McMillan v. MSPCA

• Court: Court of Appeals for the First Circuit
• Decided: March 26, 1998
• Docket: 97-1048
• Status: Published

Opinion

USCA1 Opinion

                   United States Court of Appeals

                        For the First Circuit

                        ____________________


No. 97-1048



                      DR. MARJORIE C. MCMILLAN,

                                  

                        Plaintiff, Appellee,

                                  

                                 v.

                                  

 MASSACHUSETTS SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, AND

                          DR. GUS THORNTON,

                                  

                       Defendants, Appellants.

                                  

                        _____________________

                                  

No. 97-1174



                      DR. MARJORIE C. MCMILLAN

                                  

                        Plaintiff, Appellant,

                                  

                                 v.

                                  

       MASSACHUSETTS SOCIETY FOR THE PREVENTION OF CRUELTY TO 

         ANIMALS, DR. GUS THORNTON AND DR. PAUL GAMBARDELLA,

                                  

                       Defendants, Appellees.

                        ____________________

                                  

            APPEALS FROM THE UNITED STATES DISTRICT COURT

                                  

                  FOR THE DISTRICT OF MASSACHUSETTS

                                  

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

                        ____________________

                                  

                               Before

                                  

                        Stahl, Circuit Judge,

                   Godbold,* Senior Circuit Judge,

                   and Cyr, Senior Circuit Judge.

                        ____________________

                                  

    Marcus E. Cohn with whom Melissa Bayer Tearney and Peabody & Brownwere on brief for defendants.

    Dahlia C. Rudavsky with whom James S. Weliky and Messing & Rudavsky,

P.C. were on brief for plaintiff.


____________________



                           March 18, 1998

                        ____________________


_____________________

          *Of the Eleventh Circuit, sitting by designation.      STAHL, Circuit Judge.  In the late 1980s, Dr. Marjorie

    McMillan, head of the radiology department for the

    Massachusetts Society for the Prevention of Cruelty to

    Animals ("MSPCA"), learned that she was being paid less than

    the male heads of the organization's other departments. 

    Defendants MSPCA and Dr. Gus Thornton now appeal the district

    court's denial of their motion to set aside verdicts in Dr.

    McMillan's favor on her various pay discrimination claims. 

    They also appeal as excessive the jury's award of

    compensatory and punitive damages, and the district court's

    award of attorney's fees.  Dr. McMillan cross-appeals the

    court's grant of judgment as a matter of law on her tortious

    interference with contractual relations claim against

    defendant Dr. Paul Gambardella, and its grant of summary

    judgment on her contract claims against the MSPCA and on her

    retaliation claim against all three defendants.  We affirm

    the district court's ruling on the pay discrimination,

    tortious interference, contract, and retaliation claims, and,

    in part, the jury's compensatory damages verdict; reverse the

    award of punitive damages and compensatory damages

    representing lost benefits; and vacate the award of

    attorney's fees with directions that it be recalculated after

    remand.

                                   I.

                BACKGROUND AND PRIOR PROCEEDINGS

        We begin with an overview of general facts and prior

   proceedings, and leave more detailed recitations to the

                    appropriate contexts.

      Defendant MSPCA is a charitable, non-profit organization that

  combats cruelty to animals through educational programs and

   veterinary services.  It operates Angell Memorial Animal

  Hospital ("Angell"), whose staff, during the relevant time

     period, totalled more than 200 employees, including

  veterinarians, interns, residents in post-graduate veterinary

  training, and technical and support staff.  Defendant Dr. Gus

  Thornton began working at Angell in 1957, and was its chief

    of staff from 1966 until 1989, at which time he became

   president of the MSPCA.  Defendant Dr. Paul Gambardella

  worked as a staff surgeon at Angell from 1975 until 1984, and

  as the interim director of surgery from 1984 until 1989, when

          Dr. Thornton appointed him chief of staff.

      Plaintiff Dr. Marjorie McMillan was first employed by Angell

  in 1969 and thereafter was employed in various capacities

   until she left in 1977 to work in private practice.  She

  returned in 1981 as the director of the radiology department,

  employed part time.  She left Angell again in 1984 to spend

      one year completing coursework necessary for board

    certification and returned to Angell in 1985, again as

  director of radiology on a part-time schedule.  From 1987

  until 1991, she worked full time as head of radiology.  In

  addition, from 1981 to 1991, she worked approximately seven

  hours each week at Windhover Bird Clinic ("Windhover"), a

  part-time private avian practice that she had established in

                   Walpole, Massachusetts.

      Until 1988, Angell had seven veterinary departments: clinics,

  cardiology, intensive care, clinical pathology, pathology,

  surgery, and radiology.  All of the departments were headed

    by veterinarians, who, in addition to fulfilling their

  clinical duties, also served as administrative directors of

    their departments.  During this time, Dr. Thornton was

  responsible for negotiating veterinarians' initial salaries

  and for setting discretionary annual increases from a fixed

   amount of funds.  Although the department directors were

  responsible for such tasks as purchasing equipment, training

   interns and residents, scheduling, and making budget and

   compensation recommendations to Dr. Thornton, all of the

  staff reported to Dr. Thornton rather than to the individual

                          directors.

      In 1985 Dr. Thornton initiated a plan to restructure Angell's

    management, giving to the department directors greater

   responsibility, including the authority to make hiring,

  firing, compensation, and discipline decisions.  As part of

    the reorganization, Dr. Thornton in 1988 consolidated

  Angell's seven departments into four departments: radiology,

              medicine, surgery, and pathology.

      Dr. McMillan did not know the salaries of other veterinarians

   employed by Angell until 1987, when she learned that the

    salary of a newly-hired radiologist was $38,000.  Dr.

  McMillan, whose salary at that time was $41,000, consulted

  Dr. Thornton and requested a raise so that her compensation

  would be comparable to that of the other department heads. 

   Dr. Thornton eventually offered Dr. McMillan a raise to

    $47,000, which she did not accept because she had been

  offered a $50,000 salary for a non-administrative veterinary

  position at Tufts University Veterinary School.  Dr. Thornton

   then agreed to adjust Dr. McMillan's salary to $51,000,

                  effective in January 1988.

      In 1989, Dr. McMillan discovered the disparity between her

  salary and that of the other department heads at Angell when

  a newspaper published a letter about the MSPCA that listed

  the various salaries.  At the time, her salary was $58,000;

  her male counterparts in surgery, pathology, and medicine, by

    contrast, were earning $73,000, $80,244, and $73,199,

   respectively.  On the basis of the salary disparity, Dr.

  McMillan filed a complaint with the Massachusetts Commission

                   Against Discrimination.

       Also in 1989, Dr. Gambardella, who became chief of staff

  upon Dr. Thornton's accession to the MSPCA presidency, set

   out to reevaluate and to improve the level of department

  heads' compensation.  He began by creating job descriptions

  for each of the department heads in which the list of duties

  for the head of radiology was substantially the same as those

  for the other department head positions.  He also consulted a

  study of the salaries at another major animal hospital and an

  informal market survey, on the basis of which he tentatively

   suggested to Kathleen Collins, Angell's human resources

  director, that the heads of radiology and surgery receive

   $88,000, the head of medicine, $90,000, and the head of

  pathology, $95,000.  Collins then undertook an analysis of

    the department head jobs in order to "rationalize" the

   MSPCA's salary structure, giving a range of points in a

  number of categories of responsibility.  On the basis of the

  point totals, she determined an appropriate salary for each

  of the department heads.  On completion of the analysis, in

  1990, Dr. McMillan received a raise from $58,295 to $72,000,

  which was substantially larger than that received by any of

  the other department heads.  

