UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 93-2287
ROBERT B. REICH, ETC.,
Plaintiff, Appellee,
v.
CAMBRIDGEPORT AIR SYSTEMS, INC.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Bailey Aldrich,* Senior U.S. Circuit Judge]
Before
Breyer,** Chief Judge,
Campbell, Senior Circuit Judge,
and Cyr, Circuit Judge.
Barry C. Klickstein with whom Herbert Abrams, Sandra J.
McLaughlin and Abrams, Roberts, Klickstein & Levy were on brief for
appellant. Edward D. Sieger, Senior Appellate Attorney, Thomas S.
Williamson, Jr., Solicitor of Labor, Allen H. Feldman, Associate
Solicitor for Special Appellate and Supreme Court Litigation, and Nathaniel I. Spiller, Counsel for Appellate Litigation, United States
Department of Labor, were on brief for appellee.
June 20, 1994
*Of the First Circuit, sitting by designation.
**Chief Judge Stephen Breyer heard oral argument in this matter, but did not participate in the drafting or the issuance of the panel's opinion. The remaining two panelists therefore issue this opinion pursuant to 28 U.S.C. 46(d).
CAMPBELL, Senior Circuit Judge. The Secretary of
Labor ("the Secretary") brought this retaliatory discharge
action in the United States District Court for the District
of Massachusetts pursuant to Section 11(c) of the
Occupational Safety and Health Act of 1970 ("the OSH Act"),
29 U.S.C. 660(c). The Secretary's complaint alleged that
defendant-appellant Cambridgeport Air Systems
("Cambridgeport") violated the OSH Act in June 1989 by
discharging two employees, Peter Richardson and Shawn Roche,
because they had complained about health and safety problems
at Cambridgeport's Salisbury, Massachusetts plant.
Richardson had been employed by the defendant as a welder;
Roche was a general shipper-trainee.
The claim was tried by the court over five days in
May 1993. In a written opinion, the district court found
that the defendant-appellant had discharged Richardson
because of his protected activities. The court awarded
Richardson back pay and then doubled this award, as the
Secretary had requested, to "cover additional damage plus
prejudgment interest." The total amount awarded to
Richardson was $104,968.
The court found that Roche was not discharged for
his own protected activity. Rather, the court found that he
was terminated because "he was a special friend of
Richardson's," that his discharge was "a house-cleaning
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proposition," and that he "would not have been discharged but
for his connection with Richardson." As with Richardson's
award, the court awarded Roche an amount equal to twice his
lost back pay, a total of $88,552.
Cambridgeport appeals, and we affirm.
I.
Cambridgeport does not appeal from the district
court's ruling that Richardson was terminated because of his
protected activities. Rather, Cambridgeport argues that the
district court erred in finding that Roche's termination was
retaliatory, and in calculating the back pay damages for both
Richardson and Roche. As both determinations depend on
findings of fact, we may set them aside only if "clearly
erroneous." Fed. R. Civ. P. 52. We are required to give
"due regard" to the "opportunity of the trial court to judge
the credibility of the witnesses." Id. Under this
deferential standard, we must accept a district court's
account of the evidence if it is "plausible in light of the
record viewed in its entirety . . . . Where there are two
permissible views of the evidence, the factfinder's choice
between them cannot be clearly erroneous." Anderson v.
Bessemer City, 470 U.S. 564, 574 (1985).
A.
