MEMORANDUM AND ORDER REGARDING POST-JUDGMENT MOTIONS (Docket Nos. 209, 210, 212, 218 and 221)
On November 5, 2001, after more than two weeks of trial, ajury entered a verdict which was favorable to Anita Homey("Plaintiff") in this employment discrimination action.1The jury found both defendants — Plaintiffs former employer,Westfield Gage Co. ("Westfield Gage"), and her formersupervisor, Edward Woodis ("Woodis") — liable to varyingdegrees; it found Westfield Gage liable for genderdiscrimination (in the amount of $750,000), for sexualharassment ($250,000) and for an equal pay violation ($8,140),and it found Woodis liable for sexual harassment ($25,000). OnNovember 27, 2001, the court, after calculating interest,entered judgment against Westfield Gage in the amount of$1,077,057.12 and against Woodis in the amount of $31,888.26.
Following the entry of judgment, a number of motions werefiled. This memorandum addresses the following five: PlaintiffsMotion to Enforce the Settlement Agreement Between Her andWoodis (Docket No. 218), what the court treats as Woodis' Motionthat Westfield Gage be Ordered to Pay the $25,000 Settlement(included within Docket No. 221 (Woodis' Response to PlaintiffsMotion to Enforce)), Westfield Gage's Motion for JudgmentNotwithstanding the Verdict (Docket No. 210), Westfield Gage'sMotion for a New Trial or for Remittitur (Docket No. 212) andWoodis' Motion for Judgment as a Matter of Law or for a NewTrial (Docket No. 209).2
For the reasons which follow, the court will allow Plaintiffsmotion to enforce the settlement between her and Woodis, denyWoodis' motion to order Westfield Gage topay the settlement amount and deny, as moot, Woodis' otherpost-judgment motion. The court will also deny Westfield Gage'spost-judgment motions in all but one respect; Westfield Gagewill be granted a new trial on Plaintiffs gender discriminationclaim unless Plaintiff agrees to remit the $750,000 damagesfound by the jury on that claim to $187,500.
The background is sketched in a light most favorable to thejury's verdict. See O'Connor v. Huard, 117 F.3d 12, 14-15 (1stCir. 1997). Specific facts with respect to the two settlementmotions, for which there was a separate evidentiary hearing, areaddressed in the court's discussion of those issues.3
Plaintiff was employed by Westfield Gage, a machine shop, fromApril of 1994 until April 9, 1998. (See Plaintiffs Exhibit 4;Docket No. 240 (Transcript Volume ("Tr.Vol.") II) at 58.) At allrelevant times, Woodis was Plaintiffs supervisor. (Docket No.241 (Tr. Vol.I) at 92-93.)
Plaintiff started out as a parts marker with a salary of $8per hour and ended her tenure at Westfield Gage as an inspectormaking $10 per hour. (See id. at 74-78.) Plaintiff got herlast raise near the end of 1996 directly from Westfield Gage'sowner. (Id. at 77-78.) When Woodis found out that Plaintiffwent over his head, he stated, according to her testimony: "Ifyou fucking try that again I'll get rid of you. You'll lose yourjob." (Id. at 78.) Plaintiff never got another raise. (Id.)
Sexually-explicit material was prevalent throughout WestfieldGage. For example, calendars depicting scantily-clad women insuggestive poses and posters of girls in bikinis were "all overthe place" (id. at 8485) and a picture of a woman's breastswas taped to the inside of a light fixture (Docket No. 246 (Tr.Vol.VI) at 36-37). There were Penthouse, Playboy and Hustlermagazines in the plant and a gay men's pornographic magazinekept showing up at Plaintiffs desk. (Tr. Vol. II at 86; DocketNo. 239 (Tr. Vol.III) at 14.) In addition, jokes with sexualcontent were passed throughout the shop and some were evendisplayed publicly. (Tr. Vol. I at 88; Tr. Vol. II at 116-17.)Indeed, at some point during her employment Plaintiff shared abench with a male worker who kept in his tool box — which he hadto open in Plaintiffs view — a picture of a woman in a "seatedposition with her knees up" who was wearing "very lacy, thinunderpants with [her] genitalia" exposed. (Tr. Vol. I at103-04.) Further, Ed Menard, Plaintiffs "mentor" in theinspections department, gave her several suggestive postcards,one of which stated: "It's National Vibrator Week[;] Bring OneHome To A Friend." (Tr. Vol. II at 42-43; Plaintiffs Exhibit 6.)To be sure, Plaintiff complained about much of the material andit was removed, but it "went right back up" soon thereafter.(See Tr. Vol. III at 46-47.)
The plant was also rife with rough language directed at women.For example, one of Plaintiffs male co-workers once looked atPlaintiff and stated: "Women are only good at getting fucked upthe ass at Westfield Gage." (Tr. Vol. II at 43.) Woodis, too,was verbally abusive toward Plaintiff. As Plaintiff testified,"[Woodis] would get right in my face. His veins would pop out ofhis neck, he'd turn allred, he'd be pointing his finger at me." (Tr. Vol. I at 113.)Plaintiff also testified that Woodis:
told her she was "bullshitting" and should just "go ahead [and] fucking leave" when she asked him if she could depart early to take her mother to a doctor's appointment (id. at 110);
screamed at her when she broke a tooth and had to leave work to get it fixed (id. at 111);
screamed at her when others neglected their duties, asking "How come this job isn't fucking done?" (Tr. Vol. II at 27), daily asked her "[w]hose desk [she was] under?" (id. at 40-41);
used the words "cunt" and "bitch" in her presence (Tr. Vol. III at 17);
asked her, in front of some male inspectors, if she was "fucking" or "blowing" a male co-worker who dropped off parts at her bench (Tr. Vol. II at 41);
told her that "They never should have hired women in this department" and that "Women don't belong in the . . . machine shops" (id. at 44-45);
asked her, when she called herself "anal retentive," whether that was "what [her] mother taught [her] to do, lick ass?" (id. at 47); and
asked a male co-worker with whom she was having a conversation whether he was "fucking her mother?" (id. at 48).
At least one other employee testified that Woodis calledPlaintiff a "cunt," a "bitch" and an "idiot," (Docket No. 245(Tr. Vol.V) at 194), and that another male worker was heard tosay "[t]hat there wasn't a woman on the face of the earth worththe paper to wipe his dirty ass," (Tr. Vol. VI at 34-35).
At times, Plaintiff participated in some of the conduct andlanguage. For example, Plaintiff kept and displayed a postcardfrom her mentor which depicted "bare butts" (see Tr. Vol. II at42, 203; Plaintiffs Exhibit 5) and another postcard of "guys inbathing suits" (Tr. Vol. I at 86). Also, Plaintiff admittedthat, on one occasion, she "might have" worn ripped jeans towork with a hole in the seat (Tr. Vol. II at 151), conceded thatshe laughed at some of the dirty jokes and the gay men'smagazine (Tr. Vol. I at 88; Tr. Vol. II at 86-87) and once, "fora couple of seconds," borrowed someone's wind-up penis toy (Tr.Vol. III at 104-05). Plaintiff also told people at WestfieldGage that she used to have a tattoo of a mouse, but that her"pussy must have got it." (Tr. Vol. II at 204.) In addition,Plaintiff acknowledged that, during her employment at WestfieldGage, she used the terms "cunt," "bitch," "fucking cunt,""fucking bitch" and "young, dumb and full of cum." (Id. at204-05.)
Still, Plaintiff testified that she was most offended byvulgar and profane language that was "abusive and combative";e.g., Plaintiff felt that the F-word used in joke was not as badas "F you" stated "in a nasty way." (Id. at 183.) In thisvein, Plaintiff also testified that there were a "lot of times"that she left the workplace in tears because Woodis or anothersupervisor was screaming at her. (Tr. Vol. I at 113.)
Plaintiff made a number of informal complaints about theenvironment at Westfield Gage to Judy Gutt. (See Tr. Vol. II at209 ("It was a daily thing that I reported [sexual harassment]to Judy Gutt"); Tr. Vol. V at 199 (indicating that Plaintiffseemed to complain to Gutt "on a regular basis").) Gutt, whoworked in the accounts payable department, was the employeeidentified to Plaintiff as her "human resources" contact, i.e.,the "person to whom people could make complaints of sexualharassment." (See Tr. Vol. I at 118; Tr. Vol. V at 194, 238-41.)Daniel Berube, Gutt's boss, assigned her that task. (Tr. Vol.65, 240-41.)
Plaintiff also formally reported to Gutt at least one instanceof harassment by a male supervisor on a morning in February of1997. (Tr. Vol. I at 115-18.) On that day, Plaintiff entered thecafeteria at about five minutes to six, the time her shiftstarted, and found five male workers milling around. (Id. at115-16.) The men stated: "Oh good, Anita's here. Coffee's goingto be made, vitamins."4 (Id. at 116.) About two minutesto six, the supervisor, Jim Frisbie, walked in, greeted the menand then started yelling and swearing at Plaintiff because shewas "wasting company time." (Id. at 116-17. See also Tr. Vol.III at 55-56.) Plaintiff reported the incident to Gutt who askedPlaintiff if she wanted to write out a formal complaint, whichshe did. (Tr. Vol. I at 119.)
As part of her report, Gutt promised Plaintiff that she wouldthereafter have "a harassment free work environment." (Tr. Vol.II at 96; Tr. Vol. III at 64.) Nonetheless, "the language didn'tstop, the posters didn't stop, the jokes didn't stop [and] thepictures didn't stop." (Tr. Vol. III at 64.) Indeed, Plaintifftestified that, following her complaint, Frisbie began followingher around, Woodis' comments became more rude and Plaintiff,unlike men, was only allowed to get coffee at break time. (Tr.Vol. II at 46-47.)
Plaintiff testified to a number of other instances of what sheperceived was unfair or unequal treatment, often because of hergender. Plaintiff testified that:
Woodis gave her no support in directing the work of other female parts markers (Tr. Vol. I at 93-94); she had to share her inspections bench with a man (id. at 103);
Woodis did not swear and scream at men or, at least, yell as loudly at them (id. at 110; Tr. Vol. III at 78);
men were allowed to change their schedules to accommodate doctor's appointments "whenever they wanted to" and she never saw a man storm off in tears (Tr. Vol. I at 111-12, 114-15);
she was not properly trained as an inspector after she moved into that department and took on inspections responsibilities (Tr. Vol. II at 29, 34);
men, but not she, were given the opportunity to be "source" inspectors (id. at 31);
at least one other man said that women did not belong in a machine shop (id. at 44-45); and
she was not given a raise when she moved into the inspections department (Tr. Vol. III at 71).
Plaintiff summarized some of her concerns as follows: "[The men]got to work whatever they wanted to hour-wise, they got paid alot more than I did, they got raises more than I did, they gotscheduled whatever it was needed for them, overtime." (Id. at78.)
When Plaintiff moved into inspections in the Fall of 1997,she, at $10 per hour, was the lowest paid inspector and the onlywoman. (See Plaintiffs Exhibit 21 (indicating that the othermale inspectors were making between $13.50 and $18 per hour).)Westfield Gage argued to the jury that the male inspectors hadmore experience than Plaintiff and that she was only learningthe inspection position on the job. (See Tr. Vol. I at 51-52.)Plaintiff testified, however, as follows: that she had severalyears of quality control and assembly work prior to heremployment at Westfield Gage (see id. at 70-71, 97-98; Tr.Vol. II at 124; Tr. Vol. III at 101); that, when hired, she"aced" a mechanical aptitude test Woodis gave her "in less timethan anybody's ever done it" (Tr. Vol. I at 74); and that shewas given certain other supervisory and trainingresponsibilities while at Westfield Gage (see id. at 83,92-93, 97; Tr. Vol. II at 21). Thus, Plaintiff disputedWestfield Gage's contention that she, unlike the maleinspectors, was merely a "junior" inspector or an inspector"trainee." In any event, it appears undisputed that Plaintiffsmove to inspections was a promotion.5
On the morning of April 8, 1998, Plaintiff testified that sheand Woodis had a heated verbal exchange with respect to a causeand corrective action form. (Tr. Vol. II at 50-51.) WhenPlaintiff refused to "stamp . . . off" the form — "because thethree girls in the marking department didn't do their job" —Woodis yelled: "Just fucking do your job. If you can't do yourjob then don't be a fucking stupid idiot." (Id. at 51.)Plaintiff started crying, more obscenities were exchanged, andPlaintiff tore up her time card and went to Gutt. (Id. at5152.) Although Gutt sent Plaintiff home, Plaintiff was calledback later that day to meet with Richard Patterson, the generalmanager. (Id. at 52, 54.)6
During her meeting with Patterson, Plaintiff requested that hemove her to a different position within Westfield Gage. (Tr.Vol. II at 54-44.) Patterson, however, refused, stating "I don'tthink there's a place for you" and "It's not working out."(Id.) As a result, Plaintiff left the premises and heremployment at Westfield Gage ended. (Id. at 55.) She wasthirty-five years old at the time.
Sometime later, Plaintiff returned to Westfield Gage tocollect her final paycheck. (Id. at 87.) At the time, she wastold that she had a box of "personal stuff." (Id.) However,included in that box, packed by someone else, was a packet ofcrude and sexually-explicit jokes and cartoons. (Id. at 87-90;Plaintiffs Exhibit 14.) A number of the items — includingcartoons graphically depicting male or animal genitalia or sexacts — had previously been displayed on a bulletin board orpassed across Plaintiffs work bench. (Tr. Vol. II at 89.) Therewas no evidence that anything in the packet actually belonged toPlaintiff. (See id.)
