Miller v. Cabletron Systems
Case Date: 05/12/1995
Court: United States Court of Appeals
Docket No: 94-1929
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M a y 1 8 , 1 9 9 5 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT 94-1929 GENEVIEVE SCARFO, ET AL., Plaintiffs - Appellees, v. CABLETRON SYSTEMS, INC., ET AL., Defendants - Appellants. ____________________ 94-1982 GENEVIEVE SCARFO, Plaintiff - Appellant, v. CABLETRON SYSTEMS, INC., ET AL., Defendants - Appellees. ____________________ BRIAN MILLER, Plaintiff - Appellee. ____________________ 94-1983 BRIAN MILLER, Plaintiff - Appellant, v. CABLETRON SYSTEMS, INC., ET AL., Plaintiffs - Appellees. ____________________ ERRATA The opinion released on May 12, 1995 should be amended as follows: Page 8, line 13: "(c)" should read "(d)", so that the line reads "the Equal Pay Act, paragraph (d) below, in ...." UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 94-1929 GENEVIEVE SCARFO, ET AL., Plaintiffs - Appellees, v. CABLETRON SYSTEMS, INC., ET AL., Defendants - Appellants. ____________________ No. 94-1982 GENEVIEVE SCARFO, Plaintiff - Appellant, v. CABLETRON SYSTEMS, INC., ET AL., Defendants - Appellees. ____________________ BRIAN MILLER, Plaintiff - Appellee. ____________________ No. 94-1983 BRIAN MILLER, Plaintiff - Appellant, v. CABLETRON SYSTEMS, INC., ET AL., Plaintiffs - Appellees. ____________________ GENEVIEVE A. SCARFO, Defendant - Appellee. ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Martin F. Loughlin, Senior U.S. District Judge] __________________________ ____________________ Before Cyr and Boudin, Circuit Judges, ______________ and Keeton,* District Judge. ______________ _____________________ Anil Madan, with whom Madan and Madan, P.C. and Elizabeth __________ ______________________ _________ Bartholet were on brief for defendants. _________ Eleanor H. MacLellan, with whom Carol A. Fiore and Sulloway ____________________ ______________ ________ & Hollis were on brief for Genevieve A. Scarfo. ________ Andru H. Volinsky, with whom Michael J. Sheehan and Shaheen, _________________ __________________ ________ Cappiello, Stein & Gordon, P.A. were on brief for Brian Miller. _______________________________ ____________________ May 11, 1995 ____________________ ____________________ * Of the District of Massachusetts, sitting by designation. -2- KEETON, District Judge. Two plaintiffs and two KEETON, District Judge _______________ defendants cross-appeal from a final judgment after jury trial. The plaintiffs Genevieve Scarfo and Brian Miller are former employees of defendant Cabletron Systems, Inc. ("Cabletron"). Craig Benson and Robert Levine, supervisory employees of Cabletron, were also defendants in the district court. Plaintiff Scarfo claimed, inter alia, that defendants _____ ____ discriminated against her on the basis of her sex and terminated her employment in violation of Title VII of the Civil Rights Act, 42 U.S.C. 2000e-5(f). Plaintiff Miller claimed, inter alia, under Title VII _____ ____ for retaliatory discharge based on his alleged refusal, as plaintiff Scarfo's immediate supervisor, to discriminate against her by terminating her employment on the basis of her sex. The principal claims of error asserted on appeal challenge instructions to the jury. Each party opposing a claim of error asserts that no timely objection or request was made in the trial court. Counsel representing defendants on appeal first came into the case after completion of the jury trial. Not surprisingly, they seek to present contentions substantially different from those presented by defense counsel during and before the jury trial. Whenever new counsel enter and raise new contentions, opposing counsel may find irresistible the temptation to counter with new contentions of their own. Almost inevitably, then, the entry into a case of new counsel for one -3- party increases litigation burdens for all parties. An award of attorneys' fees to a prevailing party may offset this burden in part. But unfairness may remain to opposing parties if the trial or appellate court allows new grounds of claim or defense to be asserted. For this reason, among others, we encounter a threshold question in this case. One way of framing the threshold question neutrally, abjuring "plain error," United States v. Marder, No. 93-1882, _____________ ______ slip op. at 11-17 (1st Cir. Feb. 2, 1995), "waiver," id. (citing ___ United States v. Olano, 113 S. Ct. 1770 (1993)), "forfeiture," _____________ _____ id., "invited error," id., "abandon[ment]," United States v. ___ ___ ______________ Smith, Nos. 94-1326, 94-1327, 94-1328, slip op. at 22 (1st Cir. _____ Feb. 10, 1995), and other terminology freighted with connotations, is to ask: Should we hold that the appellant (or cross-appellant) on each claim of error now before us is not entitled to be heard on the merits of that contention in the circumstances of this appeal? Searching for the answer requires that we consider procedures for deciding