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Cambridgeport contends that Roche was terminated
for valid work reasons, not in retaliation for his
association with Richardson. Roche admitted at trial that he
had made mistakes at work and had been reprimanded. Roche's
supervisors also testified that his work performance was
poor. Cambridgeport contends that the only evidence in
support of the court's explanation for Roche's discharge came
from Roche himself, whose testimony was not deemed credible
in other respects by the district court.1
It is true that the district court was unwilling to
credit Roche's testimony that he had joined Richardson in
complaining about safety and health matters. Still, there
was sufficient evidence to support the court's finding that
Roche was terminated because of his connection with
Richardson. There was evidence that Roche and Richardson
were particularly close friends and that management was aware
of this. Roche's supervisor had warned Roche not to raise
safety concerns. In addition, Roche's termination followed
less than a week after Richardson's, at a time when Roche,
according to his testimony, was sufficiently concerned about
his job security to bring a tape recorder to work. Moreover,
the court was unimpressed by Cambridgeport's asserted reasons
for Roche's discharge. Cambridgeport's witnesses, it said,
1. Cambridgeport concedes that the OSH Act would prohibit Roche's termination if in fact he was discharged because of his relationship with Richardson.
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had "greatly exaggerated" their accounts of Roche's problems
at work.
Given its adverse assessment of the credibility of
Cambridgeport's witnesses, and the close and visible
connection between Richardson and Roche, the district court
felt that the most likely explanation for Roche's discharge
was that Cambridgeport wanted to "get rid of the smaller fry,
and impress the other employees" not to associate with health
and safety activists. While not the only possible one, this
view of the evidence was "plausible in light of the record
viewed in its entirety." Anderson, 470 U.S. at 574.
Questions of witness credibility are particularly for the
trier to resolve. United States v. Olea, 987 F.2d 874, 876
(1st Cir. 1993). We cannot say the court clearly erred in
finding that Roche was discharged because of his connection
with Richardson.
B.
The parties stipulated that the period of back pay
at issue was from the June 1989 dates of discharge until
December 12, 1991. The district court calculated the damages
for both employees based on the assumption that, but for
their retaliatory discharges, they both would have retained
their jobs for this entire period. Cambridgeport argues that
this calculation was clearly erroneous and not supported by
the evidence. Cambridgeport insists that its work is
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cyclical, and that given Richardson's lack of general sheet
metal workers' skills and Roche's poor work history, both
employees would have been laid off long before December 1991.
Again, the district court's findings depended in
large part on its determination that Cambridgeport's
witnesses lacked credibility. The district court did not
believe the Cambridgeport witnesses' assertions that the work
for which Richardson had been hired "fell off," nor did it
believe that his work performance was unsatisfactory. In the
court's view, the defendant's reasons for limiting its
liability vis-a-vis Richardson were "likely trumped up."
There was evidence that Richardson's ability and character
were, overall, in the words of the court, "satisfactory," and
that less than a week after his discharge, the company hired
a new employee to do the exact work that Richardson had been
doing. Moreover, there was evidence that Richardson could do
non-welding work and could have been transferred to such work
if the "pure welding" work "fell off."
There was also sufficient evidence in the record
for the court to disbelieve Cambridgeport's contention that
Roche would have been laid off soon after June 1989 "in
accord with the cyclical swings of employment, and not
rehired." Cambridgeport placed an advertisement in the local
newspaper for "shop laborers" on the day Roche was discharged
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and subsequently hired workers in the department where Roche
worked.
On reading the record as a whole, we cannot say the
court's view of the evidence was implausible. It was not,
therefore, clear error for the court to calculate the
employees' back pay award on the basis of an assumption that,
but for their retaliatory discharges, they both would have
retained their jobs for the entire stipulated period.
II.
The Secretary advanced the view at trial that the
appropriate measure of damages for both employees was an
amount equal to twice their back pay losses. The Secretary
argued to the district court that doubling back pay losses
would not be a penalty, but would serve "to compensate[] for
the effects of loss of pay upon the victim[s]."
The court adopted the Secretary's measure of
damages, saying that "the conduct of this defendant, both in
and out of court, is so consistently brash that [the court]
feels justified in finding doubling the lost wages award, but
to serve to cover additional damage plus prejudgment
interest." The court later supported its doubling of the
award by "calling for special support of the statutory
purpose when an employer flaunts it both by word and by
openly unambiguous conduct."