After leaving Westfield Gage, Plaintiff filed pro se a chargeof discrimination with the Massachusetts Commission AgainstDiscrimination ("MCAD"), received unemployment compensation forsix months and, in November of 1998, began working at the PointsEast restaurant in Westfield. (Id. at 55-58.) In the interim,Plaintiff unsuccessfully sought work at two or three othermachine shops. (Id. at 56-57.) At Points East, Plaintiffoccasionally saw Westfield Gage employees, including Woodis,come into the restaurant. (Id. at 6061.) This made her feel"[a]wful." (Id. at 61.) Ultimately, Plaintiff left Points East— because "[t]oo many Westfield Gage people [were] comingaround" — and went to work at a different restaurant. (Id.)
Plaintiff testified that from 1994 through 1998, she slept alot, bit her nails until they bled, stopped eating, and beganlosing weight and hair. (Id. at 83.) Dr. Lloyd Price, apsychiatrist who reviewed deposition testimony and then met withPlaintiff,testified about the significant distress Plaintiff experiencedat Westfield Gage and the continuing effects of that distress.(See Docket No. 252 (Tr. Vol.IV) at 38-47.) Dr. Price opinedthat Plaintiff suffered from "major depression." (Id. at 46.)
Over Westfield Gage's objection, (id. at 168), Plaintiffalso presented testimony and charts from an economist, Dr. AllanMcCausland. Copies of the charts had been provided to the courtin the context of Westfield Gage's in limine motion to excludeportions of Dr. McCausland's testimony. (Id. at 170.7See also Plaintiffs Exhibit 16.) Dr. McCausland opined that,given Plaintiffs age and work experience and the state of thelocal employment situation, her "front pay" economic loss rangedfrom a low-end figure of $573,638 to a high-end figure of$833,169. (See Tr. Vol. IV at 194; Plaintiffs Exhibit 16.)"Front pay," according to Dr. McCausland's calculations, was theamount of wages and benefits Plaintiff would have received hadshe remained employed at Westfield Gage until retirement, i.e.,for about an additional twenty-eight years after the beginningof the trial. (See Tr. Vol. VI at 193-94; Docket No. 185 at 1.)
The trial began on the morning of October 22, 2001. On October29, 2001, at the close of Plaintiffs case, each defendant movedfor judgment as a matter of law pursuant to Fed.R.Civ.P.50(a).8 The court generally denied these mid-trialmotions, although it did allow dismissal of a "constructivedischarge" claim aimed at Westfield Gage and a "retaliation"claim targeting Woodis. (See Docket Nos. 189, 190.) The courtalso generally denied Defendants' renewed motions for judgmentas a matter of law filed at the close of all the evidence,although the court did dismiss Plaintiffs claims for punitivedamages. (See Docket Nos. 197 and 198.) Then, just prior toclosing arguments, the court dismissed Plaintiffs state-basedequal pay claim.
The jury began its deliberations on Friday, November 2, 2001.At that time, six categories of claims remained: a Federal EqualPay Act ("FEPA") claim targeting Westfield Gage; a claim againstWestfield Gage for gender discrimination under Title VII; claimsagainst Westfield Gage for sexual harassment under Title VII andMassachusetts General Laws chapter 151B ("chapter 151B"); achapter 151B sexual harassment claim against Woodis; aretaliation claim targeting Westfield Gage; and a common lawintentional infliction of emotional distress claim aimed atWoodis.
The jury returned a verdict late in the day on Monday,November 5, 2001. With regard to Plaintiffs FEPA claim, the juryfound that Plaintiff had established her prima facie case,determined that Westfield Gage had not proven its affirmativedefense and assessed damages in the amount of $8,140. As forPlaintiffs gender discrimination claim, the jury found thatWestfield Gage had intentionally discriminated against her andthat she should be paid $750,000 in damages for her "economicharm," but assessed no damages for"emotional harm." With respect to Plaintiffs sexual harassmentclaims targeting Westfield Gage, the jury found that she hadestablished her prima facie case, determined that Westfield Gagehad not proven the first element of its affirmative defense andassessed damages for Plaintiffs emotional harm in the amount of$250,000. The jury also found that Woodis had sexually harassedPlaintiff and determined that he should pay $25,000 in damagesfor her emotional harm. Finally, the jury decided that WestfieldGage was not liable for retaliation and that Woodis was notliable for the intentional infliction of emotional distress.
As indicated, on November 27, 2001, the court, aftercalculating interest, entered judgment against Westfield Gage inthe amount of $1,077,057.12 and against Woodis in the amount of$31,888.26. A few days later, Plaintiff asserts, she settled herclaim with Woodis for $25,000, an amount which, according toWoodis, Westfield Gage agreed to pay.
In due course, the parties filed the instant motions and thecourt heard oral argument. On March 8, 2002, the court held anevidentiary hearing with respect to Plaintiffs motion to enforcethe post-trial settlement she allegedly reached with Woodis andWoodis' related motion that Westfield Gage be ordered to pay thesettlement amount. All five motions were taken under advisement.
The court will first address Plaintiffs motion to enforce hersettlement agreement with Woodis and Woodis' related motion thatWestfield Gage be ordered to pay the $25,000 settlement amount.It will then consider Westfield Gage's motion for judgmentnotwithstanding the verdict and its motion for a new trial orfor remittitur. Finally, the court will discuss Woodis' motionfor judgment as a matter of law or for a new trial.
A. PLAINTIFF'S MOTION TO ENFORCE HER AGREEMENT WITH WOODIS AND WOODIS' MOTION
THAT WESTFIELD GAGE BE ORDERED TO PAY THE $25,000 SETTLEMENTAMOUNT
In her sole motion, Plaintiff seeks to enforce the $25,000settlement she purportedly reached with Woodis a few days afterjudgment was entered. In response, Woodis (in an argument joinedby Westfield Gage) acknowledges that an agreement was reached,but claims it is voidable because he mistakenly believed thatWestfield Gage, through its attorney, had agreed to pay anysettlement proceeds. Alternatively, Woodis (but not WestfieldGage) requests that, should the court find that his agreementwith Plaintiff is enforceable, Westfield Gage should be orderedto pay the settlement amount.
In essence, therefore, there are two motions before the court:(1) Plaintiff's motion to enforce her settlement agreement withWoodis; and (2) Woodis' cross motion that Westfield Gage beordered to pay the settlement amount. In light of the factualissues inherent in these motions, including questions ofauthority, the court scheduled an evidentiary hearing. SeeKinan v. Cohen, 268 F.3d 27, 32-33 (1st Cir. 2001) (and casescited therein). After hearing and for the reasons indicatedbelow, the court will allow Plaintiffs motion, but deny Woodis'cross motion.
1. Findings of Fact9
The "agreement" Plaintiff seeks to have enforced was allegedlyconsummatedbetween her counsel, Donna Cuipylo ("Cuipylo"), and Woodis'counsel, Mark Draper ("Draper"), on or about November 29, 2001.It arose against a series of prior negotiations.
On October 24, 2001, after the third day of trial, Draper hada conversation with Cuipylo in which he offered to settlePlaintiffs claims against Woodis in an amount slightly less thanPlaintiffs then outstanding demand. It appears that Woodis waswilling to pay this amount from his own pocket even thoughDraper, evidently, had been attempting to obtain anindemnification agreement from Westfield Gage for quite sometime.
The next morning, October 25, 2001, Draper informed WestfieldGage's attorney, Timothy J. Ryan ("Ryan"), that he had beenauthorized to settle Plaintiffs claim at the amount ofPlaintiffs demand, but that Woodis was still seekingindemnification. Ryan immediately so advised Westfield Gage'spresident, Fred Filios ("Filios"), who told Ryan that, whileWestfield Gage would be willing to indemnify Woodis for any"judgment" rendered against him, it would not pay the proposed"settlement." Ryan thereafter informed Draper of Filios'position.
In a hand-delivered letter dated October 25, 2001, Drapermemorialized Ryan's representation and asked for Ryan's writtenconfirmation. The very next day, Ryan, via a hand deliveredletter, did just that, stating the following:
Please be advised that I have been authorized . . . to represent that Westfield Gage Company, Inc. will indemnify Mr. Edward Woodis in the event of any judgment against him in the case of Horney v. Westfield Gage Company, Inc. This indemnification applies only to judgments entered by the Court and does not extend to any separate settlement by Mr. Woodis with the Plaintiff.
(Woodis' Exhibit 2, Exhibit 4 thereto.) Draper then advisedCuipylo that Plaintiffs last demand was rejected and thatWoodis' counter-offer was withdrawn.
As indicated, on November 5, 2001, the jury reached itsverdict which, in applicable part, found Woodis liable toPlaintiff for sexual harassment in the amount of $25,000. Thenext day, November 6, 2001, Draper resurrected settlementdiscussions with Cuipylo, asking whether, in exchange for$25,000, Plaintiff would consider waiving any request forinterest, attorney's fees or expenses with respect to the Woodisclaim.
Draper then spoke with Ryan about his conversation withCuipylo and asked whether Westfield Gage was interested inpursuing such a settlement. Draper confirmed his conversationwith Ryan in a letter dated November 6, 2001. In that letter,Draper indicated that, according to Cuipylo, Plaintiff "might bewilling to accept the amount of the judgment ($25,000) if paidpromptly, thereby [enabling Woodis to] avoid approximately$6,000 in interest" and again asked Ryan whether "Westfield Gagehas any interest in pursuing [such] a resolution." (Id.,Exhibit 5.)
Ryan, however, did not pursue the matter with Westfield Gage —later testifying that it "escaped" him — at least until hereceived a telephone call from Draper on either November 28,2001, the day after the court entered judgment, or the followingday, November 29th.10 No matter when this conversationtook place, and although Ryan's recollection of it is somewhatvague, Draper testified, and the court finds, that theconversation included a discussion about settling the Woodisclaim for $25,000 and about Westfield Gage paying the settlementproceeds. Draper also testified, and the court finds, that,during the telephone conversation, Ryan told Draper to "do it"or words to that effect.
It is undisputed that, on November 29th, Draper spoke withCuipylo and reached a $25,000 settlement agreement, the terms ofwhich are set out in a draft Agreement for Judgment which Draperforwarded via facsimile to Cuipylo the next day. Draper'sNovember 30th faxed cover letter to Cuipylo "confirm[ed]" thatan agreement had been reached and asked that she advise himwhether she wished to make any changes to the attached document.(Plaintiffs Exhibit 1, Exhibit B thereto.) At the time, bothCuipylo and Draper had their clients' respective authority toenter into the agreement.
Before sending the November 30th facsimile to Cuipylo, Draper"spoke with . . . Ryan to confirm that the terms and theconditions of the settlement agreement with . . . Cuipylo wereacceptable with Westfield Gage." (Woodis' Exhibit 2 ¶ 10.) Theyevidently were. As Draper averred: "Ryan informed me that thesettlement terms were acceptable. My recollection is that theonly issue . . . Ryan and I did not discuss on November 29, 2001was the manner in which Westfield Gage would make payment of thesettlement proceeds." (Id.) Thus, in a separate communicationwith Ryan on November 30th, Draper "confirmed" his conversationand requested information only "as to how payment of thesettlement proceeds by Westfield Gage would be made to . . .Plaintiff" (id.), i.e., "whether . . . Westfield Gage wouldmake direct payment to [Plaintiff] or route it through[Draper's] account" (id., Exhibit 6 thereto). A November 30thfacsimile from Draper to Ryan included a copy of the draftAgreement for Judgment which Draper had forwarded to Cuipylo,along with Draper's November 30th faxed cover letter to Cuipyloin which he had "confirm[ed]" his agreement with her.
Ryan immediately forwarded Draper's correspondence to Filios,although Draper's November 30th letter to Cuipylo was, for somereason, omitted. In any event, Ryan stated in his cover letterto Filios that, "[a]t this point I recommend the settlement."(Westfield Gage Exhibit 2.)
A few days after receiving Ryan's correspondence, Filios —who, in the interim, had discussed the matter with WestfieldGage's general counsel — told Ryan that Westfield Gage did notaccept the "proposed" arrangement. Ryan informed Draper of thatfact in a telephone call on December 4th, although he gave noreason for the decision. Draper then immediately advised Cuipyloby facsimile dated December 4, 2001, that "Woodis cannot enterinto the proposed Agreement for Judgment" and that he would befiling post-trial motions shortly. (Plaintiff's Exhibit 1,Exhibit C thereto.) Plaintiffs present motion and Woodis' crossmotion soon followed.
The court first considers Plaintiffs motion to enforce hersettlement agreementwith Woodis. It then addresses Woodis' cross motion thatWestfield Gage be ordered to pay the $25,000 settlement amount.
a. Plaintiffs Motion to Enforce
Although the parties utilize a combination of state andfederal law, the appropriate standard for determining whetherthe agreement is enforceable is federal. As the First Circuitrecently clarified, federal law must be applied to settlementissues when, as here, the underlying lawsuit is based uponfederal law. See Quint v. A.E. Staley Mfg. Co., 246 F.3d 11,14 (1st Cir. 2001), cert. denied, ___ U.S. ___, 122 S.Ct.1618, 152 L.Ed.2d 631 (2002); Malave v. Carney Hosp.,170 F.3d 217, 220 (1st Cir. 1999). The fact that the lawsuit also raisedstate law claims makes no difference. See Ramirez v. DeCoster,142 F. Supp.2d 104, 109 n. 5 (Me. 2001) ("[T]he presence ofpendent or supplemental state law counts . . . cannot change theapplicability of federal law to efforts to settle the lawsuit.Otherwise, different principles would apply to different counts,and a settlement agreement designed to settle an entirecontroversy could be enforceable as to some counts and notenforceable as to others, an impossible outcome.").
