Chambers v. City of Calais

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit Nos. 97-2072 98-1050 ROLAND CHAMBERS, Plaintiff, Appellant, Cross-Appellee, v. CITY OF CALAIS, Defendant, Appellee, Cross-Appellant. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge] Before Selya, Circuit Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge. Wayne P. Doane, with whom Cuddy & Lanham and Joyce Mykleby were on brief for appellant, cross-appellee. Daniel L. LaCasse for appellee, cross-appellant. August 18, 1998 Per Curiam. Roland Chambers sued his employer, the City of Calais, Maine, following his demotion and the eventual termination of his employment. A jury found for Chambers on claims of age discrimination under the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. 621-634 (West Supp. 1998) and the Maine Human Rights Act (MHRA), Me. Rev. Stat. Ann. tit. 5, 4551-4633 (West 1997), but against Chambers on his claims of disability discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C.A. 12111-12117 (West Supp. 1998). Chambers appeals the magistrate judge's determination on equitable remedies, challenging the judge's decision not to award front pay, to offset an award of back pay with Chambers' income from collateral sources, and not to award certain incidental expenses. The City appeals from the judge's denial of its renewed motion for judgment as a matter of law, arguing that the evidence was insufficient for the jury to have found liability on Chambers' age discrimination claim. We affirm. I. We recite the facts as the jury could have found them, in the light most favorable to its verdict. See Wildman v. Lerner Stores Corp., 771 F.2d 605, 607 (1st Cir. 1985). Roland Chambers began working for the City in 1980, when he was thirty-four years old. Chambers worked most of his career at the City's highway department. He was made foreman of the highway crew in 1990. Because of lower back pain, Chambers consulted a physician in 1993, who advised him against certain physical activities. Chambers gave a copy of this report to his employer. In May 1994, the City hired a new city manager, Mark Ryckman, who was twenty-four years old at the time, fresh from a graduate program. Ryckman undertook a restructuring of the department, a restructuring that eliminated Chambers' position of highway crew foreman. In October 1994, Ryckman called Chambers into a meeting and informed him that his position was being eliminated. Chambers was offered his earlier position of driver/operator, which was at a significantly lower wage, and was not offered any other position with the City. Chambers chose to accept the demotion rather than resign. Chambers was forty-eight years of age at the time, within the ADEA-protected age group. At the meeting, Chambers also learned that Mark Magoon, age thirty-six, would be named the new public works director, replacing Maurice Bernard, age fifty-nine. Bernard was demoted and after a few years left the employ of the City. Magoon held the job of cemetery foreman, a supervisory position which was comparable in pay and responsibilities to Chambers' previous position as foreman of the highway crew. Chambers expressed interest in the cemetery foreman's position, but he was told that it was not available. Chambers also learned at the meeting that Magoon had named Robert Seelye, age thirty-five, to be the new cemetery foreman. Magoon testified, "I felt [Seelye] could work with the younger kids and such as myself [sic] when I worked with the younger crew at the cemetery. I just felt he could work with [the younger crew] better." Chambers complained at the meeting that the cemetery foreman position had not been posted in accordance with the City's usual policy, and also expressed opposition to Ryckman's decision to name Magoon as Public Works Director, noting Magoon's lack of experience. At trial, City Manager Ryckman admitted that the cemetery foreman position had not been posted as open and that this was in violation of the City's personnel guidelines. Chambers filed an internal grievance. Ryckman told Chambers that Ryckman did not feel he had to justify the restructuring to him. Following this incident, Chambers was assigned menial tasks such as sweeping sidewalks and shoveling snow out of sewer basins. In November 1994, approximately one month after his demotion, Chambers filed a complaint with the Maine Human Rights Commission, alleging that the demotion was because of his age. Chambers noted in his complaint that the only two City employees who had been demoted during the restructuring, himself and Barnard, were the oldest workers in the Department, and that younger workers, Magoon and Seelye, had been promoted as part of the restructuring. Both Ryckman and Magoon knew of Chambers' age discrimination