810 F.

2d 6
42 Fair Empl.Prac.Cas. (BNA) 1380,
42 Empl. Prac. Dec. P 36,779, 1 IER Cases 1364

Steven BROWN, et al., Plaintiffs, Appellees,

v.
FREEDMAN BAKING COMPANY, INC., et al., Defendants,
Appellants.
No. 85-1598.

United States Court of Appeals,

First Circuit.
Heard Dec. 3, 1986.
Decided Jan. 26, 1987.

Edwin R. Chyten, Chestnut Hill, Mass., for defendants, appellants.

Ann M. Gilmore, with whom Gilmore & Iandoli, Boston, Mass., was on
brief, for plaintiffs, appellees.
Before BOWNES, TORRUELLA and SELYA, Circuit Judges.
BOWNES, Circuit Judge.

This is an appeal by defendants-appellants Freedman Baking Co., Inc. (the

Company), its president and an owner, Daniel Freedman, and a senior
management official, Mildred Lawsky, from a jury award of compensatory and
punitive damages for civil rights violations and intentional infliction of
emotional distress. We affirm the verdict and award of damages on the civil
rights claims but reverse the verdict for intentional infliction of emotional
distress.

I. BACKGROUND
2

The Company employed Steven Brown at its Faneuil Hall Marketplace

facilities first as a store detective, then as night manager, from September 1,
1982, until he was fired on September 12, 1983. During his one-year

employment, he received two raises in salary and an extra week's vacation pay.
Steven Brown fired three black employees, including part-time sales clerks
Tanya Brown and Donna Campfield, on Lawsky's instructions. When
Campfield subsequently filed a complaint with the Equal Employment
Opportunity Commission (the EEOC), Steven Brown agreed to testify on her
behalf. He also provided a statement, of which Lawsky was aware, to the
EEOC about Campfield's dismissal. A few days later, Freedman fired Steven
Brown. In a report to the Division of Employment Security, Freedman opposed
Steven Brown's application for unemployment benefits on the ground that he
had been fired for misconduct and thus was not entitled to them.
3

Steven Brown brought a federal civil rights suit in district court, with pendent
state claims for intentional infliction of emotional distress and defamation
against the Company, Freedman, and Lawsky. His complaint was consolidated
with civil rights suits brought by the two former part-time sales clerks, Tanya
Brown and Campfield, who alleged that they were fired because they are black.
Steven Brown hired the two women in August 1983 and fired them, on
Lawsky's order, two weeks later.

Defendants counterclaimed that Steven Brown maliciously circulated trumpedup charges of racially discriminatory practices, that this defamed them, and that
the lawsuit was a malicious abuse of process because it was instituted to
compel the Company to reemploy Steven Brown, or to get them to withdraw
their objection to his claim for unemployment benefits, or for both reasons.

The evidence presented to the jury to substantiate plaintiffs' allegations that

Freedman and Lawsky made racially discriminatory management decisions
included the following. Lawsky told Steven Brown that too many blacks were
working in the Company's main store and this "just doesn't look good." Some
employees testified that Lawsky generally treated black employees less
favorably than white employees. When Steven Brown complained to Freedman
about Lawsky's racially discriminatory actions, Freedman said that if too many
blacks work together, "they get arrogant and that's been a problem down there
lately." He told Steven Brown to do what Lawsky said or to look for another
job. Defendants denied the allegations that plaintiffs were fired for racially
discriminatory reasons. They presented evidence that Steven Brown was
dismissed because of unsatisfactory performance and because he repeatedly
violated company policy and procedures. They also attempted to prove that
Tanya Brown and Campfield were fired for legitimate, nondiscriminatory
reasons.