From the facts presented, it is clear that both Cuipylo andDraper had actual authority to enter a binding settlement onbehalf of their clients. This case, therefore, differs fromMichaud v. Michaud, 932 F.2d 77 (1st Cir. 1991), Mason &Dixon Lines, Inc. v. Glover, 975 F.2d 1298 (7th Cir. 1992), andMilewski v. Roflan Co. 195 F. Supp. 68 (Mass. 1961), andother cases where authority was cloudy. It is also clear thatthe settlement was complete as to its essential terms, i.e.,there was a meeting of the minds to the exchange andconsideration. See Trifiro v. New York Life Ins. Co.,845 F.2d 30, 31 (1st Cir. 1988); Restatement (Second) of Contracts §17(1) cmt c. Finally, there is no doubt that the failure ofCuipylo and Draper to formalize the settlement in written formdoes not void the underlying agreement. See Quint, 246 F.3d at15. Indeed, neither party claims that a fully executed documentwas required for them both to be bound. See also Petition ofMal de Mer Fisheries, Inc., 884 F. Supp. 635, 641 (Mass. 1995)(holding that oral agreement to settle claim may be enforced asany other contract); Wang Labs., Inc. v. Applied ComputerSciences, Inc., 741 F. Supp. 992, 1001-01 (Mass. 1990)(similar), rev'd on other grounds, 926 F.2d 92 (1st Cir.1991).
Nonetheless, Woodis argues that the agreement ought to bevoidable because of his "unilateral mistake" that Westfield Gagewould pay the $25,000. The Restatement defines a "mistake" as "abelief that is not in accord with the facts." Restatement(Second) of Contracts § 151. It then states the following withrespect to a unilateral mistake:
Where a mistake of one party at the time a contract was made as to a basic assumption on which he made the contract has a material effect on the agreed exchange of performances that is adverse to him, the contract is voidable by him if he does not bear the risk of the mistake under the rule in § 154 and
(a) the effect of the mistake is such that enforcement of the contract would be unconscionable, or
(b) the other party had reason to know of the mistake or his fault caused the mistake.
Restatement (Second) of Contracts§ 153.11
As to subsection (b) of section 153, there is no argument, letalone evidence, that Plaintiff "had reason to know of themistake or [her] fault caused the mistake." As to Woodis, thecourt will assume, for purposes here, that the alleged mistakewent to his "basic assumption" and that it would have "amaterial effect" that would be "adverse to him." The court willalso assume, with regard to subsection (a) of section 153, thatthe effect of the mistake — to wit, forcing Woodis to pay$25,000 out of his own pocket — might well be "unconscionable."Thus, the key question as far as the court is concerned iswhether Woodis "[bore] the risk of mistake under the rule in[section] 154." If so, the settlement agreement is not voidableby him.
In the court's opinion, Woodis did bear the sole risk of themistake. Under subsection (b) of section 154, a party bears therisk of a mistake when "he is aware, at the time the contract ismade, that he has only limited knowledge with respect to thefacts to which the mistake relates but treats his limitedknowledge as sufficient." Restatement (Second) of Contracts §154(b). Such is the case here. Woodis did not know,undisputably, that Westfield Gage would pay the settlement, buthis attorney treated what he did know — Ryan's confirmation"that the settlement terms were acceptable" — as sufficient toenter into the agreement with Plaintiff.
Moreover, even if subsection (b) does not apply, the court,under subsection (c) of section 154, would allocate the risk toWoodis "on the ground that it is reasonable in the circumstancesto do so." Restatement (Second) of Contracts § 154(c). Draperwas well aware of the risk and carefully tried to avoid it whenhe sought assurances from Ryan that Westfield Gage would pay theproceeds. The only other alternative — to put the risk of themistake on Plaintiff whose attorney was specifically faxed theNovember 30th letter from Draper which "confirm[ed]" that anagreement had been reached — would be manifestly unreasonableand unfair. In short, the court will not allow Woodis to voidthe settlement agreement because of his alleged unilateralmistake and, therefore, will allow Plaintiffs motion toenforce.12
In reaching this conclusion, the court in no way blames Draperfor the situation; he did practically everything he could toensure that Westfield Gage was on board before he took the finalstep.13 Still, in retrospect, Draper did not obtainprecise written confirmation — as he had when he previouslysought written confirmation of Westfield Gage's agreement toindemnify Woodis against any judgment — of what he understood,through Ryan, to be Westfield Gage's agreement to pay thesettlement before he discussed the matter with Cuipylo. Withthat in mind, the court turns to Woodis' cross motion thatWestfield Gage be ordered to pay the $25,000 to Plaintiff.
b. Woodis' Cross Motion
In his response to Plaintiffs motion to enforce, filed onDecember 21, 2001, Woodis submits that, should the court allowPlaintiffs motion, it must "determine and order that WestfieldGage is obligated to pay the $25,000 designated as the amount ofthe settlement. . . ." (Docket No. 221 at 4.) Five days later,on December 26, 2001, Westfield Gage tendered a pleading which,although styled an "Opposition to Plaintiffs Motion to Enforce. . .," also responded to Woodis' cross motion. (See Docket No.222 at 3 (arguing that "[t]he evidence is clear that WestfieldGage has not agreed to fund the settlement agreement at thistime") and 3-4 (contending that should the court enforce theagreement, Westfield Gage is "entitled to relief due toexcusable neglect").) On March 7, 2002, one day before theevidentiary hearing, Westfield Gage filed a "Pre-HearingMemorandum" which also argued that "Westfield Gage did not agreeto pay the amount of the proposed settlement between Plaintiffand . . . Woodis." (Docket No. 236 at 1.) Thus, the issue isjoined.14
The question raised in Woodis' motion, simply stated, is this:did Westfield Gage agree to fund the $25,000 settlementagreement between Plaintiff and Woodis? Unfortunately forWoodis, the court's answer to that query is "no."
It is well settled "that the decision to settle litigationbelongs to the client, not the lawyer." Malave, 170 F.3d at221 (citing cases). Thus, "a settlement agreement entered intoby an attorney is ineffective if the attorney did not possessactual authority to bind the client, and the cases so hold."Id. (citations omitted). Stated another way, "actualauthority," not apparent authority, "is the barometer" in casessuch as this. Id. See also Quint, 246 F.3d at 13-15(focusing on issue of whether attorney had actual authority toenter agreement on client's behalf).
There is no question that Ryan lacked actual authority to bindWestfield Gage to pay the $25,000 settlement. The first timeFilios, the only one who could grant Ryan authority, learned ofDraper's request was when Ryan forwarded him Draper's November30th correspondence with respect to what Ryan termed a "proposedsettlement." After meeting with in-house counsel, Filiospromptly told Ryan that Westfield Gage did not accept the"proposed" deal. Given these facts, Ryan did not possess actualauthority when he told Draper to "do it" or "that the settlementterms were acceptable." That this may well have been imprudenton Ryan's part does not make it authorized.
The outcome would likely not differ were the court permittedto base its analysis on considerations of apparent authority.See Malave, 170 F.3d at 221 n. 6. Apparent authority wouldhave resulted "from conduct by the principal" — i.e., Filios —which would have caused Draper reasonably to have believed thatRyan had authority to agree to the payment arrangement. SeeHinchey v. NYNEX Corp., 144 F.3d 134, 141 (1st Cir. 1998). Seealso Restatement (Third) of Agency § 2.03 (Tentative Draft No.2, 2001) (observing that apparent authority must be "traceableto the principal's manifestations"). The court finds that Filiosengaged in no such conduct.
c. Final Thoughts
Before concluding this section, the court adds some finalobservations. Judgment against Woodis was entered on November27, 2001. At that moment, Woodis had the October 26th letteragreement from Westfield Gage to "indemnify [him] . . . in theevent of any judgment [entered] against him . . . by the Court."Thus, had Woodis done nothing on November 27th — and putting theparties' appellate rights to the side — Westfield Gage wouldhave been obligated to pay Plaintiff $31,888.36. As a result,Draper's actions in negotiating a compromise with Plaintiffwould have saved Westfield Gage, were it to fund the settlement,$6,888.36 in interest, not to mention attorney's fees and costs.That is good lawyering on Draper's part.
Even the best lawyering, however, sometimes goes awry. SeePrecious v. O'Rourke, 270 Mass. 305, 170 N.E. 110, 111 (1930)("When the attorney undertakes to bind his client to anagreement to compromise his client's substantial rights, theopposing party must ascertain at his peril whether the attorneyhas authority to make the settlement.") This is just such acase. Woodis is now obligated to pay Plaintiff the $25,000 outof his own pocket, since, for the reasons stated, the court willnot require Westfield Gage to fund a settlement to which itspresident did not agree, even though doing so might save itthousands of dollars. Thus, Woodis' plight lies squarely withRyan who agreed to the arrangement. At the very least, the courturges Westfield Gage, if for equitable reasons only, toseriously consider funding the Woodis settlement.
These final thoughts aside, the court, for the reasons stated,will rule as follows. Plaintiffs motion to enforce her $25,000settlement with Woodis will be allowed and Woodis' cross motionthat Westfield Gage be ordered to pay the $25,000 settlementamount will be denied.
B. WESTFIELD GAGE'S POST-JUDGMENT MOTIONS
In the first of its two motions, filed pursuant toFed.R.Civ.P. 50(b), Westfield Gage makes a number of arguments,many of which were made previously in its Rule 50(a) motions forjudgment as a matter oflaw and rejected.15 Westfield Gage's second motion isbrought pursuant to Fed.R.Civ.P. 59 and, as such, seeks a newtrial.16 Alternatively, Westfield Gage argues in itssecond motion that it is entitled to a substantial remittitur ofdamages.
1. Westfield Gage's Motion for Judgment as a Matter of Law
Westfield Gage's first motion attacks the three claims forwhich the jury awarded damages against it: sexual harassment,FEPA and gender discrimination. In the court's view, none ofWestfield Gage's arguments justify granting it judgment as amatter of law with respect to any one of these claims.
a. Sexual Harassment
Westfield Gage focuses on three arguments with respect to theTitle VII and chapter 151B sexual harassment claims for whichthe jury awarded Plaintiff $250,000 in emotional damages. Thecourt finds all three arguments unavailing.
First, Westfield Gage asserts that Plaintiff failed toestablish unlawful sexual harassment because, based on her ownadmitted conduct, she did not find the alleged hostileenvironment to be "unwelcome" or "offensive." See Faragher v.City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141L.Ed.2d 662 (1998) (noting that sexually objectionableenvironment must be "one that a reasonable person would findhostile or abusive, and one that the victim in fact didperceive to be so") (emphasis added). Westfield Gage fails tofully recognize, however, that even "[v]oluntary participationin acts that constitute sexual harassment . . . does notnecessarily bar recovery. . . ." Beaupre v. Cliff Smith &Associates, 50 Mass. App. Ct. 480, 738 N.E.2d 753, 763 n. 15(2000) (citing, inter alia, Meritor Sav. Bank v. Vinson,477 U.S. 57, 68, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)), rev.denied, 433 Mass. 1101, 742 N.E.2d 81 (2001).The mere fact that a plaintiff participates in some workplaceconduct that is sexual "does not, by itself, prove that theconduct is welcome and that she does not perceive herenvironment to be hostile." Lawless v. Northeast Battery &Alternator, 2001 WL 1805185, at *1 (MCAD Nov. 30, 2001). Nordoes it suggest that she "enjoyed or appeared to enjoy thecampaign of harassment against her." Carr v. Allison GasTurbine Div., Gen. Motors Corp., 32 F.3d 1007, 1011 (7th Cir.1994).
In this vein, the court flatly rejects the implication lurkingin Westfield Gage's memoranda that there is no differencebetween Plaintiffs use of sexual epithets (e.g., "cunt" and"bitch") and the use of the same or similar words by maleemployees, some of whom were her supervisors. (See, e.g., DocketNo. 211 at 3 n. 1 (describing Plaintiffs position as "nothingmore than a cynical sexual stereotype").) Decades ago, JusticeOliver Wendell Holmes observed that "[a] word is not a crystal,transparent and unchanged" but "is the skin of a living thoughtand may vary greatly in color and content according to thecircumstances and the time in which it is used." Towne v.Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 62 L.Ed. 372 (1918).Like the word "nigger," see RANDALL KENNEDY, NIGGER: THESTRANGE CAREER OF A TROUBLING WORD 34-55 (Pantheon Books 2002)(chronicling historical difference between African Americans'use of "nigger" and use by racist whites), the court believesthat "cunt" — and similar epithets pertaining to women — is justsuch a word.
Indeed, many courts have concluded that there may well be aprofound difference between a harassed woman's use ofsexually-explicit language (and conduct) and similar language(and conduct) used by men. See Carr, 32 F.3d at 1011 (holdingthat sexually explicit words and conduct of female shop-workercannot be used to justify similar conduct by men and exoneratetheir employer); Swentek v. USAIR, Inc., 830 F.2d 552, 557(4th Cir. 1987) (finding it improper for trial judge to suggestthat plaintiffs own use of foul language or sexual innuendomeant that she welcomed similar behavior by male co-worker);Van Jelgerhuis v. Mercury Fin. Co., 940 F. Supp. 1344, 1361(S.D.Ind. 1996) (holding that "a woman does not forfeit herright to be free from sexual harassment by virtue of herparticipation in sexual banter"); Kahn v. Salerno, 90Wash.App. 110, 951 P.2d 321, 327-28 (1998) (concluding thatplaintiff "did not waive her legal protections against unwelcomeharassment by using foul language" such as "fuck," "fucking" and"bitch"). As Judge Posner of the Seventh Circuit Court ofAppeals has written, the use of foul language "may be defensive;may be playful rather than hostile or intimidating; may becolored by tone or body language; [or] . . . may be done in aplacating, conciliatory, or concessive manner in an effort toimprove relations with hostile or threatening coworkers."Galloway v. Gen. Motors Service Parts Operations,78 F.3d 1164, 1167 (7th Cir. 1996), abrogated on other grounds,National R.R. Passenger Corp. v. Morgan, ___ U.S. ___, 122S.Ct. 2061, 153 L.Ed.2d 106 (2002). The jury rationally couldhave considered such to be the case here. As Dr. Price testifiedon cross examination:
[Plaintiff]'s occasional use of profanity represented an adaption to an environment in which the use of profanity was rife. In this regard, she described herself as having become "crusted," e.g., hardened to the use of profanity. This use of profanity represented both an attempt to "fit in" and to adjust, e.g., survive in her environment. This behavior was not typical of [Plaintiff] either before or following her having worked at Westfield Gage.
