Albert JOHNSON, Plaintiff, Appellee/Cross-Appellant, v. SPENCER PRESS OF MAINE, INC., Defendant, Appellant/Cross-Appellee, Spencer Press, Inc., Defendant.
Nos. 03-1999, 03-2069.
United States Court of Appeals, First Circuit.
Heard March 2, 2004. Decided April 16, 2004.
364 F.3d 368
Eric J. Uhl, with whom Moon, Moss, McGill & Shapiro, P.A. was on brief, for appellee/cross-appellant.
LYNCH, Circuit Judge.
These are cross-appeals in a Title VII religious discrimination case. A jury found Spencer Press of Maine liable for the harassment of its employee Albert Johnson on account of his religion and awarded compensatory and punitive damages, respectively $400,000 and $750,000, the sum of which was reduced to the statutory cap of $300,000.
Spencer Press appeals from the denial of its new trial motion, arguing that the evidence did not show that the harassment was because of Johnson‘s religion and did not show that it was severe and pervasive. Spencer Press also challenges the punitive damages award and the jury instructions. We reject these contentions and affirm.
Johnson cross-appeals the district court‘s holding that he was not entitled to any back pay or front pay after he was fired from his next job, after leaving Spencer Press, for misconduct. He also argues that the district court erred in rejecting the contention that he was unable to get a subsequent job because he was psychologically disabled, and that Spencer Press is responsible for this disability because it stems from the harassment he endured while he was an employee there.
We affirm the limitation on Johnson‘s front pay and back pay, but we do so on alternative grounds. We hold that it is error to cut off, as a matter of law, the ability of a successful Title VII plaintiff to receive further back pay or front pay once he is fired for misconduct from the position he takes after leaving the discriminatory employer. As a result, we reach a second issue on which Johnson‘s cross-appeal ultimately fails; Johnson was unable to work because he was totally disabled and the evidence was insufficient to support Johnson‘s claim that this disability was attributable to the harassment he endured at Spencer Press. We affirm.
I.
On April 3, 2002, plaintiff Albert Johnson filed suit against his former employer, Spencer Press of Maine, Inc.,1 alleging that he had been discriminated against and harassed on the basis of, inter alia, his religion in violation of Title VII of the Civil Rights Act of 1964 (“Title VII“),
The case proceeded to trial before a jury on April 28, 2003 and lasted four days. The testimony presented at trial, which is recounted in the light most favorable to Johnson, O‘Rourke v. City of Providence, 235 F.3d 713, 717 (1st Cir. 2001), established the following account.
Johnson received a B.S. in Bible Studies from Valley Forge Christian College in 1978 and served as a pastor at the Beech Ridge Assembly of God Church from May 1979 to October 1981. In 1981, Johnson resigned from his position at the church and found a new job at the Paul Dever State School for the mentally retarded, which he stayed in until July 1990. Despite leaving his official position at the church, Johnson remained very active in religious activities.
In November of 1991, Johnson began working as a custodian at Spencer Press, a printing company. After Johnson started at Spencer Press, he expressed to both his supervisor at the time and his co-workers a desire to have Sundays off from work. Although Johnson had to work most Sundays, his first few months at Spencer Press were incident-free.
Stephen Halasz became the supervisor of the custodial department at Spencer Press in May of 1992. Some time shortly thereafter, Johnson expressed to Halasz a desire to have Sundays off, if possible. Johnson had also had discussions with co-workers in which he revealed his religious beliefs. Starting either in late 1992 or early 1993, Halasz began asking Johnson about his religious views. Halasz testified that he understood the reason that Johnson did not like to work on Sundays was because he wanted to go to church. Halasz also testified that he was aware that Johnson was religious before he found out in 1995 that Johnson used to be a minister.
Soon after Halasz was promoted to the position of supervisor, he started making inappropriate and lewd comments to Johnson. Johnson recounted one incident in late 1992 in which Halasz told him to “help hold my dick” and another incident in which Halasz said Johnson looked tired and told a co-worker that “if Al fucks like he works, then he must be slow as a nigger.” Halasz made multiple other inappropriate and sexually explicit comments to Johnson throughout 1992 and 1993.