        Also in 1990, Dr. McMillan entered into negotiations with

    Angell over the status of Windhover.  Dr. McMillan suggested

    that Angell acquire her practice or, alternatively, that it

    rent her space so that she could carry on her bird practice

    there or that it pay her a separate, additional amount for

    her treatment of Angell's avian patients.  When the

    negotiations came to an impasse, Dr. McMillan refused to

    continue to treat birds at Angell, a duty to which she had

    been devoting approximately six hours per week.

        In 1991, Dr. Gambardella began to receive complaints from

    veterinarians -- other department heads and members of the

    surgery staff, in particular -- that Dr. McMillan was

    uncooperative and had created an atmosphere of animosity and

    inflexibility in the radiology department.  On November 21,

    1991, Dr. Gambardella summoned Dr. McMillan as she was

    preparing to perform a procedure on an anesthetized dog,

    fired her, gave her fifteen minutes to gather her belongings,

    and had her escorted out of the hospital.  She was told not

    to return and was thereafter excluded from the premises. 

    Although Angell had adopted in March 1990 a discipline policy

    directed at the correction of inappropriate behavior and

    retention of employees whenever possible, Dr. McMillan was

    given no advance warning of her termination.

        On May 21, 1992, Dr. McMillan sued the MSPCA, Dr. Thornton,

    and Dr. Gambardella, alleging pay discrimination in violation

    of Title VII, 42 U.S.C.  2000e-1; the Equal Pay Act ("EPA"),

    29 U.S.C.  206; and the Massachusetts anti-discrimination

    statute, Mass. Gen. Laws ch. 151B, and Equal Rights Act,

    Mass. Gen. Laws ch. 93,  102.  The complaint also alleged

    retaliation in violation of Title VII, the EPA, and Mass.

    Gen. Laws ch. 151B and ch. 272,  92A and 98; breach of

    contract and negligent performance of contractual duties

    against the MSPCA; and tortious interference with contractual

    relations against Dr. Thornton and Dr. Gambardella.  On March

    17, 1995, the district court awarded the MSPCA summary

    judgment on Dr. McMillan's claims for pay discrimination

    under Title VII and Mass. Gen. Laws ch. 93,  102,

    retaliation under state and federal law, breach of contract

    and negligent performance of contractual duties, and tortious

    interference with contractual relations against Dr. Thornton. 

    The court also held that damages against the MSPCA were

    limited to $20,000, pursuant to the Massachusetts charitable

    immunity law, Mass. Gen. Laws ch. 231,  85K.  The court

    later held that chapter 231 did not apply and granted Dr.

    McMillan's motion for reconsideration of the limitation on

    damages.

        In December 1995, plaintiff tried to a jury the remaining

    counts: pay discrimination in violation of the EPA against

    the MSPCA and in violation of Mass. Gen. Laws ch. 151B

    against the MSPCA and Dr. Thornton, and tortious interference

    with contractual relations against Dr. Gambardella.  The jury

    found in her favor on all counts.  On Dr. McMillan's pay

    discrimination claim under Mass. Gen. Laws ch. 151B, the jury

    awarded $183,784.50 as back pay accrued from 1985 through

    1991, to which it added $178,915 for interest accrued from

    1985.  On her tortious interference claim against Dr.

    Gambardella, it awarded $197,550 as back pay, adding

    $84,846.50 as interest and $99,375.23 as front pay.  Finally,

    the jury assessed punitive damages against Dr. Thornton and

    the MSPCA in the amount of $306,912.50.  On November 12,

    1996, the court awarded Dr. McMillan $447,928.81 in

    attorney's fees and $18,889 in costs.  On the same day, the

    trial court set aside the jury verdict on the tortious

    interference claim against Dr. Gambardella but declined to

    set aside or grant a new trial on the pay discrimination

    verdict or award of back pay and punitive damages.  This

    appeal and cross-appeal followed.

                              II.

                           DISCUSSION

                     A.  Pay Discrimination

      The MSPCA and Dr. Thornton contend that the trial court erred

  by denying their Fed. R. Civ. P. 50(b) motion for judgment as

  a matter of law, thereby ruling that there was sufficient

       evidence for a reasonable jury to find that they

   intentionally discriminated against Dr. McMillan, on the

   basis of her sex, in setting her salary between 1985 and

  1991.  They first argue that the evidence was insufficient to

        show that Dr. McMillan's skills, efforts, and

  responsibilities as a radiologist and department head were

  substantially similar to those of the male department heads.   

    The remainder of their argument addresses the issue of

    pretext.  Focusing on evidentiary questions, defendants

    contend that the trial court erred by admitting Dr.

    Gambardella's preliminary suggestions about appropriate

    department head salaries, and sporadic comments derogatory to

    women made by Dr. Thornton, as evidence that the reasons

    provided by Dr. Thornton for the pay disparity were

    pretextual.  They further assert that there was insufficient

    evidence that Dr. Thornton's stated reasons for his

    determinations of base salaries and annual salary increases

    were pretextual.  Specifically, they contend that a

    statistical analysis used to show pay differentials between

    males and females at the MSPCA could not support the verdict,

    and that Dr. Thornton's "stray remarks" were insufficient to

    expose as pretextual his purported method of establishing and

  raising salaries.  

        Defendants challenge the pay discrimination verdicts under

    both state and federal discrimination law.  To establish a

    prima facie case of sex discrimination based on salary

    disparity under the federal Equal Pay Act, a plaintiff must

    show that her employer was subject to the Act, and that she

    was paid less than her male counterparts who were performing

    work requiring substantially equal skill, effort, and

    responsibility under similar working conditions.  Defendants

    must then prove by a preponderance of the evidence that the

    pay disparity can be explained by a legitimate factor such as

    seniority or performance.  See Corning Glass Works v.

    Brennan, 417 U.S. 188, 195-96 (1974); Timmer v. Michigan

    Dep't of Commerce, 104 F.3d 833, 843 (6th Cir. 1997).  Thus,

    in cases brought under the Equal Pay Act, the plaintiff need

    not show that the defendant was motivated by a discriminatory

    animus, as required in cases governed by the McDonnell-

    Burdine burden shifting framework.

        Under Massachusetts law, after a plaintiff presents her prima

    facie case, the requirements of which are the same as under

    federal law, see, e.g., Petsch-Schmid v. Boston Edison Co.,

    914 F. Supp. 697, 706-07 (D. Mass. 1996), there is a

    rebuttable presumption of intentional discrimination, seeBlare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass.

    437, 441 (1995). The defendant then has the burden of

    producing evidence of a legitimate, non-discriminatory reason

    for the pay disparity.  See id. at 441-42.  After the

    defendant has satisfied this burden, the presumption of

    intentional discrimination disappears, see id. at 442, and

    plaintiff assumes the burden of proving, by a preponderance

    of the evidence, that the defendant's stated reasons for the

  pay disparity were not the real reasons, see id. at 444-45.  

        We review de novo a trial court's decision to deny or to

    grant a defendant's motion for judgment as a matter of law. 

