Trainor v. HEI Hospitality, LLCTrainor v. HEI Hospitality, LLC
7. This process may be regulated by the Office of the Election Comptroller subject to the requirements of this Act. P.R. Stat. Ann. tit. 16, § 625j.
Lynn A. Kappelman, with whom Lisa J. Damon, Gerald L. Maatman, Jr., James M. Hlawek and Seyfarth Shaw LLP were on brief, for appellants.
Gary M. Feldman, with whom Davis, Malm & D’Agostine, P.C. was on brief, for appellee.
Before HOWARD, RIPPLE * and SELYA, Circuit Judges.
SELYA, Circuit Judge.
A time worn proverb teaches that “Hell hath no fury like a woman scorned.” Much the same dynamic can be in play when, as in this case, a corporation abrupt
In this instance the denouement prompt-ed a suit for age discrimination and retalia-tion. After a protracted trial, the jury found the employer guilty of retaliation and returned a seven-figure verdict in the employee’s favor. The district court al-lowed the liability finding to stand; trimmed the damages but doubled what remained; refused to grant either judg-ment notwithstanding the verdict or an unconditional new trial; and awarded the prevailing plaintiff attorneys’ fees and an equitable remedy. The employer appeals.
After careful consideration of a scum-bled record, we conclude that the sum awarded for emotional distress damages, even after the district court’s remittitur, remains grossly excessive. We order a further remittitur. This order, in turn, affects the outcome of the doubling of damages undertaken by the district court. In all other respects, we reject the employ-er’s challenges. The tale follows.
I. BACKGROUND
We rehearse the facts as the jury sup-portably could have found them, guided by
Plaintiff-appellee Lawrence Trainor, then 59 years of age, was enticed to join HEI Hospitality, LLC in the fall of 2006 after a long and distinguished career in hospitality management.1 The plaintiff was recruited by HEI’s chief operating officer, Ted Darnall, to become HEI’s sen-ior vice-president for acquisitions and tran-sitions (SVP). Above and beyond assisting with acquiring and transitioning new hotel properties into HEI’s sphere of influence, the plaintiff also recruited and mentored general managers, developed a “playbook” to organize integration strategies, and worked with “priority” hotels.
The terms of HEI’s initial offer required the plaintiff to relocate to Norwalk, Con-necticut (where HEI maintains its head-quarters). The plaintiff balked at this re-quirement, however, and argued against a move from his home in Marshfield, Massa-chusetts because of his wife’s health. A compromise was reached: the plaintiff would spend Mondays (and any other days on which his presence was needed) in Nor-walk and travel from Marshfield to the properties that demanded his attention during the balance of the week.
The company’s hierarchs were consis-tently pleased with the plaintiff’s manage-ment style and overall job performance: he received rave reviews from the chief executive officer Gary Mendell, Darnall, and the senior vice-president for human resources Nigel Hurst. Storm clouds be-gan to gather in the fall of 2008, when rumors began about the possibility of re-structuring the executive team. After Bri-an Meyer was brought in as senior vice-president of operations, top-echelon execu-tives received an adjuration about a per-ceived need to relocate to Norwalk.
In November, Darnall offered the plain-tiff a choice: relocate to Norwalk or as-sume the general manager’s position at a hotel located in Cambridge, Massachu-setts. HEI claims that the relocation was necessary because it intended to promote the plaintiff to a regional senior vice-presi-dent position. But the plaintiff was never actually offered such a position (or so the jury could have found).
During the next two weeks, the plaintiff had follow-up conversations with both Dar-nall and Hurst and learned that the demo-tion to general manager would be accom-panied by a substantial cut in salary and a discontinuance of his participation in HEI’s company-sponsored investment funds (described in more detail infra). Dismayed by this turn of events, the plain-tiff engaged counsel. His lawyer wrote to Mendell on December 4, expressing the plaintiff’s disappointment with the recent developments at HEI. The letter made clear that the plaintiff was both reluctant to relocate and distressed by the prospect of being shifted to a lower-level position. Of particular pertinence for present pur-poses, the letter suggested that age dis-crimination was the driving force behind HEI’s planned restructuring and the plaintiff’s threatened demotion. Upon re-ceiving this missive, Mendell—by his own admission—was “surprised,” was “frustrat-ed,” and “wasn’t happy.” He regarded the
The plaintiff had some incidental com-munication with Hurst regarding the De-cember 4 letter. Thereafter, he met face-to-face with Mendell, who told him for the first time that his position had been elimi-nated. This discussion left only the Cam-bridge job on the table; Mendell made no mention of the regional senior vice-presi-dent position that HEI ostensibly intended to offer to the plaintiff. The plaintiff be-gan to negotiate the terms of the lesser position and requested that HEI maintain his current salary, allow him to continue to participate in all the company-sponsored investment funds, and keep him involved in a certain number of acquisitions per year. Mendell countered by offering, among other things, to increase the salary figure to $200,000 (still appreciably below the salary then being paid to the plaintiff) and to permit the plaintiff to vest in two of HEI’s three investment funds.
