Dichner v. Liberty Travel

• Court: Court of Appeals for the First Circuit
• Decided: April 13, 1998
• Docket: 97-2046
• Status: Published

Opinion

USCA1 Opinion

                  UNITED STATES COURT OF APPEALS

                      FOR THE FIRST CIRCUIT



                    _________________________


No. 97-2046


FRANCES DICHNER,



                       Plaintiff, Appellee,



                                v.



                     LIBERTY TRAVEL, ET AL.,



                     Defendants, Appellants.



                    _________________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS



          [Hon. Richard G. Stearns, U.S. District Judge]



                    _________________________



                              Before



                      Selya, Circuit Judge,



                  Bownes, Senior Circuit Judge,



                    and Stahl, Circuit Judge.



                    _________________________



     James M. Andrews, with whom Douglas E. Edlin, Friedman &

Siegelbaum, LLP, Evan Slavitt, and Gadsby & Hannah, LLP were on

brief, for appellants.

     Betsy Ehrenberg, with whom Harold L. Lichten, and Pyle, Rome

& Lichten, P.C. were on brief, for appellee.



                    _________________________



                         April 13, 1998



                    _________________________  SELYA, Circuit Judge.  Frances Dichner suffers from post-

traumatic encephalopathy.  Convinced that she had been refused

employment because of her disability, Dichner sued Liberty Travel

(Liberty) for violating both the Americans with Disabilities Act,

42 U.S.C.  12101-12213 (1994) (ADA), and Mass. Gen. Laws Ann. ch.

151B,  4 (West 1992) (Chapter 151B).  A jury found that Liberty's

conduct transgressed the state (but not the federal)

antidiscrimination statute and awarded Dichner compensatory and

punitive damages.  Liberty appeals.  We affirm.

I.  BACKGROUND

     We limn the facts in a light hospitable to the jury's

verdict, consistent with record support.

     Dichner, a resident of Danvers, Massachusetts,

experienced her first encephalopathic seizure in the summer of

1989, following an automobile accident.  With medication, her

epilepsy-like condition metamorphosed from severe physical

convulsions to absence seizures   trance-like states that render

one unable to respond to environmental stimuli for brief periods. 

At all times relevant hereto, Dichner's catalepsies occurred

infrequently, and, although her condition prevented her from

operating a motor vehicle, it did not significantly hinder her

ability to work.

     Prior to the accident, Dichner managed an employment

agency.  During her convalescence, she toiled as an at-home

solicitor for several travel agencies, and, contemplating a

permanent career change, filled in as a sales agent for Saga

Holidays (a travel firm located in downtown Boston).

     In the spring of 1992, Dichner decided that she was ready

to return to work on a full-time basis.  In response to a newspaper

advertisement, she contacted a Liberty recruiter who told her that

Liberty wished to hire sales agents for its offices in Boston and

on the North Shore (an area that includes Danvers).  Her interest

piqued, Dichner attended a Liberty-sponsored open house where

company representatives distributed information about the firm,

collected resumes, and conducted preliminary interviews.

     Angelina Picini, the manager of Liberty's Danvers branch,

met informally with Dichner at the open house.  Dichner explained

to Picini that she was interested in a career in travel, but that,

because of her disability, she preferred a job near her home. 

Picini assured Dichner that there was a position open in the

Danvers branch office and that her medical condition did not

present a problem.  Picini then arranged for Dichner to have a

formal interview with Deborah Pickard (Liberty's regional manager).

     Dichner met with Pickard in Danvers.  The two discussed

Dichner's previous experience in sales and travel.  When Pickard

questioned Dichner about her desire to be stationed in Danvers,

Dichner explained that she did not drive.  Pickard expressed

compunction about that restriction, noting that employees sometimes

were asked to go from branch to branch.  In the end, however, she

assured Dichner that the limitation on her driving ability would

not impede her prospects for the Danvers opening.  Despite this

assurance, Dichner learned a few days later that the position had

been filled.

     Dichner reapplied in 1993 after Liberty once again

announced the availability of employment opportunities on the North

Shore.  At another Liberty open house, Picini, who had become the

manager of Liberty's Boston office, told Dichner that openings

existed in Danvers and arranged for her to interview again with

Pickard.  Prior to this meeting, Dichner called Pickard and

confirmed that a sales position was available in Danvers.