    See Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429,

    436 (1st Cir. 1997).  The standard of review for motions for

    judgment as a matter of law requires us to view the evidence

    "in the light most favorable to the nonmoving party, drawing

    all reasonable inferences in its favor."  Id.  We will not

    set aside a jury verdict as a matter of law unless there was

    only one conclusion the jury could have reached.  See Conwayv. Electro Switch Corp., 825 F.2d 593, 598 (1st Cir. 1987).

        1.  Prima Facie Case

        We agree with the district court that a reasonable jury could

    have found that Dr. McMillan had satisfied her burden of

    establishing a prima facie case of pay discrimination. 

    Contrary to defendants' assertion that plaintiff failed to

    offer evidence comparing the skill, effort, and

    responsibilities of her position as radiology department head

    with that of the other department heads, plaintiff proffered

    testimony that the radiology department is comparable with

    the other departments in all three respects.  In particular,

    testimony from Dr. Neil Harpster, Angell's cardiology

    department head from 1985 to 1988, and Dr. Allen Sisson, a

    staff veterinarian, provided evidence both that the

    procedures performed by Dr. McMillan in her job were among

    the most technically difficult procedures performed by any

    veterinarian at Angell and that the hours Dr. McMillan spent

    at her job were comparable to those of the other department

    heads.  In addition, the evidence showed that Dr. McMillan

    supervised more staff than did Dr. James Carpenter, the head

    of the pathology department, and that, in Kathleen Collins's

    analysis of department head jobs in the late 1980s, radiology

    was ranked equally with pathology and medicine in seven out

  of eight categories of responsibility.    Moreover, although

    the job descriptions that Dr. Gambardella formulated in 1989,

    without more, are not dispositive, the fact that the job

    requirements for all of the department heads were

    substantially the same is supportive of other evidence that

    the department head positions required substantially equal

    skill, effort, and responsibility.  Finally, a market survey

    published sometime in the first half of the 1980s and

    admitted into evidence demonstrated that the average salaries

    of radiologists were comparable to those of other

    specialists, indicating that radiology is not an

    intrinsically less demanding area of veterinary medicine. 

    The evidence was thus sufficient to support a finding that

    plaintiff had presented a prima facie case.

        2.  Pretext

      We turn next to the issue of pretext.    At trial, defendants

    presented several reasons to explain why Dr. McMillan was

    paid less than the other department heads.  Dr. Thornton

    testified that, as chief of staff, he set a department head's

    compensation by conducting an informal survey of what

    similarly situated veterinarians were being paid at other

    institutions and by negotiating compensation with the

    prospective department head.  He stated that, in general,

    radiologists commanded lower compensation than did

    veterinarians in other specialties.  He further testified

    that, to determine yearly percentage salary increases, he

    evaluated each department head's productivity and

    responsibilities.  Dr. Thornton stated that, in his view, the

    head of medicine, Dr. Michael Bernstein, had significantly

    more responsibilities, including the oversight of more staff,

    than did Dr. McMillan as head of radiology.  Dr. Thornton

    likewise claimed that the head of pathology, Dr. Carpenter,

    had more responsibilities than did Dr. McMillan because he

    supervised more staff, had a larger budget, and was

    nationally known, and because pathology, unlike radiology,

    incorporated several disciplines such as clinical and

    anatomic pathology.  The head of surgery, Dr. Gambardella at

    the time, merited greater compensation in Dr. Thornton's view

    because he was accountable for the budget and staff hiring

    and discipline for the department, supervised more staff, and

    had significant responsibility for patient care and client

    contact.

        Defendants make two primary arguments regarding the pretext

    prong of plaintiff's pay discrimination claim.  First, they

    argue that the jury's findings that Dr. Thornton's

    explanations were pretextual are tainted because the district

    court improperly admitted into evidence (1) Dr. Gambardella's

    preliminary suggestions in 1989 regarding salary increases as

    proof of Dr. Thornton's state of mind throughout the time

    period that he set Dr. McMillan's salary and yearly

    increases, and (2) evidence of sporadic distasteful remarks

    that Dr. Thornton made to women colleagues in 1979 and 1989. 

    Second, defendants assert, in essence, that, even taking into

    account all of the evidence actually admitted, plaintiff

    failed to prove, as required under Massachusetts law, that

    Dr. Thornton's stated procedures for setting salaries were

    pretextual.

        We review a district court's evidentiary rulings for abuse of

    discretion.  See United States v. Young, 105 F.2d 1, 8 (1st

    Cir. 1997).  A judge should not exclude relevant evidence,

    unless its probative value is substantially outweighed by the

    danger of unfair prejudice.  See Fed. R. Evid. 403.  "Only

    rarely -- and in extraordinarily compelling circumstances --

    will we, from the vista of a cold appellate record, reverse a

    district court's on-the-spot judgment concerning the relative

    weighing of probative value and unfair effect."  Freeman v.

    Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988).

        The court's admission of testimony about Dr. Gambardella's

    1989 suggestions regarding salary increases was not an abuse

    of its discretion.  One of Dr. Thornton's stated reasons for

    setting salaries at Angell as he did during the period from

    1985 to 1989 was that radiologists commanded lower salaries

    on the market than did veterinarians in other specialties. 

    The issue was whether this reason was pretextual.  The

    informal 1989 survey on which Dr. Gambardella based his

    suggestions showed relative parity among salaries of

    radiologists and other specialists.  Accordingly, Dr.

    Gambardella's suggestions were probative of whether radiology

    is intrinsically a less-valued veterinary specialty and,

    therefore, of whether Dr. Thornton's stated reason was, in

    fact, the real reason.  They are probative also of Dr.

    Thornton's credibility because they were based on what

    veterinarians in various specialties were worth in the

    market, the very factor on which Dr. Thornton purported to

    rely in setting salaries at Angell.  Further, although

    defendants contend that, regardless of the status of

    radiology at other institutions, the radiology department at

    Angell was not equal to Angell's other departments with

    regard to the responsibilities required of its head, we think

    that the district court did not abuse its discretion in

    determining that Dr. Gambardella's testimony regarding salary

    parity at other institutions was not unfairly prejudicial to

    defendants in their attempt to make this point.

        Whether the court's admission into evidence of the so-called

    stray remarks was proper presents a more difficult question. 

    There is, of course, no question that Dr. Thornton's

    motivation in paying Dr. McMillan less than the other

    department heads was a material issue in the case.  We note

    initially that stray remarks may properly constitute evidence

    of discriminatory intent for the jury to consider in

    combination with other evidence.  See Bevan v. Honeywell,

    Inc., 118 F.3d 603, 610 (8th Cir. 1997); O'Connor v. DePaul

    Univ., 123 F.3d 665, 671-72 (7th Cir. 1997) ("'[S]tray

    remarks' -- made by the decisionmaker but not related to the

    disputed employment action -- may be relevant to the question

    of pretext . . . .").  Yet even if the remarks are relevant

    for the pretext inquiry, their probativeness is circumscribed

    if they were made in a situation temporally remote from the

    date of the employment decision, see Armbruster v. Unisys

    Corp., 32 F.3d 768, 779 (3d Cir. 1994), or if they were not

    related to the employment decision in question or were made

    by nondecisionmakers, see, e.g., Ezold v. Wolf, Block, Schorr

    & Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992) ("Stray

    remarks by non-decisionmakers or by decisionmakers unrelated

    to the decision process are rarely given great weight . . .

    .").