mixed law-fact issues that involve unsettled law, genuine disputes of fact, and the exercise of discretion by jury, or judge, or both. The search requires also that we take account of Supreme Court and circuit decisions handed down after this case was argued, including O'Neal v. ______ McAninch, 115 S. Ct. 992 (1995); Lebr n v. National Railroad ________ ______ __________________ Passenger Corp., 115 S. Ct. 961 (1995); United States v. Smith, _______________ _____________ _____ Nos. 94-1326, 94-1327, 94-1328, slip op. (1st Cir. Feb. 10, -4- 1995); and United States v. Marder, No. 93-1882, slip op. (1st _____________ ______ Cir. Feb. 2, 1995). In describing the tasks of trial and appellate courts in circumstances of this degree of complexity, commentators and opinion writers have invoked imagery of the almost impenetrable. They have spoken, for example, of the "esoteric," Marder, slip ______ op. at 13, "The Bramble Bush," Karl N. Llewellyn, The Bramble ____________ Bush (1930), or -- in a more venerable and ominous allusion -- a ____ "Serbonian Bog," Landress v. Phoenix Mut. Life Ins. Co., 291 U.S. ________ __________________________ 491, 499 (1934) (Cardozo, J., dissenting) ("The attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog."). The imagery, even if hyperbole in the classic sense of a figure of speech rather than an assertion to be taken literally, may nevertheless aptly call attention to the increasing intricacy of a rapidly evolving jurisprudence of procedural preclusion. We conclude that we need enter only a little way into this maze of precedents, and on a well-marked path, to decide the case now before us. This is so because rules and precedents have erected a gate at the point of entry upon each potentially promising path through the maze, and each gate is closed to appellants whose contentions have the particular characteristics of those before us in this appeal. Thus, we affirm in substance, though with minor exceptions, and with some modification of amounts of awards, and on condition that a judgment amended as to -5- form be entered in the district court. We first explain the terms of the judgment that was ordered in the district court and the nature of the claims of error. Then we explain why, in the interests of justice, we hold that each claim of error asserted in this appeal is either harmless error or is raised too late for review under the harmless error standard and cannot be sustained under the more rigorous requirement that relief is to be granted only to avoid a miscarriage of justice. I. I. The first error we address is one not raised by the parties. We consider it because it might be thought to have jurisdictional implications. The "final judgment" entered in this case was, in its form, not literally in compliance with the requirement that "[e]very judgment shall be set forth on a separate document." Fed. R. Civ. P. 58. The district court made not one but a series of orders. In most instances, the order is not self-explanatory. Instead, it refers to an opinion or memorandum of the court to which one must go to understand precisely the meaning of the order. In these circumstances, if, for example, a party seeks enforcement of the judgment -- perhaps even after the case is closed and the file is sent to storage -- the parties and any other person required to act will have great difficulty finding out what exactly were the terms of the "final judgment." -6- In support of our jurisdiction, however, we conclude that the district court ordered the functional equivalent of a "final judgment" in a sequence of orders that includes: the "Judgment" of May 10, 1994 (incorporating, first, the Order of June 2, 1993 granting in part and denying in part defendants' Motion to Dismiss; second, the Endorsed Order of November 17, 1993 concerning the defendants' Motion for Summary Judgment; third, the Special Verdicts of May 4, 1994; fourth, the Order of May 9, 1994, concerning the Court's Calculation of Title VII Damages); the Order of July 19, 1994 on Miller's Motion for Prejudgment Interest; the Order of July 19, 1994 on Miller's Motion for Attorneys' Fees; the Order of July 19, 1994 on Scarfo's Motion for Attorneys' Fees; and the Order of July 20, 1994 on Scarfo's Motion for Prejudgment and Postjudgment Interest. Were we to remand for entry of a "final judgment" that is formally in full compliance with Rule 58, before deciding the appeal that has now been briefed and argued, the case would in due course be back before us again with precisely the same issues -7- to be decided as those we perceive from the record now before us. To avoid the delay and waste of resources incident to such a remand, we proceed to consider the issues now and will direct entry of an appropriate amended judgment on remand. From close examination of the several orders and memoranda identified above, we conclude that a final judgment of the substance gleaned from all these orders would have recited provisions in substance as follows: (a) judgment for plaintiff Scarfo on her claim under Title VII of the Civil Rights Act for sex discrimination against defendants Cabletron and Benson for the sum of $1,187,901.07 (consisting of the sum of $242,407.07 in back pay, $744,744 in front pay, and $228,750 for the value of stock, reduced by the jury's award of $28,000 under the Equal Pay Act, paragraph (d) below, in order to prevent duplicate recovery) without prejudgment interest; (b) judgment for defendant Levine on Scarfo's Title VII claim for sex discrimination against him; (c) judgment for defendants Cabletron, Benson, and Levine on plaintiff Scarfo's claim under Title VII of the Civil Rights Act for sexual harassment based on a hostile or -8- abusive environment; (d) judgment for plaintiff Scarfo against Cabletron (but not against Benson or Levine), on her claim under the Equal Pay Act, in the sum of $28,000 without prejudgment interest; (e) judgment for defendants Benson and Levine on plaintiff Scarfo's claim for intentional or reckless infliction of emotional distress; (f) plaintiff Scarfo's claim of intentional infliction of emotional distress against defendant Cabletron is dismissed; (g) plaintiff Scarfo's claims for breach of contract and defamation are dismissed; (h) judgment for plaintiff Miller against defendants Cabletron and Benson, on his claim for retaliatory discharge in violation of Title VII, in the sum of $1,391,711.85 (consisting of $190,651.85 in back pay, $995,000 in front pay, and $206,060 for the value of stock options) without prejudgment interest; (i) judgment for plaintiff Miller against defendant Cabletron (but not against -9- Benson) on his claim under New Hampshire state law for wrongful termination, in the sum of $995,000 with prejudgment interest at a per annum rate of ten percent under New Hampshire state law from the date of filing, April 14, 1992, to the date of the verdict, May 4, 1994; (j) plaintiff Miller's claims of abuse of process and intentional or reckless infliction of emotional distress against Benson, Levine, and Cabletron are dismissed; (k) all claims by plaintiff Miller against defendant Levine are dismissed; (l) it is further ordered that plaintiff Miller will not be allowed to collect more than the larger of the two awards in his favor against Cabletron as set forth in paragraphs (h) and (i). The substance of paragraph (l) is not explicitly stated in any of the orders identified above. Implicit in those orders and the basis on which they are explained in the memoranda referred to, however, is an assumption that the awards to plaintiff Miller overlap. Because duplicative collection would be impermissible, we conclude it is appropriate to interpret the trial court's orders as providing that Miller not be allowed to collect more than the larger (i.e., the Title VII award) of the -10- two awards against Cabletron. See Part XIV, infra. ___ _____ On July 19, 1994, the district court awarded attorneys' fees and disbursements to plaintiffs. Thus, two more paragraphs, as stated below, may be added to reflect the entire substance of a final judgment that includes awards of attorneys' fees. These provisions, we note, might have been made in a later order, rather than in the "final judgment" itself. See Fed. R. Civ. P. ___ 54(d)(2). These paragraphs are as follows: (m) judgment for plaintiff Scarfo against defendants Cabletron and Benson, for attorneys' fees and disbursements, in the amount of $244,255.13 (consisting of $225,300.13 incurred for services of one and $19,955 incurred for services of the other of two firms that represented her); (n) judgment for plaintiff Miller against defendants Cabletron and Benson, for attorneys' fees and disbursements, in the amount of $117,510.97. The Order of July 20, 1994, which was the last of the series of Orders constituting the functional equivalent of a Final Judgment, also requires the addition of one more paragraph: (o) Post-judgment interest is allowed on the awards in paragraphs (a), (d), (h), (i), (m), and (n). -11- Defendants-Appellants Cabletron and Benson appeal from the judgment entered against them on multiple grounds. Insofar as the judgment was in favor of the defendants, Plaintiffs-Cross- Appellants Scarfo and Miller also appeal on multiple grounds. -12- II. CLAIMS OF ERROR II. CLAIMS OF ERROR IN THE CHARGE TO THE JURY IN THE CHARGE TO THE JURY A. Defendants' Appeal from Judgment on Scarfo's Sex A. Defendants' Appeal from Judgment on Scarfo's Sex Discrimination Claim Discrimination Claim Defendants ask us to vacate the judgment for Scarfo against them on her Title VII claim because of erroneous instructions to the jury. On the element of causation in Scarfo's Title VII claim, the trial judge instructed the jury: Ms. Scarfo may prove her claims; that is, make out a prima facie case, in one of two ways. First she may simply produce evidence _______________________ that her gender was a factor which motivated the defendants in making the challenged employment decisions. [Ms. Scarfo