Resare v. Raytheon Company Etc
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Resare v. Raytheon Company Etc, (1st Cir. 1992).
Opinion
USCA1 Opinion
December 10, 1992
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
For the First Circuit
For the First Circuit
____________________
No. 92-1260
CYNTHA J. RESARE,
Plaintiff, Appellant,
v.
RAYTHEON COMPANY, ETC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Brown,* Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________
Robert B. Mann, with whom Mann & Mitchell, were on brief for
_______________ ________________
appellant.
Michael P. DeFanti, with whom Douglas A. Giron and Hinckley,
___________________ _________________ _________
Allen, Snyder & Comen, were on brief for appellee.
_____________________
____________________
____________________
_____________________
*Of the Fifth Circuit, sitting by designation.
STAHL, Circuit Judge. After a two-day trial on
_____________
plaintiff Cyntha J. Resare's sex and age discrimination
claims, the district court granted defendant Raytheon
Company's motion for judgment as a matter of law on
plaintiff's sex discrimination claims under both the Rhode
Island Fair Employment Practices Act ("FEPA"), R.I. Gen. Laws
28-5-1 et seq. (Supp. 1991), and the Rhode Island Civil
__ ____
Rights Act of 1990 ("RICRA"), R.I. Gen. Laws 42-112-1
(Supp. 1991).1 During the trial, the district court also
ruled that evidence of compensatory damages, absent
corroborating medical testimony, was not allowed under R.I.
Gen. Laws 28-5-24(2) (Supp. 1991). Subsequently, the Rhode
Island legislature amended FEPA in several relevant respects.
Relying upon these amendments, plaintiff now contends that
the district court's rulings cannot stand. For the reasons
outlined below, we affirm in part and reverse in part.
I.
I.
__
STANDARD OF REVIEW
STANDARD OF REVIEW
__________________
In reviewing a district court's decision to grant a
defendant's motion for judgment as a matter of law, see Rule
___
____________________
1. The district court denied defendant's motion for judgment
as a matter of law on plaintiff's age discrimination claim,
and the jury returned a verdict in favor of the defendant on
that claim. Plaintiff does not contest the age
discrimination verdict in this appeal.
-2-
2
50, Fed. R. Civ. P.,2 "we examine the evidence and all fair
inferences in the light most favorable to the plaintiff."
Richmond Steel Inc. v. Puerto Rican American Ins. Co., 954
____________________ ________________________________
F.2d 19, 22 (1st Cir. 1992). To affirm the withdrawal of any
claim from the jury, we must find that, as a matter of law,
the record would permit only one conclusion. Id. "We may
___
not consider the credibility of witnesses, resolve conflicts
in testimony, or evaluate the weight of the evidence." Id.
___
To warrant submission of an issue to the jury, the plaintiff
must present "more than a mere scintilla" of evidence and may
not rely on conjecture or speculation. Id. Instead, "the
___
evidence offered must make the `existence of the fact to be
inferred more probable than its nonexistence.'" Id. (quoting
___
Carlson v. American Safety Equip. Corp., 528 F.2d 384, 386
_______ _____________________________
(1st Cir. 1976)).
____________________
2. Fed. R. Civ. P. 50(a)(1) provides:
If during a trial by jury a party has
been fully heard with respect to an issue
and there is no legally sufficient
evidentiary basis for a reasonable jury
to have found for that party with respect
to that issue, the court may grant a
motion for judgment as a matter of law
against that party on any claim . . .
that cannot under the controlling law be
maintained without a favorable finding on
that issue.
-3-
3
II.
II.
___
BACKGROUND
BACKGROUND
__________
On March 23, 1987, after having spent almost ten
years as a United States government attorney specializing in
the procurement, termination, and interpretation of defense
contracts, plaintiff Cyntha Resare was hired by defendant
Raytheon Company ("defendant" or "company") to join its
Portsmouth, Rhode Island, Submarine Signal Division.
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USCA1 Opinion
December 10, 1992
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
For the First Circuit
For the First Circuit
____________________
No. 92-1260
CYNTHA J. RESARE,
Plaintiff, Appellant,
v.
RAYTHEON COMPANY, ETC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Brown,* Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________
Robert B. Mann, with whom Mann & Mitchell, were on brief for
_______________ ________________
appellant.
Michael P. DeFanti, with whom Douglas A. Giron and Hinckley,
___________________ _________________ _________
Allen, Snyder & Comen, were on brief for appellee.