        The allegations in this case are that, during his time at

    Angell, Dr. Thornton made various unprofessional remarks to

    women with whom he worked.  In 1979 or 1980, he talked to a

    lab technician about warming up a vial of medicine in her

    brassiere.  Approximately ten years later, he made a remark

    to the MSPCA's lobbyist about her cleavage and then later

    asked whether, to stop bad publicity about the MSPCA by a

    particular reporter, she had slept with the reporter. 

    Arguably, at least, these remarks may have been relevant and

    probative as to Dr. Thornton's motivation in setting the

    salaries of male and female department heads, in the sense

    that they evince a derogatory attitude toward women.

        However, not only did the remarks not involve the employment

    decision at issue, they did not involve employment at all. 

    Further, at least one of the remarks was made several years

    before any dispute arose over the pay disparity between Dr.

    McMillan and other department heads.  Such factors heighten

    the remoteness of the remarks, arguably to the point at which

    they are no more probative than they are prejudicial. 

    Nonetheless, the question we must address in determining

    admissibility is not whether we agree with the district court

    but, rather, whether the district court abused its

    discretion.  See Espeaignnette v. Gene Tierney Co., Inc., 43

    F.3d 1, 8 (1st Cir. 1994).  We think that it did not. 

    Although the comments were unrelated to Dr. McMillan's

    situation, and although the remarks may, in the end, have

    fallen on the other side of the imprecise nexus/no-nexus

    boundary, the court's determination to admit the remarks for

    the jury to consider with the other evidence was not so one-

  sided such that it did not act within its discretion.  

        Defendants contend in addition that the district court erred

    by giving the jury an improper instruction on the relevance

  of Dr. Thornton's remarks.    They assert that the court both

    analyzed and added to the evidence by equating Dr. Thornton's

    remarks with his attitude about the value of women when no

    evidentiary foundation supplied the nexus.  Further, they

    argue that the instruction misled the jury to believe that

    stray remarks alone were sufficient evidence of pretext.

        Defendants' objections to the jury instructions were not

    clearly articulated at trial and, therefore, not properly

  preserved.    In such a situation, we review only for error

    resulting in a "clear miscarriage of justice."  Transnational

    Corp. v. Rodio & Ursillo, Ltd., 920 F.2d 1066, 1069 (1st Cir.

    1990).

        In reviewing jury instructions such as these, we focus

    principally on "whether they tended to confuse or mislead the

    jury on the controlling issues."  Service Merchandise Co.,

    Inc. v. Boyd Corp., 722 F.2d 945, 950 (1st Cir. 1983).  In

    this instance, we discern no problems with the judge's stray

    remarks instructions.  First, contrary to defendants'

    suggestion, federal judges may comment on the evidence.  SeeLeshore v. County of Worcester, 945 F.2d 471, 474 (1st Cir.

    1991).  Second, in this case the judge merely made explicit

    what the jury might infer if it chose to credit the stray

    remarks.  This may be, as defendants assert, "connect[ing]

    the dots," but it is not a suggestion that a particular

    conclusion must be reached.  Moreover, the court made clear

    to the jury that it was equally plausible to regard the

    remarks as "random and completely out of character," and thus

    to infer nothing at all about them.  Likewise, the

    instructions in no way misled the jury to believe that the

    stray remarks might, alone, be sufficient to prove that

    defendants' stated reasons for paying Dr. McMillan less were

    mere pretext.  That the jury "might decide that a given

    remark is evidence of a discriminatory mindset" seems to us

    to be nothing other than a restatement of why such evidence

    is presented to the jury in the first place; it implies

    nothing about how much or how little of such evidence is

    sufficient for the jury to find in the plaintiff's favor.  In

    any event, the instructions did not result in a "clear

    miscarriage of justice."

        As to the sufficiency of the evidence of pretext, defendants

    attack the analysis of plaintiff's statistical expert, Dr.

    Arlene Ash.  They argue that the analysis cannot support the

    jury verdict because it did not incorporate variables that

    Dr. Thornton argued he applied when he set initial salaries

    and determined annual incremental increases.  They also

    contend that it was based on a legally insufficient sample

    size.

        We turn first to the argument that Dr. Ash's analysis ignored

    important factors.  Defendants assert that Dr. Ash's model

    should have included such variables as market factors,

    negotiations, veterinary experience, performance evaluations,

    productivity, and veterinarians' overall contribution to the

    hospital.  As a preliminary matter we note that, although a

    failure to include particular variables in a regression

    analysis may diminish the probativeness of the analysis, "it

    can hardly be said, absent some other infirmity, that an

    analysis which accounts for the major factors . . . 'must be

    considered unacceptable as evidence of discrimination.'"  SeeBazemore v. Friday, 478 U.S. 385, 400 (1986).  Dr. Ash

    incorporated into the analysis such legitimate variables as

    veterinarians' seniority at Angell, department head status,

    board-approved specialization, area of specialization, and

    departmental budget size.  Although the models she developed

    may not have included every relevant variable, her testimony

    shows solid reasoning in her determinations to exclude

    certain variables that the defendants argued should have been

    included.  We therefore reject this argument.

        Defendants further assert that Dr. Ash's analysis was

    effectively based on an insufficient sample size because Dr.

    Ash used factors which could apply only to department heads. 

    This objection is opaque and unpersuasive.  Dr. Ash's choice

    of sample, which was the approximately forty-six

    veterinarians who worked at Angell from 1981 to 1991, was not

    fatally deficient.  The analysis made a distinction between

    those veterinarians who were department heads and those who

    were not.  Only one variable -- budget size -- was specific

    to department head status, and it was not applied to the

    veterinarians who were not department heads.

        Defendants continue, however, arguing that statistical

    evidence "should rarely be accorded any weight" in disparate

    treatment cases.  We agree that in a disparate treatment

    case, such as this one, the necessary focus on the treatment

    of a particular individual appears incongruous with an

    analysis that necessarily involves numerous individuals and

    that, therefore, is intuitively more probative in the

    disparate impact context.  See LeBlanc v. Great Am. Ins. Co.,

    6 F.3d 836, 848 (1st Cir. 1993); Cumpiano v. Banco Santander

    P.R., 902 F.2d 148, 156 (1st Cir. 1990).  Nonetheless, such

    analyses are admissible even in disparate treatment cases

    unless they are "so incomplete as to be inadmissible as

  irrelevant."    See Bazemore, 478 U.S. at 400 n.10.  Further,

    we have held that "[s]tatistical evidence is permissible on

    the issue of pretext in a disparate treatment case since

    'statistics as to . . . employment policy and practice may be

    helpful to a determination of whether [the employer's

    conduct] conformed to a general pattern of discrimination.'" 

    Freeman, 865 F.2d at 1342 (quoting McDonnell Douglas Corp. v.

    Green, 411 U.S. 792, 805 (1973)).  We agree with the court

    below that, in a case such as this, "the jury could have

    found a plausible connection between Dr. Thornton's treatment

    of women generally at Angell and his treatment of Dr.

    McMillan in particular."

        Leaving aside whether Dr. Ash's analysis was watertight in

    all respects, we think it important to note that Dr. Ash's

    testimony was focused, perceptive, and understandably

    compelling to the jury.  Reviewing the record, it is apparent

    to us that, whatever "infirmities" existed in her analysis,

    none was so substantive that no reasonable jury could have

    relied on it, along with the other evidence, in reaching a

    verdict.  Rather, if Dr. Ash's analysis omitted what

    defendants argue are important variables, or was deficient in

    other respects, and thereby did not reflect whether Dr.