h]aving ____________________ done so, the defendants are liable even if _____________________________________________ they would have made the same decisions _____________________________________________ absent the discriminatory motive. Second, ___________________________________ she may also establish a prima facie case without direct evidence of discriminatory intent by producing indirect evidence which is sufficient to raise a presumption that absent any other explanation the defendants acted for discriminatory reasons. She need not prove that Cabletron acted with any discriminatory intent. We conclude, as defendants contend, that this instruction was flawed in its treatment of the issue of causation. The instruction understated plaintiff's burden of proof as initially defined in McDonnell Douglas Corp. v. Green, ________________________ _____ 411 U.S. 792 (1973), and further developed in later cases. Before the trial court charged the jury, defendants filed an appropriate request for jury instruction, correctly stating a rule of law declared in Price Waterhouse v. Hopkins, _________________ _______ 490 U.S. 228 (1989). But defendants did not object after the -13- charge was given to the jury, as required by Rule 51 of the Federal Rules of Civil Procedure. To what extent can the defendants now be heard on this claim of error? We return to this question in Part IV below. B. Defendants' Appeal from Judgment on Scarfo's Equal Pay Act B. Defendants' Appeal from Judgment on Scarfo's Equal Pay Act Claim Claim Defendants ask us to vacate the judgment for Scarfo against them on her claim under the Equal Pay Act ("EPA") because of erroneous instructions to the jury. Specifically, they contend that the trial judge failed to give any instruction on causation or on statutory defenses to liability. The trial judge's instructions on the EPA claim included the following: Ms. Scarfo alleges that Cabletron discriminated against her based on her sex in violation of the federal Equal Pay Act law. Ms. Scarfo need not prove that Cabletron intended to discriminate against her. In comparing her work to that of higher paid men, Ms. Scarfo need not show that her work was precisely equal, but only that it was substantially equal.... Ms. Scarfo need only show unequal pay as compared with one male employee.... If you find that Cabletron violated the Equal Pay Act, she is entitled to recovery for unpaid wages. The special verdict form submitted to the jury contained the following question: [D]o you find that during the course of Ms. Scarfo's employment Cabletron paid her at a lower rate than it paid men who performed jobs requiring substantially equal skill, effort and responsibility and involving -14- similar working conditions? The jury was instructed to make a finding of damages if they answered this question in the affirmative. Defendants made no objection, within the time prescribed in Rule 51, either to the question on the verdict form or to the instructions. Thus, they failed to call to the trial judge's attention the alleged lack of any instruction on causation or on statutory defenses to Scarfo's EPA claim. We return to this alleged error in Part V, below. C. Plaintiff Scarfo's Appeal of Her Hostile Environment Claim C. Plaintiff Scarfo's Appeal of Her Hostile Environment Claim Plaintiff-Cross Appellant Scarfo argues on cross-appeal that the court's instruction on her sexual harassment claim was erroneous. The trial court instructed the jury as follows: In order to establish a prima facie case for sexual harassment under Title VII of the Civil Rights Act, [Scarfo] must prove the following elements by a preponderance of the ________ evidence. One, she was subject to unwelcome sexual conduct. Two, unwelcome sexual conduct was based upon [her] sex. Three, the unwelcome sexual conduct was so severe or pervasive that it had the effect of creating an abusive working environment that ____ unreasonably interfered with her work _____________________________________________ performance. ____________ After the jury charge was given, plaintiff's counsel made an objection to the court as follows: In this instruction that was given, this wording on the elements that she has to prove the sexual harassment claim has the wording in it "that unreasonably interfered with Plaintiff Scarfo's work performance," and I -15- think the way it was read, that comes out as sounding like an element that she has to prove, and the Harris case, which we had ______ requested instruction on, . . . [states that] that's one factor that can be considered, but it's not an element of her claim. And we had requested . . . a paragraph that was not given but that comes from the recent Harris case that says that you don't ______ have to have the unreasonable interference with work performance. It can be harassment that affects the psychological well-being and detract[s] from one's work and we would like to have that instruction given and a clarification that this isn't an