On December 20, the plaintiff’s lawyer wrote to Mendell expressing dissatisfaction with the counter-proposal and reiterating the plaintiff’s earlier requests. In a tele-phone conversation nine days later, Men-dell told the plaintiff that he was “pissed.” Seeking to reach common ground, the plaintiff asked Mendell to give him a writ-ten offer anent the new position. Mendell furnished a written offer later that day, but the offer did not address any of the plaintiff’s demands. It did, however, in-clude a stipulation that the offer be accept-ed in writing by January 2, 2009.
On Tuesday, December 30, the plaintiff notified a phalanx of HEI officials, includ-ing Darnall and Hurst, that he would be working remotely that week and taking vacation the following week. In response, Darnall extended good wishes for the plaintiff’s vacation and stated that he would call in the next few days.
On January 2, 2009, the plaintiff filed a charge of age discrimination with the Mas-sachusetts Commission Against Discrimi-nation (MCAD). The plaintiff’s lawyer forwarded a copy of the charge to Mendell. His transmittal letter indicated that the plaintiff remained “amenable” to working out a solution with HEI. Mendell received the letter (including the copy of the MCAD charge) on January 2. Three hours after he received these materials, Mendell fired the plaintiff via e-mail. The e-mail ex-plained that the offer of the Cambridge position expired on January 2 and his cur-rent position no longer existed. Mendell concedes that he did not even read the details of the age discrimination charge before cashiering the plaintiff.
The plaintiff, after exhausting adminis-trative remedies, filed suit in federal dis-trict court alleging that HEI had both discriminated and retaliated against him in violation of applicable federal and state law. Specifically, the plaintiff invoked the
After extensive pretrial discovery, an eight-day trial ensued. The jury returned a special verdict in which it found HEI liable for retaliation (but not for age dis-crimination) and awarded the plaintiff $500,000 in back pay, $750,000 in front pay, and $1,000,000 for emotional distress. Since the jury determined that HEI had knowingly violated state law, the court en-tered an order doubling the plaintiff’s damages. See Trainor v. HEI Hosp’y, LLC (Trainor I), No. 09-10349, 2011 WL 1670234 (D. Mass. Apr. 14, 2011) (citing
HEI responded to the verdict and the multiplication order with a flood of mo-tions. These included motions seeking al-ternative relief: judgment as a matter of
II. ANALYSIS
We subdivide our analysis into seven segments, which in the aggregate address all of HEI’s myriad claims of error.
A. Liability.
We start with the district court’s denial of HEI’s motion for judgment as a matter of law. See
In this instance, there is no smok-ing gun; that is, there is no direct evi-dence of retaliation. In such a situation, succeeding on a claim of retaliation under either federal or Massachusetts law entails proof that “(1) [the plaintiff] engaged in protected conduct under federal or [state] law; (2) [he] suffered an adverse employ-ment action; and (3) a causal connection existed between the protected conduct and the adverse action.” McMillan v. Mass. SPCA, 140 F.3d 288, 309 (1st Cir. 1998). In order to make a prima facie showing of these elements, it is not necessary that the plaintiff succeed on the underlying claim of discrimination; “[i]t is enough that the plaintiff had a reasonable, good-faith belief that a violation occurred; that he acted on it; that the employer knew of the plain-tiff’s conduct; and that the employer lashed out in consequence of it.” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991).
Once the plaintiff makes his prima facie showing, the burden shifts to the defendant to produce evidence of a “legiti-mate, non-retaliatory reason” for the ad-verse employment action. McMillan, 140 F.3d at 309. If the defendant produces such evidence, the burden reverts to the plaintiff to prove that “the real reason for the decision” was retaliatory. Id.
In the case at hand, the record contains ample evidence that the plaintiff engaged in protected conduct, namely, his voiced suspicions about the allegedly discrimina-tory nature of HEI’s proposed restructur-ing and his filing of a formal charge of discrimination with the MCAD. By the same token, it is transparently clear that adverse employment actions occurred. Not surprisingly, then, HEI’s challenge to
There is a common-sense aspect to causation: to establish that an adverse employment action was caused by an em-ployee’s protected activity, the employer’s decision to act adversely to the employee must postdate the protected activity. Muñoz v. Sociedad Española de Auxilio Mu-tuo y Beneficencia, 671 F.3d 49, 56 (1st Cir. 2012); Sabinson v. Trs. of Dartmouth Coll., 542 F.3d 1, 5 (1st Cir. 2008). It follows that an employer “need not sus-pend previously planned [decisions] upon discovering that a [discrimination] suit has been filed.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001) (per curiam). In an attempt to bring itself within this safe harbor, HEI asseverates that no cause-and-effect relationship can exist here be-cause the adverse employment actions were a foregone conclusion prior to the plaintiff’s protected conduct. See id.