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Cambridgeport argues that doubling the back pay
award amounted to an award of punitive, or exemplary,
damages, and was unauthorized by the OSH Act. It insists
that courts interpreting the statute have uniformly limited
recovery in cases of retaliatory discharge to back pay,
employment search expenses, and in some instances,
prejudgment interest. The Secretary contests the
characterization of the award as exemplary. He argues that
the court's statement that double wages served "to cover
additional damage plus prejudgment interest" shows an
intention to grant compensatory damages, and that the record
supports the award on that basis. The Secretary concedes
that this is the first reported case in which double damages
have been awarded under the OSH Act. But he insists that the
case also represents the first time the Secretary has
actually asked for such damages.
The question of whether the district court was
within its authority to authorize double back pay damages
turns on an interpretation of Section 11(c) of the OSH Act,
29 U.S.C. 660(c). This is a question of law, subject to
our review de novo. United States v. Jones, 10 F.3d 901, 904
(1st Cir. 1993).
The relevant provision reads:
Any employee who believes that he has been discharged or otherwise discriminated against
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by any person in violation of this subsection may . . . file a complaint with the Secretary alleging such discrimination. . . . If [after appropriate] investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations . . . and order all
appropriate relief including rehiring or
reinstatement of the employee to his former position with back pay.
29 U.S.C. 660(c)(2) (emphasis added). We must decide
whether the district court's awarding of damages equal to
twice the employees' lost back pay was "appropriate relief"
within the meaning of the statute and under the facts of the
case.
The Secretary urges that we interpret 11(c) in
the light of Franklin v. Gwinnett County Public Sch., 112 S.
Ct. 1028, 1032 (1992). In Franklin, the Supreme Court ruled
that federal courts may award monetary damages in private
actions brought to enforce Title IX of the Education
Amendments of 1972, 20 U.S.C. 1681-1688 ("Title IX"). Id.
at 1038. Congress did not explicitly provide for private
actions in Title IX; however, the right to bring private
actions was earlier "implied" by the Court in Cannon v.
University of Chicago, 441 U.S. 677 (1979). Even absent an
express right to sue, monetary damages were held to be
available because the Court "presume[s] the availability of
all appropriate remedies unless Congress has expressly
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indicated otherwise." Franklin, 112 S. Ct. at 1032. The
Court announced "[t]he general rule . . . that absent clear
direction to the contrary by Congress, the federal courts
have the power to award any appropriate relief in a
cognizable cause of action brought pursuant to a federal
statute." Id. at 1035 (emphasis added).
The instant case differs from Franklin in that we
are here construing Congress's meaning when, in creating an
express cause of action for the Secretary of Labor to
institute on behalf of an aggrieved employee, it licensed
courts to "order all appropriate relief." In Franklin, "all
appropriate remedies" were the Court's words, not Congress's.
Nonetheless, the parallel is unmistakable. It is hard to
believe that the Supreme Court having presumed that an
implied private right of action included "all appropriate
remedies" or "any appropriate relief," and having construed
remedies so described to include "monetary damages" and "any
of the procedures or actions normally available
. . . according to the exigencies of the particular case,"
112 S. Ct. at 1034 would construe less generously
Congress's similar phrase, "all appropriate relief." We
think Franklin strongly suggests that "all appropriate
relief" as written in 11(c) embraces monetary damages as
well as other relevant forms of relief normally available,
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Congress having provided no "clear direction" to the
contrary. See 112 S. Ct. at 1035.
Cambridgeport, nonetheless, would have us find here
"clear direction to the contrary" because the phrase "all
appropriate relief" is succeeded by the words, "including
rehiring or reinstatement of the employee to his former
position with back pay." This, we are told, evinces a
Congressional intent to limit relief to those remedies
expressly mentioned, or at least to the kinds of remedies
mentioned. Cambridgeport contends that given the express
delineation of certain remedies, "[t]here is nothing to
suggest that Congress affirmatively intended [] an expansive
interpretation" of 11(c), and that double damages are
therefore unauthorized under the OSH Act.
However, the key language of the OSH Act is broad.
