Chambers v. City of Calais

• Court: Court of Appeals for the First Circuit
• Decided: August 26, 1998
• Docket: 97-2072
• Status: Published

Opinion

USCA1 Opinion

      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit


Nos. 97-2072

     98-1050



                         ROLAND CHAMBERS,



              Plaintiff, Appellant, Cross-Appellee,



                                v.



                         CITY OF CALAIS,



              Defendant, Appellee, Cross-Appellant.


APPEALS FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



        [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]


Before

                                

                      Selya, Circuit Judge,

                 Bownes, Senior Circuit Judge,

                   and Lynch, Circuit Judge.


Wayne P. Doane, with whom Cuddy & Lanham and Joyce

Mykleby were on brief for appellant, cross-appellee.

  Daniel L. LaCasse for appellee, cross-appellant.


August 18, 1998


Per Curiam. Roland Chambers sued his employer, the City

of Calais, Maine, following his demotion and the eventual

termination of his employment.  A jury found for Chambers on claims

of age discrimination under the federal Age Discrimination in

Employment Act (ADEA), 29 U.S.C.A.  621-634 (West Supp. 1998) and

the Maine Human Rights Act (MHRA), Me. Rev. Stat. Ann. tit. 5, 

4551-4633 (West 1997), but against Chambers on his claims of

disability discrimination under the Americans with Disabilities Act

(ADA), 42 U.S.C.A.  12111-12117 (West Supp. 1998).

  Chambers appeals the magistrate judge's determination on

equitable remedies, challenging the judge's decision not to award

front pay, to offset an award of back pay with Chambers' income

from collateral sources, and not to award certain incidental

expenses.  The City appeals from the judge's denial of its renewed

motion for judgment as a matter of law, arguing that the evidence 

was insufficient for the jury to have found liability on Chambers'

age discrimination claim.  We affirm.

                               I.

  We recite the facts as the jury could have found them, in

the light most favorable to its verdict.  See Wildman v. Lerner

Stores Corp., 771 F.2d 605, 607 (1st Cir. 1985).

  Roland Chambers began working for the City in 1980, when

he was thirty-four years old.  Chambers worked most of his career

at the City's highway department.  He was made foreman of the

highway crew in 1990.  Because of lower back pain, Chambers

consulted a physician in 1993, who advised him against certain

physical activities.  Chambers gave a copy of this report to his

employer.

  In May 1994, the City hired a new city manager, Mark

Ryckman, who was twenty-four years old at the time, fresh from a

graduate program.  Ryckman undertook a restructuring of the

department, a restructuring that eliminated Chambers' position of

highway crew foreman.  In October 1994, Ryckman called Chambers

into a meeting and informed him that his position was being

eliminated.  Chambers was offered his earlier position of

driver/operator, which was at a significantly lower wage, and was

not offered any other position with the City.  Chambers chose to

accept the demotion rather than resign.  Chambers was forty-eight

years of age at the time, within the ADEA-protected age group.

  At the meeting, Chambers also learned that Mark Magoon,

age thirty-six, would be named the new public works director,

replacing Maurice Bernard, age fifty-nine.  Bernard was demoted and

after a few years left the employ of the City.  Magoon held the job

of cemetery foreman, a supervisory position which was comparable in

pay and responsibilities to Chambers' previous position as foreman

of the highway crew.  Chambers expressed interest in the cemetery

foreman's position, but he was told that it was not available.

  Chambers also learned at the meeting that Magoon had

named Robert Seelye, age thirty-five, to be the new cemetery

foreman.  Magoon testified, "I felt [Seelye] could work with the

younger kids and such as myself [sic] when I worked with the

younger crew at the cemetery.  I just felt he could work with [the

younger crew] better."

  Chambers complained at the meeting that the cemetery

foreman position had not been posted in accordance with the City's

usual policy, and also expressed opposition to Ryckman's decision

to name Magoon as Public Works Director, noting Magoon's lack of

experience.  At trial, City Manager Ryckman admitted that the

cemetery foreman position had not been posted as open and that this

was in violation of the City's personnel guidelines.  Chambers

filed an internal grievance.  Ryckman told Chambers that Ryckman

did not feel he had to justify the restructuring to him.  Following

this incident, Chambers was assigned menial tasks such as sweeping

sidewalks and shoveling snow out of sewer basins.

  In November 1994, approximately one month after his

demotion, Chambers filed a complaint with the Maine Human Rights

Commission, alleging that the demotion was because of his age. 