The weakness in HEI’s asseveration is that the record admits of conflicting inter-pretations about the events that transpired from November 2008 through January 2009. Although HEI suggests that a jury could not supportably find retaliation be-cause the elimination of the plaintiff’s posi-tion and his eventual termination were part of a larger plan set in motion long before the plaintiff engaged in any protect-ed activity, the plaintiff counters that mat-ters were in flux until after he engaged in the protected activities.
It is not our province to choose between the competing scenarios sketched by the parties. Instead, our task is simply to determine whether the jury acted reason-ably in placing its imprimatur on the plain-tiff’s version of events. See Casillas-Díaz, 463 F.3d at 80-81. Unless the evidence compels the conclusion that HEI’s adverse employment actions were preplanned, our hands are tied. See id. We examine the record from this standpoint.
The plaintiff contends that two instances of retaliation occurred: the abolition of the SVP position (which followed on the heels of his attorney’s December 4 letter alleg-ing age discrimination) and his discharge (which followed HEI’s receipt of a copy of the MCAD charge by a matter of hours). On the record before us, we think that the jury reasonably could have found that ei-ther or both of these acts were retaliatory. We discuss them sequentially.
To begin, the jury reasonably could have found that HEI never considered the outright elimination of the plaintiff’s posi-tion until after it received the December 4 letter. In this regard, we find significant the plaintiff’s testimony that the abolition of his position was not mentioned either in his November conversation with Darnall or in any other discussions or correspondence preceding HEI’s action. Similarly, the elimination of the SVP position was not mentioned in any internal memorandum or e-mail written in the mid-November to early December time frame. To cinch the matter, Darnall’s November adjuration that the plaintiff relocate to Norwalk logi-cally contemplated the continued existence of the SVP position (or so the jury could have found). In the same vein, the De-cember 4 letter itself made requests that would necessitate the continued existence of the SVP post.
To be sure, HEI claims that the elimina-tion of the SVP position was a necessary corollary of its November relocation re-quest because it intended to offer the plaintiff a different position as a regional senior vice-president once he moved. But the jury reasonably could have found that no such intention ever existed. After all, Mendell never mentioned the regional po-
What internal communications there were among HEI’s executives also conduce to the conclusion that no firm plan had been crafted before December 4 with re-spect to the fate of the plaintiff’s position. Indeed, some of those communications clearly envision the plaintiff as continuing to perform his SVP duties.
There is more. The jury received evi-dence suggesting that, in the relevant time frame, HEI’s executive leadership was contemplating future acquisition and tran-sition work that would logically have fueled an ongoing need for the SVP position. For example, Mendell established a new investment vehicle for the stated purpose of funding acquisitions in 2009 and 2010, and Darnall predicted that there might be as many as twelve acquisitions in 2009. This is especially noteworthy because, as an HEI executive affirmed: “if HEI were to acquire any new hotels in 2009 or 2010, they would need someone to work on the acquisition and transition process.” The short of it is that the jury reasonably could have inferred that HEI’s ambitious plans for the near-term acquisition of new hotel properties logically required continuation of the SVP position.
Taken in the ensemble, the evidence dis-cussed above undercuts HEI’s claim that the position-elimination decision was set in cement long before December 4.
We reach the same conclusion with respect to the plaintiff’s firing on January 2, 2009. As we explain below, we believe that the jury could reasonably have con-cluded that this event was in retaliation for the filing of the MCAD charge.