It authorizes a court to "order all appropriate relief." The
further language including certain remedies, like
reinstatement, indicates the availability of the named
remedies, but does not purport to limit "all appropriate
relief" to those remedies only. The mere naming of certain
included remedies neither suggests nor is a "clear direction"
that other remedies are precluded. See Franklin, 112 S. Ct.
at 1035; Federal Land Bank of St. Paul v. Bismark Lumber Co.,
314 U.S. 95, 100 (1941) ("[T]he term 'including' is not one
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of all-embracing definition, but connotes simply an
illustrative application of the general principle.").
We conclude that the phrase "all appropriate
relief" under 11(c) includes "monetary damages" as
specifically held in Franklin. Moreover, given the expansive
language in Franklin ("[t]he general rule . . . that absent
clear direction to the contrary by Congress, the federal
courts have the power to award any appropriate relief in a
statute," 112 S. Ct. at 1035), it is difficult to exclude
even exemplary damages where otherwise justified in
particular circumstances. Later, analogous federal statutes
protecting "whistleblowers" expressly list exemplary damages
as within the rubric of "all appropriate relief." For
example, 42 U.S.C. 5851 protects whistleblowers in nuclear
facilities from retaliatory discharge and discrimination.
The jurisdiction provision of the statute provides in
relevant part:
In actions brought under this subsection, the district courts shall have jurisdiction to grant all appropriate relief including, but not limited to, injunctive relief, compensatory relief, and exemplary damages.
42 U.S.C. 5851(d). See also 15 U.S.C. 2622(d) (toxic
substances) ("In actions brought under this subsection, the
district courts shall have jurisdiction to grant all
appropriate relief, including injunctive relief and
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compensatory and exemplary damages."); 42 U.S.C. 300j-
9(i)(4) (safety of public water systems) (courts may "grant
all appropriate relief including, but not limited to,
injunctive relief, compensatory, and exemplary damages"); 42
U.S.C. 7622(d) (air pollution) (courts may grant "all
appropriate relief including, but not limited to, injunctive
relief, compensatory, and exemplary damages").
By expressly identifying exemplary damages as
authorized under these similar statutes, Congress recognizes
exemplary damages as falling within the term "all appropriate
relief." To be sure, the express mention of exemplary
damages in these other statutes can be said to reflect doubt
whether, without such reference, the term would necessarily
include exemplary damages. Under the broad and unequivocal
language in Franklin, however, the absence of an explicit
mention in the OSH Act would not seem enough to take from the
courts their "'"power to utilize any of the procedures or
actions normally available . . . according to the exigencies
of the particular case."'" Franklin, 112 S. Ct. at 1034
(quoting J.I. Case Co. v. Borak, 377 U.S. 426, 433-34 (1964),
in turn quoting Deckert v. Independence Shares Corp., 311
U.S. 282, 288 (1940)). Where Congress itself has recognized,
in these other statutes, that "all appropriate relief" may
include exemplary damages, it is difficult to see why the
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mere omission of the specific reference should compel a
narrower reading.
Courts have traditionally had the power in tort
cases to award damages "larger than the amount necessary to
reimburse actual monetary loss sustained or even anticipated
by the plaintiff, and thus redress intangible elements of
injury that are 'deemed important, even though not pecuniary
in [their] immediate consequences[s].'" United States v.
Burke, 112 S. Ct. 1867, 1871 (1992) (quoting D. Dobbs,
Remedies 136 (1973)). And in circumstances where the
defendant's misconduct was intentional or reckless, "punitive
or exemplary damages are generally available." Id. at 1872
(citations omitted). See also Molzof v. United States, 112
S. Ct. 711, 715 (1992) (the Supreme Court's "decisions make
clear that the concept of 'punitive damages' has a long
pedigree in the law"); Rowlett v. Anheuser-Busch, Inc., 832
F.2d 194, 205 (1st Cir. 1987) ("[I]n jurisdictions where
punitive damages are authorized, punitive damages are within
the jury's discretion in cases requiring proof of intentional
wrongdoing.") (citing Smith v. Wade, 461 U.S. 30, 53-54
(1983)). Retaliatory discharge has been treated as an
intentional tort. See Travis v. Gary Community Mental Health
Ctr., 921 F.2d 108, 112 (7th Cir. 1990); see also W. Page
Keeton et al., Prosser and Keeton on the Law of Torts, 130,
at 1027-29 (5th ed. 1984).