element she has to prove. We return to this matter in Part VI, below. D. Plaintiff Miller's Appeal of His Wrongful Discharge Claim D. Plaintiff Miller's Appeal of His Wrongful Discharge Claim Plaintiff-Cross Appellant Miller argues on cross-appeal that the court's instruction on damages with respect to Miller's wrongful discharge claim was erroneous. There are three types of damages at issue in this case: "pecuniary damages," such as damages for economic harm; "non- pecuniary damages," such as damages for pain and suffering; and "enhanced compensatory damages," claimed under New Hampshire law. The parties do not contest, and for present purposes we assume, that "enhanced compensatory damages" may be awarded in the discretion of the jury if the defendant's conduct was particularly egregious. See, e.g., DCPB, Inc. v. City of Lebanon, 957 F.2d _________ __________ _______________ 913 (1st Cir. 1992)(New Hampshire law). Miller argues that the court erred in refusing to instruct the jury on nonpecuniary damages. Defendant Cabletron -16- asserts that, in fact, the court did instruct the jury on nonpecuniary damages. We return to this matter in Part VII, below. III. PROCESS, PRECLUSION, AND STANDARDS OF REVIEW III. PROCESS, PRECLUSION, AND STANDARDS OF REVIEW FOR ALLEGED ERRORS IN CHARGING THE JURY FOR ALLEGED ERRORS IN CHARGING THE JURY Rule 51 of the Federal Rules of Civil Procedure states in relevant part: No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury. Fed. R. Civ. P. 51. If a party complies with Rule 51, then the "harmless error" standard of Rule 61 governs the trial or appellate court's consideration of any request for relief based on the alleged error. The court is directed not to treat as a ground for granting a new trial, or setting aside a verdict, or vacating or modifying a judgment or order, any error or defect or anything done or omitted by the court unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. Fed. R. Civ. P. 61. The recent decision in O'Neal v. McAninch, ______ ________ 115 S. Ct. 992 (1995), directs reviewing judges to inquire, when -17- determining whether an alleged error is harmless, whether they are "in grave doubt about the likely effect of an error on the jury's verdict," id. at 994; if the court does have a grave ___ doubt, then the error must be held harmful. A party who does not timely object in accordance with Rule 51, however, does not have the benefit of review under Rule 61, either before the trial court (on a post-trial motion) or on appeal. If review is allowed at all at the instance of a party who did not comply with Rule 51, it is under a standard requiring substantially more than that the party show that the error was harmful (the Rule 61 standard). It has long been settled that, in general, an objection or request for jury instruction not made in compliance with Civil Rule 51 cannot be raised successfully on appeal. Roto-Lith, Ltd. v. F.P. Bartlett & Co., 297 F.2d 497, _______________ ____________________ 500 (1st Cir. 1962). The rule has been rigorously enforced in this circuit, and its clear language will be overlooked "only in exceptional cases or under peculiar circumstances to prevent a clear miscarriage of justice," Elgabri v. Lekas, 964 F.2d 1255, _______ _____ 1259 and n.1 (1st Cir. 1992), or "where the error 'seriously affected the fairness, integrity or public reputation of judicial proceedings,'" Lash v. Cutts, 943 F.2d 147, 152 (1st ____ _____ Cir. 1991) (quoting Smith v. Massachusetts Inst. of Technology, _____ __________________________________ 877 F.2d 1106, 1110 (1st Cir.), cert. denied, 493 U.S. 965 _____ ______ (1989)). A rigorously enforced timeliness principle is fundamental both to fair process and to avoiding adverse effect -18- on substantial rights of the parties. Under such a principle, a clearly defined opportunity to present a contention must be exercised at a precisely defined time in the trial proceedings. It is a now-or-never opportunity that a party must, at that precise time, use or lose. Cf. Arenson v. Southern Univ. Law ___ _______ ___________________ Ctr., 43 F.3d 194, 198 (5th Cir. 1995) (invoking the phrase "use ____ it or lose it" in relation to timeliness of motions for judgment as a matter of law and, alternatively, for a conditional new trial). One of these contexts is the preparation of the charge to the jury, including the specific phrasing of any questions submitted to the jury. The moment immediately before the jury retires to deliberate is a time when hard choices, with significant consequences, must be made by the parties and by the trial judge. Interests of fairness to each party weigh heavily in favor of requiring that every other party, at this critical moment, use or lose any right to assert that the trial court should change in some way the court's instructions to the jury on the substantive law governing the case. It is awkward to change instructions after the jury has commenced deliberating, and as a practical matter, once