    Thornton's salary decisions were based at least in part on

    gender, it was up to defendants to exploit and discredit the

    analysis during cross examination.  Furthermore, although the

    conflicting expert testimony they provided placed Dr. Ash's

    analysis into question, the jury was free to disregard that

    testimony and place credence in that of Dr. Ash.  Indeed, as

    the district court noted, although the defendants' expert,

    Dr. Herbert Weisberg, disputed Dr. Ash's finding of a pattern

    of discrimination, he admitted that her model had produced

  statistically significant results.  

        In arguing that plaintiff did not show evidence of pretext,

    Defendants' position seems to be that, aside from evidence of

    Dr. Thornton's stray remarks and Dr. Ash's statistical

    analysis, there remains no basis on which the jury might

    reasonably have found pretext under Massachusetts law and pay

    discrimination under the EPA.  But in addition to the

    statistical analysis, plaintiff offered other evidence,

    which, in combination with the statistical evidence, was

    sufficient to support a finding of pretext.  Although

    defendants posited that the radiology department was smaller

    than the other departments, plaintiff presented evidence

    that, in fact, cardiology was the smallest department, with

    only two employees under the supervision of the department

    head.  The record reveals that the issue of seniority

    provided an additional basis for a jury finding of pretext. 

    Dr. Thornton testified that both the number of years a

    veterinarian had been in practice and his or her seniority at

    Angell were factors he weighed in setting initial salaries

    for a particular position.  And, indeed, it appears from the

    evidence that he did consider seniority in setting the

    salaries of Dr. Gambardella when he became head of surgery

    and of Dr. Michael Aronsohn when he succeeded Dr. Gambardella

    in that position.  Dr. Thornton's testimony indicates,

    however, that he ignored seniority and years in practice in

    the case of Dr. McMillan, treating her as a new hire when she

  returned to Angell in 1985.    The testimony shows that, even

    though Dr. McMillan in 1985 had spent two and a half years as

    radiology department director (albeit part time) and five

    years at Angell in various capacities, Dr. Thornton did not

    consider that experience in setting her salary.  Rather, he

    testified that he based her salary on a survey that

    recommended $29,000 to $50,000 for the least experienced

    radiologists, and that, in fact, he paid her $35,000 simply

    because he could.  But $35,000 was essentially the same

    salary Dr. McMillan had been earning in 1983, before she

  spent a year away from Angell.    As for annual percentage

    increases of salaries, although Dr. Thornton testified that

    he based his decisions on subjective factors such as

    productivity, contribution to the hospital, and interaction

    with other employees, he also testified that he did not

    systematically quantify contributions and interaction and

    that he did not evaluate the radiology department on the

    basis of productivity.  Finally, testimony from Dr. Bernstein

    and Dr. Aronsohn placed into question Dr. Thornton's

    assertion that some department heads were so-called "strong

    department heads," and had more authority on that basis. 

    Thus, a reasonable jury could have found that Dr. Thornton's

    stated reason for his salary decisions was not true or, in

    other words, pretextual.

        Accordingly, because we think that there was sufficient

    properly admitted evidence for a jury to find that Dr.

    Thornton's stated reasons for the pay disparity were

    pretextual, we choose not to disturb the district court's

    denial of judgment as a matter of law with regard to the pay

    discrimination claims based on Mass. Gen. Laws ch. 151B and

  on the Equal Pay Act.  

    B.  Damages

        Defendants present a variety of arguments regarding

    calculation of damages, most of which need not detain us

    long.  At the outset, we note that we do not disturb a jury's

    award of damages unless it "exceed[s] any rational appraisal

    or estimate" of what the damages should be.  Kolb v.

    Goldring, Inc., 694 F.2d 869, 871 (1st Cir. 1982) (internal

    citation omitted).

        Defendants argue that Dr. McMillan's back pay damages award

    should be set aside or reduced because the award was

    excessive and unsupported by the evidence.  They contend that

    the jury's award of back pay based on an average of the

    salaries of the male department heads between 1985 and 1991

    has no legal basis.  We disagree.  As Dr. McMillan rightly

    points out, the cases defendants rely on to support their

    argument, Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 954

    (1st Cir. 1995) and E.E.O.C. v. Liggett & Myers, Inc., 690

    F.2d 1072, 1075 (4th Cir. 1982), are inapplicable in this

    situation, and, if anything, serve to support rather than to

    discredit the averaging method.  In Liggett & Myers, the

    court rejected a calculation of back pay based on the average

    salary in favor of a calculation based on the salary of the

    highest paid employee comparator.  See 690 F.2d at 1074. 

    Although Scarfo holds that back pay should be calculated by

    comparing the plaintiff's salary to that of "arguably

    equivalent" employees, it in no way indicates that averaging

    the salaries of two or more such employees is inappropriate. 

    See 54 F.3d at 954.  Here, averaging the salaries of the male

    department heads was a rational approach.  In fact, in this

    context, a more appropriate method has not been proposed.  We

    thus find that the method the jury apparently used to

    determine the amount of the back pay award was not

    inappropriate.

        Defendants next assert that Dr. McMillan is not entitled to

    recovery, as part of her back pay award, for "lost benefits"

    -- health insurance, life insurance, and retirement

    contributions -- because she did not prove that she had lost

    them.  Plaintiff testified that she had been told that such

    benefits constituted twenty-one percent of an employee's

    salary and that, in her capacity as department head, she

    budgeted twenty-one percent of her supervisees' salaries as

    benefits.  On this basis, the jury awarded Dr. McMillan an

    additional twenty-one percent of her back pay award to

    represent the value of the lost benefits.

        Lost benefits are recoverable only if the plaintiff has

    offered evidence of out-of-pocket expenses for the same

    benefits.  See Kossman v. Calumet County, 800 F.2d 697, 703-

    04 (7th Cir. 1986) (holding that, to recover damages

    representing benefits, a plaintiff must show that she

    actually incurred insurance or medical care expenses); Taylorv. Central Pa. Drug & Alcohol Servs. Corp., 890 F. Supp. 360,

    372 (M.D. Pa. 1995); Berndt v. Kaiser Aluminum & Chem. Sales,

    Inc., 604 F. Supp. 962, 965 (E.D. Pa. 1985).  In this case,

    even if the budgeted value of benefits corresponding to

    plaintiff's salary had been less than the budgeted value of

    benefits corresponding to the salaries of the other

    department heads, plaintiff presented no evidence that she

    incurred insurance expenses.  In addition, she presented no

    evidence that any employer-contributed retirement benefits

    were tied to the amount of her salary.  Further, that

    benefits may have amounted to twenty-one percent of her

    supervisees' salaries does not mean that benefits constituted

    an equal percentage of higher salaries.  Indeed, it would be

    logical to expect that employer insurance contributions at

    all salary levels were substantially the same and that,

    therefore, benefits were a considerably lower percentage of

    higher salaries.  Because there was no competent evidence

    from which a reasonable jury could conclude that Dr. McMillan

    suffered any loss in benefits as a result of her lower

    salary, Dr. McMillan's back pay award should be accordingly

    reduced by the amount of the lost benefits award.