_____________________
____________________
____________________
_____________________
*Of the Fifth Circuit, sitting by designation.
STAHL, Circuit Judge. After a two-day trial on
_____________
plaintiff Cyntha J. Resare's sex and age discrimination
claims, the district court granted defendant Raytheon
Company's motion for judgment as a matter of law on
plaintiff's sex discrimination claims under both the Rhode
Island Fair Employment Practices Act ("FEPA"), R.I. Gen. Laws
28-5-1 et seq. (Supp. 1991), and the Rhode Island Civil
__ ____
Rights Act of 1990 ("RICRA"), R.I. Gen. Laws 42-112-1
(Supp. 1991).1 During the trial, the district court also
ruled that evidence of compensatory damages, absent
corroborating medical testimony, was not allowed under R.I.
Gen. Laws 28-5-24(2) (Supp. 1991). Subsequently, the Rhode
Island legislature amended FEPA in several relevant respects.
Relying upon these amendments, plaintiff now contends that
the district court's rulings cannot stand. For the reasons
outlined below, we affirm in part and reverse in part.
I.
I.
__
STANDARD OF REVIEW
STANDARD OF REVIEW
__________________
In reviewing a district court's decision to grant a
defendant's motion for judgment as a matter of law, see Rule
___
____________________
1. The district court denied defendant's motion for judgment
as a matter of law on plaintiff's age discrimination claim,
and the jury returned a verdict in favor of the defendant on
that claim. Plaintiff does not contest the age
discrimination verdict in this appeal.
-2-
2
50, Fed. R. Civ. P.,2 "we examine the evidence and all fair
inferences in the light most favorable to the plaintiff."
Richmond Steel Inc. v. Puerto Rican American Ins. Co., 954
____________________ ________________________________
F.2d 19, 22 (1st Cir. 1992). To affirm the withdrawal of any
claim from the jury, we must find that, as a matter of law,
the record would permit only one conclusion. Id. "We may
___
not consider the credibility of witnesses, resolve conflicts
in testimony, or evaluate the weight of the evidence." Id.
___
To warrant submission of an issue to the jury, the plaintiff
must present "more than a mere scintilla" of evidence and may
not rely on conjecture or speculation. Id. Instead, "the
___
evidence offered must make the `existence of the fact to be
inferred more probable than its nonexistence.'" Id. (quoting
___
Carlson v. American Safety Equip. Corp., 528 F.2d 384, 386
_______ _____________________________
(1st Cir. 1976)).
____________________
2. Fed. R. Civ. P. 50(a)(1) provides:
If during a trial by jury a party has
been fully heard with respect to an issue
and there is no legally sufficient
evidentiary basis for a reasonable jury
to have found for that party with respect
to that issue, the court may grant a
motion for judgment as a matter of law
against that party on any claim . . .
that cannot under the controlling law be
maintained without a favorable finding on
that issue.
-3-
3
II.
II.
___
BACKGROUND
BACKGROUND
__________
On March 23, 1987, after having spent almost ten
years as a United States government attorney specializing in
the procurement, termination, and interpretation of defense
contracts, plaintiff Cyntha Resare was hired by defendant
Raytheon Company ("defendant" or "company") to join its
Portsmouth, Rhode Island, Submarine Signal Division.
Defendant's primary business is the design and manufacture of
sonar devices and submarine missile firing controls. Like
many defense contractors, defendant experienced a growth in
business and in number of employees throughout the early
1980's. At the time it hired plaintiff, defendant had
approximately 3,300 employees.
At all relevant times, plaintiff worked in the
Materials Management department of the company, which
contained six separate subdivisions.3 Plaintiff worked in
the Policy and Planning subdivision. Her immediate
supervisor was Richard A. Elliott, the manager of that
subdivision.4 Elliott's immediate supervisor was Charles F.
O'Donnell, the manager of the Materials Management
____________________
3. Only two of the six subdivisions are relevant to this
lawsuit: (1) Subcontracts; and (2) Procurement, Policy and
Planning ("Policy and Planning").
4. Prior to serving as the manager of Policy and Planning,
Elliott served for fifteen years as the manager of
Subcontracts.
-4-
4
department. O'Donnell reported to Barry R. Steiner, the
company's manufacturing manager.