(Tr. Vol. IV at 60-61.)
The only potentially contrary decisions which Westfield Gagediscusses in any detail are inapposite. See Ramsdell v. WesternMass. Bus Lines, Inc., 415 Mass. 673, 615 N.E.2d 192 (1993);Zereski v. Am. Postal Workers Union, 2001 WL 1602782 (MCADOct. 23, 2001). Each of these cases turned on credibilitydeterminations that went against the particularclaimant.17 Here, in contrast, the jury obviously made adifferent credibility finding, that Plaintiff, despite someparticipation on her part, objectively perceived the overallenvironment at Westfield Gage to be hostile, abusive andunwelcome. And the jury had sufficient evidence upon which toground that conclusion; for example, Plaintiffs testimony thatshe complained about the language and other sexually explicitmaterials and that she often left the workplace in tears becauseof that environment. The court is loathe to upset suchcredibility determinations, see Gray v. Genlyte Group, Inc.,289 F.3d 128, 141 (1st Cir. 2002) (observing that "credibilityis preeminently a jury matter"), and, as a result, rejectsWestfield Gage's first argument.18
Second, Westfield Gage argues that its alleged conduct was notgender-related and, thus, did not rise to the level ofactionable sexual harassment. In pursuing this argument,Westfield Gage appears to describe the environment, at worst, asmerely one of crude language directed equally at males andfemales. Therefore, Westfield Gage asserts, no reasonable jurycould have concluded that the conduct was directed at Plaintiffbecause she is a woman. Relatedly, Westfield Gage maintains thatthe harassment was not "severe and pervasive" as a matter oflaw.
For an environment to be actionable under Title VII, theharassment must be "sufficiently severe or pervasive to alterthe conditions of the [plaintiff]'s employment and create anabusive working environment." Oncale v. Sundowner OffshoreServs., Inc., 523 U.S. 75, 78, 118 S.Ct. 998, 140 L.Ed.2d 201(1998); White v. New Hampshire Dep't of Corrections,221 F.3d 254, 259 (1st Cir. 2000). See also Muzzy v. Cahillane Motors,Inc., 434 Mass. 409, 749 N.E.2d 691, 694 (2001) (similarstandard under chapter 151B). The harassment must also be"because of . . . sex," Oncale, 523 U.S. at 81, 118 S.Ct. 998,although under chapter 151B even "[c]onduct which is notspecifically sexual in nature may nonetheless be evidence ofsexual harassment," Morehouse v. Berkshire Gas Co.,989 F. Supp. 54, 62 (Mass. 1997) (citing Melnychenko v. 84 LumberCo., 424 Mass. 285, 676 N.E.2d 45 (1997)).
In light of the factual background — detailed above — thecourt believes that there was ample evidence for the jury tohave reasonably found that Westfield Gage's conduct was bothgender-related and so severe and pervasive as to constitutesexual harassment. To be sure, neither Title VII nor chapter151B are "general civility code[s]" and the sporadic use ofvulgar or abusive language, without more, is not actionable.See Faragher, 524 U.S. at 788, 118 S.Ct. 2275; Cody v.Sutar, 1997 WL 109563, at *3 (Mass.Super. Mar. 11, 1997). Here,however, the jury could have reasonably determined that thesexually-charged and abusive language was used regularly by mentoward women and that there was a host of other objectionableconduct, e.g., calendars, pictures, jokes and posters. Thus, atthe very least, the questions of whether Westfield Gage'sconduct was gender-based and sufficiently severe and pervasivewere appropriately submitted to the jury for its determination.See Conner v. Schrader-Bridgeport Intern., Inc., 227 F.3d 179,199-200 (4th Cir. 2000) ("[T]he legal principle that whether. . . harassment [is] sufficiently severe or pervasive to createa hostile work environment [under Title VII] is quintessentiallya question of fact for the jury.") (citations and internalquotation marks omitted); Morehouse, 989 F. Supp. at 62 ("Todetermine whether the effects of harassment . . . create ahostile work environment under chapter 151B, the court must. . . approach the evidence from the view of a reasonable personin the plaintiffs position.") (citations and internal quotationmarks omitted).
Third, Westfield Gage argues that Plaintiffs sexual harassmentclaims cannot stand as a matter of law because she, assertedly,failed to report the alleged behavior of her harassers. In soarguing, Westfield Gage relies on the affirmative defenseformulated by the Supreme Court in Faragher and BurlingtonIndus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141L.Ed.2d 633 (1998), with respect to Title VII sexual harassmentclaims.
There are two elements to the Faragher-Ellerth affirmativedefense: "(a) that the employer exercised reasonable care toprevent and correct promptly any sexually harassing behavior,and (b) that the plaintiff employee unreasonably failed to takeadvantage of any preventive or corrective opportunities providedby the employer or to avoid harm otherwise." Faragher, 524U.S. at 807, 118 S.Ct. 2275. See also Ellerth, 524 U.S. at762-63, 118 S.Ct. 2257.19In pursuing its argument, it appears that Westfield Gage istargeting the second element of that defense.
In the court's view, Westfield's Gage's argument falls shortfor a number of reasons. For one thing, and most importantly,the jury never reached the second element of theFaragher-Ellerth affirmative defense. Rather, the jurydetermined that Westfield Gage failed to demonstrate the firstelement of its defense, i.e., that it exercised reasonable careto prevent and correct promptly any sexually harassing behaviorin the workplace. (See id.; Docket No. 203, Special VerdictQuestion No. 9.)
Even had the jury reached the second element, the courtbelieves that, as detailed above, there was ample evidence thatPlaintiff took some care to avoid the harm and, in fact, filed aformal report with respect to at least one incident. She alsocomplained to Gutt, her human resources contact, "on a regularbasis" if not "daily." To the extent the jury may have creditedthis or other similar evidence of reporting, the court will notsecond-guess its factual determination. See Conto, 2000 WL1513798, at *5 (holding, in case cited by Westfield Gage, that"[m]erely showing that an employer had a written policy andgrievance procedure does not demonstrate as a matter of law thatthe employer took reasonable steps to prevent sexual harassmentin its workplace") (citing decisions from Third, Fourth, Seventhand Ninth Circuits), aff'd, 265 F.3d 79 (1st Cir. 2001).
Granted, Westfield Gage initially contended that Patterson andBerube, not Gutt, were "the individuals identified in the sexualharassment policy as contact persons," (Docket No. 211 at 8),but that alleged distinction makes no difference to this issue.Gutt was specifically identified to Plaintiff as her humanresources contact and as the person to whom sexual harassmentcomplaints should be made. Even Berube, Gutt's boss, concededthat Gutt was charged with investigating workplace complaints.
Finally, it was not a foregone conclusion that Westfield Gagewas even entitled to a Faragher-Ellerth affirmative defenseinstruction and corresponding special verdict questions. As theSupreme Court stated in Faragher, "[n]o affirmative defense isavailable . . . when the supervisor's harassment culminates in atangible employment action, such as discharge, demotion, orundesirable reassignment." Id., 524 U.S. at 808, 118 S.Ct.2275 (citation omitted). In the case at bar, Plaintiffspresentation was peppered with allegations that she wassubjected to a number of adverse employment actions, includingher eventual discharge. See discussion, infra, atII(C)(1)(c). Indeed, Westfield Gage's own proposed sexualharassment instructions recognized the point. (See Docket No.156 ¶ 12.) Thus, it is conceivable that, had Plaintiff objected,the court might have properly eliminated the Faragher-Ellerthaffirmative defense altogether. The factthat the jury considered the defense only helped WestfieldGage.20
Westfield Gage aims two arguments at the FEPA claim for which,as indicated, the jury awarded Plaintiff $8,140 in damages: (1)that Plaintiff failed to make out a prima facie case of FEPAdiscrimination; and (2) that Westfield Gage sustained its burdenof proof with respect to its FEPA affirmative defense. The courtfinds neither argument sufficient to grant judgment in WestfieldGage's favor.
Westfield Gage first argues that Plaintiff failed to make outa prima facie case of discrimination under FEPA because shefailed to prove that it paid different wages to men for"substantially equal" work. See McMillan v. Mass. Soc'y forPrevention of Cruelty to Animals, 140 F.3d 288, 298 (1st Cir.1998) (outlining elements of FEPA prima facie case). In thecourt's view, Westfield Gage's argument is misplaced for anumber of reasons.
For one thing, the jury could have reasonably comparedPlaintiffs initial position as a parts marker to entry level menin the burring department. Plaintiff was initially hired inparts marking, an area described by Frisbie, Westfield Gage'sVice President of Manufacturing, as one for new employees "withlimited experience." (Tr. Vol. III at 186.) Another such area,Frisbie testified, was burring. (Id.) Frisbie himself startedhis career in burring at age sixteen. (Id. at 142, 184.)
As a parts marker, Plaintiff, from 1994 to 1997, made between$8 and $10 per hour. The wages of several new male burrersduring the same time frame, however, were higher. For example:
Leon LaFreniere, Jr., started in burring in 1995 at $13 per hour and by 1996 was making $13.50 per hour;
Kevin Williams started in burring in 1995 at $10 per hour and by 1997 was making $11.50 per hour; and
Daniel Minelli started in burring in 1997 at $10 per hour.
(See Plaintiffs Exhibit 20; Westfield Gage's Exhibit 5.)21Granted, LaFreniere came to Westfield Gage with sixteen yearsexperience as a machinist — as compared to Plaintiffs severalyears of quality control and assembly work — but Williams hadonly two years of engineering at a community college and oneyear of burring prior to coming to Westfield Gage, and Minelli,when he started, had only some "military" and one year ofburring experience. (Westfield Gage's Exhibit 5.) Thus, it wasnot unreasonable for the jury to have concluded that Plaintiff,as an entry-level parts marker, was paid less thansimilarly-situated, entry-level male burrers.
In addition, the jury could have reasonably concluded that,while Plaintiffs moveto inspections included no wage increase, it was clearly apromotion. As Frisbie testified, it would have been a step uphad she moved from the male-dominated burring department intoinspections. (See Tr. Vol. III at 188-89 ("[W]e started themmaybe in burring and then if they showed progress they would goup[,] maybe work inspection three or four months to learn how tocheck parts.") and 193 (noting that if workers became proficientat burring they might "progress to inspection").) Yet Plaintiffreceived no wage increase when she moved into inspections.
It would not have been unreasonable for the jury to haveconcluded as well that Plaintiffs job as an "inspector," even asan inspector "trainee," was similar, if not more difficult, thanhigher-paying jobs held by some men as "lappers." The relevantjob descriptions state that, for lappers, prior experience is"helpful, but not required" and "[p]revious job shop experience[is] helpful, but not necessary." (Plaintiffs Exhibit 15.) Forinspectors or inspector trainees, however, prior experience is"required" — as is "[k]nowledge of geometric tolerancing" and"[p]revious job shop experience" — and "[m]achining experience[is] preferred." (Id.) To be sure, lappers had to be"[h]ighly knowledgeable and proficient in geometrictolerancing," (id. (emphasis added)), but Frisbie affirmedthat, in practice, geometric tolerancing was a skill that alapper "develops over time as [he] become[s] a lapper or as [he]works on that position," and that such experience, in reality,was "not required" (Tr. Vol. III at 168).
Again, during the end of 1997 and the beginning of 1998,Plaintiff made $10 per hour as an inspector. Certain malelappers, however, made more during the same time frame. Forexample:
Todd Koivisto started in lapping in 1994 at $10 per hour and by 1997 was making $12.50 per hour.
Edward Neid was rehired in lapping in 1997 at $15 per hour; and
Harry Schumann was restarted in lapping in 1997 at $13 per hour and later that year was making $14 per hour.
(See Plaintiffs Exhibit 20; Westfield Gage's Exhibit 5.)Granted, by 1997, Neid had fourteen years experience as amachinist and Schumann had twenty-five years experience as alapper or a grinder. (Westfield Gage's Exhibit 5.) But Koivisto,not unlike Plaintiff, came to Westfield Gage with only fouryears in another company's finishing department., (Id.) Thus,it was not unreasonable for the jury to have concluded thatPlaintiff, as an inspector, was paid less thansimilarly-situated (or perhaps even less experienced) malelappers. See E.E.O.C. v. State of Rhode Island, 549 F. Supp. 60,67 (R.I. 1982) (noting that the similarity of effort maybe measured by the physical or mental exertion needed forparticular jobs), affd, 720 F.2d 658 (1st Cir. 1983).