To begin, the close temporal proximity between Mendell’s receipt of the MCAD charge and his dismissal of the plaintiff—a matter of a few hours—itself supports an inference of retaliation. See Harrington v. Aggregate Indus.-Ne. Region, Inc., 668 F.3d 25, 32 (1st Cir. 2012). Here, more-over, such an inference is reinforced by other evidence in the record suggesting that negotiations were still ongoing be-tween the parties when the axe fell. While HEI argues that everyone knew that Jan-uary 2 was a “drop dead” date and that the plaintiff was aware that his employment with the company would come to a screeching halt if he did not sign the out-standing offer by then, the record is much less conclusive. A number of HEI execu-tives indicated in e-mails sent during the critical period and in trial testimony that they thought negotiations were velivolant and would extend beyond January 2. The plaintiff certainly labored under this im-pression; the January 2 transmittal letter stated unambiguously that he remained “amenable to working with HEI to arrive at a resolution.” In addition, both the plaintiff’s January 2 vacation alert and Darnall’s tacit approval of that leave would have been superfluous had either party believed that January 2 was a “drop dead” date. This expectation of negotiations yet to come was validated by evidence of HEI’s past practice of giving leeway with respect to offer letter deadlines. Finally, HEI was unable to produce any memoran-dum, e-mail, or other internal writing sub-stantiating its claim that it planned all
HEI’s principal repost is that the elimi-nation of the SVP position and the plain-tiff’s subsequent discharge were the natu-ral consequence of a path staked out well before December 4. In support, it charac-terizes Darnall’s November conversation with the plaintiff as one in which an ulti-matum was delivered. While the conver-sation may be susceptible to that charac-terization, the record contains sufficient evidence to permit a finding that it was not an ultimatum but, rather, the beginning of a dialogue about HEI’s proposed executive restructuring and the plaintiff’s place in it.
So, too, the evidence permits the conclu-sion that HEI never intended to create any path that would lead ineluctably to the termination of the plaintiff’s employment. After all, HEI had an ongoing need for an executive with the plaintiff’s expertise (or so the jury could have found); it consis-tently gave him sterling performance re-views; and a host of HEI executives testi-fied that they were eager to retain his services, notwithstanding any restructur-ing that might take place. It was not until the plaintiff engaged in protected activities that negotiations began to unravel. And it was not until the filing of the MCAD charge infuriated Mendell that the plaintiff found himself out in the cold.
Let us be perfectly clear. Although the record is susceptible to a conclusion that HEI, before any protected activity oc-curred, had staked out a path that commit-ted it to the elimination of the SVP posi-tion and the plaintiff’s ouster if he would not accept a demotion to the Cambridge job, the record is equally susceptible to the opposite conclusion. Because the record supports conflicting versions of the truth, it became the jury’s function—not the court’s—to choose between these versions. See Noonan v. Staples, Inc., 556 F.3d 20, 30 (1st Cir. 2009). Accordingly, HEI is not entitled to judgment as a matter of law.
B. Mitigation of Damages.
HEI asserts broadly that the plaintiff failed to satisfy his obligation to mitigate damages and that, therefore, the district court erred in refusing to remit all of the damage awards on this ground. We begin our appraisal of this assertion by remarking on the obvious: a district court has discretion to order a remittitur if such an action is warranted in light of the evi-dence adduced at trial. See Kelley v. Airborne Freight Corp., 140 F.3d 335, 355 (1st Cir. 1998). In exercising this discretion, the court is obliged to impose a remittitur “only when the award exceeds any rational appraisal or estimate of the damages that could be based upon the evidence before it.” Wortley v. Camplin, 333 F.3d 284, 297 (1st Cir. 2003) (internal quotation marks omitted). We review the grant or denial of a remittitur for abuse of discretion. Reyes-Garcia v. Rodriguez & Del Valle, Inc., 82 F.3d 11, 14-15 (1st Cir. 1996).
A failure to mitigate damages is in the nature of an affirmative defense and the defendant, therefore, must carry the devoir of persuasion on this issue. See Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 15-16 (1st Cir. 1999). This requires a showing that “(i) though substantially equivalent jobs were available in the rele-vant geographic area, (ii) the claimant failed to use reasonable diligence to secure suitable employment.” Id. at 16; see Black v. Sch. Comm. of Malden, 369 Mass. 657, 341 N.E.2d 896, 900-01 (1976).
We agree with the district court, see Trainor II, 2012 WL 119597, at *3,
HEI tries to parry this thrust by posit-ing that the plaintiff’s refusal to accept the Cambridge position necessarily betokened a failure to mitigate. But the jury could reasonably have concluded that the negoti-ations concerning this position were cut short by Mendell’s abrupt termination of the plaintiff’s employment and that, there-fore, the option no longer remained open. At any rate, a plaintiff is not required to mitigate damages by accepting a position that is substantially below his wonted pay grade and skill set. See, e.g., Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 231-32 (1982) (holding that a claimant need not “accept a demo-tion” in order to mitigate damages).
To sum up, we conclude that the record contains sufficient evidence of the plain-tiff’s due diligence in attempting to find alternative employment to defeat HEI’s claim of failure to mitigate. Given this conclusion, we discern nothing remotely resembling an abuse of discretion in the district court’s refusal to trim any of the damage awards on mitigation grounds.
C. Front Pay.
HEI makes two other arguments direct-ed at the district court’s failure to remit the jury’s front pay award. We consider these arguments separately.