the jury has been disbanded after returning a verdict, it can never be called back to receive the corrected charge that the trial court might have given if asked at the right time to do so. Failure to exercise the right to object to the court's charge at the critical moment prescribed by Rule 51 results in -19- the loss of an opportunity for review under a standard no more burdensome for the appellant than the harmless error standard. Unless the reviewing court concludes that the charge has caused a miscarriage of justice or has undermined the integrity of the judicial process, the charge is treated as having an effect closely analogous to law-of-the-case doctrine, and for similar reasons of policy and fairness of process. Moore, slip op. at 6. _____ The use-or-lose principle applies with special force to mixed law-fact issues. Cf. Cheshire Medical Ctr. v. W.R. Grace & ___ _____________________ ____________ Co., No. 94-1687, slip op. at 21 (1st Cir. Mar. 6, 1995)(citing ___ Chellman v. Saab-Scania AB, 637 A.2d 148, 151 (N.H. 1993)) ________ ______________ ("Clear and intelligible jury instructions are particularly important to explain complex or confusing legal concepts."). If the trial counsel and the trial court are able to fashion interrogatories that disentangle law from fact and ask the jury all of the purely fact questions that are essential to determining the outcome of the case once the disputed issues of law are finally resolved, the rights of the parties to jury trial can be protected even though a final decision on critical legal issues is deferred to a later time. If, however (either because of a preference for doing so or because of a sense that there is no other practical option) the trial court elects to submit one or more mixed law-fact questions to the jury, full protection of the rights of the parties to have their dispute resolved by the jury to whom the case is first submitted weighs compellingly in favor of the conclusion that applying the use-or-lose principle -20- is essential to fair process and a just disposition of the controversy. We conclude that no party in this case is entitled to have any of the alleged errors it presents in this appeal considered under the harmless error standard of Rule 61. The reason is that each appellant and cross-appellant now complaining of some aspect of the charge to the jury had the right and opportunity to state its contention to the trial judge after completion of the judge's charge (including the trial judge's modification of the charge after hearing objections) -- and did not use it. Having failed to make a timely objection, the complaining party is entitled to relief only to prevent a clear miscarriage of justice or otherwise to preserve the integrity of the judicial process. In most instances, nevertheless, we have determined in our review of the record before us that we are not in "grave doubt," as defined in O'Neal v. McAninch, 115 S. Ct. ______ ________ 992, and conclude instead that correction of jury instructions at the appropriate time would not have affected the verdict in this case. In each of those instances, since we have determined that the alleged error was harmless, it follows a fortiori that no ___________ miscarriage of justice has occurred. Before explaining the relevant characteristics of the record before us that lead to our conclusion, we pause to explain why two kinds of precedents do not apply to the kinds of claims of error before us here. First, an additional standard of appellate review was invoked to allow new contentions to be -21- considered on the merits, in "special circumstances," in Newport _______ v. Fact Concerts, Inc. 453 U.S. 247, 256 (1981). That case, ____________________ however, is easily distinguished from the present appeal; it involved equitable relief and did not involve alleged infringements of the rights of parties, in a case tried before a jury, to have disputed fact questions finally decided by the jury empaneled to try the case. The second kind of inapplicable precedent is a development under the rubric of "waiver." In criminal cases, precedents have added a distinctive element to procedural- preclusion analysis by recognizing that in some instances, even when the court is satisfied that "plain error" was committed, still the appealing party may be barred by circumstances that constitute "waiver." In Olano the Court stated: _____ Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the "intentional relinquishment or abandonment of a known right." ... Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake.... Mere forfeiture, as opposed to waiver, does not extinguish an "error" under Rule 52(b) .... If a legal rule was violated during the District Court proceedings, and if the defendant did not waive the rule, then there has been an "error" within the meaning of Rule 52(b) despite the absence of a timely objection. Marder, slip op. at 13 (quoting Olano, 133 S. Ct. at 1777). ______ _____ Recently a panel of this circuit has observed that -22- there have been "conflicting signals" on the scope and nature of a waiver. See Marder, slip op. at 14 (comparing United States v. ___ ______ _____________ Rojo-Alvarez, 944 F.2d 959, 971 (1st Cir. 1991); United States v. ____________ _____________ Espinal, 757 F.2d 423, 426 (1st Cir. 1985); United States v. _______ ______________ Drougas, 748 F.2d 8, 30 (1st Cir. 1984); and United States v. _______ ______________ Kakley, 741 F.2d 1, 3 (1st Cir.), cert. denied, 741 F.2d 1 ______ _____ ______ (1984)). Because in this case we have concluded that we are satisfied that correction of the errors called to our attention would not have affected the verdict, in any event, we need not consider whether "waiver" in the Olano sense may be extended to _____ the civil context (and might then be an additional reason for concluding that appellants (and cross-appellants) cannot prevail on this appeal). "Forfeiture" in the Olano sense is a concept _____ quite similar to principles underlying enforcement of timeliness requirements. We next turn to applying those principles to the claims of error asserted in this appeal. IV. ERROR IN INSTRUCTIONS IV. ERROR IN INSTRUCTIONS ON SCARFO'S SEX DISCRIMINATION CLAIM ON SCARFO'S SEX DISCRIMINATION CLAIM As noted in Part II.A above, the instruction on Scarfo's sex discrimination claim was flawed in its treatment of the issue of causation because it understated plaintiff's burden of proof. Is the effect of the error so egregious as to warrant reversal even though defendants did not object at the time and in the manner prescribed by Civil Rule 51? Because we conclude that the jury would have reached the same verdict even had it been -23- properly instructed, the error was harmless. Thus, it readily follows that no miscarriage of justice or other blight on the judicial process has resulted from the error. The evidence of discrimination is powerful. It contains numerous examples of Cabletron's different treatment of Scarfo and her male colleagues who were similarly situated. On the other hand, it is also true that some evidence in the record tends to support defendants' theory that Scarfo was fired for legitimate business reasons. In these circumstances, we must explain the evidence of record in somewhat greater detail. Of course, a jury is not required to credit a plaintiff's evidence, even if the evidence is uncontradicted, and neither are we. But a realistic assessment of the likelihood of a different verdict in this case, had different instructions been given, depends in part on an examination of the strength of Scarfo's evidence and the findings it would support. We summarize that evidence. The strongest evidence on record supporting defendants' theory was the review of Scarfo by Brian Miller, Scarfo's immediate supervisor at Cabletron. Miller's report contained several positive comments. But negative remarks regarding Scarfo's management and purchasing skills dominated his review. Miller also reported internal discipline problems in the purchasing department. The evidence on record supporting plaintiff Scarfo's theory, however, is overwhelming. -24- First, Scarfo's requests to improve her department were overlooked while the same requests made by her male replacement were granted. After Scarfo was hired as a buyer and then promoted to purchasing supervisor, she was told that she would not be eligible for a raise until July 1988. Scarfo continued to receive a buyer's salary, though she performed all the functions of a supervisor. But in this position she was repeatedly denied requests to hire additional buyers, train staff, and update equipment so that she could focus on her managerial duties. After Scarfo was terminated, Justin O'Connor, a purchasing manager, was allowed to hire additional buyers, upgrade equipment, implement training programs, and make other improvements that Scarfo had previously been refused permission to make. Further, unlike Scarfo, O'Connor was permitted to limit his buying responsibilities so that he could devote more time to his managerial responsibilities. Second, when the purchasing department moved to a larger space, Scarfo was denied an office although her male colleague was given a separate office. Craig Benson, the chief operating officer at Cabletron, did not want Scarfo to have her own office. Benson, however, knew that Tim Jacobs, who was hired with Scarfo, would have a separate office. Third, Scarfo's business trip expenses were carefully examined. In contrast, the expenses of a male colleague who was on the same trip were not questioned. Specifically, Benson examined Scarfo's expense vouchers for a two-week business trip. -25- He did not review expense vouchers of Roger Lawrence, a male employee who went on the same trip and whose expenses were nearly identical to those of Scarfo. Fourth, Benson singled out Scarfo to take the blame for an over-purchase of circuit boards, although other employees were involved with this transaction. Scarfo