     When Dichner arrived at Liberty's Danvers office for the

interview, Pickard asked Dichner whether her epileptic condition 

persisted.  Dichner responded affirmatively, but noted that she was

on medication and that her seizures were under control.  Pickard

continued down that road and, in Dichner's eyes, appeared

preoccupied with whether Dichner would be likely to undergo

seizures while on the job.  In answer to Pickard's insistent

queries,  Dichner explained that her seizures occurred rarely, that

they never had caused a problem in the workplace, and that she had

mentioned them only to explain her inability to drive.  Pickard

seemed dissatisfied with these assurances and continued to express

concern for the "safety" of the branch.

     Pickard and Dichner talked briefly about Dichner's

qualifications and about the salary and benefits that Liberty

offered.  When Pickard inquired about Dichner's interest in working

at other Liberty offices, Dichner responded that she was interested

only in Danvers.  Pickard then suggested, for the first time, that

a Danvers position might not be available after all, and she

continued to voice concerns about Dichner's epilepsy ("I've seen

your type before, and I have to tell you, I'm not sure that this

isn't going to be a problem.").  Dichner reacted angrily and

accused Pickard of acting unprofessionally by harping on the

disability without the slightest justification.  Pickard responded

that, in her view, Dichner would not be a good fit for the company.

     Dichner departed in high dudgeon.  She testified that she

became emotionally distraught, that she was unable to eat or sleep

for several weeks, and that she lost faith in her ability to

overcome her disability.

II.  THE LITIGATION

     After touching the prescribed administrative bases, see42 U.S.C.  12117(a) (incorporating the exhaustion procedures

detailed at 42 U.S.C.  2000e-5); Mass. Gen. Laws. Ann. ch. 151B,

 9, Dichner sued Liberty in the federal district court.  Her

complaint alleged that, by twice refusing to hire her on account of

her disability, Liberty violated both the ADA and Chapter 151B. 

Liberty denied the charges of discrimination.  It asserted that it

had hired someone with significantly more experience in 1992, and

that there were no positions available in the Danvers office in the

spring of 1993.  During a four-day jury trial, Dichner presented

evidence that Liberty's excuses were lame, including evidence

tending to show that several sales agents were hired for, or

transferred into, the Danvers office around the time of Dichner's

1993 interview.

     In his charge, Judge Stearns outlined the plaintiff's

four claims to the jury: disability discrimination in 1992 under

the ADA; disability discrimination in 1992 under Chapter 151B;

disability discrimination in 1993 under the ADA; and disability

discrimination in 1993 under Chapter 151B.  He then explained that,

under both state and federal law, the plaintiff bore the burden of

establishing by a preponderance of the evidence that the defendant

had discriminated against her.  Under either rubric, the judge

noted, the plaintiff had to make out a prima facie case of

discrimination and prove that the defendant's proffered reasons for

rejecting her application were pretextual.  The court's

instructions made clear, however, that state and federal law

diverged with regard to the evidentiary effect of a finding of

pretext:

     Under Massachusetts law, Ms. Dichner is

     required to prove only the reasons Liberty has

     offered for its actions are untrue.  If she

     persuades you that Liberty's explanation lacks

     credibility, you are permitted to draw the

     inference that the true reasons for Liberty's

     actions were discriminatory.

     . . .

          To prevail under federal law, Ms.

     Dichner must show something more, that is, not

     only that the explanation by Liberty is

     pretext, but that there is evidence of a

     discriminatory "plus" as well.  In other

     words, Ms. Dichner must prove that Liberty's

     decision not to hire her was actually

     motivated by handicap discrimination.



Neither party objected to these portions of the charge.

     Judge Stearns further instructed that, if the jury found

Liberty liable under either state or federal law, it could award

both compensatory and punitive damages.  The judge gave the

following instruction on punitive damages:

          Finally, if you find that the conduct

     of Liberty Travel was beyond the pale of the

     tolerable, you may award punitive damages to

     Ms. Dichner.  These are damages not intended

     to compensate but to punish a defendant and to

     serve as a warning to other like-minded

     individuals or entities that society will not

     tolerate outrageous discriminatory behavior.

          Any sum that you award should be

     commensurate with your own conscience, the

     degree of reprehensibility of the defendants'

     conduct as you find it, the ratio of any

     punitive damages to the actual damages that

     you find Ms. Dichner incurred and the

     likelihood of the award's having a deterrent

     effect on both this and other potential

     defendants.



Liberty objected generally to the giving of a charge on punitive

damages, but interposed no specific objections to the phraseology

that the judge employed.