At least two of these remarks specifically targeted Johnson‘s religious beliefs. At one point, Halasz tried to show Johnson a Playboy magazine and said that he “must be Catholic” because he got flustered whenever Halasz made comments about sex. Johnson said that on another occasion in 1992, Halasz proclaimed to another custodian that “Al doesn‘t fuck, drink or smoke, he must be a Catholic.” Halasz admitted to making derogatory remarks to Johnson and teasing him for being Catholic. He also said that he remembered calling Johnson a Catholic when he refused to look at a Playboy magazine.
Upset by Halasz‘s treatment of him, Johnson started in 1994 to keep notes of “significant” events that he considered “hostile or demeaning.” Johnson kept notes of numerous instances of harassment by Halasz that occurred from 1992 until May 2000, when Johnson left Spencer Press. These included Halasz‘s comments that Johnson should suck Halasz‘s dick, that Halasz hoped a deer would “run[] out
A significant percentage of the derogatory comments that Halasz made from 1994 to 2000 involved Johnson‘s religion. Halasz called Johnson a “religious freak” and told Johnson that he was tired of his “religious bullshit.” According to Johnson, Halasz told him that because of his religious beliefs he “wasn‘t out basically getting pussy.” On April 27, 2000, a day before Johnson tendered his resignation to Spencer Press, Halasz told Johnson that “he was getting real tired of hearing that [Johnson] couldn‘t work overtime on Sundays, that [he] was involved in church and classes, and [that Halasz] didn‘t like it.” Halasz then asked Johnson “if you could work overtime and make $120 or love Jesus, what would you do?” When Johnson answered that he would love Jesus, Halasz screamed “well, why don‘t you take Mary and turn her upside down and pull her dress over her head.”
Halasz‘s derogatory remarks involving religion were also corroborated by the testimony of Johnson‘s former co-worker. Karen Hart, who worked with Johnson as a custodian in 1999, testified that Halasz harassed Johnson about his religion and called him a “religious freak.” Hart recalled Halasz telling Johnson that “I don‘t want to hear about your religious bullshit” and, on another occasion, that he should “go work with people that are Jehovah Witnesses and keep your comments to yourself [because] I don‘t want to hear about the religious stuff.” Halasz also told Johnson that Johnson‘s job was more important than his church affairs. Halasz made these comments, according to Hart, “on a daily basis” while she was working at Spencer Press. Hart testified that she was so distraught by these comments that she told Halasz that he “shouldn‘t be harassing [Johnson] about his religion.”
Johnson‘s testimony that Halasz consistently harassed him about his religious beliefs was also corroborated by Norma Crawford, a friend of Johnson. Crawford testified that Johnson frequently called her from work when he was upset and told her that he was being harassed at work because of his religion. On several of these occasions, according to Crawford, Johnson was crying when he called her. Crawford testified that Johnson told her about Halasz‘s comment regarding the Virgin Mary.
Johnson also testified about several instances in which Halasz threatened to kill him with a hand grenade, run him over with a car, and shoot him with a bow and arrow. At one point, Halasz took a knife out of its sheath and put the point of it under Johnson‘s chin.
Johnson complained to the human resources department about the treatment he was receiving from Halasz about six different times over the course of his employment. Each time, he was told that there was nothing that could be done and, that if he did not like the treatment he was receiving, he could leave the company. At one point, the human resources person to whom Johnson complained told him that she could not pursue his complaints about Halasz because if she did she would be fired. Johnson also filed several requests to transfer into another division within Spencer Press, each of which was denied.
On April 28, 2000, Halasz resigned his position from Spencer Press. He had been experiencing frequent panic attacks
Johnson subsequently filed a complaint with the Maine Human Rights Commission and the Equal Employment Opportunity Commission. After Johnson filed these complaints, Halasz came to Johnson‘s house and threatened to beat him up if he maintained his complaints. He also told Johnson that as a result of the complaints, he had been forced to take harassment classes at Spencer Press and that he had learned that he had discriminated against Johnson on the basis of his religion.
On May 1, 2003, a jury returned a verdict in which it concluded that Spencer Press harassed Johnson because of his religion or religious beliefs and that Johnson was constructively discharged from Spencer Press because of that harassment. The jury also found that Spencer Press had not independently taken any specific adverse employment action against Johnson on the basis of his religion. The jury awarded Johnson $400,000 in compensatory damages and $750,000 in punitive damages. Spencer Press did not file a Rule 50 motion for judgment as a matter of law.