1. Availability. In what is logically a threshold argument, HEI challenges the availability of front pay as a matter of law. Because this challenge raises a purely le-gal question, it engenders de novo review. See Perry v. Blum, 629 F.3d 1, 8 (1st Cir. 2010).
The centerpiece of HEI’s argu-ment is the proposition that, as a matter of law, front pay is not available when a plaintiff has received the benefit of an award of double or treble damages. This proposition is all bleat and no wool.
HEI claims that this proposition is ven-erated in First Circuit precedent. This claim is specious. The seminal case on which HEI relies is Wildman v. Lerner Stores Corp., 771 F.2d 605 (1st Cir. 1985). There, the plaintiff had received an award of double damages and the district court had denied front pay. Id. at 616. While we affirmed the denial of front pay, our decision in no way hinted, let alone held, that multiplied damages and front pay are mutually exclusive. Rather, we based our ruling on the wide discretion vested in the district court with respect to awards of front pay—a discretion that could be exer-cised to take account of the inherently speculative nature of front pay. See id.; see also Lussier v. Runyon, 50 F.3d 1103, 1109 (1st Cir. 1995) (discussing Wildman); Powers v. Grinnell Corp., 915 F.2d 34, 42-43 (1st Cir. 1990) (same). This same prin-ciple animated our decisions in the other cases highlighted by HEI. See, e.g., Rod-riguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52, 67 (1st Cir. 2005); Carey v. Mt. Desert Island Hosp., 156 F.3d 31, 40-41 (1st Cir. 1998).
If more were needed—and we doubt that it is—the purposes of front pay and multiplied damages are so disparate that a per se rule of mutual exclusivity makes no sense. The purpose of a front pay award is to help to make a plaintiff whole. Lus-sier, 50 F.3d at 1112 n. 10. Conversely, multiplication of damages, at least under
Since HEI’s argument for precluding front pay as a matter of law is premised on an incorrect reading of the cases and is jurisprudentially unsound, we reject it.
2. Evidentiary Sufficiency. In de-clining to remit the front pay award, the district court concluded that the plaintiff would have worked at HEI until the end of 2013 (or so the jury could have found). See Trainor II, 2012 WL 119597, at *4. HEI insists that there was insufficient evi-dence to support a rational conclusion that, absent the plaintiff’s unlawful termination, he would have worked at HEI through 2013. Addressing this challenge requires us to take the evidence bearing on front pay in the light most favorable to the plaintiff. See Kelley, 140 F.3d at 355.
In the last analysis, a front pay calculation is a prediction of a series of future events. To that extent, crafting a front pay award necessarily entails some degree of speculation. See Lussier, 50 F.3d at 1109. Here, however, the task of vaticination is made simpler by the plain-tiff’s age: at the time of trial (March of 2011), the plaintiff was 63 years old. This means that his normal retirement year (age 65) was only two years away. More-over, there was no evidence of any corpo-rate policy mandating early retirement.
The plaintiff testified flatly that he in-tended to work at HEI until the end of 2013. This statement of intent was sup-ported by circumstantial evidence; his pro-fessed work expectancy was coterminous with both the year of his eligibility for full Social Security benefits and the year in which he would vest at the 80% level in the last of HEI’s investment funds. Based on this testimony, the jury’s forecast of the emoluments that this three-year period would yield was reasonable.
In an effort to undermine the plaintiff’s testimony on this point, HEI proffered evidence suggesting that the pace of its acquisitions had slowed beginning in 2009. Thus, the company might not have been able to justify the SVP position on a going-forward basis. But this evidence was not compelling; the jury also heard evidence that HEI not only had plans for growth but also had the capital needed to imple-
Choosing between competing inferences that plausibly can be drawn from a body of evidence is principally a task for the fact-finder. See Noonan, 556 F.3d at 30. Drawing all reasonable inferences in favor of the verdict, see Casillas-Díaz, 463 F.3d at 79, we conclude, without serious ques-tion, that the evidence was sufficient to support the jury’s award of front pay through 2013.