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Perhaps the strongest argument for distinguishing
Franklin, and deciding that punitive damages are not
available under 11(c) of the OSH Act, lies in certain aspects
of its legislative history and in the practice of not
awarding such damages under certain other federal statutes.
In the version of the OSH Act reported to the full Senate
from the Committee on Labor and Public Welfare, the Act
provided only for administrative action to obtain relief for
an employee discriminated against for asserting rights under
the Act. See S. Rep. No. 1282, 91st Cong. 2d Sess., 34-35
(1970), reprinted in Legislative History of the Occupational
Safety and Health Act of 1970, at 174-75 (1971) ("Legislative
History"); S. 2193, 91st Cong., 2d Sess., 10(f) (1970),
reprinted in Legislative History at 261; Conf. Rep. No. 1765,
91st Cong., 2d Sess., 39 (1970), reprinted in Legislative
History at 1192. This Senate version allowed employees who
believed they were discriminated against to apply to the
Secretary for an investigation of such alleged
discrimination. S. 2193, supra, 10(f). After appropriate
investigation, which could include a public hearing, the
Secretary was to make findings of fact. If the Secretary
found that a violation of the Act had occurred, the Secretary
was to order "the person committing such violation to take
such affirmative action to abate the violation as the
Secretary deems appropriate, including, but not limited to,
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the rehiring or reinstatement of the employee to his former
position with back pay." Id. (emphasis added).
This language authorizing the Secretary to order
"such affirmative action" was similar to the language used in
the remedial provisions of both the National Labor Relations
Act ("the NLRA") and of Title VII of the Civil Rights Act of
1964 ("Title VII"). Section 10(c) of the NLRA authorizes the
National Labor Relations Board to investigate allegations of
unfair labor practices and, if the allegations are found to
be true, to order "such affirmative action including
reinstatement of employees with or without back pay, as will
effectuate the policies" of the Act. 29 U.S.C. 160
(emphasis added).
Similarly, 706(g) of Title VII authorizes courts
hearing a complaint of discrimination to "order such
affirmative action as may be appropriate, which may include,
but is not limited to, reinstatement or hiring of employees,
with or without back pay . . . or any other equitable relief
as the court deems appropriate." 42 U.S.C. 2000e-5
(emphasis added). This provision was expressly modeled after
10(c) of the NLRA. See Abermarle Paper Co. v. Moody, 422
U.S. 405, 419 & n.11 (1975); Robert Belton, Remedies in
Employment Discrimination Law 13.3 at 430 (1992).
The similarity of the Senate's early version of
what became 11(c) of the OSH Act to both 10(c) of the
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NLRA and 706(g) of Title VII suggests that the Senate meant
to incorporate into its version of the OSH Act the same kinds
of remedies that were available under the NLRA and Title VII.
And in choosing such remedies, the Senate was presumably
aware that, as early as 1938, the Supreme Court had held that
punitive damages were not available under the NLRA.2
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 235-36 (1938);
see also Republic Steel Corp. v. NLRB, 311 U.S. 7, 12 (1940).
The Court had interpreted the NLRA's language by explaining
that the power to command "affirmative action" was remedial
rather than punitive. Consolidated Edison, 305 U.S. at 236;
see also Republic Steel, 311 U.S. at 12.