     Judge Stearns submitted the case to the jury by means of

a special verdict form tailored to the resolution of Dichner's four

claims.  Using this matrix, the jury found for the plaintiff with

regard to the claim that Liberty discriminated against her in 1993

within the meaning of Chapter 151B, and awarded her $10,000 in

compensatory damages and $75,000 in punitive damages.  The jury

found for Liberty on the three remaining claims.  Judge Stearns

denied Liberty's post-trial motions.

     On appeal, Liberty spins several lines of argument.  To

the extent that these asseverations implicate the jury's liability

finding, we treat them in the ensemble.  We then address Liberty's

complaint that an award of punitive damages is inappropriate.

III.  THE FINDING OF LIABILITY

     Stripping away the layers of rhetorical excess that

encase its arguments, Liberty's assault on the liability finding

comprises three main forays: (a) that the jury returned an

internally inconsistent verdict; (b) that the verdict offends

principles of due process; and (c) that an erroneous set of jury

instructions caused the problem.  We treat these assertions

sequentially.

                                A

     The special verdict form used, without objection, by

Judge Stearns required the jury to make separate findings anent

Dichner's federal and state claims.  Pointing out that those claims

were based upon substantively analogous statutes, Liberty argues

that the jury's verdict   finding Liberty liable under state, but

not federal, law   is irreconcilably inconsistent.  Liberty's

argument is overly simplistic.  Notwithstanding the affinity that

exists between the ADA and Chapter 151B in the employment arena,

the two statutes utilize different evidentiary standards in their

implementation of a common burden-shifting framework.  This

discrepancy fully explains how conduct rationally can be found to

violate state, but not federal, law.

     Under Massachusetts law, as under federal law, a

plaintiff who lacks direct evidence of discrimination may proceed

by engaging the three-stage order of proof articulated by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-05 (1973).  Under that model, a plaintiff who suffers from a

disability makes out a prima facie case of employment

discrimination by demonstrating that she is a member of a protected

group who has been denied an employment opportunity for which she

was otherwise qualified.  See Christopher v. Adam's Mark Hotels,

___ F.3d ___, ___ (8th Cir. 1998) [1998 WL 92202, at *2]; Lattimorev. Polaroid Corp,, 99 F.3d 456, 465 (1st Cir. 1996).  Such a

showing gives rise to an inference that the employer discriminated

due to the plaintiff's disability and places upon the employer the

burden of articulating a legitimate, nondiscriminatory reason for

the adverse employment decision.  See Cumpiano v. Banco Santander

P.R., 902 F.2d 148, 153 (1st Cir. 1990).  This entails only a

burden of production, not a burden of persuasion; the task of

proving discrimination remains the plaintiff's at all times.  SeeTexas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 256

(1981).  Once such a reason emerges, the inference raised by the

prima facie case dissolves, see Mesnick v. General Elec. Co., 950

F.2d 816, 823 (1st Cir. 1991), and the plaintiff is required to

show, unaided by the original inference of discrimination, that the

employer's proffered reason is a pretext for discrimination.  SeeFurnco Constr. Corp. v. Waters, 438 U.S. 567, 578 (1978); McDonnell

Douglas, 411 U.S. at 805.

     To this point, the federal and state paradigms are

substantially identical.  At the proof-of-pretext stage, however,

there is a critical difference.  To prevail under federal law, it

is insufficient for a plaintiff merely to undermine the veracity of

the employer's proffered justification; instead, she must muster

proof that enables a factfinder rationally to conclude that the

stated reason behind the adverse employment decision is not only a

sham, but a sham intended to cover up the proscribed type of

discrimination.  See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,

515 (1993); Smith v. Stratus Computer, Inc., 40 F.3d 11, 16 (1st

Cir. 1994); Woods v. Friction Materials, Inc., 30 F.3d 255, 260

(1st Cir. 1994).  This "pretext plus" approach does not necessarily

require the introduction of additional evidence.  Although a

plaintiff must show "both that the employer's articulated reason is

false, and that discrimination was the actual reason for its

employment action," Woods, 30 F.3d at 260, the Supreme Court's

decision in Hicks leaves open the possibility that "[w]hen the

prima facie case is very strong and disbelief of the proffered

reason provides cause to believe that the employer was motivated by

a discriminatory purpose, proof of pretext [alone] 'may' be

sufficient."  Lattimore, 99 F.3d at 465 (quoting Hicks, 509 U.S. at

511).