Further, the jury may have reasonably concluded that, as aninspector, Plaintiff was paid less than similarly situated maleinspectors. There was only one written job description forinspectors, entitled "Inspector or Trainee." (Plaintiff'sExhibit 15.)22 In 1997, Plaintiff was paid $10 per hour asan inspector, but the male inspectors were paid between $13.50and $18 per hour. (Plaintiff's Exhibit 21.) Also, there wasevidence that Plaintiff was experienced in inspections and thusentitled to a higher wage; as indicated, Plaintiff hadseveral years of quality control work prior to her employment atWestfield Gage, had worked as a parts marker in the inspectiondepartment for three and one-half years, "aced" an entry levelmechanical aptitude test faster than anyone else, and was givencertain other supervisory and training responsibilities.Finally, there was evidence that the general "workingconditions" for most of the shop jobs, e.g., exposure tointernal or external elements, were basically the same. SeeE.E.O.C. v. Rhode Island, 549 F. Supp. at 68. In all, the jurycould have reasonably concluded that Westfield Gage paiddifferent wages to men "for substantially equal work" and, thus,that Plaintiff made out a prima facie case of FEPAdiscrimination.
For similar reasons, the court rejects Westfield Gage's secondargument that the jury could not have reasonably found thatWestfield Gage failed to sustain its burden of proof withrespect to its FEPA affirmative defense. See McMillan, 140F.3d at 298 (holding that once FEPA plaintiff makes prima facieshowing of wage discrimination, burden shifts to employer toprove that pay disparity can be explained by legitimate factorsuch as seniority or performance). The jurors were instructedunder the statute and specifically asked whether Westfield Gagehad persuaded them that the pay differences were in any wayattributable to a factor other than sex. (See Docket No. 201,Instruction Nos. 27(c) and 28.) Their answer — supportable bythe evidence — was "no." (Docket No. 203, Special VerdictQuestion No. 2.) The court, therefore, declines Westfield Gage'srequest to substitute the word "yes" for the jury's answer onthis issue. See Stanziale v. Jargowsky, 200 F.3d 101, 108 (3rdCir. 2000) (describing FEPA affirmative defense test as whether"no rational jury could find to the contrary").
c. Gender Discrimination
For the most part, Westfield Gage's arguments with respect tothe Title VII gender discrimination claim, for which the juryawarded Plaintiff $750,000 in economic damages, merely repeatcontentions made either in its summary judgment motion or itsRule 50(a) motions. For the following reasons, the court willagain decline to enter judgment in Westfield Gage's favor onPlaintiffs gender discrimination cause of action.
Both Plaintiff and Westfield Gage analyze the Title VII genderdiscrimination claim within the burden shifting framework ofMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,36 L.Ed.2d 668 (1973). The three stages of that analysis arewell documented and can be summarized as follows for purposeshere. First, Plaintiff had to establish a prima facie case,which typically means a showing that (1) she was a member of aprotected class; (2) she met legitimate job performanceexpectations; (3) she experienced an adverse employment action;and (4) Westfield Gage replaced her with a person who hadroughly equivalent qualifications. See Smith v. StratusComputer, Inc., 40 F.3d 11, 15 (1st Cir. 1994); Weston-Smithv. Cooley Dickinson Hosp., Inc., 153 F. Supp.2d 62, 70 (Mass.2001), affd, 282 F.3d 60 (1st Cir. 2002). As Westfield Gagerecognizes, Plaintiffs prima facie burden was "not onerous."Williams v. Raytheon Co., 220 F.3d 16, 19 (1st Cir. 2000)(quoting Texas Dep't of Community Affairs v. Burdine,450 U.S. 248, 253-54, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).
Were Plaintiff to accomplish her task, the burden would shiftto Westfield Gage to produce a valid, nondiscriminatory reasonfor the adverse action. See Thomas v. Eastman Kodak Co.,183 F.3d 38, 56 (1st Cir. 1999). At this second stage, WestfieldGage only had the burden of productionwhich, if sustained, would cause the presumption of unlawfuldiscrimination to disappear. Weston-Smith, 153 F. Supp.2d at 70(citing Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1stCir. 1995)), affd, 282 F.3d 60.
At the third and final stage of the McDonnell Douglasparadigm, the burden would shift back to Plaintiff.Specifically, Plaintiff would have "the burden of persuasion toestablish by a preponderance of the evidence `that thelegitimate reasons offered by the defendant were not its truereasons, but were a pretext for discrimination.'"Weston-Smith, 153 F. Supp.2d at 70 (quoting Reeves v.Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct.2097, 147 L.Ed.2d 105 (2000)), affd, 282 F.3d 60.
In the case at bar, the jury reasonably could have determinedthat Plaintiff satisfied her prima facie burden. As to the firsttwo factors, Plaintiff is obviously female (the first factor)and easily met Westfield Gage's legitimate job performanceexpectations (the second factor): she aced her entrance test,had never been formally disciplined, was given supervisory andtraining responsibilities, had received several raises and hadbeen promoted to the inspections department.
As for the third factor, Plaintiff claims to have suffered anumber of adverse actions leading up to her dismissal. Althoughneither side points to any legal definition of an "adverseemployment action," both assume that, like termination, aproperly-shown constructive discharge can constitute such. Thisappears to be true. See Suarez v. Pueblo Intern., Inc.,229 F.3d 49, 56 (1st Cir. 2000) (describing "constructive discharge"as "adverse employment action"). It also appears, however, that,in proper circumstances, employment actions short of dismissalcan be considered "adverse employment actions" under Title VII.See Hernandez-Torres v. Intercontinental Trading, Inc.,158 F.3d 43, 47 (1st Cir. 1998) (listing in Title VII retaliationcontext "variety" of employment actions considered "adverse,"e.g., "demotions, disadvantageous transfers or assignments,refusals to promote, unwarranted negative job evaluations, andtoleration of harassment by other employees"); Wyatt v. City ofBoston, 35 F.3d 13, 15-16 (1st Cir. 1994) (similar). See alsoInternational Bhd. of Teamsters v. United States, 431 U.S. 324,335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (describing"disparate treatment" gender discrimination as "the most easilyunderstood type of discrimination" since "[t]he employer simplytreats some people less favorably than others because of their. . . sex"). In its reply memorandum, Westfield Gage seems toconcede this point.23
Viewing Plaintiffs constructive discharge as the adverseemployment action, Westfield Gage contends that Plaintiff cannotshow, as she must, that her working conditions were sointolerable that a reasonable person in her position would havefelt compelled to resign. See Serrano-Cruz v. DFI Puerto Rico,Inc., 109 F.3d 23, 26 (1st Cir. 1997); Calhoun v. AcmeCleveland Corp., 798 F.2d 559, 561 (1st Cir. 1986). In thecourt's view, however, the jury could have easily made such afinding, even if, as Westfield Gage argues, Plaintiff had todemonstrate "a greater severity or pervasiveness of harassmentthan the minimum required to prove a hostile workingenvironment." Moore v. Dartmouth College, 2001 WL 1326584, at*11 (N.H. Sep. 28, 2001). The facts, exhaustively detailedabove, speak for themselves.24
The court also rejects Westfield Gage's assertion that otheremployment actions fall short of the "adverse" mark as a matterof law. For example, as Plaintiff points out, the jury couldhave reasonably found that Plaintiff, in addition to beingsubjected to a hostile work environment, received less trainingthan some male employees, was kept in the dark about certainraise and overtime opportunities and was not offered a transferon the day her employment ended. Plaintiff also testified to thefollowing: that Woodis gave her no support in directing the workof others; that Woodis would not swear and scream at men or, atleast, yell as loudly at them; and that men, but not she, wereallowed to change their schedules to accommodate medicalappointments. In addition, Plaintiff testified that, followingthe Frisbie incident, she, unlike men, was only allowed to getcoffee at break time. Plaintiff summarized some of her concernsas follows: "[The men] got to work whatever they wanted tohour-wise, they got paid a lot more than I did, they got raisesmore than I did, they got scheduled whatever it was needed forthem. . . ."
As for the fourth prima facie factor — which applies only whendismissal or constructive discharge is the adverse employmentaction — Westfield Gage asserted in its initial memorandum thata gender discrimination plaintiff must demonstrate that "heremployer replaced her with a male employee with roughlyequivalent or lesser qualifications." (Docket No. 211 at 10(emphasis added).) But the case Westfield Gage cites for thisproposition, Smith v. Stratus Computer, Inc., states merelythat, for the fourth factor, Plaintiff must show that "heremployer sought a replacement for her with roughly equivalentqualifications." Id., 40 F.3d at 15. Accord Williams, 220F.3d at 19; Byrd v. Ronayne, 61 F.3d 1026, 1030-31 (1st Cir.1995). It says nothing about the gender of thereplacement.25
Regardless, as Plaintiff notes in her memorandum, the evidenceat trial revealed the following: "that several male inspectorswere hired after [Plaintiff]"; that "[s]everal machinists werehired in 1998"; that, "[d]uring the relevant period severalmachinists were hired with [one] year or less experience"; thata woman "was hired as a machinist in late 1998 or early 1999then moved into inspections with only one year of machine shopexperience"; that, "[a]t the time she quit, [Plaintiff] hadapproximately [eight] years in Quality Control"; and that"Westfield Gage placed an ad in the `Help Wanted' section of theMay 31, 1998 edition of the [local newspaper] seeking inspectorswith [five] years of experience." (Docket No. 225 at 17.)Crediting this evidence, the court finds that, insofar as thejury mayhave deemed the adverse action to be Plaintiffs termination orconstructive discharge, she amply satisfied the fourth prong ofher prima facie case of gender discrimination. Moreover, thejury, as indicated, could have found a number of non-terminationrelated adverse employment actions for which the fourth primafacie factor would not be required.
With regard to the second stage of the McDonnell Douglasframework, Plaintiff appears to concede that Westfield Gageproduced "legitimate" reasons for its adverse employmentactions, i.e., that it always acted in accord with appropriatebusiness decisions. The remaining dispute, therefore, is whetherthere was sufficient evidence for the jury to reasonablyconclude, at the third stage, that Westfield Gage's profferedreasons were a pretext for discrimination.
In the court's view, the jury could have reasonably found thatWestfield Gage's actions were pretextual. For example, inaddition to the testimony and environment detailed above, therewas evidence that men who could not perform their jobs werereassigned, that Plaintiff and other women (but not men)frequently left the work-site distraught and that, prior toPlaintiffs last day of work, she had not been disciplined.Granted, Westfield Gage attempted to present to the jury a verydifferent view of these same matters. The jury, evidently,rejected these alternatives. More to the point, insofar as thejury had to make credibility determinations in finding pretext,this court will not invade that process. See Reeves, 530 U.S.at 143, 120 S.Ct. 2097 (explaining that pretext analysisnecessarily involves deciding whether "the employer's profferedexplanation is unworthy of credence") (citation and internalquotation marks omitted). At bottom, as with the sexualharassment and FEPA claims, the court will not enter judgment inWestfield Gage's favor with respect to Plaintiffs Title VIIgender discrimination cause of action.
2. Westfield Gage's Motion for a New Trial or Remittitur
In its second motion, Westfield Gage argues that a new trialshould be granted for three reasons: (1) the verdict is againstthe weight of the evidence; (2) there were errors in admissionor rejection of evidence as well as in jury instructions; and(3) the damages are excessive. See Cigna Fire Underwriters Co.v. MacDonald & Johnson, Inc., 86 F.3d 1260, 1262-63 (1st Cir.1996). With regard to damages, Westfield Gage also seeks aremittitur. The court considers each argument in turn.26
a. Weight of the Evidence
Westfield Gage contends first that a new trial is warrantedbecause Plaintiff failed to meet her burdens of proof withrespect to her sexual harassment, FEPA and gender discriminationclaims. For the reasons stated above, the court disagrees.Accordingly, the court concludes that the verdict was notagainst the weight of the evidence and will not order a newtrial on that basis.
b. Alleged Evidentiary and Jury Instruction Errors
Westfield Gage also asserts that three alleged evidentiary andjury instruction errors "deserve special mention." First,Westfield Gage argues that thecourt's failure to permit a "clean language" instructionseverely prejudiced Westfield Gage.27 The court disagrees.As an initial matter, Westfield Gage cites no decision where thealleged omission of a "clean language" instruction was deemed soprejudicial as to warrant a new trial. More importantly, in thecourt's view, it properly instructed the jury that this case wasabout all the hostile "conduct," including language, to whichPlaintiff was exposed. (See Docket No. 201, Instruction Nos.4853.)
Second, Westfield Gage asserts that the last sentence ofInstruction No. 39 incorrectly informed the jury that, if theyfound the prima facie case of gender discriminationinsufficient, they should proceed to the third step of theburden-shifting analysis.28 Viewed in isolation, the lastsentence of Instruction No. 39 might be read to imply,incorrectly, that if there is no prima facie case, the jury(instead of finding in Westfield Gage's favor) should move tothe third step of the analysis. However, the instructions, readas a whole, appropriately lay out the proper test. See UnitedStates v. Woodward, 149 F.3d 46, 69 (1st Cir. 1998) (notingthat the court has "considerable latitude" in charging the juryso long as the charge as a whole adequately sets forth the law"applicable to the controlling issues").
For example, Instruction No. 36 makes clear that it isPlaintiffs burden to make out a prima facie case ofdiscrimination. Instruction No. 37, in turn, directs that thejury need only consider the second step in the analysis ifPlaintiff establishes her prima facie case. Only after the jurywends its way past Instruction No. 38, relating to WestfieldGage's articulation of a non-discriminatory reason for theadverse actions experienced by Plaintiff, does it find itself atthe now-challenged Instruction No. 39. At that point, the courtinstructed the jury, properly in its estimation, that ifWestfield Gage had not articulated a non-discriminatory reasonfor an adverse action, then the jury could consider whether theelements of Plaintiffs prima facie case — which at that pointwould have been established — were enough to enable her toprevail on her gender discrimination claim. If not, the jury wasto consider all the other evidence to determine whether or notPlaintiff could prevail (Instruction No. 40). All theseinstructions, it must be remembered, came against the backgroundof other directives that Plaintiff bore the ultimate burden ofproof. (See, e.g., Instruction Nos. 31 and 32.) In context,therefore, the last sentence of Instruction No.39 was not so unclear as to justify a new trial.