D. Emotional Distress.
Despite the fact that the dis-trict court cut the award of emotional dis-tress damages in half (from $1,000,000 to $500,000), HEI maintains that even the reduced amount is grossly excessive. We approach this inquiry mindful that “trans-lating legal damage into money damages—especially in cases which involve few signif-icant items of measurable economic loss—is a matter peculiarly within a jury’s ken.” Sanchez v. P.R. Oil Co., 37 F.3d 712, 723 (1st Cir. 1994) (alteration and internal quo-tation marks omitted). This is not to say, however, that emotional distress damages are immune from judicial review. They are not. See, e.g., Koster v. Trans World Airlines, Inc., 181 F.3d 24, 34 (1st Cir. 1999). But judicial review of such awards is circumspect—and that review is even more constrained where, as here, the trial court has already pared the original jury award. See Sanchez, 37 F.3d at 723-24. Further relief is not warranted unless the award, as remitted, remains “so extrava-gant as to shock the appellate conscience.” Id. at 724; see Conde v. Starlight I, Inc., 103 F.3d 210, 214-16 (1st Cir. 1997) (remit-ting a previously remitted award of dam-ages for future lost income); Gumbs v. Pueblo Int’l, Inc., 823 F.2d 768, 773-75 (3d Cir. 1987) (remitting a previously remitted award of emotional distress damages).
In this case, it cannot be gainsaid that the plaintiff suffered emotionally by reason of his firing. Both he and his wife vouchsafed that the abrupt termination of his relationship with HEI changed him as a person; he became withdrawn and lost interest in activities that formerly gave him pleasure. His wife added that, up until his firing, he had always enjoyed his work in the hotel industry and found his job rewarding. Moreover, the damming of his income stream forced him to deplete his retirement savings, and he became greatly concerned about his family’s finan-cial security. These vicissitudes, in turn, put a strain on his marriage.
Even so, the plaintiff did not in-troduce any evidence that he received medical treatment, counseling, or other similar attention for his despondency. While evidence from a physician or other mental health professional is not a sine qua non to an award of damages for emo-tional distress, the absence of such evi-dence is relevant in assessing the amount of such an award. See Koster, 181 F.3d at 35. Here, moreover, the plaintiff prof-fered no evidence that he suffered any physical infirmity as a result of his ouster. The only relevant evidence is anecdotal and, to some extent, self-serving.
We do not mean to minimize the toll that the loss of a job can take, even apart from serious health concerns. Here, how-ever, the evidence of emotional distress is so thin that the remitted award of $500,000 seems vastly out of proportion. We hold, therefore, that a further remittitur is re-quired.
As a part of our decisional calcu-lus, we have looked to awards in compara-
This brings us to the question of what the award should be. This court adheres to the “maximum recovery rule,” which permits us to direct a remittitur geared to the maximum recovery for which there is evidentiary support (subject, of course, to the plaintiff’s right to reject the remittitur and instead elect a new trial on the disput-ed damages claim). See Koster, 181 F.3d at 36. After a careful review of the record and a compendium of analogous cases, we conclude that the upper limit of the uni-verse of reasonable outcomes—the plain-tiff’s maximum recovery—is $200,000. Consequently, we remand to the district court with directions to vacate the award of $500,000 for emotional distress and or-der a new trial on that issue unless the plaintiff agrees to accept a further remitti-tur of $300,000. Once the plaintiff takes a position as to remittitur, the district court should revise its previous doubling of dam-ages accordingly.
E. The Multiplication Order.
The district court submitted the case to the jury by means of a special verdict form, see
Massachusetts law provides for double damages in an age discrimination case (in-cluding a retaliation case) if “the act or practice complained of was committed with knowledge, or [the defendant had] reason to know, that such act or practice violated [
The primary thrust of HEI’s assignment of error is that this special finding is incon-sistent with another special finding memo-rializing the jury’s conclusion that HEI had not willfully violated federal law. HEI contends that the standards underly-ing the two questions—knowingly violating Massachusetts law and willfully violating federal law—are effectively the same and that, therefore, the special findings are inconsistent. HEI first raised this conten-tion in a post-trial motion, and the district court rebuffed it on the ground that no inconsistency existed. Trainor II, 2012 WL 119597, at *7.
We need not linger long over HEI’s ipse dixit. HEI waived its right to challenge the alleged inconsistency because it failed to mount a timely objection. When the jury returned with an affirmative answer to the question about knowing violation of
Courts, like the Deity, tend to help those who take steps to help them-selves. So it is here: with respect to special verdicts, “[t]he law is perfectly clear that [parties] ... waive[ ] any claim of internal inconsistency by failing to ob-ject after the verdict [is] read and before the jury [is] discharged.” Peckham v. Cont’l Cas. Ins. Co., 895 F.2d 830, 836 (1st Cir. 1990) (internal quotation marks omit-ted). We have described this rule as “iron-clad.” Wennik v. Polygram Grp. Distrib., Inc., 304 F.3d 123, 130 (1st Cir. 2002). The resultant waiver forecloses HEI from challenging the court’s multipli-cation of damages based on any purported inconsistency between the two special find-ings.