     Massachusetts eschews the federal "pretext plus" approach

in favor of a "pretext only" approach.  Under Chapter 151B, a

plaintiff who is seeking to establish a violation of the

Massachusetts statute can prevail as long as she proves that the

defendant's stated reasons for its employment decision are

pretextual.  See Blare v. Husky Injection Molding Sys., 419 Mass.

437, 444-45, 646 N.E.2d 111, 117 (1995).  To the extent that the

Massachusetts version of the McDonnell Douglas model takes a

"pretext only" approach to proof of discrimination, federal and

state law diverge.  See Lattimore, 99 F.3d at 465.

     In light of this salient distinction between the federal

and state schemes, painstakingly explicated in Judge Stearns's

charge, the jury in this case reasonably could have found   as

indeed it did   that Dichner proved her case under Chapter 151B but

not under the ADA.  See, e.g., id. at 467-68 (concluding that there

was evidence to support a finding of pretext but not enough to

establish pretext plus).  We think it elementary that, when a

plaintiff must meet distinct evidentiary standards to prevail on

separate claims, a jury warrantably can find for the plaintiff on

one and against her on the other.  Liberty's inconsistency argument

is therefore unpersuasive.

                                B  The defendant further asserts that the split verdict in

this case offends accepted tenets of substantive due process.  This

assertion rests on the premise that because the jury found in

Liberty's favor on the ADA claim, it did not detect a

discriminatory animus, and thus, holding Liberty liable for

discrimination against Dichner on any theory violates due process. 

This is an attack, pure and simple, on the constitutionality of the

Massachusetts pretext only rule, which, as Liberty self-

interestedly sees it, permitted the "jury to find that Liberty

Travel violated an anti-discrimination statute without finding that

Liberty Travel actually discriminated against the plaintiff,"

Appellant's Reply Brief at 23, and which, in the bargain, punishes

Liberty for doing "what the law plainly allows it to do."  Id.(quoting Bordenkircher v. Hayes, 434 U.S. 357, 363 (1977)).

     The record discloses no sign that Liberty advanced this

constitutional harangue below, and we could reject it on that basis

alone.  See Daigle v. Maine Med. Ctr., Inc., 14 F.3d 684, 687-88

(1st Cir. 1994) (collecting cases and applying raise-or-waive rule

to omitted constitutional challenges).  We address the argument

briefly, however, because it is readily evident that Liberty

misunderstands the evidentiary effect of a finding of pretext under

state law.

     The verdict on the ADA count is not, as Liberty would

have it, an affirmative determination that Liberty manifested no

discriminatory intent.  To the contrary, the court instructed the

jury to measure the corpus of evidence by two different evidentiary

standards, both aimed at determining whether Liberty discriminated

against Dichner on the basis of her disability.  Properly

understood, the verdict denotes that, although the proof fell short

when evaluated by reference to one such standard (pretext plus),

the same proof, when evaluated by reference to the other standard

(pretext only), enabled the jury to infer that Liberty had the

requisite discriminatory animus and had committed a discriminatory

refusal to hire.  This finding   supportable on the facts and the

law   belies Liberty's foundational premise.

     Liberty offers no authority to show that use of the state

pretext only standard is constitutionally suspect, or, put another

way, that use of the federal pretext plus standard as a means of

gauging discriminatory intent is constitutionally mandated.  In all

events, we believe that such a proposition is wholly untenable. 

See generally St. Mary's Honor Ctr., 509 U.S. at 533-43 (Souter,

J., dissenting) (questioning, on behalf of four Justices, the

fairness and viability of the pretext plus approach); D. Don Welch,

Removing Discriminatory Barriers: Basing Disparate Treatment

Analysis on Motive Rather Than Intent, 60 S. Cal. L. Rev. 733, 759-

63 (1987) (concluding that discriminatory purpose is not a

prerequisite to liability under Title VII).  That ties the ribbon

on the package.  Since constitutionally acceptable Massachusetts

jurisprudence enables a factfinder to infer intentional

discrimination solely from a showing of pretext, state law does not

"plainly allow[]" Liberty to act as it did in Dichner's case. 

Consequently, there was nothing fundamentally unfair, in the

substantive due process sense, about the jury's verdict on the

Chapter 151B claim.

                                C

     Liberty's next strike is waged in the name of federal

supremacy.  If the plaintiff's evidentiary burden differs in regard

to state and federal discrimination claims, this thesis runs, then

a trial court should instruct the jury to apply the federal

standard to both claims because federal law is paramount, see U.S.