Spencer Press did move for a new trial pursuant to Fed. R. Civ. Proc. 59, arguing that there was insufficient evidence to support the jury‘s verdict. That motion was denied, and judgment was entered in favor of Johnson on the harassment claim. Pursuant to
Spencer Press appeals both the district court‘s denial of its motion for a new trial and the underlying judgment. Johnson cross-appeals the district court‘s ruling limiting the availability of front and back pay.
II. Direct Appeal
A. Denial of Spencer Press‘s Motion for a New Trial
We review the district court‘s denial of Spencer Press‘s motion for a new trial for an abuse of discretion.4 Marrero v. Goya of P.R., Inc., 304 F.3d 7, 14 (1st Cir. 2002). In doing so, we recognize that motions for a new trial are generally “directed to the trial court‘s discretion and th[e] remedy is sparingly used.” Dall v. Coffin, 970 F.2d 964, 969 (1st Cir. 1992) (internal quotation marks omitted). A district court should only grant such motions if “the outcome is against the clear weight of the evidence such that upholding the verdict will result in a miscarriage of justice.” Ramos v. Davis & Geck, Inc., 167 F.3d 727, 731 (1st Cir. 1999) (internal quotation marks omitted).
The jury found in favor of Johnson on his workplace harassment claim based on religion. Spencer Press argues that
In advancing the claim that any harassment was not due to religion, Spencer Press relies heavily on Rivera, in which we noted a “conceptual gap between an environment that is offensive to a person of strong religious sensibilities and an environment that is offensive because of hostility to the religion guiding those sensibilities.” Rivera, 331 F.3d at 190.5 Although Spencer Press admits that there may have been several isolated incidents in which the harassment manifested itself in comments implicating religion, it argues that this was not sufficient for the jury to conclude that Johnson was harassed because of his religion.
The district court did not abuse its discretion in declining to grant a new trial. Soon after Halasz was promoted to custodial supervisor, he became aware that Johnson was a religious person. At approximately the same time, he started making extremely inappropriate and lewd comments to Johnson. At first, only some of these remarks explicitly targeted Johnson‘s religion: Halasz repeatedly said that Johnson “must be Catholic” because he did not want to do certain things. Gradually, though, the harassment came to focus unabashedly on Johnson‘s religious views. Halasz repeatedly called Johnson a “religious freak,” told him not to talk about “religious bullshit,” said that because of his religion he was not getting sex, and told him to “take [the Virgin] Mary and turn her upside down and pull her dress over her head.”
Almost all of the inappropriate comments concerning Johnson‘s religion focused on a consistent theme: that Johnson was too chaste and sober for Halasz‘s taste and that this was because of Johnson‘s religious beliefs. Halasz did not make similarly inappropriate and offensive comments to other Spencer Press employees. Given the consistency of the harassment that specifically invoked Johnson‘s religion and the more frequent harassment that did not, the jury could easily have concluded that the underlying motivation—religious discrimination—was the same for each. The jury also could have easily concluded that this motivation stemmed from Halasz‘s animosity towards Johnson‘s religious beliefs; indeed, Halasz explicitly attributed Johnson‘s chastity and sobriety to his religious convictions. As explained in Rivera, “conduct need not be explicitly religious to constitute harassment because of religion.” Rivera, 331 F.3d at 190 n. 2; see Venters v. City of Delphi, 123 F.3d 956, 973 (7th Cir. 1997) (religious
For similar reasons, we reject Spencer Press‘s argument that it was against the clear weight of the evidence for the jury to find that the harassment endured by Johnson was sufficiently “severe or pervasive” to affect a “term, condition, or privilege of employment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Whether the harassment was severe or pervasive “must be answered by reference to ‘all the circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee‘s work performance.‘” Marrero, 304 F.3d at 18 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). “Subject to some policing at the outer bounds, it is for the jury to weigh those factors and decide whether the harassment was of a kind or to a degree that a reasonable person would have felt that it affected the conditions of her employment.” Id. (internal quotation marks omitted).
