Fox v. SouthEast

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Court of Appeals for the First Circuit·Decided June 8, 1994·No. 94-1038·Published

Opinion

USCA1 Opinion

June 3, 1994 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________

No. 94-1038

GERALDINE FOX, ET AL.,
Plaintiffs, Appellees,

v.

SOUTHEAST TRANSPORT INC.,
A/K/A BILL MATT ENTERPRISES,
Defendant, Appellant.

__________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[[Hon. Mark L. Wolf, U.S. District Judge]
___________________

___________________

Before

Torruella, Selya and Cyr,
Circuit Judges.
______________

___________________

Steven J. Marullo on brief for appellant.
_________________
Gary H. Goldberg on brief for appellees.
________________

__________________

__________________

Per Curiam. Appellant Southeast Transport Corporation
__________

appeals a judgment by the United States District Court for

the District of Massachusetts in the amount of $15,000 for

appellee Geraldine Fox and in the amount of $20,000 for

appellee Melinda St. John, and the award to appellees of

reasonable attorneys' fees. We summarily affirm.

I

Fox and St. John were hired by appellant as truck

drivers in June 1988. They were both terminated on August 11

of the same year. In 1989, appellees brought suit alleging

that appellant had discriminated against each "based upon her

sex in the terms and conditions of her employment by creating

a hostile, offensive and abusive work environment and

terminating her employment" in violation of 42 U.S.C. 2000e

and Mass. Gen. L. ch. 151B. In July 1991, the court entered

a default judgment against defendant, pursuant to Fed. R.

Civ. P. 55(a). The court then conducted an evidentiary

hearing to determine the amount to be awarded to each

appellee in damages. Fed. R. Civ. P. 55(b)(2).

Plaintiffs sought damages for emotional distress on

their Mass. Gen. L. ch. 151B claim. They also requested

reasonable attorneys' fees. Each of the appellees testified

at the hearing, as did two witnesses for the defendant. The

court detailed its findings and conclusions in a memorandum

and order dated December 9, 1993.

-2-

On appeal, appellant asserts two assignments of error.

First, appellant claims that certain testimony received by

the court at the evidentiary hearing should have been barred

as hearsay, pursuant to the Federal Rules of Evidence, which

appellant contends apply to hearings pursuant to Fed. R. Civ.

P. 55(b). Second, appellant contends that there was

insufficient evidence presented to sustain the award of

damages to each appellee.

II

Once the default judgment had entered, it was

established, as alleged in the complaint, that the appellant

had discriminated against the appellees both by creating a

hostile work environment and by terminating their employment

because they were women. See Riehle v. Margolies, 279 U.S.
___ ______ _________

218, 225 (1929). Therefore, the only issue to be decided at

the Rule 55(b)(2) hearing was the amount of damages to which

appellees were entitled as a result of appellant's illegal

conduct. See Jones v. Winnepesaukee Realty, 990 F.2d 1, 4
___ _____ ____________________

(1st Cir. 1993). In its memorandum and order, the court,

as required, stated its findings of fact and conclusions.

See Brown v. Kenron Aluminum & Glass Corp., 477 F.2d 526,
___ _____ _____________________________

530-31 (8th Cir. 1973); Foxtrap, Inc. v. Foxtrap, Inc., 671
____________ ____________

F.2d 636, 638 n.1 (D.C. Cir. 1982). The court found that

appellees were credible witnesses. It also concluded, based

in part on its assessment of credibility, that the appellees

-3-

had suffered "significant emotional distress" because of

specific illegal conduct by the appellant and, therefore,

were entitled to damages under Mass. Gen. L. ch. 151B. See
___

Buckley Nursing Home, Inc. v. Massachusetts Comm'n Against
___________________________ _____________________________