Const. art. VI, and in all events, federal procedure is applicable

to state-law claims that are litigated in federal courts, see Hannav. Plumer, 380 U.S. 460, 465 (1965) (explaining that when state

causes of action are litigated in a federal forum, "federal courts

are to apply state substantive law and federal procedural law"

under the aegis of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)).

     Liberty's indignation over this alleged affront to

federal supremacy is long overdue.  It did not object when Judge

Stearns instructed the jury to apply the pretext only standard to

Dichner's Chapter 151B claim and the pretext plus standard to her

ADA claim.  The failure to object to jury instructions in the 

manner prescribed by Fed. R. Civ. P. 51 (requiring objections to be

made "before the jury retires to consider its verdict") forfeits

claims of error in respect to the content of those instructions. 

See Elliott v. S.D. Warren Co., 134 F.3d 1, 6 (1st Cir. 1998). 

Hence, the objection that Liberty now lodges is by the boards.

     To be sure, an appellate court retains the power to act,

even in the absence of a contemporaneous objection, if the

belatedly challenged jury instruction sinks to the depths of plain

error.  See id.  Here, however, we discern no error, plain or

otherwise.  Federal courts often utilize divergent standards of

proof for claims brought by a plaintiff under parallel federal 

and state discrimination statutes.  See, e.g.,Lattimore, 99 F.3d at

467; Forsythe v. Microtouch Sys., Inc., 945 F. Supp. 350, 356-57

(D. Mass. 1996); Terry v. Electronic Data Sys. Corp., 940 F. Supp.

378, 383-84 (D. Mass. 1996).  As a general proposition, such

duality does not signify a direct conflict between federal and

state law, nor does it offend principles of federal supremacy.  SeeEllenwood v. Exxon Shipping Co., 984 F.2d 1270, 1276 (1st Cir.

1993) ("In the employment discrimination field, Congressional

enactments 'have long evinced a general intent to accord parallel

or overlapping remedies against discrimination.'") (quoting

Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974)).  This

verity rings particularly true in disability discrimination cases,

for the ADA anticipates that disabled persons will enjoy the full

protection of both federal and state antidiscrimination schemes. 

See 42 U.S.C.  12201(b) (assuring that the ADA does not "limit the

remedies, rights, and procedures of any . . . law of any State . .

. that provides greater or equal protection for the rights of

individuals with disabilities").  Because the federal standard

(pretext plus) applies to the federal cause of action (the ADA

claim) and the state standard (pretext only) applies to the state

cause of action (the Chapter 151B claim), they can coexist

peacefully.

     Liberty's related contention that Erie principles compel

the application of the federal pretext plus standard to Dichner's

Chapter 151B claim is similarly unavailing.  The pretext

only/pretext plus dichotomy hinges on the evidentiary impact of a

showing of pretext.  At its axis, this dichotomy involves an issue

of substance that should be decided by reference to state law

where, as here, the underlying cause of action derives from state

law.  See, e.g., Elliott, 134 F.3d at 5 ("Generally, in diversity

cases the evidentiary effect accorded the violation of a safety

rule is a matter of state law."); Oja v. Howmedica, Inc., 111 F.3d

782, 792 (10th Cir. 1997) (concluding that, as to causes of action

arising under state law, a federal court usually "examine[s] the

evidence in terms of the underlying burden of proof as dictated by

state law"); Daigle, 14 F.3d at 689 (approving the district court's

use of a Maine statute's evidentiary provisions in a diversity

case).  Consonant with these authorities, we hold that the court

below did not err in applying Massachusetts's pretext only standard

to the Chapter 151B claim.



IV.  THE AWARD OF PUNITIVE DAMAGES

     Liberty maintains that Judge Stearns should not have

permitted the jury to assess punitive damages because the record

affords no basis for such redress.  We do not agree.

                                A  We begin with a modest lesson on the applicable legal

framework.  Under a federal antidiscrimination statute that

provides for punitive damages (like the ADA), a jury may be allowed

to assess such damages "when the defendant's conduct is shown to be

motivated by evil motive or intent, or when it involves reckless or

callous indifference to the federally protected rights of others." 

Smith v. Wade, 461 U.S. 30, 56 (1983); see also BMW of N. Am., Inc.v. Gore, 116 S. Ct. 1589, 1599 (1996).  Chapter 151B also

authorizes a plaintiff to recover punitive damages, but the

Massachusetts statute does not specify the types of situations in

which such damages are appropriate.