The description of facts set forth earlier provides more than ample support for the jury‘s conclusion. Halasz repeatedly and continuously insulted Johnson and mocked his religious convictions. The harassment occurred throughout Johnson‘s work day, including when he was attempting to perform his custodial duties. On multiple occasions, Halasz threatened Johnson with violence and once he actually placed the point of a knife under Johnson‘s chin. In sum, there was more than ample evidence to support the jury‘s conclusion that the harassment was severe and pervasive. See White v. N.H. Dep‘t of Corr., 221 F.3d 254, 260-61 (1st Cir. 2000) (finding that “disgusting comments” and conversations that occurred “everyday” could support a finding that harassment was severe and pervasive).
B. Spencer Press‘s Challenge to the Punitive Damages Award
Spencer Press argues that the jury did not have sufficient evidence to award punitive damages because Halasz was not acting “in a managerial capacity” during the course of Johnson‘s employment. Kolstad v. Am. Dental Ass‘n, 527 U.S. 526, 545-46 (1999). Spencer Press admits that the jury rationally could have rejected its affirmative defense to an award of punitive damages that it had exercised reasonable care to avoid harassment and to eliminate it when it might occur. Id. at 545.
The availability of punitive damages is not a live issue. The jury awarded Johnson $400,000 in compensatory damages and $750,000 in punitive damages. Acting pursuant to
C. Spencer Press‘s Challenge to the Jury Instructions on the Severe or Pervasive Requirement
Spencer Press argues that the district court erred in its explanation to the jury of the requirement that the harassment be “severe or pervasive.” Spencer Press preserved the objection.
The district court instructed the jury that, to succeed on his harassment claim, Johnson must show:
that the harassment was sufficiently severe or pervasive so as to alter the conditions of his employment and create an abusive working environment....
Religiously discriminatory remarks, innuendos, ridicule, and intimidation can be sufficiently severe or pervasive in their accumulated effect to alter the conditions of employment and create an abusive working environment. But offhand comments, rudeness, occasional teasing and isolated incidents are not alone sufficient. This is not a general civility code for the workplace.
Spencer Press‘s argument is that this instruction was flawed because it did not include a statement that the conduct must be “extreme.” This argument is premised on the Supreme Court‘s statement in Faragher that “conduct must be extreme to amount to a change in the terms and conditions of employment.” 524 U.S. at 788 (emphasis added).
We review the district court‘s choice of language in instructing the jury for an abuse of discretion. Gray v. Genlyte Group, Inc., 289 F.3d 128, 133 (1st Cir. 2002). The district court did not abuse its discretion in omitting the word “extreme” from its instructions to the jury. It is the district court‘s prerogative to craft the “particular verbiage” that it will use in its jury instructions. Febres v. Challenger Caribbean Corp., 214 F.3d 57, 62 (1st Cir. 2000). So long as that language properly explains the controlling legal standards and is not unduly confusing or misleading, it will not be second-guessed on appeal. See id.; Brown v. Trustees of Boston Univ., 891 F.2d 337, 353 (1st Cir. 1989); see also Webster‘s Third New International Dictionary 807 (1993) (one definition of “extreme” is “marked by great severity“). There is no requirement that the word “extreme” be used in instructing the jury on a harassment claim.
III. Johnson‘s Cross-Appeal Regarding Damages
Johnson cross-appeals the district court‘s summary judgment and post-trial determinations that, as a matter of law, he is not entitled to any back pay or front pay for any period beyond December 8, 2000. Spencer Press raises no questions about Johnson‘s preservation of these issues for appeal.
The availability of back pay and front pay is not affected by the cap on compensatory and punitive damages. Both federal and Maine law clearly exclude awards of back pay from the statutory cap on the sum of compensatory and punitive damages. See
An award of back pay compensates plaintiffs for lost wages and benefits between the time of the discharge and the trial court judgment. See Lindemann & Grossman, Employment Discrimination Law 635-37 (Cane, Jr. et al. eds., 3d ed.1996). Front pay, by contrast, is “money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement.” Pollard, 532 U.S. at 846; see Lindemann & Grossman, at 639-42. Front pay thus compensates plaintiffs for lost wages that may accrue after the conclusion of the trial. Both back pay and front pay are authorized by
If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may ... order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.
