UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 96-1618 No. 96-1663
LORI-ANN MOLLOY,
Plaintiff, Appellee,
v.
WESLEY BLANCHARD, ETC., ET AL.,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, U.S. District Judge]
Before
Cyr, Circuit Judge,
Campbell, Senior Circuit Judge,
and Stahl, Circuit Judge.
Kathleen M. Powers, with whom Marc DeSisto and DeSisto Law
Offices were on brief for appellants.
Ina P. Schiff for appellee.
June 10, 1997
CAMPBELL, Senior Circuit Judge. The former Chief
of Police and the City of Warwick, Rhode Island, appeal from
a judgment against them in the district court entered on the
jury's verdict in favor of a Warwick police officer.1
Plaintiff had alleged, inter alia, that she was treated
disparately because of her gender and that her constitutional
right to procedural due process was violated when the Chief
suspended her without holding a hearing as required by state
law. We affirm.
I.
We state the facts in the light most favorable to
the verdict. See Ferragamo v. Chubb Life Ins. Co. of Am., 94
F.3d 26, 27 n.1 (1st Cir. 1996).
Plaintiff, Lori Ann Molloy, a police officer for
the City of Warwick, Rhode Island, was suspended by Chief of
Police Wesley Blanchard, on June 3, 1994. The suspension
resulted from her ostensible refusal to cooperate with the
state police in their investigation of a triple homicide
involving Robert Sabetta, a police officer from the Town of
Foster, Rhode Island.
Before Molloy joined the Warwick police department
in 1991, she and Sabetta were in the same class at the police
academy. After the police academy, Molloy had little contact
1. Cf. Molloy v. Blanchard, 907 F. Supp. 46 (D.R.I. 1995)
(granting in part and denying in part the defendants' motion for summary judgment).
-2- 2
with Sabetta until 1993. In February 1993, Molloy spent an
evening socializing with Sabetta and Paula Duffy, another
police academy classmate and a police officer in Cranston,
Rhode Island. During that evening, Sabetta showed Molloy and
Duffy his personal firearm, a semiautomatic with a laser
sight.
Molloy saw Sabetta again approximately two weeks
later. Duffy, with Sabetta in the car, drove to Molloy's
home to show Molloy her new Jeep. The three then went to a
nearby restaurant for pizza and beer. During the meal,
Sabetta complained about his suspension for improper use of
force. He commented that perhaps he should have killed, or
should kill, the people whose complaints had resulted in his
suspension.
On April 13, 1993, Sabetta shot and killed three
teenage boys and injured a fourth. Among the victims were
persons who had filed brutality complaints against him. The
injured victim identified Sabetta as the shooter. Molloy
learned about the murders and Sabetta's involvement during
her midnight to 8:00 a.m. shift on April 14, 1993. Molloy
told her sergeant about knowing Sabetta from having attended
the police academy with him.
Later that morning, Duffy contacted Molloy, worried
that Sabetta might come to Duffy's home. At Molloy's
suggestion, Duffy arranged to spend the night at the house of
-3- 3
her friend Suzanne Jardine, also a Cranston police officer.
Molloy stopped by Jardine's home after her duty shift. When
the Sabetta matter was broached, Duffy stated that talking
about the shootings upset her too much and that she did not
want to discuss them further. Molloy acceded to her request.
During their investigation, the Rhode Island state
police contacted Molloy in June 1993 to ask her some general
questions about Sabetta. Molloy did not volunteer that
Sabetta had said either he should have killed or should kill
the people who had filed a brutality complaint against him,
nor did she mention knowing that Sabetta owned a
semiautomatic with a laser sight. The murder weapon had been
Sabetta's service revolver, not a semiautomatic.
After the Sabetta murder trial began the following
summer, the state police received an anonymous letter
claiming that a Warwick police dispatcher and a Cranston
police officer possessed information relevant to Sabetta's
prosecution. This led the state police to interview Molloy
on June 2, 1994. At this interview Molloy revealed her two
meetings with Sabetta, his comments about the people who had
complained about his brutality, and his ownership of the
laser sighted semiautomatic.
Not satisfied with the information Molloy had
supplied, the state police asked her to report to their
barracks for a third interview the following morning. During
-4- 4
this session, Molloy told the state police about her visit
with Duffy after the triple homicide. The police pressed
Molloy for additional information, but Molloy denied having
any.