complaint. In April 1995, Magoon ordered Chambers to do "coldpatching," a method of repairing pot holes that requires shoveling cold asphalt by hand. Chambers said that he was physically unable to perform this task because of his back trouble, and presented a doctor's note to that effect. Magoon suspended Chambers without pay for two weeks. Chambers filed an internal grievance, alleging that his suspension was in retaliation for his age discrimination complaint. In August 1995, Chambers was again assigned hard physical labor for a three-week period, cleaning leaves and debris from sewer and storm basins. Chambers was physically unable to perform this work without severe pain. Chambers nevertheless attempted to perform the assigned tasks, and, as a result, rendered himself unable to come to work near the end of the period. When he returned, Chambers confronted Magoon and demanded to be put on "light duty" assignments. Chambers was again suspended without pay for two weeks. After briefly returning to work, Chambers was fired. Chambers filed this suit against his employer, alleging that the City had violated his due process rights and had discriminated against him on account of age and disability. The district court dismissed the due process claim; the claims for age and disability discrimination went to the jury. The jury found that the City was liable for age discrimination, but not for disability discrimination, and awarded compensatory damages of $180,000. II. We review de novo the denial of the City's renewed motion for judgment as a matter of law, "which means that we use the same stringent decisional standards that control the district court." Hendricks & Assocs., Inc. v. Daewoo Corp., 923 F.2d 209, 214 (1st Cir. 1991). Thus, we will reverse the jury verdict "only if the evidence, viewed from the perspective most favorable to the nonmovant, is so one-sided that the movant is plainly entitled to judgment, for reasonable minds could not differ as to the outcome." Gibson v. City of Cranston, 37 F.3d 731, 735 (1st Cir. 1994) (citation omitted). Although the evidence is close, a reasonable jury could have found that the City's actions violated Chambers' rights under the ADEA and its state counterpart, the MHRA. Chambers bore the burden of establishing that age was a motivating factor in the City's actions; the City is liable if that impermissible factor was the decisive one, in the sense that it would not have taken the adverse action but for its discriminatory motive. See Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir. 1979) (ADEA); Wells v. Franklin Broad. Corp., 403 A.2d 771, 773 (Me. 1979) (Maine law). Magoon's comments were evidence that age was a "motivating factor" in the City's decision to demote him. In light of all the evidence, the comments also were evidence that, if Chambers had been younger, he would have received a supervisory position following the restructuring, such as Magoon and Seelye had received. Of course, "[w]ords of praise for youth . . . do not, by themselves, indicate a bias against more mature workers," Mesnickv. General Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991), and "stray comments are insufficient to meet the plaintiff's burden in an ADEA case," Thomas v. Sears, Roebuck & Co., 144 F.3d 31, 34 (1st Cir. 1998). However, there was additional circumstantial evidence in this case of bias, including failure to follow established personnel policies of posting open positions, and the fact that the City demoted the two oldest employees in the Department while promoting two much younger ones. See Brennan v. GTE Gov't Sys. Corp., 1998 WL 387405, at *6 (1st Cir. July 16, 1998). Moreover, the jury could reasonably have determined that the City's actions following Chambers' filing a complaint with the Maine Human Rights Commission, including the hard labor assignments in the face of a doctor's note that Chambers should not do the work assigned, the resulting suspensions, and ultimately Chambers' termination, were at least in part in retaliation for Chambers' complaint. The jury was not asked to answer the questions of age discrimination and of retaliation separately, so neither do we. After a thorough review of the whole record, we find that there was sufficient evidence for the jury to have held the City liable for violating the ADEA and the MHRA. III. Before turning to Chambers' appeal, we observe that the jury's award of compensatory damages of $180,000 was based on an error, but an error to which the City did not object at trial and which is not a basis for its appeal. While the ADA authorizes emotional distress damages, the ADEA does not similarly authorize such damages. See Vazquez v. Eastern Air Lines, Inc., 579 F.2d 107, 112 (1st Cir. 1978); see also Commissioner