Third, Westfield Gage submits that the court's failure toinstruct the jury as to the meaning of Plaintiffs "at-will"employment status was particularly prejudicial with respect tothe gender discrimination award. The court agrees withPlaintiff, however, that there was no prejudicial error since itrepeatedly and consistently instructed the jury that Plaintiffat all times carried the burden of proof that her treatment wasmotivated by discriminatory animus. If the jury, as it appears,felt that Westfield Gage constructively discharged Plaintiff foran illegal purpose, then it makes no difference that they couldhave fired her for anything short of using illegal means simplybecause she was an at-will employee.
c. Alleged Excessiveness of Damages — Remittitur
Finally, Westfield Gage contends that a new trial is warrantedon both the sexual harassment charges and the genderdiscrimination claim because of excessive damages. With respectto both claims, Westfield Gage also seeks a remittitur. Thecourt addresses each contention in turn.
(i) sexual harassment damages
Westfield Gage argues that "emotional" damages of $250,000 onPlaintiffs sexual harassment claims are "grossly inflated." Inso arguing, Westfield Gage points to the fact that Woodis wasfound liable for only a fraction (one-tenth) of what WestfieldGage was ordered to pay for sexual harassment as well as thealleged paucity of medical evidence with respect to Plaintiffsemotional distress.
The court does not believe that the $250,000 emotional damagesfigure, while high, is so excessive as to justify either a newtrial on Plaintiffs sexual harassment claims or a remittitur. Asdetailed above, the hostile environment to which Plaintiff wasexposed could have been found by the jury to be severe andpervasive. In addition, there was evidence that, because of theharassment, Plaintiff stopped eating, slept more, began losingboth weight and hair, and bit her nails until they bled. Dr.Price, an expert psychiatrist, also testified to Plaintiffssignificant workplace distress and opined that she suffered frommajor depression.
Koster v. Trans World Airlines, Inc., 181 F.3d 24 (1st Cir.1999), a case cited by Westfield Gage, actually supportsPlaintiffs emotional damages award. Granted, the First Circuitheld that $716,000 for emotional distress was excessive in anage discrimination action where the plaintiff was unlawfullyfurloughed after twenty-five years of service. Id. at 35-36.Nonetheless, the court allowed a maximum recovery of $250,000,the same figure at issue here, because the plaintiff sufferedemotionally after his furlough, e.g., he had trouble sleeping,was anxious, took antacid pills and his family life suffered.See id. Moreover, the court recognized that the $250,000 awardwas subject to a discretionary multiplier under state law. Seeid. at 36 n. 5.29
In the area of sexual harassment, the First Circuit recentlyheld that an emotional distress award of $275,000 was notexcessive. O'Rourke v. City of Providence, 235 F.3d 713, 734(1st Cir. 2001). In part, the court relied on a decision fromthe District Court for the District of Columbia, not unlike thecase at bar, which affirmed a $225,000 award for emotionaldistress arising from sexual harassment. See id. (citing Webbv. Hyman, 861 F. Supp. 1094, 1116 (D.C. 1994)). See alsoLockard v. Pizza Hut, Inc., 162 F.3d 1062, 1075 (10th Cir.1998) (affirming $200,000 emotional distress award in sexualharassment case); Smith v. Northwest Fin. Acceptance, Inc.,129 F.3d 1408, 1416-17 (10th Cir. 1997) (upholding $200,000sexual harassment-emotional distress award which was reducedfrom $270,000 because of statutory damage caps). As the courtstated in O'Rourke: "A jury's award of damages stands unlessit is grossly excessive or shocking to the conscience." Id.,235 F.3d at 733 (citation and internal quotation marks omitted).Here, the jury's $250,000 emotional damages award for sexualharassment is neither.30
The court also rejects Westfield Gage's contention that the$250,000 verdict was excessive when compared to the $25,000assessed against Woodis, whom Westfield Gage describes asPlaintiffs "primary antagonist." It is simply not true, asWestfield Gage asserted in its initial memorandum, that, ifWoodis' conduct were excluded, "there is insufficient remainingevidence to support a finding of `serious and pervasive' sexualharassment" by other Westfield Gage employees. (Docket No. 214at 7.) As detailed above, a number of Westfield Gage employees,other than Woodis, subjected Plaintiff to a variety of sexuallyexplicit materials and hostile language. It is quite reasonableto assume that the jury sought to hold Westfield Gageresponsible for all of the sexual harassment occurring on itspremises — or at least the non-Woodis harassment — and Woodisresponsible for the harassment that he alone inflicted. Thecourt does not intend to second guess that allocation.
Finally, the alleged paucity of medical evidence undergirdingPlaintiffs emotional injuries is of little moment. As theSmith court observed, the testimony of a treating physician ina sexual harassment case "is one suggested method of provingemotional damages but is not the sole dispositive requirement."Id., 129 F.3d at 1417 (emphasis added) (citing Harris v.Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126L.Ed.2d 295 (1993) (in turn holdingthat proof of psychological harm is one relevant factor but isnot required)). Here, in a similar fashion, "[c]onsidering thecumulative evidence of Plaintiffs emotional harm, the absence oftestimony by a treating physician does not . . . mean her claimis devoid of substance." Id. And, unlike in Smith, herethere was corroborating testimony by an expert witness, Dr.Price. See 73 Am.Jur. TRIALS 1, Sexual Harassment Damages andRemedies, § 29 (observing that "the plaintiffs testimony abouther emotional injuries" — when coupled with corroboratingevidence — "may be sufficient to support an award ofcompensatory damages" particularly where there is "supporting. . . expert witness testimony"). In short, the jury's award of$250,000 in emotional damages for the sexual harassment claimsagainst Westfield Gage will stand.
(ii) gender discrimination damages
Westfield Gage also argues that the $750,000 in "economic"damages for gender discrimination represents an overly-excessive"front pay" award warranting either a new trial on this claim ora substantial remittitur. The award of twenty-eight years offront pay, Westfield Gage asserts, is unduly speculative anddoes not consider Plaintiffs failure to mitigate her damages.The court, for the most part, agrees.
Preliminarily, the court notes that, unlike Plaintiffs sexualharassment charges which arose under both state and federal law,the gender discrimination claim was based solely on Title VII.In addition, the court notes that the jury awarded no emotionaldamages on the gender discrimination claim. The court alsoassumes, as Westfield Gage asserts, that the jury likelyintended all of its $750,000 gender discrimination-economicdamages award as "front pay" under Dr. McCausland's definition,i.e., the amount of wages and benefits Plaintiff would havereceived had she remained at Westfield Gage from the beginningof trial until retirement. The court makes this assumption givenDr. McCausland's emphasis on elevated levels of front pay andthe lack of evidence as to other economic damages with respectto this claim.31
Front pay awards are targeted at compensating the plaintifffrom the conclusion of trial until she can obtain comparableemployment elsewhere. Selgas v. Am. Airlines, Inc.,104 F.3d 9, 12 (1st Cir. 1997). However, "the court is not supposed to`catapult [the plaintiff] into a better position than [she]would have enjoyed in the absence of discrimination.'" Dentonv. Boilermakers Local 29, 673 F. Supp. 37, 51 (Mass. 1987)(quoting Ford Motor Co. v. EEOC, 458 U.S. 219, 234, 102 S.Ct.3057, 73 L.Ed.2d 721 (1982)). Since future damages areinherently speculative, the court must keep a close eye on thecircumstances of the particular case. See id.; Martineau v.City of Concord, 1994 WL 587832, at *1 (N.H. Oct. 24, 1994).See also Lussier v. Runyon, 50 F.3d 1103, 1108 (1st Cir. 1995)(noting "that the decision to award or withhold front pay . . .is within the equitable discretion of the trial court").
Although front pay is not subject to a federal statutorydamage cap, see Pollard v. E.I. du Pont de Nemours & Co.,532 U.S. 843, 848, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001), the FirstCircuit has expressed serious concern about speculative andexcessively lengthy front pay awards under federal law. SeeSelgas, 104 F.3d at 13-14 (finding eighteen month front payaward and noting that "front pay is an alternativefor finite periods during which reinstatement is unavailable")(emphasis added). Recently, the court cautioned as follows:
An award of front pay that extends over many years to an estimated retirement date should be examined carefully . . . since "the greater the period of time upon which a front pay award is calculated in a case involving an at-will employee the less likely it is that the loss of future earnings can be demonstrated with any degree of certainty or can reasonably be attributed to the illegal conduct of the employer."
Cummings v. Standard Register Co., 265 F.3d 56, 66 (1st Cir.2001) (quoting Conway v. Electro Switch Corp., 402 Mass. 385,523 N.E.2d 255, 257 (1988)). To be sure, the court in Cummingsupheld a $665,000 award which constituted fourteen years offront pay. Id. But that age discrimination case was basedsolely on an "open-ended" state law and the court expressed"grave doubts as to the sustainability of a front pay award ofso great a duration" under federal law. Id. Moreover, incontrast to the facts here, the plaintiff in Cummings was afifty-five year old manager with fifteen years of experience atthe company and an annual salary at termination of over $88,000.See id. at 60-61. See also Criado v. IBM Corp.,145 F.3d 437, 445 (1st Cir. 1998) (limiting front pay award to sixmonths); Denton, 673 F. Supp. at 51 (denying lifetime front payunder Title VII since it would "unjustly enrich" the plaintiff).
The First Circuit is not alone in its concern for avoidingexcessive front pay awards. As Westfield Gage notes, theimportance of the court's scrutiny of front pay awards isunderscored by the fact that many jurisdictions do not allowjuries to make front pay awards, leaving that task to the judge.See, e.g., E.E.O.C. v. W & O, Inc., 213 F.3d 600, 618-19 (11thCir. 2000); McCue v. Kansas, 165 F.3d 784, 791 (10th Cir.1999); Reiner v. Family Ford, Inc., 146 F. Supp.2d 1279, 1281(M.D.Fla. 2001). In this regard, Peyton v. DiMario,287 F.3d 1121 (D.C.Cir. 2002), a recent decision from the District ofColumbia Circuit cited by Westfield Gage in a supplementalmemorandum which has many parallels to the one at bar, isparticularly instructive.
In Peyton, the D.C. Circuit vacated the trial court's awardof twenty-six years of front pay to a thirty-four year oldformer employee. Id., 287 F.3d at 1128-29. The plaintiff, whohad worked for the defendant for eleven years, was harassed,threatened and eventually fired after filing a formal complaintabout a supervisor's lewd comments and gestures. Id. at1123-24. The jury found in the plaintiffs favor on herdiscrimination claim, awarded compensatory damages, and, sittingin an advisory capacity, recommended a front pay award of$840,000. Id. at 1124. The trial court reduced the amount offront pay to $377,615, which it calculated by multiplying theloss of the plaintiffs earnings from the date of trial throughher projected retirement at age sixty, some twenty-six years.Id. at 1125.
On appeal, the D.C. Circuit held that even the trial court'sreduced award was unduly speculative, an abuse of discretion,and resulted in a tremendous, unjustified "windfall" to theplaintiff. See id. at 112830. Recognizing that "[t]he longer aproposed front pay period, the more speculative the damagesbecome," the court found that the plaintiff did not provide, asshe must, "the essential data necessary to calculate areasonably certain front pay award." Id. at 1128-29 (citationsand internal quotation marks omitted). In particular, the courtfound that the plaintiff failed to provide sufficient evidencethat she was unable to pursue higher paying jobs in the futureand that her subjectiveintent to remain in the defendant's employ until retirement didnot entitle her to front pay for the remainder of her work life.Id. at 1129. Moreover, the court observed, "other courts seemto agree that plaintiffs in their forties [let alone theirthirties] are too young for lifetime front pay awards." Id. at1130 (citing cases).
Here, too, the court believes it appropriate to reduce thefront pay damages awarded Plaintiff. First and foremost, atwenty-eight year front pay award, given the circumstances ofthis case, is unjustifiably long. Unlike Handrahan v. Red RoofInns, Inc., 43 Mass. App. Ct. 13, 680 N.E.2d 568, 575 (1997)(remitting $600,000 front pay award to $488,000 even though theplaintiff suffered a serious disability and thus would be unableto work full-time), and other cases cited by Plaintiff, "thereis no evidence that [P]laintiff was not able to work; indeed[P]laintiff sought and found employment." (Docket No. 225 at39.)32
To be sure, the court had some reservations about allowingPlaintiffs economic expert, Dr. McCausland, to testify withrespect to twenty-eight years of front pay. (See Tr. Vol. IV at167-68.) Westfield Gage, however, never offered the court analternative length of time for an appropriate front paycalculation. (See id. at 145.) Therefore, the court allowedthe admission of Dr. McCausland's testimony and exhibits withoutsubstantial limitation. Still, the bottom line figure of$750,000 found by the jury is, in the court's opinion, just toohigh.33
In the court's view, the $750,000 economic damages award withrespect to Plaintiffs gender discrimination claim circumventsTitle VII's "make-whole" policies and creates a windfall forPlaintiff. The award either "exceeds any rational appraisal orestimate of the damages that could be based upon the evidencebefore the jury," Eastern Mtn. Platform Tennis, Inc. v.Sherwin-Williams Co., 40 F.3d 492, 502 (1st Cir. 1994), or is"grossly excessive, inordinate, shocking to the conscience ofthe court, or so high that it would be a denial of justice topermit it to stand," Blinzler v. Marriott Intern., Inc.,81 F.3d 1148, 1161 (1st Cir. 1996). Accordingly, the court willgrant Westfield Gage a new trial on this claim — and this claimalone — unless Plaintiff agrees to substantially remit the$750,000 verdict. See Conjugal Partnership Re Jones & Jones v.Conjugal Partnership Re Pineda & Pineda, 22 F.3d 391, 397 (1stCir. 1994) (noting that court "may . . . condition the denial ofa motion for a new trial on the filing by plaintiff of aremittitur in a stated amount") (citations,ellipses and internal quotation marks omitted).