The state police called Chief Blanchard, told him
that Molloy was refusing to cooperate with them, and asked
him to come down to their barracks to speak with her. The
Chief prepared a letter of suspension and then drove to the
state police barracks with Deputy Chief Stephen Castiglioni
and Captain Thomas K. Wilson.
After he arrived at the state police barracks, the
Chief met with several investigators who accused Molloy of
conspiring with Duffy to withhold information about the
murders. The Chief then met with Molloy and, without asking
for her side of the story, advised her to cooperate with the
state police investigation. When she insisted she had told
the state police all she knew, the Chief handed her the
letter of suspension and told her she was suspended with pay
until the state police concluded their investigation into her
alleged conspiracy with Duffy. The Chief also barred her
from participating in training activities and from entering
the police headquarters building.
Molloy remained on suspension for nine and a half
weeks. While suspended she received her salary, but she lost
the opportunity to work extra shifts, to participate in
-5- 5
training sessions, and to work on special details, all
activities which would have provided additional pay. While
suspended, Molloy suffered emotional distress and damage to
her personal and professional reputations. On several
occasions during her suspension, Molloy was required while
testifying as a witness in connection with arrests she had
made before her suspension to explain in open court why she
had been suspended.
On June 9, 1994, approximately a week after her
suspension, Molloy, with the help of her attorney, requested
a hearing concerning her suspension pursuant to the Rhode
Island Law Enforcement Officers' Bill of Rights, R.I. Gen.
Laws 42-28.6-13(C) ("the Officers' Bill of Rights").2 The
2. Although it has since been amended, see 1995 R.I. Pub.
Laws ch. 19, 1, at the time of Molloy's suspension, R.I. Gen. Laws 42-28.6-13(C) stated:
Emergency suspension may be imposed by the chief or the highest ranking officer of the law enforcement agency, when it appears that such action is in the best interest of the public. Any emergency suspension of any law enforcement officer shall consist of the law enforcement officer being relieved of duty and he or she shall receive all ordinary pay and benefits as he or she would have if he or she were not suspended. Any law enforcement officer so suspended shall be entitled to a prompt hearing before a hearing committee upon his or her request. The time period for the hearing is not to exceed fourteen (14) days. If, after hearing, the hearing committee does suspend or dismiss the law enforcement officer, he or she shall not be entitled to his or her pay and benefits; however, if the enforcement officer is reinstated by a subsequent hearing, he or she shall be entitled to be reimbursed for all salary and benefits that have not been paid.
-6- 6
Chief had met with the City Solicitor, William Smith, the day
before. The Chief testified Smith had advised him that he
did not need to specify any charges against Molloy or afford
her a hearing so long as Molloy was receiving full pay and
benefits.3 The Chief did not charge Molloy, nor was he
willing to grant her the hearing required by the Officers'
Bill of Rights.
Molloy filed a mandamus action in the Rhode Island
Superior Court under R.I. Gen. Laws 42-28.6-14(2).4 The
Chief never answered Molloy's state court complaint. In
August 1994, the Chief reinstated her, reserving the right to
file disciplinary charges upon the completion of the state
police investigation. Her reinstatement rendered her state
court mandamus action moot. In September 1994, the Attorney
General informed the Chief that no criminal charges would be
filed against Molloy.
3. In contrast, Smith testified he told the Chief to put Molloy on "administrative leave status" and specifically advised him not to suspend Molloy under the emergency suspension provision of the Officers' Bill of Rights, R.I. Gen. Laws 42-28.6-13(C), because that provision did not apply to Molloy's case.
4. R.I. Gen. Laws 42-28.6-14(2) states:
Any law enforcement officer who is denied any right afforded by this subtitle may apply, either individually or through his or her certified or recognized employee organization, to the superior court where he or she resides or is regularly employed for any order directing the law enforcement agency to show cause why the right should not be afforded.
-7- 7
On September 30, 1994, Molloy filed an eight-count5
complaint against the City of Warwick, the Chief, Warwick's
Board of Public Safety, and Mayor Lincoln Chafee. Under 42
U.S.C. 1983,6 Molloy alleged she had been deprived of her
constitutional rights to equal protection, free speech, and
substantive and procedural due process. Under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.,
Molloy claimed disparate treatment because of her gender and
disparate impact because of policies having a disparate
negative impact on her as a woman. Under state law, Molloy
alleged discrimination and the negligent or intentional
infliction of emotional distress.