Chambers noted in his complaint that the only two City employees

who had been demoted during the restructuring, himself and Barnard,

were the oldest workers in the Department, and that younger

workers, Magoon and Seelye, had been promoted as part of the

restructuring.  Both Ryckman and Magoon knew of Chambers' age

discrimination complaint.

  In April 1995, Magoon ordered Chambers to do "cold-

patching," a method of repairing pot holes that requires shoveling

cold asphalt by hand.  Chambers said that he was physically unable

to perform this task because of his back trouble, and presented a

doctor's note to that effect.  Magoon suspended Chambers without

pay for two weeks.  Chambers filed an internal grievance, alleging

that his suspension was in retaliation for his age discrimination

complaint.

  In August 1995, Chambers was again assigned hard physical

labor for a three-week period, cleaning leaves and debris from

sewer and storm basins.  Chambers was physically unable to perform

this work without severe pain.  Chambers nevertheless attempted to

perform the assigned tasks, and, as a result, rendered himself

unable to come to work near the end of the period.  When he

returned, Chambers confronted Magoon and demanded to be put on

"light duty" assignments.  Chambers was again suspended without pay

for two weeks.  After briefly returning to work, Chambers was

fired.

  Chambers filed this suit against his employer, alleging

that the City had violated his due process rights and had

discriminated against him on account of age and disability.  The

district court dismissed the due process claim; the claims for age

and disability discrimination went to the jury.  The jury found

that the City was liable for age discrimination, but not for

disability discrimination, and awarded compensatory damages of

$180,000.

                              II.

  We review de novo the denial of the City's renewed motion

for judgment as a matter of law, "which means that we use the same

stringent decisional standards that control the district court." 

Hendricks & Assocs., Inc. v. Daewoo Corp., 923 F.2d 209, 214 (1st

Cir. 1991).  Thus, we will reverse the jury verdict "only if the

evidence, viewed from the perspective most favorable to the

nonmovant, is so one-sided that the movant is plainly entitled to

judgment, for reasonable minds could not differ as to the outcome." 

Gibson v. City of Cranston, 37 F.3d 731, 735 (1st Cir. 1994)

(citation omitted).

  Although the evidence is close, a reasonable jury could

have found that the City's actions violated Chambers' rights under

the ADEA and its state counterpart, the MHRA.  Chambers bore the

burden of establishing that age was a motivating factor in the

City's actions; the City is liable if that impermissible factor was

the decisive one, in the sense that it would not have taken the

adverse action but for its discriminatory motive.  See Loeb v.

Textron, Inc., 600 F.2d 1003, 1019 (1st Cir. 1979) (ADEA); Wells v.

Franklin Broad. Corp., 403 A.2d 771, 773 (Me. 1979) (Maine law).

  Magoon's comments were evidence that age was a

"motivating factor" in the City's decision to demote him.  In light

of all the evidence, the comments also were evidence that, if

Chambers had been younger, he would have received a supervisory

position following the restructuring, such as Magoon and Seelye had

received.  Of course, "[w]ords of praise for youth . . . do not, by

themselves, indicate a bias against more mature workers," Mesnickv. General Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991), and "stray

comments are insufficient to meet the plaintiff's burden in an ADEA

case," Thomas v. Sears, Roebuck & Co., 144 F.3d 31, 34 (1st Cir.

1998).  However, there was additional circumstantial evidence in

this case of bias, including failure to follow established

personnel policies of posting open positions, and the fact that the

City demoted the two oldest employees in the Department while

promoting two much younger ones.  See Brennan v. GTE Gov't Sys.

Corp., 1998 WL 387405, at *6 (1st Cir. July 16, 1998).  Moreover,

the jury could reasonably have determined that the City's actions

following Chambers' filing a complaint with the Maine Human Rights

Commission, including the hard labor assignments in the face of a

doctor's note that Chambers should not do the work assigned, the

resulting suspensions, and ultimately Chambers' termination, were

at least in part in retaliation for Chambers' complaint.

  The jury was not asked to answer the questions of age

discrimination and of retaliation separately, so neither do we. 

After a thorough review of the whole record, we find that there was

sufficient evidence for the jury to have held the City liable for

violating the ADEA and the MHRA.

                              III.