In an effort to escape from the conse-quences of its waiver, HEI suggests that because the verdict in this case was re-turned pursuant to
HEI also argues that it cannot be charged with a waiver because, when the jury returned its verdict, the district court never inquired as to whether any party wished to comment. This argument is un-tenable. It is the obligation of a litigant to bring a question of verdict inconsistency to the court’s attention, not the other way around. See, e.g., Austin v. Lincoln Equip. Assocs., Inc., 888 F.2d 934, 939 (1st Cir. 1989). As we have said in a different context, “[t]he law ministers to the vigilant not to those who sleep upon perceptible rights.” Puleio v. Vose, 830 F.2d 1197, 1203 (1st Cir. 1987).
F. Attorneys’ Fees.
After the jury verdict, the lower court determined that the plaintiff, as a prevail-ing party, was entitled to attorneys’ fees under both federal and state law. See
We limit our discussion to cases—like this one—to which fee-shifting stat-utes pertain. Even then, however, plain-tiffs generally may not recover attorneys’ fees on unsuccessful claims. See Hensley v. Eckerhart, 461 U.S. 424, 440 (1983); Lipsett v. Blanco, 975 F.2d 934, 940 (1st Cir. 1992). But this generalization—like virtually ev-ery generalization—admits of exceptions. One such exception holds that attorneys’ fees may be awarded with respect to work performed on unsuccessful claims if those claims are interrelated with successful claims. Lipsett, 975 F.2d at 940; Aubin v. Fudala, 782 F.2d 287, 291 (1st Cir. 1986) (Breyer, J.). Thus, if an unsuccessful claim includes “a common core of facts” or is premised on a “related legal theor[y] linking [it] to the successful claim,” the award “may include compensation for legal work performed on the unsuccessful claim[ ].” Garrity v. Sununu, 752 F.2d 727, 734 (1st Cir. 1984) (internal quotation marks omitted).
We review a district court’s award of attorneys’ fees for abuse of discretion. See Spooner v. EEN, Inc., 644 F.3d 62, 66 (1st Cir. 2011). A material error of law is, of course, an abuse of discretion. See id. When passing upon the interrelatedness of claims, we have ceded particularly great respect to the trial court’s views. “This deference is motivated by our conviction that the decision as to how to separate the wheat from the chaff in a fees contest, within broad limits, is a matter for the district court’s discretion.” Lipsett, 975 F.2d at 941 (internal quotation marks omitted).
Applying this deferential standard of review, we discern no misuse of discre-tion in the district court’s refusal to ex-clude the time committed to the age dis-crimination claim. The court plausibly reasoned that the successful retaliation claim and the unsuccessful age discrimina-tion claim shared a common legal theory. Trainor II, 2012 WL 119597, at *9. In order to succeed on the retaliation claim, the plaintiff had to prove, in the parlance of the jury instructions, that he “reason-
HEI resists this conclusion, expostulat-ing that the retaliation claim relied only on the testimony of a few individuals and, thus, made the work performed on the two claims susceptible to easy separation. This expostulation glosses over the district court’s finding of interrelatedness predi-cated on the need to make a good faith showing of likely age discrimination in or-der to prevail on the retaliation claim. While it might be possible to parse the record in the way that HEI suggests, this possibility is of no consequence due to the district court’s supportable finding that a sufficient nexus existed between the suc-cessful retaliation claim and the unsuccess-ful age discrimination claim.
We add that “[w]hen interrelated-ness is in question, the overall degree of the prevailing party’s success is an impor-tant datum.” Lipsett, 975 F.2d at 941. In this litigation, the plaintiff achieved what only can be described as a smashing suc-cess and, therefore, he should “recover a fully compensatory fee.” Hensley, 461 U.S. at 435.
For these reasons, the district court did not abuse its discretion when it refused to exclude from the fee award time related to the prosecution of the unsuccessful age discrimination claim. See Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 517-18 (9th Cir. 2000) (finding retaliation claims “inextricably in-tertwined” with discrimination claims for purposes of an interconnectedness analy-sis).
G. Equitable Relief.
HEI’s final plaint concerns the district court’s post-trial order, which allows the plaintiff a right to participate and vest in the three company-sponsored investment funds. To place this peevish plaint into proper perspective, we limn the back-ground.
When HEI initially recruited the plain-tiff, it offered him the opportunity—consis-tent with its praxis vis-a-vis selected senior executives—to participate in certain com-pany-sponsored investment funds. Two such funds existed at the time (Funds I and II), and HEI developed a third in 2008 (Fund III). These private equity funds serve a dual purpose. First, they are de-signed to furnish a source of fresh capital for HEI’s continued growth. Second, they provide both an investment opportunity and a profit-sharing vehicle for investor-employees.