Although neither side has briefed the issue as to theappropriate amount of remittitur, "[t]he rule in this circuitfor computing a remittitur is the least intrusive standard."Conjugal Partnership, 22 F.3d at 398 (citation and internalquotation marks omitted). See also Earl v. Bouchard Transp.Co., 917 F.2d 1320, 1328 (2d Cir. 1990) (explaining threedifferent rules for computing remittitur and adopting the leastintrusive method). Thus, "the remittitur amount should reducethe verdict `only to the maximum that would be upheld by thetrial court as not excessive.'" Id. (quoting Earl, 917 F.2dat 1330).
In the court's view, only one-fourth of the $750,000 award,representing seven years of front pay, should remain. First,Plaintiff cites no decision in which anything approachingtwenty-eight years of front pay was awarded to a young, healthyworker such as Plaintiff who was subjected to genderdiscrimination, particularly one who worked for her employer foronly four years. Second, the First Circuit, as indicated, hasexpressed "grave doubts" whether even a fourteen year front payaward would be appropriate under federal law in an agediscrimination case brought by a highly-paid manager who hadbeen with the company for fifteen years. Cummings, 265 F.3d at66. Third, the awards for cases such as this correlate to meremonths or a few years of front pay, i.e., the period from theconclusion of trial until the plaintiff can obtain comparableemployment elsewhere. See Selgas, 104 F.3d at 12. See alsoCriado, 145 F.3d at 445.
In sum, the court will condone a front pay award of sevenyears only. Giving Plaintiff the benefit of the doubt under theleast intrusive standard, the court will make no furtherdeduction to account for what Westfield Gage describes asinadequate mitigation. Accordingly, the court will grantWestfield Gage a new trial on the gender discrimination claim,unless Plaintiff agrees to remit her award on that claim to$187,500 (one-fourth of $750,000). Should Plaintiff agree to anew trial on that claim, she will only be allowed to seekfront-pay economic damages from Westfield Gage, the courtaccepting the jury's findings that Plaintiff is not entitled toemotional damages for any gender discrimination. SeeFed.R.Civ.P. 59(a) ("new trial may be granted to . . . any ofthe parties and on . . . part of the issues").
(d) Remaining Arguments
In its initial memorandum in support of its new trial motion,Westfield Gage raised a number of additional "concerns" which,for whatever reason, were not pursued in its detailed replybrief filed by new counsel. Since most of these issues areunsupported by case law and since all, in the court's view, arewithout merit — or at least are not significant enough tojustify a new trial — the court will address them in summaryfashion.
First, Westfield Gage argues that "the court erred in refusingto instruct the jury that Westfield Gage had to have reason toknow that workplace profanity and vulgarity was unwelcome inorder to find against Westfield Gage on the [Faragher-Ellerth]affirmative defense." (Docket No. 214 at 3-4.) The court,however, instructed the jury extensively on the "unwelcomeness"standard (Docket No. 201, Instruction Nos. 48-52) and, asdetailed above, precisely described the Faragher-Ellerthaffirmative defense (id., Instruction Nos. 57-59). In thecourt's view, no more was needed.
Second, Westfield Gage complains that the court should haveadmitted two types of evidence about Plaintiffs conduct prior toher employment at WestfieldGage: (1) certain medical records with respect to her drug andalcohol use in "1991" and "1993"; and (2) testimony that,"sometime in 1993," again before she worked at Westfield Gage,Plaintiff "lifted her shirt exposing her breasts." (Docket No.214 at 4-6, 20-21.) Both categories of evidence, were deemed,and in the court's opinion remain, either irrelevant or undulyprejudicial. See Fed.R.Evid. 401-403.34
Third, Westfield Gage asserts that the court should havedefined the term "constructive discharge" in the exact wayWestfield Gage suggested. The court's constructive dischargeinstruction virtually mimicked First Circuit language, compare,e.g., Instruction No. 35 with Serrano-Cruz, 109 F.3d at 26,and Calhoun, 798 F.2d at 561, and provides no basis for a newtrial. See Joia v. Jo-Ja Serv, Corp., 817 F.2d 908, 912 (1stCir. 1987) ("[I]f the district court's instruction properlyapprises the jury of the applicable law, the failure to give theexact instruction requested does not prejudice the objectingparty.").
Fourth, Westfield Gage claims that several genderdiscrimination jury instructions (see, e.g., Docket No. 201,Instruction Nos. 36, 39, 40, 41 and 80) as well as specialverdict questions with respect to that claim were improper,confusing and erroneous. The court disagrees. In the court'sview, the instructions, taken as a whole, laid out the propertest for gender discrimination. As described, the McDonnellDouglas framework was tracked and the instructions on damageswere appropriate.
Fifth, Westfield Gage contends that Cuipylo "improperlychallenged and initiated a dispute with Filios in the presenceof the jury" and that such conduct was "severely prejudicial."(Docket No. 214 at 21.) The alleged "dispute" occurred ascounsel was leaving a sidebar conference during the crossexamination of Plaintiff. There is no transcript of what wasactually said between Cuipylo and Filios, but it apparentlyboiled down to the following; Filios stared at Cuipylo who then"asked him if there was something he wanted" to which Filiosreplied, "You asked me something." (Tr. Vol. II at14546.)35 In the court's view, this brief exchange,assuming any juror even heard it, is insufficient to warrant anew trial.
Sixth and finally, Westfield Gage argues that the court erredin prohibiting its attorney from reading three of Plaintiff'sinterrogatory answers into evidence at the close of its case for"impeachment purposes." (Docket No. 243 (Tr. Vol.IX) at 12.) Thecourt has "wide latitude" to reasonably control the presentationof testimony "in order to avoid prejudice, confusion, andunnecessary waste of time." United States v. Malik,928 F.2d 17, 19-20 (1st Cir. 1991) (citing cases). Westfield Gage'srequest to impeach Plaintiff with her interrogatory answers camemore than one week after she had been extensively cross-examinedon the very subject at issue, whether she herself had engaged inon-the-job sexual conduct. (See Tr. Vol. II at 98-179; Tr. Vol.III at 120-37; Tr. Vol. IX 11-13.) The court believes that itsdecision to exclude this last-minute, cumulative evidence waswell within its discretion.
C. WOODIS' MOTION FOR JUDGMENT AS A MATTER OF LAW OR FOR A NEW TRIAL
In his remaining motion, Woodis seeks judgment as a matter oflaw with respect to the sexual harassment claim targeting him,or, in the alternative, a new trial. Given the court'sconclusion that there exists an enforceable settlement of thatclaim, Woodis' motion will be denied as moot.
Even if not moot, the court would deny Woodis' motion on itsmerits. The first of Woodis' three arguments — that he lackednotice of the MCAD proceedings and an opportunity to participateand conciliate at the administrative level — has been rejectedby the court several times: in the context of Woodis' motion todismiss, see Horney, 95 F. Supp.2d at 36, at summary judgment,(Docket No. 150 at 9-11), and during trial, (Docket Nos. 190 and198). Woodis' second argument — that the sexual harassmentverdict questions should have specified each element of theclaim — is, in the court's estimation, misplaced. Woodis offersno authority for this novel proposition and, in fact, concedesthat "[t]he Court's instructions to the jury contained a correctdescription of the Plaintiffs burden of proof with respect toher sexual harassment claim." (Docket No. 209 at 4.) As toWoodis' third argument that the jury should have been asked todetermine the MCAD issues, the court, as indicated, previouslyresolved that issue against him as a matter of law and maintainsits reasoning at this time as well.
For the foregoing reasons, the court hereby orders as follows:
(1) Plaintiffs motion to enforce her settlement agreement with Woodis (Docket No. 218) is ALLOWED;
(2) Woodis' motion that Westfield Gage be ordered to pay the $25,000 settlement amount (included in Docket No. 221) is DENIED;
(3) Westfield Gage's motion for judgment notwithstanding the verdict (Docket No. 210) is DENIED;
(4) Westfield Gage's motion for a new trial or remittitur (Docket No. 212) is ALLOWED insofar as Westfield Gage will be granted a new trial on Plaintiff's gender discrimination claim unless Plaintiff agrees to remit the $750,000 damages found by the jury on that claim to $187,500, but is otherwise DENIED; and
(5) Woodis' motion for judgment as a matter of law or for a new trial (Docket No. 209) is DENIED.
With regard to (4), Plaintiff has fifteen days from this orderto make her election.
IT IS SO ORDERED.
1. The parties had consented to the jurisdiction of thiscourt pursuant to 28 U.S.C. § 636(c) and FED. R. CIV. P. 73(b).
2. By margin notations this day, the court has also allowedPlaintiff's Motion to Stay Woodis' Post-Judgment Motion PendingResolution of her Motion to Enforce the Settlement Agreement(Docket No. 220) and denied, without prejudice, Plaintiff'sMotion for Attorney's Fees and Costs (Docket No. 215).
3. The court's preparation of this background has beenhampered by the parties' decision not to cite to the trialtranscript, the bulk of which only became available after theparties' memoranda were filed. As a result, the court itself hasundertaken the task of reviewing the entire record so as tolocate the source of the various factual assertions made in theparties' papers.
4. Plaintiff often packed vitamins for employees. (Id. at77.).
5. Relevant job descriptions indicate that parts markersneeded "no previous experience" while inspectors needed prior"inspection experience." (Plaintiff's Exhibit 15.) (See alsoDocket No. 244 (Tr. Vol.VIII) at 196 (testimony by WestfieldGage's general manager that Plaintiff's move to inspections wasa "promotion").).
6. Gutt testified that, after Plaintiff went home, Woodisswore at Gutt and told her to "call the drunk and drug-crazedbitch and tell her to get her ass back in here." (Tr. Vol VI. at61.) There was no evidence that Plaintiff was ever under theinfluence of drugs or alcohol while working at Westfield Gage.
7. The motion was denied without prejudice. (See Docket No.185, margin notation.).
8. By that time, the action had been winnowed significantly.In May of 2000, the court dismissed Woodis and Patterson, asindividuals, from Plaintiff's claims under Title VII of theCivil Rights Act of 1964 ("Title VII"). See Horney v. WestfieldGage Co., 95 F. Supp.2d 29 (Mass. 2000). (See also Docket No.27.) Then, in a September 28, 2001, ruling, the court grantedWestfield Gage summary judgment with respect to Plaintiff'sintentional infliction of emotional distress claim, dismissedPatterson entirely as a defendant and granted Woodis summaryjudgment with respect to Plaintiff's "constructive discharge"claim. (See Docket No. 150.).
9. The court has not been provided a transcript of theevidentiary hearing. Thus, its factual findings are based on theexhibits entered at the hearing, which include a number ofduly-authenticated affidavits, and the court's own memory andnotes. See Worden v. Consolidated Rail Corp., 689 F. Supp. 35,39 n. 1 (Mass. 1988) (court relies on its own records where notranscript is available). See also Slamon v. Westinghouse Elec.Corp., 386 F. Supp. 174, 177 n. 1 (E.D.Pa. 1974) (similar);United States v. 213.43 Acres of Land, 108 F. Supp. 446, 449(N.D. 1952) (similar); Cosentino v. Herbert H. Landy Ins.,Inc., 1998 WL 1181735, at *1 (Mass.Super. Sep. 4, 1998)(similar).
10. The exact day of the conversation is unclear. Drapertestified that he conversed with Ryan about settling the Woodisclaim on November 29th (see also id. ¶ 10), while Ryandescribed a conversation with Draper on November 28th.
11. In many jurisdictions, unilateral mistake is generallynot a ground for avoiding a contract. See Praxair, Inc. v.Hinshaw & Culbertson, 235 F.3d 1028, 1034-35 (7th Cir. 2000);Tony Downs Foods Co. v. United States, 209 Ct.Cl. 31,530 F.2d 367, 373 (1976); Anderson Brothers Corp. v. O'Meara,306 F.2d 672, 67677 (5th Cir. 1962). See also Cruz v. Am. Airlines,150 F. Supp.2d 103, 116 (D.C. 2001) (holding that, under law ofMaryland, Virginia and Indiana, factual mistake generally allowsfor rescission of contractual instrument only when mistake ismutual, not unilateral); Mistretta v. Liberty Mut. Ins. Co.,1988 WL 88085, at *4 (E.D.Pa. Aug. 22, 1988) (observing that,under Pennsylvania law, "[i]f the mistake is not mutual, butunilateral, and not due to the fault of the party not mistaken,but to the negligence of the party acting under the mistake, nobasis for relief has been afforded") (citation and internalquotation marks omitted). However, this court, as Woodis knows,has recognized the Restatement's unilateral mistake provision.See O'Rourke v. Jason, Inc., 978 F. Supp. 41, 48 (Mass.1997). Both the First Circuit and other judges within thisdistrict have cited Restatement provisions relating to mistakedoctrines. See, e.g., Berezin v. Regency Sav. Bank,234 F.3d 68, 72 (1st Cir. 2000); John Beaudette, Inc. v. Sentry Ins. AMut. Co., 94 F. Supp.2d 77, 143-44 and n. 93 (Mass. 1999);Davis v. Dawson, Inc., 15 F. Supp.2d 64, 113-14 (Mass.1998).