Plaintiff was hired as a "Subcontract Specialist"
to assist Elliott. On the personnel grading scale, plaintiff
was classified as a "salary grade level 9." The Policy and
Planning subdivision consisted of Elliott, plaintiff, and a
clerical assistant. Although plaintiff worked in Policy and
Planning, her job included overseeing, working closely with,
and training employees in several of the other subdivisions
in the Materials Management department. The record reflects
that plaintiff worked particularly closely with employees in
Subcontracts.5 In addition to training and overseeing other
employees, plaintiff reviewed numerous contracts and
subcontracts for compliance with government regulations,
helped to re-establish the company's "certified purchasing
system" after it failed a government audit, and advised
company employees on contract negotiation and procurement
issues.
No one disputes that plaintiff was an excellent
employee. At her one-year review, in March 1988, Elliott
listed her strengths: "(1) exceptional oral and written
____________________
5. In the Subcontracts subdivision, there were three levels
of employees: (1) "Subcontract Specialists" (salary grade
level 9); (2) "Senior Subcontract Administrators" (salary
grade level 8); and (3) "Subcontract Administrators" (salary
grade level 7). According to defendant, it "borrowed"
plaintiff's "Subcontracts Specialist" job classification and
grade level from the Subcontracts subdivision.
-5-
5
communications [skills;] (2) effective human relations
skills[;] (3) solid negotiation skills[;] (4) significant
knowledge and experience in contracting[; and] (5) well
developed teaching skills[.]" Following this review,
defendant gave plaintiff a raise. Dissatisfied with the
amount of her raise, plaintiff complained to O'Donnell,
Elliott's immediate supervisor. According to plaintiff,
O'Donnell recommended speaking with Elliott about the
possibility of receiving a promotion and further salary
increase through reclassification of her job title.
Plaintiff also testified that, during the same
discussion, she informed O'Donnell of her interest in
applying for the position of manager of Subcontracts as soon
as the position became available. Evidence at trial
revealed, however, that when that position did become
available, the company did not advertise it, no one in the
company ever approached plaintiff about applying for it, and
ultimately, the position was filled by a man named Don M.
Lynch. Elliott testified that as a former manager of
Subcontracts and as someone who worked closely with
plaintiff, he considered her qualified for the position.
At trial, O'Donnell flatly denied that he had ever
discussed with plaintiff either her dissatisfaction with her
raise or her interest in the managerial position. When asked
-6-
6
whether he had considered plaintiff for the position,
O'Donnell responded:
A: No, I did not.
Q: Why is that?
A: Because the problem that I was faced
with was a management problem. Ms.
Resare and her background, in her resume
and all my knowledge of her experience,
never held the position of [s]upervisor
or [m]anager. I was trying to fix a
management problem, and I needed an
experienced [m]anager to solve the
problem.
Q: Did you consider the fact that she had
supervised attorneys before?
A: No, I didn't.
Q: Did you in fact before you filled the
position look at her resume?
A: No, as I mentioned, I never really
gave her consideration because of her
lack of experience as a [m]anager in
industry.
The following year, in March 1989, plaintiff
received another positive review. After this review, her job
classification was upgraded to "Procurement Contracts
Advisor," which entitled her to a "grade level 10" and a
substantial raise. Despite the new job classification,
plaintiff continued to do the same type of work she had done
as a Subcontract Specialist.
Meanwhile, business at the company was declining.
In late fall of 1989, O'Donnell received instructions from
Steiner, his immediate supervisor, to reduce the Materials
-7-
7
Management department budget by "four or five hundred
thousand dollar[s]." During this first round of budget cuts,
defendant did not consider discharging plaintiff.
In early January 1990, the company did not "win" a
contract for which it had competed, and Steiner decided that
further layoffs in the Materials Management department were
necessary. According to O'Donnell, in "the first or second
week of January[,]" Steiner instructed him to reduce
"overhead expense[s]"6 by approximately $470,000. O'Donnell
testified that he placed plaintiff's name on the layoff list
during this second round of budget cuts.7
____________________
6. The company referred to its expenses as either "overhead"
or "direct charge." This distinction operated as an
accounting device by which the company billed the government
for its work. According to O'Donnell, an employee on a
"direct charge" assignment was able to bill her/his time
directly to a specific government contract. In contrast, an
employee on an "overhead" assignment could not bill her/his
time to a specific contract but simply billed to the
"overhead" budget. O'Donnell further explained that
employees were not labeled by the company as either
"overhead" or "direct charge" employees. Instead, the
company had the discretion, under each government contract,
to determine who did "direct charge" billing. O'Donnell
admitted that there was nothing which precluded plaintiff
from working on "direct charge" assignments.