        Defendants' third argument is that we should import the

    three-year cap on back pay liability under the EPA, see 29

    U.S.C.  255, to Dr. McMillan's state back pay award under

    chapter 151B.  This argument is without merit.  No court

    decisions impose such a cap under Massachusetts law, and

    defendants present no rationale as to why state law should be

    the same as federal law.  Further, Mass. Gen. Laws ch. 151B,

    as interpreted by the Supreme Judicial Court of Massachusetts

    ("SJC"), mandates "make-whole relief," which encompasses

    damages which are "the natural and probable consequences of

    the illegal conduct."  Conway v. Electro Switch Corp., 402

    Mass. 385, 388 (1988) (internal citation omitted).  Indeed,

    the SJC has declined to follow federal precedent in order to

    interpret chapter 151B more liberally than the federal courts

    have interpreted parallel federal law provisions.  See Lynn

    Teachers Union, Local 1037 v. Massachusetts Comm'n Against

    Discrimination, 406 Mass. 515, 521 n.7 (1990).  We thus

    decline to adopt defendants' suggestion.

        Fourth, defendants contend that Dr. McMillan's punitive

    damages award against the MSPCA on her pay discrimination

    claim should be set aside, or, alternatively, that a new

    trial should be granted on the issue.  They challenge the

    punitive damages award on the basis that it was unwarranted,

    excessive, and obtained as a result of irrelevant testimony

    about Dr. Gambardella's termination of Dr. McMillan.  We

    agree with defendants that the award was unwarranted and

    excessive.

        In a lawsuit such as this one, in which state law provides

    the basis of decision, "the propriety of an award of punitive

    damages for the conduct in question, and the factors the jury

    may consider in determining their amount, are questions of

    state law."  Browning-Ferris Ind. v. Kelco Disposal, 492 U.S.

    257, 278 (1988).  In reviewing an award of punitive damages,

    our role is to determine whether the district court abused

    its discretion in determining that the jury's award of

    punitive damages was within the confines of state law and

    that defendants are not entitled to a new trial or

    remittitur.  See id. at 279.  Although juries have wide

    discretion in determining the amount of punitive damages, and

    the trial court has broad discretion to affirm the jury's

    award of damages, see Fishman v. Clancy, 763 F.2d 485, 489-90

    (1st Cir. 1985), appeals courts should reduce or set aside

    awards that are "grossly excessive" or "shocking to the

    conscience," id. at 489 (citing LaForest v. Autoridad de Las

    Fuentes Fluviales De P.R., 536 F.2d 443, 447 (1st Cir.

    1976)).

        The jury in this case assessed punitive damages under chapter

    151B against the MSPCA in the amount of $135,662.50 and

    against Dr. Thornton in the amount of $171,250.  Although the

    statute authorizes punitive damages, see Mass. Gen. Laws ch.

    151B,  9, it does not specify when they should be awarded. 

    However, other punitive damages provisions in Massachusetts

    law provide that such damages shall apply only on a finding

    that defendants' conduct was wilful, wanton, or reckless,

    see, e.g., Mass. Gen. Laws ch. 229,  2, and the SJC has

    further refined the criteria, holding that punitive damages

    are warranted "where a defendant's conduct warrants

    condemnation and deterrence," Bain v. City of Springfield,

    424 Mass. 758, 767 (1997).

        Dr. McMillan contends that, because the jury found

    intentional discrimination, she was eligible for an award of

    punitive damages if the jury so decided in its discretion. 

    We observe, however, that nowhere does Massachusetts law

    state that a finding of intentional discrimination

    necessarily justifies an award of punitive damages.  This

    accords with the logic that, even in situations involving

    intentional misconduct, compensatory damages may provide

    sufficient punishment and deterrence.  See Smith v. Wade, 461

    U.S. 30, 52 (1983); see also Rowlett v. Anheuser-Busch, Inc.,

    832 F.2d 194, 205 (1st Cir. 1987) (holding that, even though

    a jurisdiction may authorize punitive damages in cases

    requiring proof of intentional wrongdoing, "[t]hat does not

    mean that punitive damages are appropriate in every [such]

    case").

        The district court's jury instructions on punitive damages

    were that the jury could award punitive damages if it found

    defendants' conduct to have been "egregious and beyond the

    pale of tolerable," and that such damages are "intended to

    punish the defendants as a warning, both to them and other

    like-minded individuals, that society will not tolerate

    grievous discriminatory behavior."  The district judge

    further stated that "[a]ny sum you award as punitive damages

    should be commensurate with your own conscience, the

    outrageousness of the conduct that you intend to punish, and

    the character of the MSPCA as both an employer and as a

    nonprofit enterprise."  As these instructions imply, above

    the inquiry for finding intent, the jury had to conduct a

    second inquiry to determine whether defendants' intentional

    conduct was egregious enough for an award of punitive

    damages.  Cf. Smith, 461 U.S. at 52 (observing that whether

    punitive damages are appropriate turns on whether the

    tortfeasor's conduct "is of the sort that calls for

    deterrence and punishment over and above that provided by

    compensatory awards").  It follows, then, that just as we may

    review the record to determine whether a reasonable jury

    could have found that the defendants intentionally

    discriminated against Dr. McMillan, we may also review the

    record to determine whether a reasonable jury could have

    found defendants' conduct sufficiently worthy of condemnation

    and deterrence to justify exemplary damages.

        Although we affirm the jury's finding of discrimination, we

    cannot say, on the basis of the record before us, that Dr.

    Thornton's and the MSPCA's intentional misconduct calls for

    punishment and deterrence beyond that secured by the

    compensatory award.  Determining what conduct rises to the

    level at which an award of punitive damages is appropriate is

    a difficult task, but the evidence shows that the actions at

    issue in this case do not.  We therefore hold that the

    district court abused its discretion in upholding the award

    of punitive damages, and that the award of punitive damages

    in this case constitutes a grossly excessive award of damages

  that shocks the conscience.  

        Fifth, defendants argue that the MSPCA's liability is limited

    to $20,000 by a damages cap for charitable organizations

    under the Massachusetts charitable immunity law, which

    provides that liability for any "cause of action based on

    tort brought against a [charitable] corporation" shall not

    exceed $20,000 exclusive of interest and costs.  See Mass.

    Gen. Laws ch. 231,  85K.  Although this statute applies to

    negligent, reckless, and intentional torts in the employment

    context, see St. Clair v. Trustees of Boston Univ., 25 Mass.

    App. Ct. 662, 665-66 (1988), it has been unclear whether a

    claim under chapter 151B is a "cause of action based on tort"

    and thus subject to the $20,000 limitation.  We conclude that

    it is not.

        Defendants and plaintiff engage in extensive exercises of

    interpretation to suggest the relevance of a variety of cases

    to this issue.  Ultimately, we agree with Dr. McMillan that

    Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 27

    (1997), provides the most guidance.  In that case, the SJC

    held that the chapter 231, section 85K damages limitation

    does not apply to damages awarded under Mass. Gen. Laws ch.

    93A, the Massachusetts Consumer Protection Statute, on the

    basis that chapter 93A "creates an independent statutory

    basis of liability" and "forbid[s] conduct not previously

    unlawful under the common law of contract and tort or under

    any prior statute," id. (internal citation omitted).  Like

    chapter 93A, chapter 151B creates rights that did not exist

    under the common law, see, e.g., Melley v. Gillette Corp., 19

    Mass. App. Ct. 511, 512-13 (1985), aff'd, 397 Mass. 1004

    (1986); the causes of action to which it gives rise thus

    cannot properly be called causes of action in tort. 