Before trial, the district court dismissed, on
grounds of qualified immunity, Molloy's claims for
substantive and procedural due process violations against
Mayor Chafee and her claim for a substantive due process
violation against the Chief. The trial then proceeded. At
5. The complaint actually states nine counts, though two are labeled "VIII." However, the first two counts are apparently identical.
6. 42 U.S.C. 1983 states, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
-8- 8
the close of all the evidence, the court granted judgment as
a matter of law for all the defendants on Molloy's disparate
impact and First Amendment claims. The court also granted
judgment as a matter of law for Molloy on her procedural due
process claim, submitting her gender discrimination claim to
the jury. The jury was also instructed to ascertain damages
on both claims.7
The jury determined that Molloy had been
discriminated against on the basis of her gender. It awarded
her $23,000 in damages on the discrimination claim as well as
for violation of procedural due process as earlier found by
the court. The district court denied Defendants' post-
verdict motions for judgment as a matter of law, for a new
trial, and to alter judgment. Defendants appealed.
II.
We turn first to Defendants' contention that the
district court committed error in granting judgment as a
matter of law against Defendants and in Plaintiff's favor on
the procedural due process claim. This is a close question.
Given, however, our affirmance, infra, of the jury's verdict
for Plaintiff on her Title VII claim for gender
discrimination, there is no practical need to address it;
however resolved, the outcome would not affect the damages
7. The remaining claims appear to have been dropped and, in any event, are not at issue in this appeal.
-9- 9
awarded to Plaintiff. The jury provided a single damages
award for both claims, and so long as Plaintiff is found
entitled to have prevailed on either of the two claims, the
award stands, with no alteration in the amount of damages
regardless of whether one or both claims are upheld. The
same conduct underlay both: the Chief's suspension of Molloy
while depriving her of the hearing called for by the
Officers' Bill of Rights. Her damages consisted in each
instance of her lost opportunity to earn extra income while
suspended (for special details, overtime, etc.) and her
emotional distress and loss of reputation caused by her
suspension. The special verdict form handed to the jury by
the court instructed the jury to award a single amount of
damages even if it found (as the jury reported it did)
liability and causation under both of Molloy's legal
theories.8 We also note that the district court's final
judgment, which we affirm, infra, does not mention the
underlying legal theories but only states a finding of
liability and the amount of damages.
Because the jury's damages award would be the same
under either or both liability theories, and because we find
there was sufficient evidence to support the jury's finding
8. Although liability under Molloy's procedural due process claim had been directed by the court, the causation determination under that theory was left to the jury, as were damages.
-10- 10
of gender discrimination, infra, we need make no
determination as to whether or not the court erred in
granting judgment to Plaintiff as a matter of law on her
constitutional claim of a violation of procedural due
process.9 Cf. Gulf Oil Co. v. Bernard, 452 U.S. 89, 99
(1981) ("[P]rior to reaching any constitutional questions,
federal courts must consider nonconstitutional grounds for
decision.").
Our analysis has the effect of mooting the district
court's holding as to the due process claim, leaving that
ruling without legal effect. Cf. Cardinal Chem. Co. v.
Morton Int'l, Inc., 508 U.S. 83, 93-95 (1993) (recognizing
that in patent infringement cases, a finding of non-
infringement prevents a court from reaching an affirmative
defense asserting the patent's invalidity because the
validity issue becomes "immaterial to the disposition of the
case," and that any determination of the patent's validity by
the district court in such a case should be vacated) (citing
Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241
(1939)).
9. For the same reasons, we also do not reach the City's claim that it is not liable for the Chief's actions under 1983. The City does not contest respondeat superior liability under Title VII. See Randle v. City of Aurora, 69
F.3d 441, 450 (10th Cir. 1995); Hamilton v. Rodgers, 791 F.2d
439, 444 (5th Cir. 1986); Scott v. City of Topeka Police &
Fire Civil Serv. Comm'n, 739 F.Supp. 1434, 1438 (D. Kan.
1990).
-11- 11
III.
We turn next to Defendants' assertion that there
was insufficient evidence to support the jury's verdict in
Plaintiff's favor on the sex discrimination claim. Title VII
makes it unlawful for an employer "to fail or refuse to hire
or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or national
origin." 42 U.S.C. 2000e-2(a)(1).