After a nine-day trial, the jury awarded plaintiffs a total of $198,000 in

damages. The jury awarded Steven Brown $85,000 in damages: $20,000

compensatory, $50,000 punitive, and $5,000 for intentional infliction of
emotional distress against the Company, and $2,000 compensatory, $3,000
punitive, and $5,000 for intentional infliction of emotional distress against
Freedman. Steven Brown was awarded no damages from Lawsky and nothing
on the defamation count. Tanya Brown was awarded $58,000: $3,600
compensatory and $50,000 punitive against the Company; $300 compensatory
and $3,000 punitive against Freedman; and $100 compensatory and $1,000
punitive against Lawsky. Campfield was awarded $55,000: $750 compensatory
and $50,000 punitive against the Company; $200 compensatory and $3,000
punitive against Freedman; and $50 compensatory and $1,000 punitive against
Lawsky. The jury found against defendants on their counterclaims. Plaintiffs
were awarded $67,399.25 for attorney's fees and $2,277.19 for costs.
Defendants moved for a new trial on various grounds: the weight of the
evidence, the amount of damages, the jury instructions, and evidentiary rulings.
The motion was denied and this appeal ensued.
II. APPELLANTS' ARGUMENTS
7

There are four issues: (1) whether the jury had been unfairly prejudiced by a
statement the judge made during the charge; (2) whether the jury's verdict
awarding damages for intentional infliction of emotional distress was proper;
(3) whether the damages were excessive or contrary to the jury instructions;
and (4) whether the verdicts on the civil rights claims are against the weight of
the evidence. Appellees claim that this appeal is frivolous and ask for double
costs and attorney's fees.

A. The Statement to the Jury

8

Appellants contend that the trial judge unfairly prejudiced the jury while
instructing them on the law governing federal civil rights claims. Appellants did
not comply with the requirement of Federal Rule of Civil Procedure 51 that a
party must make its objections to jury instructions before the jury retires to
consider its verdict. Failure to do so ordinarily precludes assigning error on this
basis on appeal. "The reason for requiring that objections to instructions be
made after the charge and that they state distinctly the matter to which a party
objects and the grounds of the objection is to give the trial judge an opportunity
to correct any errors before it is too late." McGrath v. Spirito, 733 F.2d 967,
968 (1st Cir.1984); see Campana v. Eller, 755 F.2d 212, 216 (1st Cir.1985);
Emery-Waterhouse Co. v. Rhode Island Hosp. Trust Nat'l Bank, 757 F.2d 399,
411 (1st Cir.1985). We will reverse a judgment in the absence of the required
objection only if there is plain error "in exceptional cases or under peculiar

circumstances to prevent a clear miscarriage of justice." Nimrod v. Sylvester,

369 F.2d 870, 873 (1st Cir.1966); see Morris v. Travisono, 528 F.2d 856, 859
(1st Cir.1976).
9

The allegedly prejudicial statement, made by the court while explaining to the
jury what constitutes compensable discriminatory treatment, was:
"Unfortunately, it has to be differential treatment. I say unfortunately, because I
don't think anybody likes to see it." According to appellants, these two
sentences "could easily lead the jury to believe that the defendants did
something wrong, that the mere discharge of employees by an employer is what
the trial judge doesn't think 'anybody likes to see.' " Therefore, appellants
argue, the jury might have held defendants liable simply because they fired
plaintiffs. Appellants also argue that the jury could infer from this statement
that the judge was disapproving of the requirement that the discharge must
have been on the basis of race for the defendants to be held liable.

10

We do not think these two sentences are so misleading that they constitute plain
error. We interpret the statement as saying that differential treatment is the
basis of liability for discriminatory employment practices, and when there is
such treatment, it is unfortunate. Furthermore, "a judgment will not be reversed
for error in the jury instructions unless the error is determined to have been
prejudicial after review of the record as a whole. Accordingly, we must look to
the entire jury charge to determine whether the jury was properly apprised of
the legal principles to be applied in this case." Almonte v. National Union Fire
Ins. Co., 787 F.2d 763, 767 (1st Cir.1986). The district court gave clear
instructions on the applicable law. It told the jury that for plaintiffs to prevail
they must have proved by a preponderance of the evidence that defendants
"intentionally discriminated against them on account of race with regard to their
employment termination." It instructed the jury that "as long as the reasons for
discharging these individuals are nondiscriminatory, you must find for the
defendants even if you don't like what happened." Additionally, the court said
that this "is not a wrongful termination case. You may, even if you think this
was not fair, that it was wrong to do that, that it was not nice, you cannot base
your decision on that. It must be race. It must be that blacks get treated
differently from whites." Even if the statement were interpreted as appellants
urge, the court's detailed and accurate instructions would have cleared up any
doubt the jury might have had about the appropriate basis for liability.