During the back pay period, individuals have an obligation to exercise “reasonable diligence” in finding alternative suitable employment. See
The Supreme Court laid out the basic standards for awarding back pay in Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). That opinion clarified that in cases of unlawful discrimination, “back pay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.” Id. at 421. Despite its equitable nature, back pay is therefore “a presumptive entitlement of a plaintiff who successfully prosecutes an employment discrimination case.” Thurman v. Yellow Freight Systs., Inc., 90 F.3d 1160, 1171 (6th Cir. 1996). In
Awards of front pay, by contrast, are generally entrusted to the district judge‘s discretion8 and are available in a more limited set of circumstances than back pay. See Lussier v. Runyon, 50 F.3d 1103, 1108-09 (1st Cir. 1995). Front pay should not be awarded unless reinstatement is impracticable or impossible. Wildman v. Lerner Stores Corp., 771 F.2d 605, 616 (1st Cir. 1985). Even then, awards of front pay are discretionary, in part because they necessarily involve predictions of events yet to come. See id.; Lussier, 50 F.3d at 1109. For these reasons, district court decisions as to front pay are generally afforded more deference than decisions as to back pay.
The district court ruled that Johnson stopped mitigating his damages about seven months after he left Spencer Press, when he was fired on December 8, 2000 from his subsequent job at Hannaford Brothers, a major supermarket chain in Maine. Johnson had started that job only a few days after leaving Spencer Press. Johnson was found eating food for which he had not paid, in violation of Hannaford company rules. This failure to mitigate damages, held the district court, eliminated the availability of either back pay or front pay for any time period after December 8.9 Moreover, the district court found that there was insufficient evidence that the mistreatment Johnson endured at Spencer Press was causally responsible for his being fired from Hannaford. The court concluded that Johnson‘s own lay testimony to this effect did not create an issue of fact and that Johnson‘s expert was not “specific enough” on the link between Johnson‘s disability and his misbehavior at Hannaford.10
Johnson‘s cross-appeal does not dispute the conclusion that Spencer Press was not responsible for his termination from Hannaford. Instead, Johnson‘s basic argument is that the district court misunderstood the implications of his being fired from Hannaford for the availability of both front and back pay. Johnson argues that his termination from Hannaford only tolled the availability of back pay until he was able to find another job, and that the district court erroneously held that the availability of
A. Back pay
Review of the legal principles used by the district court in determining the availability of back pay is de novo. Reich v. Cambridgeport Air Sys., 26 F.3d 1187, 1190 (1st Cir. 1994). Johnson‘s appeal raises a number of difficult issues. As Johnson notes, the district court‘s final holding was that once Johnson was fired from Hannaford, he was no longer eligible for any back pay.11
The district court was correct that once Johnson was fired from Hannaford for misconduct, he was no longer mitigating his damages, as was required. But that did not mean that the possibility of back pay was permanently cut off. Although the district court did not explicitly endorse, or even give reasons for, such a rule, its holding necessarily relied on this supposition of law.12 We hold that this was error.
In fact, at least two circuit courts have found that back pay awards can accrue for periods after an employee is terminated from an “employer B” when the job at “employer B” was serving to mitigate damages arising from discriminatory conduct by “employer A.” See Delight Wholesale, 973 F.2d at 670 (back pay period was temporarily tolled after plaintiff voluntarily quit for personal reasons and began to run once she found a new job); Brady, 753 F.2d at 1278-80 (back pay is temporarily tolled after an employee is fired for misconduct in the course of mitigating damages from a previous illegal discharge and begins again once the employee finds another job). These holdings stem, at least in part, from the NLRB‘s rule on the issue, first articulated in Knickerbocker Plastic Co., 132 N.L.R.B. 1209, 1215 (1961):
We further find that, as a result of such quitting, each of these claimants shall be
deemed to have earned for the remainder of the period for which each is awarded back pay the hourly wage being earned at the time such quitting occurred. Therefore, an offset computed on the appropriate rate per hour will be deducted as interim earnings from the gross back pay of each of these claimants. This offset shall be made applicable from the date of the unjustified quitting throughout the remainder of the back pay period for each particular claimant.
(emphasis added). Because Title VII‘s back pay language was “‘expressly modeled’ on the analogous remedial provision of the National Labor Relations Act (NLRA)” the “principles developed under the NLRA generally guide, but do not bind, courts in tailoring remedies under Title VII.” Ford Motor Co., 458 U.S. at 226 n. 8.