Discrimination, 20 Mass. App. Ct. 172, 182, 478 N.E.2d 1292,
______________

1299 (an award of emotional distress damages under ch. 151B

can be sustained by finding of discrimination alone even in

the absence of physical injury or psychiatric consultation),

review denied, 395 Mass. 1103, 482 N.E.2d 328 (1985).
______ ______

Having read the whole of the record, we find no

reversible error in any of the factual findings or

conclusions of the district court. See Cumpiano v. Banco
___ ________ _____

Santander Puerto Rico, 902 F.2d 148, 152 (1st Cir. 1990) (an
______________________

appellate court "ought not to upset findings of fact or

conclusions drawn therefrom unless, on the whole of the

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USCA1 Opinion



June 3, 1994          [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

No. 94-1038

GERALDINE FOX, ET AL.,
                                Plaintiffs, Appellees,

                                          v.

                              SOUTHEAST TRANSPORT INC.,
                             A/K/A BILL MATT ENTERPRISES,
                                Defendant, Appellant.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                      [[Hon. Mark L. Wolf, U.S. District Judge] 
                                           ___________________

___________________

                                        Before

                              Torruella, Selya and Cyr,
                                   Circuit Judges.
                                   ______________

                                 ___________________

               Steven J. Marullo on brief for appellant.
               _________________
               Gary H. Goldberg on brief for appellees.
               ________________

__________________

                                  __________________

Per Curiam.   Appellant Southeast Transport  Corporation
                 __________

            appeals  a judgment by  the United States  District Court for

            the District  of Massachusetts in  the amount of  $15,000 for

            appellee  Geraldine  Fox and  in  the amount  of  $20,000 for

            appellee  Melinda St.  John, and  the award  to appellees  of

            reasonable attorneys' fees.  We summarily affirm.

                                          I

                 Fox  and  St.  John  were hired  by  appellant  as truck

            drivers in June 1988.  They were both terminated on August 11

            of the same year.   In 1989, appellees brought  suit alleging

            that appellant had discriminated against each "based upon her

            sex in the terms and conditions of her employment by creating

            a  hostile,  offensive  and   abusive  work  environment  and

            terminating her employment" in violation of 42 U.S.C.   2000e

            and Mass. Gen. L. ch. 151B.   In July 1991, the court entered

            a  default judgment  against defendant,  pursuant to  Fed. R.

            Civ. P.  55(a).   The  court  then conducted  an  evidentiary

            hearing  to determine  the  amount  to  be  awarded  to  each

            appellee in damages.  Fed. R. Civ. P. 55(b)(2).  

                 Plaintiffs  sought  damages  for  emotional  distress on

            their  Mass. Gen.  L. ch.  151B claim.   They  also requested

            reasonable attorneys' fees.   Each of the appellees testified

            at the hearing, as did two witnesses for the  defendant.  The

            court detailed  its findings and conclusions  in a memorandum

            and order dated December 9, 1993.  

-2-

On appeal, appellant  asserts two assignments of  error.

            First,  appellant claims that  certain testimony  received by

            the court at the evidentiary  hearing should have been barred

            as hearsay, pursuant to the Federal Rules of Evidence,  which

            appellant contends apply to hearings pursuant to Fed. R. Civ.

            P.  55(b).    Second,   appellant  contends  that  there  was

            insufficient  evidence  presented  to sustain  the  award  of

            damages to each appellee.

                                          II

                 Once   the  default   judgment   had  entered,   it  was

            established, as alleged in  the complaint, that the appellant

            had discriminated  against the  appellees both by  creating a

            hostile work environment and  by terminating their employment

            because they were women.   See Riehle v. Margolies,  279 U.S.
                                       ___ ______    _________

            218, 225 (1929).  Therefore, the only issue to be  decided at

            the  Rule 55(b)(2) hearing was the amount of damages to which

            appellees were  entitled as  a result of  appellant's illegal

            conduct.   See Jones v.  Winnepesaukee Realty, 990  F.2d 1, 4
                       ___ _____     ____________________

            (1st Cir. 1993).    In its memorandum  and order, the  court,

            as  required, stated  its findings  of fact  and conclusions.