     The commonwealth's highest court recently interpreted

Chapter 151B to allow for punitive damages under the circumstances

provided by the Restatement (Second) of Torts  908(2) (1979), that

is, when the defendant's conduct "is outrageous, because of [his]

evil motive or his reckless indifference to the rights of others." 

Dartt v. Browning-Ferris Indus., ___ N.E.2d ___, ___ (Mass

1998)[1988 WL 81234, at *8] (internal quotation marks omitted); seealso Bain v. City of Springfield, 768 N.E.2d 155, 161-62 (1997)

(indicating that such damages are available "where the defendant's

conduct warrants condemnation and deterrence"); Dalis v. Buyer

Adver., Inc.,636 N.E.2d 212, 215 (1994) (reserving punitives for

"egregious" cases).  Although the federal standard also reflects

Restatement principles, see, e.g., Smith, 461 U.S. at 53-54, courts

cannot automatically assume that punitive damages are available

under Chapter 151B on the same basis as they are available to a

plaintiff in a federal discrimination case.  See August v. Offices

Unlimited, Inc., 981 F.2d 576, 580 n.3 (1st Cir. 1992) ("In

interpreting Massachusetts discrimination statutes, Massachusetts

courts may look to the interpretations of analogous federal

statutes, but [they] are not bound thereby."); Dartt, ___ N.E.2d at

___ [1998 WL 81234, at *8].

     In this instance, neither party suggested the existence

of a distinction between federal and state standards for the award

of punitive damages, and Judge Stearns therefore used a formulation

drawn strictly from federal precedents in his jury instructions. 

Neither party objected to the substance of this instruction and, on

appeal, the parties agree that its content should govern the

question of whether punitive damages were appropriately awarded

here.  Under the circumstances, we acquiesce in the parties' shared

position and proceed on the assumption, arguendo, that there is no

material difference between the federal and state standards (an

assumption which, in light of Dartt, appears quite reasonable).

                                B

     Liberty asserts that, because the jury found only

pretext, not pretext plus, it could not have acted with the evil

motive or intent that the federal standard for exemplary damages

requires.  This assertion is not unlike Liberty's due process

argument, see supra Part III(B), and suffers the same fate.  A jury

need not find some special sort of malign purpose in order to exact

punitive damages in a disparate treatment case because the "intent"

that is necessary to undergird an award of punitive damages in such

a case is the same "intent" that is required for a finding of

discrimination in the first place.  See Rowlett v. Anheuser-Busch,

Inc., 832 F.2d 194, 205 (1st Cir. 1987) (recognizing that "the

state of mind necessary to trigger liability for the wrong is at

least as culpable as that required to make punitive damages

applicable").  The Rowlett panel specifically rejected an assertion

that "something more than intentional discrimination [as proven via

the McDonnell Douglas framework] is necessary," id., holding

instead that, once intentional discrimination has been established,

whether directly or by a McDonnell Douglas inference, the jury, in

order "'to punish [the defendant] for his outrageous conduct and to

deter him and others like him from similar conduct in the future,'"

has the authority to award punitive damages in "its 'discretionary

moral judgment.'"  Id. at 205, 206 (quoting Smith, 461 U.S. at 52,

54).

     Here, the record contains evidence which, if viewed in

the light most amenable to the verdict, reflects egregious conduct,

worthy of condemnation and crying out for deterrence.  In addition,

the jury supportably found that Liberty had committed intentional

discrimination as that concept is defined under Massachusetts law

and chose to award punitive damages, apparently, in the words of

the court's charge, "to punish the defendant and to serve as a

warning to other like-minded individuals or entities that society

will not tolerate outrageous discriminatory behavior."  In these

circumstances, Rowlett controls.  Since the law and the facts

sufficiently support the jury's "discretionary moral judgment,"

Smith, 461 U.S. at 52, we are not at liberty to disturb the award.

V.  CONCLUSION

     We need go no further.  Liberty raises other arguments,

but all of them are patently unmeritorious.  In closing, it

suffices to say that the challenged verdict draws its essence from

a correct statement of the law reflecting the proper balance

between federal and state "pretext" policy in discrimination cases. 

Because the jury struck this balance in an acceptable manner and

appropriately awarded punitive damages, the judgment below must be



Affirmed.  Costs in favor of plaintiff-appellee.