We hold that back pay is not permanently terminated when an employee is fired for misconduct or voluntarily quits interim employment.13 This view comports with the purpose of the back pay remedy as articulated in Albemarle. Albemarle taught that back pay is a presumptive entitlement of a victim of discrimination and that the discriminating employer is responsible for all wage losses that result from its unlawful discrimination, at least until the time of judgment.14 422 U.S. at 419-21. Had there been no discrimination at employer A, the employee would never have come to work (or have been fired) from employer B.15 The discriminating employer (employer A) should not benefit from the windfall of not paying the salary differential when the employee is re-employed by employer C.16
Ultimately, we need not craft general principles for how back pay should be calculated when an employee who has been discriminated against is fired from intervening employment. But our holding does require us to reach a second issue. Here, once Johnson was fired from Hannaford, he never sought out employment before trial in a further attempt to mitigate damages. Johnson explains that he did not seek further employment because he was unable to work as he suffered from a total psychological disability; indeed, Johnson received a 100 percent non-service connected disability rating from the Veteran‘s Administration. Some courts have adopted a rule that if a plaintiff is unable to mitigate damages due to a disability not caused by the discriminatory employer, that disability cuts off back pay liability.17 Lathem v. Dep‘t of Children & Youth Servs., 172 F.3d 786, 794 (11th Cir. 1999) (“[C]ourts exclude periods where a plaintiff is unavailable to work, such as periods of disability, from the back pay award.“); Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1101 (3rd Cir. 1995) (“[A]s a general rule ... an employer who has discriminated need not reimburse the plaintiff for salary loss attributable to the plaintiff and unrelated to the employment discrimination.” (internal quotation marks omitted)). Here, Johnson does not argue that a disability arising independently of the discriminatory employer does not cut off back pay, so we do not rule on the issue. Johnson does, however, argue that there was evidence that his disability was caused by the harassment he endured at Spencer Press. If it was, he says, then both back pay and front pay should have been available even after he was fired from Hannaford for misconduct.
Johnson is correct that several courts have held that an employee who is unable to work due to a disability is not precluded from receiving back pay when the employer “caused” the disability. This
Nonetheless, the evidence provided by Johnson does not allow him to take advantage of this rule. That evidence does no more than create an issue regarding whether the harassment at Spencer Press was one among numerous other independent and significant contributing factors to Johnson‘s psychological disability. Besides his own testimony, the only evidence that Johnson offered was the testimony of one expert, Dr. Ananis. Dr. Ananis stated in a deposition that Johnson had been able to maintain a certain degree of functioning and employment until the events which took place during his employment at Spencer Press, including the harassment he stated he received while he worked there. I am aware that Mr. Johnson had other issues in his life, including family deaths, divorce, and problems with his sons, and I did not make a determination as to what event or events, if any, caused his depression and panic and anxiety disorders. Nevertheless, it is clear to me that the events at Spencer Press relating to the harassment he stated he received from his supervisor exacerbated his depression and panic and anxiety disorders.
Although this testimony may have created a genuine question of fact about whether there was some relationship between the harassment at Spencer Press and Johnson‘s disability, it was not sufficient for Johnson to escape summary judgment on the issue. Given that Johnson was able to find a new job at Hannaford immediately after leaving Spencer Press and then to keep the job for the next seven months and given that Johnson has had numerous other significant problems in his life that may have been causally related to his disability, the evidence was insufficient.
Johnson‘s own testimony does not bridge the gap. Johnson confirmed that he had suffered from depression and anxiety since 1993, and that he had family problems as well as the problems he suffered at Spencer Press. But he did not, and could not (owing to his lack of expertise), testify that his inability to get a job after Hannaford was caused by the harassment at Spencer Press.
B. Front Pay
For the same reasons that we affirm the denial of back pay after December 8, 2000, we conclude that there was no abuse of discretion in the district court‘s refusal to grant front pay.
IV.
The district court‘s judgment is affirmed.
Although I agree that the grant of summary judgment must be upheld, I write separately because the discussion in the majority opinion regarding whether the district court improperly predicated its decision on the legal principle that Johnson‘s termination by Hannaford permanently severed his entitlement to back pay is an academic exercise wholly unnecessary to the disposition of the appeal. Even if it were to be assumed that this principle constituted an implicit rationale upon which the district court relied—which I seriously doubt—its adoption plainly did not constitute outcome-determinative error. Rather, just as the