            See Brown v.  Kenron Aluminum  & Glass Corp.,  477 F.2d  526,
            ___ _____     _____________________________

            530-31 (8th  Cir. 1973); Foxtrap, Inc. v.  Foxtrap, Inc., 671
                                     ____________      ____________

            F.2d 636,  638 n.1 (D.C.  Cir. 1982).   The court  found that

            appellees were credible witnesses.   It also concluded, based

            in part on  its assessment of credibility, that the appellees

-3-

had  suffered "significant  emotional  distress"  because  of

            specific illegal  conduct  by the  appellant and,  therefore,

            were entitled to  damages under Mass. Gen. L. ch.  151B.  See
                                                                      ___

            Buckley  Nursing Home,  Inc. v. Massachusetts  Comm'n Against
            ___________________________     _____________________________

            Discrimination, 20 Mass. App. Ct.  172, 182, 478 N.E.2d 1292,
            ______________

            1299  (an award of emotional distress  damages under ch. 151B

            can  be sustained by finding  of discrimination alone even in

            the absence of physical injury  or psychiatric consultation),

            review denied, 395 Mass. 1103, 482 N.E.2d 328 (1985).  
            ______ ______

                 Having  read  the  whole  of  the  record,  we  find  no

            reversible  error   in  any   of  the  factual   findings  or

            conclusions of  the district  court.   See Cumpiano  v. Banco
                                                   ___ ________     _____

            Santander  Puerto Rico, 902 F.2d 148, 152 (1st Cir. 1990) (an
            ______________________

            appellate  court "ought  not  to upset  findings  of fact  or

            conclusions  drawn  therefrom unless,  on  the  whole of  the

            record, [the  appellate  judges] form  a  strong,  unyielding

            belief that a mistake has been made").  Furthermore, in light

            of the  court's findings and given that damages for emotional

            distress  are  "not easily  computed  and, therefore,  .  . .

            extremely fact-sensitive," we find  no abuse of discretion in

            the court's assessment of  damages in this case.   Jones, 990
                                                               _____

            F.2d  at 5  (upholding an award  for emotional  damages based

            mainly   on  defendant's  statement   of  damages  and  sworn

            testimony).

-4-

Finally, we  find no evidence, and  appellant has called

            our attention to  none, which would indicate that  the court,

            in  its  factual  findings  and  conclusions,  explicitly  or

            implicitly relied  on any  of  the statements  alleged to  be

            hearsay.   Therefore, even if we were to assume arguendo both
                                                            ________

            that  the Federal  Rules of  Evidence apply  to a  hearing to

            determine  damages  and  that  the  testimony  challenged  by

            appellant  was  inadmissible   hearsay,  any  error  in   the

            admission which  may have occurred was harmless.  See Vincent
                                                              ___ _______

            v.  Louis  Marx  & Co.,  874  F.2d  36,  41 (1st  Cir.  1989)
                _________________

            (admission of evidence harmless  when appellate court can say

            "with  fair assurance  .  .  .  that  the  judgment  was  not

            substantially swayed by the error") (citations omitted).

                 Affirmed.  See 1st Cir. Loc. R. 27.1.
                 ________   ___

-5-

Fox v. SouthEast, (1st Cir. 1994).

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Fox v. SouthEast (Fox v. SouthEast) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Stacy Marie Vincent v. Louis Marx & Co., Inc.

874 F.2d 36 (First Circuit, 1989)

Wilma Cumpiano A/K/A Wilma Cumpiano Sanchez v. Banco Santander Puerto Rico

902 F.2d 148 (First Circuit, 1990)

Catherine M. Jones v. Winnepesaukee Realty

990 F.2d 1 (First Circuit, 1993)

Buckley Nursing Home, Inc. v. Massachusetts Commission Against Discrimination

478 N.E.2d 1292 (Massachusetts Appeals Court, 1985)

Brown v. Kenron Aluminum & Glass Corp.

477 F.2d 526 (Eighth Circuit, 1973)

Opinion

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