12. From the sidelines, Westfield Gage argues that, under atwo-decades old Fourth Circuit case, avoidance for a unilateralmistake may be allowed, inter alia, if "rescission wouldimpose no substantial hardship on" Plaintiff. Gamewell Mfg.,Inc. v. HVAC Supply, Inc., 715 F.2d 112, 117 (4th Cir. 1983).To the court's knowledge, there is no decision applying thisrequirement in the First Circuit, but see Rand v. M/A-Com,Inc., 1993 WL 410874, at *2 (Mass. July 19, 1993)(generically citing Gamewell with approval), and the courtdeclines to adopt this added element. In any case, Cuipylotestified that she relied on the settlement, contacted creditorsand made promises to pay.
13. Draper was so sure that Westfield Gage would pay that,when he confirmed the arrangement with Ryan on November 30th, hesimply inquired as to how the payment should be routed. Eventhough Draper had obviously committed Ryan's client to payingthe amount, Ryan remained silent and never warned Draper thathis understanding may have been mistaken.
14. Accordingly, the court rejects Westfield Gage's footnoteimplication that the court has no jurisdiction over Woodis'cross motion and that his only recourse is to commence aseparate action against Westfield Gage. (See id. at 2 n. 1.)The court gave the parties ample notice that it would considerWoodis' request at the evidentiary hearing. Indeed, evenWestfield Gage recognizes in its Pre-Hearing Memorandum thecourt's "inherent authority to enforce settlement agreementswhich involve litigation pending before [it]." (Id. (citingQuint, 246 F.3d at 14, Malave, 170 F.3d at 220, and Mal deMer Fisheries, Inc., 884 F. Supp. at 637).).
15. Rule 50(a), under which Westfield Gage's mid-trialmotions were brought, is entitled "Judgment as a Matter of Law"and states as follows:
(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.
(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.
Rule 50(b), under which Westfield Gage's first post-trial motionis brought, deals with renewing such motions after trial andstates, in pertinent part, as follows:
If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment — and may alternatively request a new trial or join a motion for a new trial under Rule 59. In ruling on a renewed motion, the court may: (1) if a verdict was returned: (A) allow the judgment to stand, (B) order a new trial, or (C) direct entry of judgment as a matter of law. . . .
16. In pertinent part, subsection (a) of Rule 59, whichdescribes the procedure for new trial motions states as follows:
A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States. . . .
17. In Ramsdell, for example, the court upheld the decisionof the fact finder, an MCAD commissioner, that the plaintiffcould not recover for sexual harassment, despite a workenvironment that was "rife with sexually explicit language andinnuendos," because she was a willing participant. Id. at194-95. Similarly, in Zereski, an MCAD hearing officer in hisfindings of fact and conclusions of law found that the plaintiff"regularly used profanity in the office [and] . . . her use andgeneral acceptance of profanity undermine[d] her claim that theuse of profanity in the office [by others] severely offendedher." Id., 2001 WL 1602782, at *21. See also Balletti v.Sun-Sentinel Co., 909 F. Supp. 1539, 1547 (S.D.Fla. 1995) (casecited by Westfield Gage wherein factfinder recognized thatunwelcomeness question turns "`largely on credibilitydeterminations committed to the trier of fact'") (quotingMeritor, 477 U.S. at 68, 106 S.Ct. 2399); King v. AbdowCorp., 1996 Mass. Discrim. L. Rptr. 244 (MCAD Nov. 15, 1996)(yet another case cited by Westfield Gage in which credibilityfindings by an MCAD factfinder went against the plaintiff). Instill another unreported case cited by Westfield Gage, the courtactually denied summary judgment with respect to the one sexualharassment claim that was not time-barred and there was noindication that the plaintiff participated in anysexually-related conduct. See Conto v. Concord Hosp., Inc.,2000 WL 1513798 (N.H. Sep. 27, 2000), aff'd, 265 F.3d 79(1st Cir. 2001).
18. Other decisions referred to peripherally by WestfieldGage are similarly distinguishable. Hocevar v. Purdue FrederickCo., 223 F.3d 721 (8th Cir. 2000), for example, was solely afoul language case where, unlike here, the plaintiff "failed todemonstrate that the discrimination was based on sex." Id. at737. See also Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 967(8th Cir. 1999) (noting that, despite the plaintiff'sparticipation, none of the incidents "was severe or pervasiveenough so as to alter a term, condition, or privilege of heremployment"); Reed v. Shepard, 939 F.2d 484, 487 (7th Cir.1991) (dismissing sexual harassmenttermination claim of femalecorrections officer who not only "reveled in the sexualhorseplay, instigated a lot of it, and had `one of the foulestmouths' in the department," but was linked to marijuanatrafficking and the beating of an inmate). The remaining casescited by Westfield Gage have nothing to do with sexualharassment. See Turnpike Motors, Inc. v. Newbury Group, Inc.,413 Mass. 119, 596 N.E.2d 989 (1992) (action by seller of cardealership to enjoin broker from interfering with sale);Uccello v. Gold'n Foods, 325 Mass. 319, 90 N.E.2d 530 (1950)(minority stockholder's suit alleging mismanagement).
19. In the case at bar, the court captured the affirmativedefense in the following jury instruction:
In order to prevail on its affirmative defense, Westfield Gage must prove . . . by a preponderance of the evidence:
First: That Westfield Gage exercised reasonable care to prevent and correct any sexually harassing behavior in the workplace; and
Second: That Plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities provided by Westfield Gage to avoid or correct the harm or otherwise failed to exercise reasonable care to avoid harm.
(Docket No. 201, Instruction No. 58.).
20. It should be noted that, while Plaintiff's sexualharassment claims against Westfield Gage were pursued under bothfederal and state law, courts have uniformly held thatMassachusetts does not allow the Faragher-Ellerth defense inchapter 151B actions. See Myrick v. GTE Main Street Inc.,73 F. Supp.2d 94, 98 (Mass. 1999). See also Sarin v. RaytheonCo., 905 F. Supp. 49, 53 n. 1 (Mass. 1995); Richards v.Walter Fernald State Sch., 2000 WL 1473024, at *3 (Mass.Super.Jul. 31, 2000); Janovich-Earle v. Integrity Int'l Sec. Servs.,Inc., 1999 WL 791954, at *5 n. 4 (Mass.Super. Aug. 3, 1999).For whatever reason, Plaintiff chose not to object to thecourt's Faragher-Ellerth instructions and, in fact, proposed ajury instruction which tracked those decisions. (See Docket No.170 at 16-17.).
21. By comparison, Kristain Nelson — the only identifiedfemale machinist, and the lowest paid — stared in burring in1996 at $8 per hour, the same wage she maintained through 1998.(Plaintiff's Exhibit 20; Westfield Gage's Exhibit 5.).
22. There were also "First Piece Inspector[s] or Trainee[s]"(see id.), but Westfield Gage did not clearly identify whichmen in the inspections area had such designations. The court,therefore, assumes that all inspectors other than Woodis, the"Chief Inspector," were mere "Inspector[s] or Trainee[s]."
23. In its initial memorandum filed in support of its newtrial motion, discussed infra, Westfield Gage asserted thatthe court's instruction as to non-termination based genderdiscrimination was an "avant-garde theory." (Docket No. 214 at9.) It cited no case law in support of this assertion. However,in its reply brief, filed by new counsel, Westfield Gagespecifically discussed "non-termination based [gender]discrimination" and, thus, implicitly recognized that employmentactions short of dismissal can be considered "adverse employmentactions" under Title VII. (Docket No. 230 at 14-15.).
24. Of course, the jury could have concluded, alternatively,that Plaintiff was not constructively discharged, but fired.(See, e.g., Plaintiff's Exhibits 4 (Westfield Gage paperworkindicating Plaintiff was "terminated" on April 19, 1998) and 10(MCAD charge in which Plaintiff alleged she "was terminated").See also Tr. Vol. II at 55 (Plaintiff testified that she "left"only after Patterson told her "I don't think there's a place foryou" and "It's not working out.").).
25. Westfield Gage does not even mention the fourth factor inits reply brief and, as a result, seems to abandon any argumentthat Plaintiff had to show that she was replaced by a man.
26. In considering Westfield Gage's motion for a new trial orremittitur, the court focuses initially on the arguments deemedsignificant enough by Westfield Gage to be incorporated into itsdetailed reply brief. Even so, the court touches on WestfieldGage's remaining arguments in part II(C)(2)(d) below.
27. Westfield Gage proffered a single instruction in whichthe term "clean language" was used. In pertinent part, it statedas follows: "The Massachusetts courts have noted that Title VIIis not a clean language act, and that the MassachusettsAnti-Discrimination statutes do not mandate clean language inthe workplace. Prader v. Leading Edge Products, Inc.,39 Mass. App. Ct. 616, 619-620, 659 N.E.2d 756 (1996)." (Docket No.156 ¶ 6.).
28. In whole, Instruction No. 39 stated as follows:
If you find that Westfield Gage has articulated a non-discriminatory reason for a particular action, you should move to the third and final step of your analysis. If, however, you find that Westfield Gage has not articulated a non-discriminatory reason for an adverse action taken towards Plaintiff, then you may consider whether the elements of Plaintiff's prima facie case, are enough to prevail on her gender discrimination claim with respect to that action. Remember, the ultimate issue is whether Plaintiff has proven, by a preponderance of the evidence, that Westfield Gage intentionally discriminated against her because of her gender. If you find the prima facie case insufficient in this regard, then you should move to the third and final step.
(Docket No. 201, Instruction No. 39.).
29. Other age or handicap discrimination cases cited inKoster also support Plaintiff's award, albeit not universally.See, e.g., Westinghouse Elec. Supply Corp. v. MCAD, 1999 WL140492, at *3, 10-11 (Mass.Super. Mar. 5, 1999) (upholding$250,000 emotional distress award where unlawfully fired workersuffered from depression, insomnia, constant diarrhea andstomach pain); Powers v. H.B. Smith Co., 42 Mass. App. Ct. 657,679 N.E.2d 252, 254 (1997) (allowing reduced damage award for$350,000 for front pay and emotional distress); but see Kelleyv. Airborne Freight Corp., 140 F.3d 335, 345 (1st Cir. 1998)(emotional distress damages reduced from $250,000 to $150,000,albeit subject to state-law multiplier); Labonte v. Hutchins &Wheeler, 424 Mass. 813, 678 N.E.2d 853, 861-62 (1997) (finding$550,000 emotional distress excessive where depressed employeehad not been hospitalized, took no anti-depression medicationand his depression soon abated).
30. Although Westfield Gage's memorandum in support of itsnew trial motion alluded to a Title VII damage cap (see DocketNo. 214 at 25-27), it appears that Westfield Gage, wisely,abandoned such a line of argument by not pursuing such in itsreply memorandum. As Westfield Gage observes: "The emotionaldistress damages were awarded under [both] a Title VII claim andunder Massachusetts law" and "there is no statutory capgoverning the damages under state law" (id. at 27). See alsoLindsay v. Future Electronics Corp., 930 F. Supp. 677, 679(Mass. 1996) (finding "persuasive" reasoning that chapter151B, unlike certain federal ani-discrimination provisions, doesnot limit the amount of compensatory damages). In this vein, itis telling that neither Westfield Gage's proposed juryinstructions nor its proposed verdict form requested thatPlaintiff's Title VII sexual harassment claim be separated fromher chapter 151B sexual harassment claim or that a damage capshould apply. (See Docket Nos. 156 and 193.).
31. In this vein, it must be remembered that the jurycalculated separate economic damages when it rendered an $8,140verdict in the FEPA claim.
32. Handrahan was a disability discrimination case.Westfield Gage argues that courts are more likely to allowlarger front pay awards in cases involving disability or agediscrimination than those involving gender discrimination. Whilethere appears to be some support for Westfield Gage's theory —compare Handrahan and Cummings, 265 F.3d at 67 (fourteenyears of front pay awarded for age discrimination under statelaw), with Conway, 523 N.E.2d at 257 (referring to whatappears to be trial court's award of around five years front payfor sex discrimination), and Peyton, 287 F.3d at 1130(vacating twenty-six year front pay award in sex discriminationcase) — the court does not base its decision on thatdistinction. Rather, the court believes that a reduction iswarranted principally because of the excessive length of thefront pay award.
33. In this vein, it is noted that Plaintiff's job atWestfield Gage paid $10 per hour or approximately $21,000 peryear. With overtime and bonuses, Plaintiff earned about $30,000per year. Dr. McCausland's testimony, which placed Plaintiff'sfront pay loss in the range of $573,638 to $833,169, wasapparently based on the tenuous assumption that Plaintiff —working as a waitress and earning less than minimum wage — wasdoing the best that she could and that her wages untilretirement would not exceed her current annual rate of $10,000,except as adjusted by inflation.
34. Conversely, Westfield Gage's argument to the contrary,the court deemed relevant to Plaintiff's FEPA claim, andotherwise admissible, certain testimony and exhibits regarding"new hires" between 1994 and 1998, the years of Plaintiff'semployment at Westfield Gage.
35. Specifically, the following colloquy ensued after thejury was excused:
THE COURT: What's happening? Please talk with your clients and then I'll hear from you.
THE COURT: What's happening here? This is not something that ought to be done in front of the jury. What's going on?
MS. CUIPYLO: I'm sorry, your Honor. As I was coming back here, Mr. Filios was staring at me, and I asked him if there was something he wanted to say to me.
THE COURT: And what was the reply to this?
MR. RYAN: I believe his reply was, "You asked me something." He didn't say anything.
MS. CUIPYLO: I'm sorry, your Honor.
THE COURT: I'm going to tell you both you ought not to have used that as an opportunity to confront. If there was an issue about that, if you felt there was some kind of behavior on his part that was not appropriate, then you should bring that to my attention in some manner, but not in the way that you mentioned it at this particular point, and Mr. Filios you need to know better to respond verbally to that, and please deal with all matters through your attorney. We'll take a five-minute break.
(Tr. Vol. II at 145-46.).