In a Title VII disparate treatment case, if, as is
often true, see Smith v. Stratus Computer, Inc., 40 F.3d 11,
15 (1st Cir. 1994), cert. denied, 115 S. Ct. 1958 (1995), the
plaintiff has no direct proof of deliberate discrimination,
"the plaintiff must make out a prima facie case of
discrimination, the employer must then come forward with some
non-discriminatory justification, and the plaintiff finally
is given the opportunity to convince the trier of fact that
the justification was pretextual and that the real reason was
discriminatory." Cuello-Suarez v. Puerto Rico Elec. Power
Auth., 988 F.2d 275, 278 (1st Cir. 1993).
For the prima facie case, a disparate impact
plaintiff must "identify and relate specific instances where
persons situated similarly 'in all relevant aspects' were
treated differently." Dartmouth Review v. Dartmouth College,
-12- 12
889 F.2d 13, 19 (1st Cir. 1989) (quoting Smith v. Monsanto
Chem. Co., 770 F.2d 719, 723 (8th Cir. 1985), cert. denied,
475 U.S. 1050 (1986)). "The test is whether a prudent
person, looking objectively at the incidents, would think
them roughly equivalent and the protagonists similarly
situated." Id. "Exact correlation is neither likely nor
necessary, but the cases must be fair congeners. In other
words, apples should be compared to apples." Id.
The defendants contend that Molloy failed to
establish a prima facie case by establishing that "similarly
situated" males received more lenient treatment in respect to
suspension. We disagree.
At trial, the Chief himself testified that in
approximately a dozen discipline cases involving Warwick
police officers who were male,10 the Chief had afforded the
officers the rights created by the Officers' Bill of Rights,
as he conspicuously would not do for Molloy, a woman.
Moreover, in a number of these cases he kept officers on
active duty after learning that they were suspected of highly
questionable behavior.
Scott Hornoff, for example, was the primary suspect
in the state police investigation of the 1989 murder of a
woman named Victoria Cushman. Although the Chief knew as of
10. The Chief also briefly referred to a situation involving a woman officer, but she was not identified, and the details of her case remain unclear.
-13- 13
October 1991 that Hornoff was the main suspect, he did not
suspend him as he later did Molloy but instead kept him on
active duty working at an administrative job. Hornoff was
not suspended until he was eventually indicted for murder by
a grand jury in December 1994. It was conceded, moreover,
that Hornoff's rights under the Law Enforcement Officers'
Bill of Rights were recognized.
Joseph Duquette, a senior Warwick police officer at
the time of the Cushman case, interfered with the state
police investigation of Hornoff. In 1993, Duquette issued a
memorandum in which he ordered the members of the Warwick
Major Crimes Unit not to discuss the Cushman investigation
with anyone from the state attorney general's office unless
such a discussion took place pursuant to a subpoena or with
the explicit permission of Duquette, then-Commander
Castiglioni or Chief Blanchard. Duquette was not disciplined
in any way for his interference with the state police
investigation until August of 1995, after Chief Blanchard had
been replaced by Chief DeFeo. While Appellants argue that
the Chief was unaware of Duquette's activity, we find
sufficient evidence in the record from which the jury could
have properly inferred knowledge.
We conclude that Molloy presented evidence
sufficient for the jury to have found that she had
-14- 14
established her prima facie case that "similarly situated"
males had received dissimilar treatment.
The defendants go on to argue that even if the
conduct of the disciplined male officers was sufficiently
similar in material respects to Molloy's to establish a prima
facie case, the weight of the evidence was insufficient to
support a finding "that the justification [offered by the
defendants] was pretextual and that the real reason was
discriminatory." Cuello-Suarez, 988 F.2d at 278.
Presented with the evidence of cases such as
Hornoff's and Duquette's in which male police officers who
had committed similar or more severe offenses than those
Molloy was accused of were either not disciplined or, if
disciplined, were first afforded their rights under the
Officers' Bill of Rights, the jury was entitled to infer that
the Chief's proffered explanation for his more harsh
treatment of Molloy the state police's advice that she was
refusing to cooperate with them and the ostensible advice
that the granting of rights was unnecessary where, although
suspended, she was still being paid was a pretext.
Essentially the same evidence also allowed a
reasonable jury to conclude that the plaintiff had carried
her burden of proving that the Chief had discriminated
against Molloy because of her gender in violation of Title
VII. See Udo v. Tomes, 54 F.3d 9, 13 (1st Cir. 1995)
-15- 15
(holding that a plaintiff may rely on the same evidence to
prove both pretext and discrimination). Molloy was suspended
without being offered the same rights granted to similarly
situated male officers. Moreover, the reasons supplied by
the Chief for his refusal to provide Molloy with a hearing
were so flimsy as to permit a finding of mendacity:
The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit
the trier of fact to infer the ultimate fact of intentional discrimination . . . .