    Accordingly, we hold that the damages award to Dr. McMillan

    pursuant to chapter 151B is not subject to the constraints of

    chapter 231.

        Defendants next contend that the district court misapplied

    the relevant legal standard when it awarded attorney's fees

    because it did not award the appropriate hourly rates for the

    different types of services performed and instead allowed Dr.

    McMillan's counsel to recover her standard hourly rate ($285

    per hour) for performing tasks appropriate to either a less

    experienced lawyer or a secretary or paralegal.  We agree.

        We have established that "clerical or secretarial tasks ought

    not to be billed at lawyers' rates, even if a lawyer performs

    them."  Lipsett v. Blanco, 975 F.2d 934, 940 (1st Cir. 1992). 

    Thus, "[t]ime spent on clerical or secretarial tasks by

    attorneys should be compensated at a rate commensurate with

    the nature of the tasks."  Massachusetts Dep't of Pub. Healthv. School Comm. of Tewksbury, 841 F. Supp. 449, 460 (D. Mass.

    1993); see Deary v. City of Gloucester, 789 F. Supp. 61, 66

    (D. Mass. 1992), aff'd, 9 F.3d 191 (1st Cir. 1993).  We think

    that it was an abuse of discretion to award the same rate for

    all tasks performed by Dr. McMillan's counsel, without regard

    to the nature of the tasks.  Accordingly, we remand this

    issue in order that the court may determine those tasks which

    could have been adequately performed by a less-experienced

    lawyer or by a secretary or paralegal.  The compensation for

    tasks so designated should be reduced to an appropriate

    level.

        Finally, defendants argue that the trial court erred by

    computing interest on the back pay award from the date on

    which the cause of action accrued, rather than from the date

    plaintiff filed her complaint.  This argument has no merit. 

    As the district court stated, "the purpose of interest is to

    insure that the present value of an award fully compensates a

    plaintiff for her losses."  Moreover, the SJC has held that

    an award of interest may be used to make an aggrieved party

    whole in chapter 151B actions.  See Conway, 402 Mass. at 390

    n.7.  Here, an award of interest from the date Dr. McMillan

    was paid less than her counterparts comports with these

    standards.

    C.  Cross-Appeal

        Plaintiff cross-appeals from the district court's grant of

    judgment as a matter of law in favor of defendants setting

    aside the jury's finding that Dr. Gambardella had tortiously

    interfered with Dr. McMillan's employment relationship with

    the MSPCA.  She argues that she presented ample evidence

    during the trial to show that Dr. Gambardella's actions

    leading up to and including her termination were based on "an

    improper motive, active animosity and spite."  We do not

    agree.

        Viewing the evidence in a light most favorable to the

    plaintiff, see Morrison, 108 F.3d at 436, we conclude that

    the evidence did not permit a reasonable jury to find for the

    plaintiff.  Under Massachusetts law, to make out the tort of

    intentional interference with a contractual relationship, a

    plaintiff must present evidence of "actual malice" or a

    "spiteful, malignant purpose, unrelated to the legitimate

    corporate interest."  Shea v. Emmanuel College, 425 Mass.

    761, 764 (1997) (quoting Wright v. Shriners Hosp. for

    Crippled Children, et al., 412 Mass. 469, 476 (1992)).  In

    addition, "[w]hen an employer or supervisor is acting within

    the scope of his employment responsibilities, the hiring and

    firing decisions are privileged unless he acted with

    malevolence."  Walker v. Waltham Hous. Auth., 44 F.3d 1042,

    1049 n.1 (1st Cir. 1995).

        Dr. McMillan presented evidence that Dr. Gambardella

    questioned her decisions and actions on various occasions,

    that he had her replaced as the head of a hospital committee,

    that he did not reprimand another doctor who made a derisive

    comment to her during a staff meeting, and that he terminated

    her without notice, had her summoned while she was involved

    in a complicated radiological procedure, and then barred her

    from the hospital grounds.  To support her claim of tortious

    interference, Dr. McMillan points to O'Brien v. New England

    Tel. & Tel. Co., 422 Mass. 686, 687 (1996), in which the SJC

    held reasonable a jury's finding that an employer tortiously

    interfered with an employment relationship when he

    incessantly harassed employee, called her names in front of

    coworkers, and actively sought to make her cry.  The facts of

    O'Brien are, however, much more egregious than those in this

    case.  Insensitive though Dr. Gambardella's actions may have

    been, they did not demonstrate that type of ill will that the

    employer's actions in O'Brien did.  We think that the

    district court properly concluded that these actions and

    statements did not demonstrate "anything more than a

    personality conflict with Dr. McMillan."  For the most part,

    Dr. Gambardella's actions were properly within the scope of

    his duties as chief of staff at Angell, and, in any event,

    they failed to evince malevolent intent.  No reasonable jury

    could have concluded otherwise.

        Dr. McMillan argues next that the district court erred by

    granting the MSPCA, Dr. Thornton, and Dr. Gambardella summary

    judgment as to her claim that her termination was in

    retaliation for her filing of an administrative complaint of

    sex discrimination in 1989.  She asserts that the district

    court misapplied the law in ruling that she had failed to

    establish a causal connection between the filing and her

    termination because too much time had lapsed between the two

    events.  She also argues that the court improperly viewed the

    facts from the defendants' perspective.

        We review the district court's grant of summary judgment to

    defendants de novo.  See Associated Fisheries of Me., Inc. v.

    Daley, 127 F.3d 104, 109 (1st Cir. 1997).  Further, to

    determine whether the summary judgment record is sufficient

    to support a finding that the employment action was

    retaliatory, we review only those facts that were available

    at the summary judgment stage, construing all facts and

    inferences therefrom in favor of the plaintiff.  See Aybar v.

    Crispin-Reyes, 118 F.3d 10, 13 (1st Cir. 1997).

        To succeed on a retaliation claim under both state and

    federal law, when, as here, there is no direct evidence of

    retaliatory animus, a plaintiff must both establish a prima

    facie case and prove that the defendants' legitimate business

    reasons for terminating the plaintiff were pretextual.  SeeFennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st

    Cir. 1996) (discussing Title VII's analytical framework);

    Lewis v. Gillette, Co., 22 F.3d 22, 24-25 (1st Cir. 1994)

    (observing that Massachusetts retaliation law parallels

    federal law).  Specifically, to establish a prima facie case

    of retaliation, a plaintiff must show that (1) she engaged in

    protected conduct under federal or Massachusetts law; (2) she

    suffered an adverse employment action; and (3) a causal

    connection existed between the protected conduct and the

    adverse action.  See Fennell, 83 F.3d at 535.  Once the

    plaintiff has made a prima facie showing, the burden of

    production shifts to the defendant to articulate a

    legitimate, non-retaliatory reason for its employment

    decision.  See id.  If the defendant does so, the plaintiff

    must show that the defendant's proffered reason was not, in

    fact, the real reason for the decision and that the decision

    was the result of the defendant's retaliatory animus.  Seeid.

        We conclude that Dr. McMillan did not establish a prima facie

    case because she presented no evidence of a causal link

    between her termination and the filing of her complaint.  The

    strongest argument Dr. McMillan makes in this regard is that

    Dr. Gambardella urged her not to file an MCAD complaint,

    stating that her doing so would make their relationship

    difficult.  But, in light of undisputed facts in the summary

    judgment record, this does not suggest a causal connection

    between Dr. McMillan's filing of the discrimination claim, on

    one hand, and the actual deterioration and eventual

    termination of the employment relationship, on the other. 