  Before turning to Chambers' appeal, we observe that the

jury's award of compensatory damages of $180,000 was based on an

error, but an error to which the City did not object at trial and

which is not a basis for its appeal.  While the ADA authorizes

emotional distress damages, the ADEA does not similarly authorize

such damages.  See Vazquez v. Eastern Air Lines, Inc., 579 F.2d

107, 112 (1st Cir. 1978); see also Commissioner v. Schleier, 515

U.S. 323, 326 & n.2 (1995) (noting unanimous agreement in the

courts of appeals that "ADEA does not permit a separate recovery of

compensatory damages for pain and suffering or emotional

distress").  Instead, the ADEA permits only equitable relief in the

form of lost wages, including back pay, front pay and certain other

monetary loss, relief that is a matter for the judge to calculate. 

The error resulted from a verdict form, to which the City agreed,

that permitted the jury to award compensatory damages if it found

liability on either claim.  The verdict form should have indicated

that the jury was to award compensatory damages only if it found

liability on the ADA claim.

     The defendant, however, did not at any time object to the

verdict form.  Nor did the defendant argue to the district court

that the ADEA does not authorize such damages in its motion for a

new trial or a remittur of damages.  Instead, it argued only that

the damages were excessive.  Issues that are not raised in the

district court are waived on appeal; we will reach the issue in a

civil case only if it is "so compelling as virtually to insure

appellant's success, and a gross miscarriage of justice would

result from [the] failure to address it."  Credit Francais Int'l,

SA v. Bio-Vita, Ltd., 78 F.3d 698, 709 (1st Cir. 1996) (citations

and internal quotation marks omitted)(emphasis supplied).

     "In this context, 'miscarriage of justice' means more

than the individualized harm that occurs whenever the failure

seasonably to raise a claim or defense alters the outcome of a

case.  Rather, courts ordinarily will relax the raise-or-waive

principle on this basis only if a failure to do so threatens the

frustration of some broadly important right."  National Assoc. of

Social Workers v. Harwood, 69 F.3d 622, 628 n.5 (1st Cir. 1995)

(citation omitted).  This high standard is rarely met when a party

attempts to raise an issue for the first time on appeal. 

See Correa v. Hospital San Francisco, 69 F.3d 1184, 1196 (1st Cir.

1995) (noting that "the exceptions are few and far between").  We

are even more reluctant to save the City from its waiver when it

has not raised the issue on appeal.  See Whyte v. Connecticut Mut.

Life Ins. Co., 818 F.2d 1005, 1011 n.20 (1st Cir. 1987) ("It cannot

be disputed that the standard that must be met for this court to

raise an issue on appeal is at least as high as the standard for a

party seeking to raise an issue for the first time on appeal.") 

Permitting the jury award to stand will not result in a "gross

miscarriage of justice" under the circumstances.

     Chambers sought total equitable relief in the amount of

$354,391.62.  Chambers' request included (1) back pay of

$35,022.19, which he requested should be doubled as liquidated

damages under the ADEA, (2) front pay of $213,154.05, (3) travel

costs of $21,735.00, (4) lost sick time of $2,661.60, (5) lost

vacation time of $1,744.40 and (6) civil penal damages under the

MHRA of $10,000, the maximum under Maine law.

     The magistrate judge denied Chambers' request for front

pay, and also denied Chambers' requests for travel costs, lost sick

time and lost vacation time.  The judge awarded only $6,022.00 as

back pay, after deducting from the award the wages that Chambers

was able to earn at his new employment, and then doubled this

amount, as requested, as liquidated damages.  The judge also

awarded civil penal damages under Maine law, but awarded only

$1,000, not the maximum $10,000 that Chambers had requested,

arriving at a total equitable remedy of $13,044.00

     We review the district court's calculation of equitable

relief for abuse of discretion, and find none.  See Lussier v.

Runyon, 50 F.3d 1103, 1111 (1st Cir. 1995).  Front pay and the

other incidental expenses which the district court denied are

discretionary, see Wildman, 771 F.2d at 616, and the district

court's decision to deduct Chambers' wages from his new position

from its back pay award, although not mandated by the ADEA, is

permitted as part of the district court's endeavor to fashion an

award that places the injured party "as near as may be, in the

situation he would have occupied if the wrong had not been

committed."  Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19

(1975) (internal quotation marks and citation omitted).  The

magistrate judge noted, in denying these items, that the jury's

$180,000 award, plus the $13,044 in equitable relief, had made the

plaintiff whole.  It was appropriate for the magistrate judge to

consider the jury award in deciding whether to award certain items

of discretionary equitable relief.  Considering the relief as a

whole, it was not error for the magistrate judge to have awarded

only $13,044 in equitable relief.

     The judgment of the district court is affirmed.  Each

party shall bear its own costs.