Therefore, if this language allowing courts to
order "affirmative action" had been retained in the final
version of the OSH Act, we would be in a position similar to
those courts that have interpreted Title VII as not providing
for punitive damages, basing their decisions in part on the
fact that if punitive damages are not available under 10(c)
of the NLRA, they should not be available under statutes
modeled after that provision. See, e.g., Richerson v. Jones,
551 F.2d 918, 927 (3d Cir. 1977) (noting that "close
relationship" between Title VII provision and NLRA provision
2. At the time of the reporting of the Senate version in October 1970, the provision of punitive damages under Title VII had not been the subject of review by the Supreme Court or any court of appeals. See Belton, supra at 13.3 nn.33-
34.
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"provides additional evidence that Congress did not intend to
authorize" punitive damages under Title VII); Harrington v.
Vandalia-Butler Board of Education, 585 F.2d 192, 196-97 (6th
Cir. 1978), cert. denied, 441 U.S. 932 (1979); Walker v. Ford
Motor Co., 684 F.2d 1355, 1363-64 (11th Cir. 1982); see also
DeGrace v. Rumsfeld, 614 F.2d 796, 808 (1st Cir. 1980).
The final bill, however, was a product of
compromise between the Senate and House versions and did not
include the Senate language allowing only for "such
affirmative action" as the Secretary deemed appropriate. The
penalties in the House version of the OSH Act had been
different and stronger than those in the Senate version. The
House bill had called for civil and criminal penalties for
employers who discriminated against employee whistleblowers.
See Conf. Rep. No. 1765, supra, at 39. The final language,
making specific the jurisdiction of the district courts in
actions brought by the Secretary and allowing courts to
provide "all appropriate relief," emerged from a conference
committee.
One might argue, perhaps, that the substitution of
the phrase "all appropriate relief" for "such affirmative
action" evinced merely careless drafting rather than a
legislative intent to broaden the remedies available. The
conference report says nothing about an intent to broaden the
Senate's remedies. Nonetheless, there is a significant
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and obvious distinction between the right to order the
offender "to take such affirmative action to abate the
violation as the Secretary deems appropriate, including
. . ." and authorizing a court "to order all appropriate
relief, including . . . ." The final bill was a product of
compromise the Senate allowed the Secretary to bring
causes of action in the district courts; the House gave up on
criminal penalties. In this atmosphere of "substantial give
and take," see 116 Cong. Rec. 42,200 (1970) (remarks of Rep.
Perkins), reprinted in Legislative History at 1200, it is
hardly obvious, where different language was used, that the
conference committee desired merely to transfer to a federal
court the exact same set of remedies the Senate gave to the
Secretary of Labor in its earlier version. Indeed, it would
seem inconsistent to assume, on the one hand, that Congress
intends to incorporate an entire remedial scheme when it uses
a term of art in a statute, see, e.g., Richerson, 551 F.2d at
927, but to assume that, on the other hand, when Congress
omits the term of art and adopts different language, that it
did so inadvertently.
Choice of the terminology "all appropriate relief"
suggests that Congress might have been looking more to the
language of the Labor-Management Reporting and Disclosure Act
of 1959, which outlines a "bill of rights" for union members,
29 U.S.C. 411(a), and provides that actions for violation
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of those rights may be had to recover "such relief (including
injunctions) as may be appropriate." 29 U.S.C. 412. At
the time of the passage of the OSH Act, the only court of
appeals that had ruled on the issue had held that 29 U.S.C.
412 allowed for punitive damages. International Bhd. of
Boilermakers v. Braswell, 388 F.2d 193, 199-201 (5th Cir.),
cert. denied, 391 U.S. 935 (1968).3 If we were to presume
that the language of 11(c) was modeled after previous labor
legislation, the similarity to the language of the Labor-
Management Reporting and Disclosure Act of 1959 would support
our decision here.
