Cir. 1996). The Supreme Court has
construed the second element to require that "there must be
some racial or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators' action."
Griffin, 403 U.S. at 102.
As to racial animus, Andrade's complaint is devoid
of any allegations that the Commissioners together with Gross
conspired to terminate her because she had testified, on
behalf of African-Americans, that Commissioner Eaton
exhibited racial bias. Nor did Andrade present any evidence
that could be viewed as supporting a racial animus claim.
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Andrade argues that she "does not have to be a member of the
black race to maintain an action under 1985(3)" and
therefore her claim was not frivolous. While that is an
accurate statement of the law, see Cutting v. Muzzey, 724
F.2d 259, 260 (1st Cir. 1984) (finding that members of a
conspiracy to deprive minorities of equal rights are liable
under 1985(3) to persons who are injured in furtherance of
the object of the conspiracy, whether they be Caucasian or a
member of the minority group), it does not address Andrade's
failure to allege such a racial animus in her complaint or to
present any such evidence at trial.
Without a charge of racial animus, Andrade needed
to allege discriminatory class-based animus. See Romero-
Barcelo, 75 F.2d at 34. In particular, Andrade would had to
have alleged facts showing that the defendants conspired
against her because of her "'membership in a class and that
the criteria defining the class were invidious.'" Id.
(quoting Harrison v. Brooks, 519 F.2d 1358, 1359 (1st Cir.
1975)). Neither Andrade's complaint nor the evidence she
presented at trial, however, identifies any class of which
she was a member, let alone describes the invidious criteria
defining the class. Accordingly, we find that the magistrate
was correct in finding that the 1985(3) claim was frivolous
when first brought.
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Although we are mindful that the granting of a
motion for a directed verdict is not tantamount to a finding
that a claim was frivolous under 1988, see Christiansburg,
434 U.S. at 421-22 (cautioning district courts to resist "the
understandable temptation to engage in post hoc reasoning by
concluding that, because a plaintiff did not ultimately
prevail, his action must have been unreasonable or without
foundation"), we nevertheless affirm the district court's
finding of frivolity so far as the wrongful discharge and
interference with contract claims are concerned for the same
reasons that we affirmed the grant of the Rule 50(a) motion
on these claims.9
Because we find that the district court did not
abuse its discretion in finding that Count III and the
majority of Count IV were frivolous when brought, we affirm
the district court's grant of an award of attorney's fees to
Self-Help, Jackson, Holland, Anthony, Hillier, and Tiexiera.
2. Self-Help's and Jackson's Cross-Appeal
In their cross-appeal, Self-Help and Jackson argue
that the magistrate erred in reducing their attorney's fees
9. Although we disagree with the district court's finding
that the IIED claim was frivolous when brought, we
nevertheless conclude that the fact that only two of the
three claims were frivolous, rather than all three, would not
have materially altered the district court's determination of
the fee.
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award without allowing supplemental discovery on Andrade's
actual financial condition.
Once it has calculated the lodestar for a
prevailing defendant, the district court may deny or reduce
that amount after considering the plaintiff's financial
condition. See Charves v. Western Union Tel. Co., 711 F.2d
462, 465 (1st Cir. 1983). This court has recognized that
while an award of attorney's fees to a prevailing defendant
must not subject the plaintiff to financial ruin, it also
must fulfill the deterrent purpose of 1988 and 42 U.S.C.
2000e-5(k) in discouraging plaintiffs from bringing frivolous
claims. Id.
Having calculated Self-Help's and Jackson's
lodestar in defending Counts I and IV to be $40,810.90, the
magistrate drastically reduced this amount to $1,000 because
of his assessment of Andrade's impecunity. In determining
that Andrade had limited financial resources, the magistrate
considered her workers' compensation benefits of
approximately $95/week, her subsidized housing, and her car.
The magistrate, however, also considered that Andrade was
awarded a judgment of $7,183 in compensatory damages and $500
in punitive damages.
Self-Help and Jackson challenge the modest
attorney's fees award, claiming that the magistrate
mistakenly applied the law in failing to allow for separate
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discovery regarding Andrade's financial condition. In
particular, they claim that in addition to the three sources
of financial resources that the magistrate cited, the record
also revealed that Andrade was formerly a partner in two real
estate ventures. Andrade testified that she "thinks" her
partnership in West Associates, a real estate brokerage firm,
"was a loss" and that she lost about $50,000 as a partner in
Erban Andrade Associates. Self-Help and Jackson argue that
this testimony reveals that the magistrate did not consider
all of Andrade's financial resources in determining her
financial condition and therefore he should have permitted
supplemental discovery to ascertain Andrade's actual
financial condition.
Self-Help's and Jackson's sole support for this
proposition comes from our decision in Charves, 711 F.2d at
462. However, Charves is distinguishable. In Charves, we
upheld the district court's authorization of supplemental
discovery because of its finding that the plaintiff was not a
credible witness (the court characterized her testimony about
her financial condition as "evasive and contradictory") and
its suspicion that the plaintiff had attempted "to place her
assets beyond the reach of anyone lawfully entitled to look
to the same." Id. at 465. We can discern neither of these
justifications in the present case.
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From the vantage point of reviewing a cold
appellate record, Andrade's testimony that she "thinks" her
partnership in West Associates "was a loss" does not appear
to be evasive. Moreover, it was well within the district
court's discretion to credit Andrade's testimony about her
financial condition and therefore deny Self-Help's and
Jackson's request for supplemental discovery, finding that it
had all of the information regarding Andrade's financial
condition before it. Accordingly, we decline to remand this
case to allow discovery of Andrade's financial condition,
heeding the Supreme Court's warning that "[a] request for
attorney's fees should not result in a second major
litigation."10 Hensley, 461 U.S. at 437.
III.
III.
Conclusion
Conclusion
For the reasons stated above, we affirm the
district court's grant of Rule 50(a) motions on Counts IV and
V as well as its denial of JHA's Rule 50(b) motion on Count
II. We also affirm the district court's grant of the various
attorney's fees awards. No costs.
10. We find Self-Help's and Jackson's final argument that
the district court erred in entering an award of attorney's
fees and costs prior to the entry of final judgment to be
without merit.
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