v. Schleier, 515 U.S. 323 , 326 & n.2 (1995) (noting unanimous agreement in the courts of appeals that "ADEA does not permit a separate recovery of compensatory damages for pain and suffering or emotional distress"). Instead, the ADEA permits only equitable relief in the form of lost wages, including back pay, front pay and certain other monetary loss, relief that is a matter for the judge to calculate. The error resulted from a verdict form, to which the City agreed, that permitted the jury to award compensatory damages if it found liability on either claim. The verdict form should have indicated that the jury was to award compensatory damages only if it found liability on the ADA claim. The defendant, however, did not at any time object to the verdict form. Nor did the defendant argue to the district court that the ADEA does not authorize such damages in its motion for a new trial or a remittur of damages. Instead, it argued only that the damages were excessive. Issues that are not raised in the district court are waived on appeal; we will reach the issue in a civil case only if it is "so compelling as virtually to insure appellant's success, and a gross miscarriage of justice would result from [the] failure to address it." Credit Francais Int'l, SA v. Bio-Vita, Ltd., 78 F.3d 698, 709 (1st Cir. 1996) (citations and internal quotation marks omitted)(emphasis supplied). "In this context, 'miscarriage of justice' means more than the individualized harm that occurs whenever the failure seasonably to raise a claim or defense alters the outcome of a case. Rather, courts ordinarily will relax the raise-or-waive principle on this basis only if a failure to do so threatens the frustration of some broadly important right." National Assoc. of Social Workers v. Harwood, 69 F.3d 622 , 628 n.5 (1st Cir. 1995) (citation omitted). This high standard is rarely met when a party attempts to raise an issue for the first time on appeal. See Correa v. Hospital San Francisco, 69 F.3d 1184, 1196 (1st Cir. 1995) (noting that "the exceptions are few and far between"). We are even more reluctant to save the City from its waiver when it has not raised the issue on appeal. See Whyte v. Connecticut Mut. Life Ins. Co., 818 F.2d 1005 , 1011 n.20 (1st Cir. 1987) ("It cannot be disputed that the standard that must be met for this court to raise an issue on appeal is at least as high as the standard for a party seeking to raise an issue for the first time on appeal.") Permitting the jury award to stand will not result in a "gross miscarriage of justice" under the circumstances. Chambers sought total equitable relief in the amount of $354,391.62. Chambers' request included (1) back pay of $35,022.19, which he requested should be doubled as liquidated damages under the ADEA, (2) front pay of $213,154.05, (3) travel costs of $21,735.00, (4) lost sick time of $2,661.60, (5) lost vacation time of $1,744.40 and (6) civil penal damages under the MHRA of $10,000, the maximum under Maine law. The magistrate judge denied Chambers' request for front pay, and also denied Chambers' requests for travel costs, lost sick time and lost vacation time. The judge awarded only $6,022.00 as back pay, after deducting from the award the wages that Chambers was able to earn at his new employment, and then doubled this amount, as requested, as liquidated damages. The judge also awarded civil penal damages under Maine law, but awarded only $1,000, not the maximum $10,000 that Chambers had requested, arriving at a total equitable remedy of $13,044.00 We review the district court's calculation of equitable relief for abuse of discretion, and find none. See Lussier v. Runyon, 50 F.3d 1103, 1111 (1st Cir. 1995). Front pay and the other incidental expenses which the district court denied are discretionary, see Wildman, 771 F.2d at 616 , and the district court's decision to deduct Chambers' wages from his new position from its back pay award, although not mandated by the ADEA, is permitted as part of the district court's endeavor to fashion an award that places the injured party "as near as may be, in the situation he would have occupied if the wrong had not been committed." Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975) (internal quotation marks and citation omitted). The magistrate judge noted, in denying these items, that the jury's $180,000 award, plus the $13,044 in equitable relief, had made the plaintiff whole. It was appropriate for the magistrate judge to consider the jury award in deciding whether to award certain items of discretionary equitable relief. Considering the relief as a whole, it was not error for the magistrate judge to have awarded only $13,044 in equitable relief. The judgment of the district court is affirmed. Each party shall bear its own costs.