The trial record does not contain the actual documentation for Funds I, II, or III. The parties, however, have offered summary descriptions of how the funds operate. It appears that, once an investor-employee receives a return of his equity plus a cumulative six percent return, he has a right to share in excess returns generated by the fund as a whole (called “promote funds”). An employee’s right to receive promote funds vests according to a set schedule. To the extent that an inves-tor-employee leaves HEI before fully vest-ing in a particular fund, his unvested share of promote funds is forfeited and redistrib-uted within the fund.
At the time of his dismissal, the plaintiff had invested $50,000 in Fund I and $50,000 in Fund II. He also had subscribed a like amount for Fund III, but had not paid the
The opportunity to participate in these investment vehicles was much coveted and viewed as a fringe benefit (and, thus, as part of an executive’s compensation pack-age). HEI made the opportunity available only to selected employees—a grouping that included the plaintiff. The promise that he could participate in the funds was a critical factor in the plaintiff’s decision to join HEI.
When HEI showed him the door, the plaintiff stood to lose his right to partici-pate fully in Fund III and to earn the full extent of the promote funds. Consequent-ly, he sought an injunction to allow him to fulfill his subscription to Fund III and to continue vesting in all the promote funds. As both sides in this litigation agree, equi-table relief of this sort is reserved for the court. See Sharkey v. Lasmo (AUL Ltd.), 214 F.3d 371, 373-75 (2d Cir. 2000). The district court granted equitable relief: it allowed the plaintiff to continue vesting in all three funds as though he were em-ployed by HEI through January of 2014, and ordered HEI to treat the plaintiff during that interval as any other executive still participating in the funds. Trainor III, 2012 WL 113384. With respect to Fund III, the court conditioned the relief granted on the plaintiff’s timely completion of his subscription when and as future capital calls were made. Id.
In appealing this order, HEI asserts that the order contravenes the contractual provision that halts vesting and disallows further participation in the funds upon ter-mination of employment. Notwithstanding this contractual term, we conclude that the challenged order is within the scope of the district court’s broad power to make a prevailing plaintiff whole.
“[W]e review a district court’s choice of equitable remedies for abuse of discretion....” Rosario-Torres v. Her-nandez-Colon, 889 F.2d 314, 323 (1st Cir. 1989) (en banc). We will not set such an order aside unless “we are left with a firm conviction that [the court] has committed a meaningful error in judgment.” Id. (inter-nal quotation marks omitted).
Under both the federal and state laws governing age discrimination cases (including retaliation cases), prevailing plaintiffs are entitled not only to money damages but also to injunctive relief where appropriate. See
We decry no abuse of discretion here. The plaintiff considered his right to participate fully in the company-sponsored investment funds as part of his compensa-tion package and, at least in part, he planned his retirement around his vesting schedule. The plaintiff’s expectations were reasonable under the circumstances. The district court saw the funds for what they were and, in order to make the plain-tiff whole, it appropriately ordered HEI to continue to treat him, for a finite period, as if he had not been wrongfully discharged.
The relief that the district court granted is not unorthodox. Both parties agree that HEI’s investment funds are analogous to pension plans. Equitable relief to main-tain pension plan benefits is within the
Employees who—like the plaintiff—are near the endpoint of their normal work expectancy are especially vulnerable to the loss of retirement benefits. Where, as here, such an employee is unlawfully dis-charged, the district court has both the authority and the discretion to grant equi-table relief to make him whole. The lower court’s exercise of this authority in the case at hand is well within the bounds of that discretion.8
III. CONCLUSION
This case was tried cleverly, by skilled counsel on both sides, before an able judge and an impartial jury. The briefs on ap-peal are stellar. When all is said and done, however, the record is freighted with ambiguities. The jury resolved those am-biguities in favor of the plaintiff. Doing so was the jury’s prerogative—indeed, its duty—and we cannot disturb the jury’s resolution unless the record compels a con-trary conclusion. With the lone exception that we have noted, it does not.
We need go no further. For the reasons elucidated in the foregoing pages, we af-firm the judgment below, with only a sin-gle exception: we vacate the previously remitted award of emotional distress dam-ages and direct the district court to order the plaintiff either to remit all of that award in excess of $200,000 or else under-go a new trial on that issue. The district court also must adjust its award of multi-plied damages to reflect the plaintiff’s re-sponse to this remittitur.
Affirmed in part, vacated in part, and remanded. Two-thirds costs shall be taxed in favor of the plaintiff.Notes
The court may require a jury to return only a special verdict in the form of a special written finding on each issue of fact. The court may do so by:
(A) submitting written questions suscepti-ble of a categorical or other brief answer;
(B) submitting written forms of the spe-cial findings that might properly be made under the pleadings and evidence; or
(C) using any other method that the court considers appropriate.