B. The Claim for Intentional Infliction of Emotional Distress

11
12

It was not until 1976 that the Supreme Judicial Court of Massachusetts
recognized a cause of action for the intentional infliction of emotional distress

in the absence of physical injury. See Agis v. Howard Johnson Co., 371 Mass.
140, 355 N.E.2d 315 (1976). When it did so the court warned that "the door to
recovery should be opened but narrowly and with due caution." Id. at 144, 355
N.E.2d at 318 (quoting Barnett v. Collection Serv. Co., 214 Iowa 1303, 1312,
242 N.W. 25, 28 (1932)). Liability is restricted to situations in which
defendant's "conduct was 'extreme and outrageous,' was 'beyond all possible
bounds of decency' and was 'utterly intolerable in a civilized community.' " Id.
at 145, 355 N.E.2d at 319 (quoting Restatement (Second) of Torts 46
comment d (1965)).
13

The evidence to support the claim of emotional distress was that Freedman told
the Division of Employment Security (the DES) that Steven Brown had been
fired for wilful misconduct, and this delayed the receipt of benefits and injured
him emotionally. Although the complaint alleged that defendants circulated
rumors regarding Steven Brown's dismissal, no evidence was presented to
support this allegation, and the jury returned a verdict for defendants on the
defamation claim, which was based on the alleged rumors. We do not think that
Freedman's report to the DES, which delayed but did not prevent the award of
benefits, can be characterized as "extreme and outrageous" conduct, especially
in the light of Massachusetts statutes requiring that an employer report the
circumstances of an employee's dismissal and providing certain protection from
civil liability for the information given.

14

Under the Massachusetts unemployment compensation laws, an individual is

not eligible for benefits if "he has left his work ... by discharge shown to the
satisfaction of the director to be attributable solely to deliberate misconduct in
wilful disregard of the employing unit's interest." Mass.Gen. Laws Ann. ch.
151A, 25(e) (1982). Employers are required to provide information necessary
for determining eligibility and it is intended to be kept confidential. Id. 38,
46. Massachusetts law further provides that "[a]ll information transmitted to the
director [of the DES] or his duly authorized representative pursuant to [the
chapter regarding unemployment compensation] shall be absolutely privileged
and shall not be made the subject matter or basis in any action of slander or libel
in any court of the commonwealth." Id. 46. See Arsenault v. Allegheney
Airlines, Inc., 485 F.Supp. 1373, 1379 (D.Mass.), aff'd, 636 F.2d 1199 (1st
Cir.1980), cert. denied, 454 U.S. 821, 102 S.Ct. 105, 70 L.Ed.2d 93 (1981). An
absolute privilege applies even to false and malicious statements. Ezekiel v.
Jones Motor Co., 374 Mass. 382, 385, 372 N.E.2d 1281, 1284 (1978).

15

The purpose of the statute is, of course, to enable employers to respond to

inquiries from the DES without fear of subsequent litigation and liability for
statements made to it. We realize that the Massachusetts statute mentions only

immunity from libel and slander suits, and does not explicitly protect an
employer from liability on an alternative basis such as intentional infliction of
emotional distress. We doubt that the purpose of the statute would be served,
however, if employers could be held liable for emotional distress based solely
on their opposition to an application for unemployment benefits. We leave it, of
course, to the Massachusetts courts to decide the sweep of the statute. We are
not holding that any response by an employer to a standard DES inquiry, no
matter how outlandish, is fair game. In light of the statutory scheme requiring
an employer to supply information about an employee's dismissal and
providing protection against at least some civil suits, and the strictures the
Massachusetts courts have placed on an action for emotional distress, we hold
only that the statement made here is insufficient to support a verdict on such a
claim.
C. Excessive Damages
16

Appellants contend that the damages awarded on the civil rights claims are
excessive and not in conformity with the trial court's instructions. We rarely
will override the jury's judgment on the appropriate amount of damages to be
awarded. "[T]he jury's otherwise supportable verdict stands unless [it is]
'grossly excessive' or 'shocking to the conscience.' " LaForest v. Autoridad de
las Fuentes Fluviales de P.R., 536 F.2d 443, 447 (1st Cir.1976). We accord
broad discretion to the trial court's decision to affirm the jury's award of
damages because of that court's greater familiarity with local community
standards and with the witnesses' demeanor at the trial. Fishman v. Clancy, 763
F.2d 485, 489-90 (1st Cir.1985). We do not find the damages to be either
"grossly excessive" or "shocking to the conscience."