had ordered the boards, but the boards were subsequently not needed. Although Benson knew that others besides Scarfo were responsible for this over- purchase, he told Miller, "I don't like being ripped off, and I blame Jeanne Scarfo for this." Fifth, Scarfo was treated differently with respect to stock options. Despite Benson's explanation that Scarfo was omitted from the stock option list and his promise that she would be on the next list of stock recipients, Scarfo, unlike her male counterparts, never received any stock options. Sixth, in addition to the evidence of these poignant examples of disparate treatment, correlated with gender, there is in the record other strong evidence of discrimination. Scarfo offered evidence that in April 1990, Benson told Miller to hire a "guy" for her position, but Miller refused. Benson said, "I don't care if you fire or demote her, but I want a guy in that position." Approximately ten days later, Miller was fired. After Miller's departure, Scarfo was demoted to buyer but was asked to continue to perform all management functions. In October 1990, when Justin O'Connor was hired as purchasing manager, Benson told him that he did not like Scarfo -26- and urged O'Connor to fire her. Only ten days after he came onto the job, O'Connor wrote a negative review of Scarfo and placed her on probation through February 1991. O'Connor terminated Scarfo on January 10, 1991, a month before the probationary period expired. His reason for firing Scarfo was her failure to show improvement. In the circumstances, it would have been difficult for O'Connor to make a reasonable determination as to whether Scarfo's performance had improved because Scarfo's time records indicated that she was legitimately absent during her probation period. Taking into account the weight of this evidence of discrimination, we conclude that the error in the jury instructions on Scarfo's Title VII claim was not an error that "seriously affected the fairness, integrity or public reputation of judicial proceedings," Lash, 943 F.2d at 152, or caused a ____ miscarriage of justice, Elgabri, 964 F.2d at 1269. _______ We conclude also that no other basis exists in the circumstances of this case to warrant an exception from applying the use-or-lose proposition stated in Rule 51 and explained, in Part III of this Opinion, as a principle aimed at achieving outcomes of jury trial that are fair and just on the merits. V. SCARFO'S EQUAL PAY ACT CLAIM V. SCARFO'S EQUAL PAY ACT CLAIM By instructing the jury that plaintiff merely had to show disparity of treatment between the sexes and not sex-based discrimination, and by failing to instruct on statutory defenses -27- included in the EPA, the trial court erred. The EPA reads in relevant part: No employer ... shall discriminate ... between employees on the basis of sex by paying wages to employees ... at a rate less than the rate at which [the employer] pays wages to employees of the opposite sex ... for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex. 29 U.S.C. 206(d). The evidence of record overwhelmingly supports a finding for plaintiff (even under a legal standard of intended sex-based discrimination, had the instruction so required). Defendants had the right and opportunity to object to the trial court's instruction and tell the trial judge how to correct the error. As defendants did not use the right, we review the record before us only for evidence of a miscarriage of justice. In addition to the evidence summarized in Part IV, above, we note additional support in the record for the jury's finding on the EPA claim. Scarfo's economic expert testified that he reviewed and processed Cabletron data on pay increments, education, and employment history. His analysis showed a $14,000 difference between male and female pay for Cabletron managers and supervisors. The program accounted for education and seniority. Further, the evidence in the record before the jury, -28- and before us, includes data from personnel files for men and women holding similar positions. For example, at the same time Cabletron hired Scarfo, it hired Tim Jacobs. Unlike Scarfo, who was paid a starting salary of $27,000, Jacobs was given the title of supervisor and paid a starting salary of $35,000. Moreover, in 1990, Cabletron hired Justin O'Connor as purchasing manager at a salary of $65,000. In an attempt to justify this pay discrepancy, defendants call attention to evidence that O'Connor had more education and vastly greater experience than Scarfo. Given the strength of the evidence supporting the EPA claim, however, it is very unlikely that the jury would have returned a different verdict had the error in the instruction been corrected before they deliberated. VI. SCARFO'S APPEAL OF HER HOSTILE ENVIRONMENT CLAIM VI. SCARFO'S APPEAL OF HER HOSTILE ENVIRONMENT CLAIM A. The Form of Scarfo's Objection to the Charge and Request for A. The Form of Scarfo's Objection to the Charge and Request for Instruction Instruction |