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).
See also Woods v. Friction Materials, Inc., 30 F.3d 255, 260-
61 n.3 (1st Cir. 1994); LeBlanc v. Great Am. Ins. Co., 6 F.3d
836, 843 (1st Cir. 1993), cert. denied, 511 U.S. 1018 (1994).
The Chief was experienced in matters arising under the
Officers' Bill of Rights, yet he refused to grant Plaintiff
her rights even after, with the assistance of an attorney and
a union representative, she had requested a hearing. The
Chief said that he had refused to grant Molloy a hearing
because the City Solicitor had told him no hearing was
required. Yet the statutory language seems utterly clear
that a hearing was required in this case. See R.I. Gen. Laws
42-28.6-13(C) ("Any law enforcement officer so suspended
-16- 16
shall be entitled to a prompt hearing before a hearing
committee upon his or her request."). The Chief's outright
refusal was in marked contrast to his regular allowance of
these rights to male officers. We hold that the jury had
sufficient evidence from which to infer discriminatory
intent.
IV.
The defendants' remaining contentions are not
persuasive. First, they argue that the district court made
certain errors in admitting evidence at trial. Our review of
the record satisfies us that such errors, if any, were
harmless. See Lataille v. Ponte, 754 F.2d 33, 37 (1st Cir.
1985) ("Our standard for determining whether the admission of
such evidence is harmless error is whether we can say 'with
fair assurance . . . that the judgment was not substantially
swayed by the error . . . .'") (quoting United States v.
Pisari, 636 F.2d 855, 859 (1st Cir. 1981) (quoting Kotteakos
v. United States, 328 U.S. 750, 765 (1946))).
Defendants protest that there was insufficient
evidence to allow a reasonable jury to award $23,000 in
damages, pointing out that Molloy could not have lost more
than $5,000 in overtime, training, detail work and the like.
They acknowledge that the jury may have granted all or some
of the remaining damages to compensate for Molloy's emotional
distress, but insist that since there were other potential
-17- 17
causes of Molloy's distress, such as the state police
interrogation and her worries about possible criminal
prosecution, expert testimony was essential to establish what
portion of her distress came from her suspension. They cite
Andrade v. Jamestown Hous. Auth., 82 F.3d 1179, 1187-88 (1st
Cir. 1996), as holding that where there is more than one
possible cause of a plaintiff's emotional distress, expert
testimony is required to establish that it was the
defendant's conduct that caused the plaintiff's symptoms and
not some other factor.
The defendants misstate our holding in Andrade. In
that case, the plaintiff had a previous history of stomach
problems, headaches, and diarrhea. We held that medical
testimony was required for the plaintiff to prove that the
irritated bowels, diarrhea, tension headaches and
sleeplessness she experienced were the result of emotional
distress caused by the defendant and not merely a
continuation of her previous medical problems. In that case,
we sought to avoid putting juries in the position of
evaluating the effect of a preexisting medical condition
without the aid of expert medical testimony. We stated,
"[W]e are not establishing a bright-line rule that expert
testimony is always necessary to prove the causation prong of
[intentional infliction of emotional distress]. There may
very well be situations where causation is within the common
-18- 18
knowledge and experience of the layperson . . . ." Id. at
1188 n.5.
This is such a case. There is no contention that
Molloy's asserted anxiety, nervousness, nausea and
sleeplessness derived from a preexisting medical condition.
The sole issue was the role of Defendants' conduct in
producing those symptoms and the placing of a fair monetary
valuation on them relative to the circumstances of this case.
The jury heard and could evaluate her testimony describing
what effect the suspension had upon her as compared with
other events. It is unclear how an expert could have helped.
This is the kind of determination typically entrusted to
juries.
Besides emotional distress, Molloy also testified
that the defendants' actions caused her to suffer damage to
her personal and professional reputations. She stated that
her suspension, related as it was to Sabetta's murder trial,
received substantial publicity. Also, during her suspension
Molloy testified as a witness at several trials in connection
with arrests she had made previously. At these trials, she
had to admit in open court that she was then suspended and
was obliged to describe the circumstances surrounding her
suspension. The jury was entitled to compensate Molloy for
these additional elements of damage.
The judgment is affirmed. Costs to appellee.
-19- 19