17

In awarding compensatory damages, the jury obviously took into account the
nature of plaintiffs' jobs and their earnings. The women, fired from part-time
sales clerk positions, received only $4,000 and $1,000 in compensatory
damages, and Steven Brown, fired from a full-time management position,
received $22,000. A damage award tailored in this manner demonstrates that
the jury carefully considered the amounts it awarded. In such cases it is
particularly inappropriate to override the jury's judgment. See id.

18

The jury obviously found that the Company engaged in racially discriminatory
employment practices. It assessed $150,000 in punitive damages against the
Company, $9,000 against Freedman, and $2,000 against Lawsky. Punitive
damages are an appropriate means of punishing such conduct and deterring
defendants from future racially discriminatory actions. See White v.
Washington Pub. Power Supply Sys., 692 F.2d 1286, 1290 (9th Cir.1982);

Allen v. Amalgamated Transit Union, 554 F.2d 876, 883-84 (8th Cir.), cert.
denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d 176 (1977). The trial court told
the jury that it should award punitive damages if it concluded that "defendants
acted in such an outrageous or wanton or oppressive manner in conscious and
deliberate disregard for the rights of the others." Defendants did not object to
this phraseology or to the submission of the issue to the jury. The jury heard
evidence that could have led it to conclude that plaintiffs suffered and lost their
jobs because of racial discrimination. It would not be unreasonable for the jury
to view such conduct as outrageous and deserving of substantial punitive
damages.
19

Neither can the damage award be avoided at this stage of the proceedings by
appellants' argument that it is unfair to assess such amounts "against two
working people and a small closely-held corporation." Appellants have "failed
to create a record of their financial capabilities, and thus we are unable to say
that these awards are shocking because of the particular impact on them."
Fishman v. Clancy, 763 F.2d at 490. We hold, therefore, that the damages were
consistent with the jury instructions and not grossly excessive.D. Weight of the
Evidence

20

Finally, appellants argue that the jury's verdicts on the civil rights claims for
racially discriminatory employment practices are against the weight of the
evidence. Appellants are not entitled to retry the facts of their case on appeal.
Our review of the jury's verdict is very restricted. We will uphold it "unless the
facts and inferences, when viewed in the light most favorable to the party for
whom the jury held, point so strongly and overwhelmingly in favor of the
movant that a reasonable jury could not have arrived at this conclusion."
Chedd-Angier Prod. Co. v. Omni Publications Int'l, Ltd., 756 F.2d 930, 934 (1st
Cir.1985).

21

We find sufficient evidence in the record to support the jury's verdict on the
civil rights claims. The jury heard evidence that Lawsky treated black workers
less favorably than white workers; that she wanted them kept away from
conspicuous work areas; that Freedman, when confronted with Lawsky's
actions, did nothing to correct them; that Tanya Brown and Campfield were
identified for discharge based on their race; and, that Steven Brown opposed
these practices and was fired for it. Although defendants presented evidence to
support their contention that plaintiffs were discharged for legitimate,
nondiscriminatory reasons, it is not our function to reassess the credibility of
the witnesses or to weigh conflicting versions of the facts. The jury's verdicts
on the claims alleging racially discriminatory employment practices are not
against the weight of the evidence.

III. CONCLUSION
22

For the foregoing reasons, the jury's verdicts and damage awards on the civil
rights claims are affirmed; the verdict and damage award on the claim for
intentional infliction of emotional distress is reversed, and the case is remanded
for an adjustment of the damages.

23

Appellees ask for double costs and attorney's fees on the grounds that this
appeal is frivolous, pursuant to Federal Rule of Appellate Procedure 38 and
under 42 U.S.C. 1988. The appeal was obviously not frivolous but, except for
the time and expense incurred on the intentional infliction of emotional distress
claim, plaintiffs are entitled to recover attorney's fees and costs for this appeal
under 42 U.S.C. 1988.

24

Affirmed in part, reversed in part. Remanded for adjustment of damages and

determination of attorney's fees and costs due under 42 U.S.C. 1988 for this
appeal. The award of the district court for attorney's fees and costs incurred
below shall remain intact.