We cannot find, therefore, in the legislative
history of the OSH Act any "clear direction" that the term
"all appropriate relief" was intended to deny to the courts
remedial powers to award compensatory and punitive damages in
a cause of action analogous to an intentional tort. See
Smith, 461 U.S. at 48-49 ("As a general matter, we discern no
reason why a person whose federally guaranteed rights have
been violated should be granted a more restrictive remedy
3. Other courts of appeals that have since ruled on the issue are in agreement. See, e.g., Cooke v. Orange Belt
Dist. Council, 529 F.2d 815, 820 (9th Cir. 1976); Morrissey
v. National Maritime Union, 544 F.2d 19, 24-25 (2nd Cir.
1976); Keene v. IUOE Local 624, 569 F.2d 1375, 1381-1382, &
n.8 (5th Cir. 1978); see also International Bhd. of Elec.
Workers v. Foust, 442 U.S. 42, 47 n.9 (1979) (reserving
decision on this point).
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than a person asserting an ordinary tort cause of
action.").4
We conclude, in accordance with the meaning of the
same words as used in Franklin, that the statutory power to
award "all appropriate relief" gave the district court
authority, where such relief is in fact appropriate, to award
compensatory and even such traditional other relief as
exemplary damages. That authority would be broad enough to
support an award of twice the employees' pay provided the
facts and circumstances of this case justified such an award
4. Cf. Individuals with Disabilities Education Act, 20
U.S.C. 1401-1485, which requires participating state and local educational agencies "to assure that handicapped children and their parents or guardians are guaranteed procedural safeguards with respect to the provision of free appropriate public education" to such handicapped children. 20 U.S.C. 1415(a). This procedural framework offers the parents an opportunity to contest any decision made by the state regarding the child's identification, evaluation, or educational placement through appropriate administrative procedures and, if necessary, in state or federal court. In such civil actions, the court "shall grant such relief as the court determines is appropriate." 20 U.S.C. 1415(e)(2). Courts have split in determining whether this statute allows for punitive damages. Cf. Marvin H. v. Austin Indep.
Sch. Dist., 714 F.2d 1348, 1356 (5th Cir. 1983) (procedural
focus of Act means that relief under 1415(e)(2) "generally includes only prospective relief" and does not include compensatory or punitive damages); Woods on behalf of T.W. v.
New Jersey Dept. of Educ., 796 F. Supp. 767, 776 (D.N.J.
1992) (punitive damages available); see also Burlington Sch.
Comm. v. Mass. Dept. of Educ., 471 U.S. 359, 369 (1985)
("ordinary meaning of these words [to 'grant such relief as the court determines is appropriate'] confers broad discretion on the court").
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as additional compensation and as deserved punitive or
exemplary damages.
Our final inquiry, then, is whether the court
abused its discretion in deciding on this record that double
damages relief was "appropriate," bearing in mind that
determination of the amount of damages "falls within the
sound judgment and discretion of the factfinder." Soto v.
United States, 11 F.3d 15, 18 (1st Cir. 1993).
Here, accepting the court's findings of fact which
we think were not clearly erroneous, we cannot say the award
was unreasonable. There was evidence that both Richardson
and Roche incurred monetary losses because of their
discharges in addition to their lost back pay. The district
court stated that a portion of the award covered prejudgment
interest, which, depending on the interest rate chosen by the
court, could itself amount to more than 35% of the back wages
owed.
In addition, the court concluded that the
defendant's conduct, "both in and out of court, [was]
consistently brash," suggesting a belief that exemplary
damages were in order. The court found that Cambridgeport
had intentionally retaliated against Richardson and had fired
Roche as an example to other employees. The court also noted
that its "general picture" of the defendant was informed by
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the testimony of a Labor Department investigator who
testified that, during the Secretary's investigation of the
employees' termination, a member of Cambridgeport management
had offered the investigator a case of wine, possibly in an
attempt to influence the investigation. Moreover, the court
found that Cambridgeport during trial had revealed itself as
"a tough outfit" that "more than passively observed; it
supervised its witnesses." Given these findings, and the
conduct of the defendant as assessed by the court, the court
did not exceed its discretion in awarding double back pay
damages.
Affirmed. Costs to appellee.
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