    The MSPCA and Dr. Gambardella asserted that Dr. McMillan had

    had an acrimonious relationship with other department heads

    and staff veterinarians at Angell, that she refused to treat

    birds after Angell refused to purchase her bird practice or

    pay her separately for the time she spent with avian

    patients, and that Dr. Gambardella received complaints from

    staff members about Dr. McMillan's attitude.  Indeed, Dr.

    Gambardella stated that, by late 1991, his relationship with

    Dr. McMillan had deteriorated to the extent that he told Dr.

    Thornton that he would himself resign if Dr. McMillan were

    not terminated.

        In addition, we agree with the district court that, even if

    Dr. McMillan had established a prima facie case, she did not

    present material facts that would permit a reasonable jury to

    find that Dr. Gambardella's explanation for her firing was

    pretextual and influenced instead by a retaliatory motive. 

    Although plaintiff presented evidence that she continued to

    work hard and to maintain a good relationship with much of

    the veterinary staff, she simply did not proffer evidence to

    refute defendants' showing that the veterinary staff

    complained to Dr. Gambardella about her performance and

    demeanor.  In light of this undisputed evidence, even if Dr.

    Gambardella may have exercised arguably poor business

    judgment in terminating her, and in doing so in an abrupt,

    clumsy, and unfeeling manner, it would be unreasonable on the

    evidence for a factfinder to conclude that his explanation

    for the termination was, in fact, not the true reason.  We

    therefore decline to order a new trial on this issue.

        Third, Dr. McMillan argues that the district court improperly

    granted the MSPCA summary judgment on her claim that the

    MSPCA's failure to comply with the progressive discipline

    policy outlined in its Rules and Regulations Memorandum

    constituted a breach of contract because the policy was a

    contract governing her employment.  She contends that the

    court improperly applied in a "wooden" fashion factors set

    forth in Jackson v. Action for Boston Community Dev., 403

    Mass. 8, 14-15 (1988), for determining whether a personnel

    manual's policy guidelines constitute a binding employment

    agreement.  For support, she relies on O'Brien, 422 Mass. at

    691-93, in which the SJC held that the terms of an employees'

    manual become part of an implied employment contract if the

    parties so agree, even if the  terms of the manual have not

    been negotiated, and even if, in a continuing employment

    relationship, an employee only reasonably believed that the

    employer "was presenting the manual as a statement of the

    conditions under which employment would continue."  Id. at

    693.

          We agree with the district court's reasoning on this issue

    and its observation that, although personnel manuals may

    sometimes constitute an employment agreement, see Jackson,

    403 Mass. at 13, the facts Dr. McMillan alleged do not

    support such an inference.  As the district court observed,

    "Dr. McMillan does not claim to have bargained for any of the

    terms of the manual, to have signed the manual, or to have

    executed any other employment agreement with the MSPCA. 

    Moreover, the manual described itself as a disciplinary

    guideline that 'is not all inclusive.'"  McMillan v. MSPCA,

    880 F. Supp. 900, 910 (D. Mass. 1995).  Contrary to Dr.

    McMillan's assertion, the court's analysis was not an

    application of inflexible prerequisites to finding an

    employment contract.  Rather, the court's analysis employs

    the factors appropriately, as mere guidelines in the

    determination.  See O'Brien, 422 Mass. at 692.  We do the

    same.  In addition to the factors highlighted by the district

    court, we note additionally that there is no evidence that

    Dr. McMillan reasonably expected that the MSPCA would follow

    the procedures with regard to her conduct or that of other

    supervisory veterinarians at Angell.

        Dr. McMillan's next argument is that she should be granted a

    new trial on her claim for emotional distress damages.  Dr.

    McMillan withdrew that claim after the district court adopted

    a magistrate's ruling ordering the disclosure of records of

    Dr. McMillan's therapist, which defendants had requested

    during discovery.  Dr. McMillan argues that we must review

    this matter de novo, in light of Jaffee v. Redmond, 518 U.S.

    1, 116 S. Ct. 1923 (1996), in which the Supreme Court

    recognized a federal privilege against the compelled

    disclosure of counseling records.  In the alternative, she

    argues that the district court erred as a matter of law and

    abused its discretion in its determination of the privilege

    issue.

        We need not resolve these issues, however, because, as

    defendants rightly point out, Dr. McMillan's withdrawal of

    her claim for emotional distress damages constituted a waiver

    of the claim.  This rule holds regardless whether new law has

    emerged which potentially may bolster a party's argument.

        Finally, Dr. McMillan argues that the district court abused

    its discretion by determining that attorney's fees

    representing work on Dr. McMillan's contract and emotional

    distress claims were noncompensable and, accordingly, by

    reducing the attorney's fee award by twenty percent.  She

    argues that the court was wrong in concluding that the

    contract claims were severable and not connected to the

    discrimination claims and thus not compensable.  Further, she

    contends that the claims together represent no more than

    three percent of the total time documented.

        As the district court correctly observed, fee awards are

    appropriate only for successful claims; unsuccessful claims

    warrant a fee award only if they are connected to the

    successful ones.  Krewson v. City of Quincy, 74 F.3d 15, 19

    (1st Cir. 1996).  Having determined that Dr. McMillan's

    unsuccessful emotional distress and contract claims were not

    connected with her successful claims, the court thought

    appropriate "some apportionment between successful and

    unsuccessful claims," and correspondingly reduced the award

    by twenty percent.

        "As a general rule, a fee-awarding court that makes a

    substantial reduction in either documented time or

    authenticated rates should offer reasonably explicit

    findings, for the court, in such circumstances, 'has a burden

    to spell out the whys and wherefores.'"  Brewster v. Dukakis,

    3 F.3d 488, 493 (1st Cir. 1993) (quoting United States v.

    Metropolitan Dist. Comm'n, 847 F.2d 12, 18 (1st Cir. 1988)). 

    Although the district court did not explicitly state why it

    regarded the contract claims as unconnected to the

    discrimination claims, we do not think the court abused its

    discretion in making that determination and in denying fees

  for the time spent on that claim,   or on the emotional

    distress claim, which is even more clearly unrelated to Dr.

    McMillan's successful claims.

        It is not so easily discernable, however, that twenty percent

    was a proper reduction.  Although the district court has

    considerable discretion in determining fee awards, and

    although, as defendants point out, the fee petition is not

    amenable to easy analysis, our review of the fee petition

    does not convince us that the time plaintiff's counsel spent

    on the contract and emotional distress issues could

    reasonably be regarded as twenty percent of the total time

  documented.    In such a situation, the district court

    should, at a very minimum, make clear why it chose to reduce

    the fee award by such a substantial percentage.  Because the

    court in this case provided no elaboration for the reduction,

    we remand this issue to the district court for

  reconsideration.  

                              III.

                           CONCLUSION

      We affirm the district court's denial of judgment as a matter

  of law on plaintiff's pay discrimination claims and, in part,

  the jury's award of compensatory damages, and we vacate the

  jury's award of punitive damages.  In addition, we remand for

  a recalculation of the damages in light of our determination

  that an amount representing lost benefits should not have

     been included in the award, and for recalculation of

  attorney's fees with regard to hourly compensation rates and

  the fee reduction for time spent on plaintiff's contract and

                  emotional distress claims.

                             SO ORDERED.