7. In contrast, Steiner testified that he added plaintiff's
__
name to a layoff list O'Donnell proposed in this second round
of layoffs. According to Steiner, he decided that Elliott
could work alone in Policy and Planning, as Elliott had done
prior to plaintiff's arrival. Steiner testified: "I told
Chuck O'Donnell that, unfortunately, even though Cynth was
doing an excellent job, we couldn't afford to keep her any
longer." Steiner then described O'Donnell as objecting to
Steiner's suggestion to add plaintiff's name to the layoff
_________
list.
-8-
8
____________________
When asked a series of questions at trial about how he
reached the decision that plaintiff should be laid off,
Steiner revealed that he knew very little about plaintiff
before allegedly suggesting her name to O'Donnell:
Q: [O'Donnell] was the only person from whom you
received input on the question of whether or not to
keep [plaintiff] on the job, right?
A: He's a direct report to me, so, yes, sir.
Q: Before the decision was made to terminate her,
you did not look at her resume at all, did you?
A: No.
Q: Did you look at her job evaluations or anything
else before the decision was made to terminate her?
A: No, sir.
Q: Did you ask [O'Donnell] whether or not there
were other people in the Materials Department whose
termination would save an equal amount of money and
still allow the same amount of work to be done?
A: No, I didn't.
Q: Did you look at the resumes or any job
performance papers or any other documents
concerning the work of either Mr. Pagliaro, Mr.
Roncka, or Mr. Hitchcock in the Materials
Department?
A: No, I didn't.
Q: Did you ask [O'Donnell] whether or not Ms.
Resare could do the work of a subcontract
specialist as well as, did you ask him that
question?
A: No, sir.
Q: Did you know whether she could do the work of a
subcontract specialist?
A: I don't believe I did.
-9-
9
O'Donnell testified that at some point after he
_____
placed plaintiff's name on the list of layoffs which he
presented to Steiner, he sent a memorandum to Steiner asking
that his budget be enlarged so that he could retain
plaintiff.8 In this memorandum, which was entitled "The
Senseless Loss of a Unique Division Resource," O'Donnell
detailed plaintiff's "outstanding" employment history with
the company and included the following entreaty to Steiner:
Having said all of the above, why then is
Cyntha Resare going to be laid off?
Because of load-to-no-load accounting
legerdemain, is there a reduction in the
need for the valuable services she
provides? Is buyer training in FAR
regulations, contract law negotiating
tactics, ethics, dispute avoidance and
resolution no longer necessary?
Obviously, the answer to these questions
is no. The plain truth as to why Cyntha
Resare is being laid off is that she must
____________________
Q: Did you speak with Mr. Elliott about whether or
not he would be able to do all the work that was
now being done by Ms. Resare with her separation?
A: No, I didn't ask him. . . .
Q: Did Mr. O'Donnell ever discuss with you the
option of terminating someone instead of Ms.
Resare?
A: No, I don't recall that he ever did that.
8. Steiner testified that O'Donnell returned to him "a day
or two after" their meeting with a memorandum requesting that
plaintiff be retained. When asked how he would characterize
the degree of support O'Donnell voiced for plaintiff, Steiner
testified: "The degree of support was over and above anything
I have seen from him before. It was extraordinary because of
the memo he wrote."
-10-
10
be included in the body count in order to
make "the number." Part of an additional
$600K of reduced expenses on top of the
$500K that has already been reduced from
1989 actuals of controllable costs.
What is senseless about all of this is
that you and I both know that despite all
of the reduced costs, there is virtually
no chance that 12.6 percent can be met at
year end as more contracts later in the
year slip to the right or are lost. So
what have we accomplished?
We can say truthfully that we followed
directions and took immediate massive,
additional cost reductions (Beyond what we
think is reasonable), but AT WHAT PRICE?
Despite this grandiloquent plea to keep
plaintiff,9 plaintiff was laid off on March 27, 1990, along
with four other employees in the Materials Management
department. On February 25, 1991, plaintiff brought suit in
state court alleging, inter alia, sex discrimination under
_____ ____
two state law causes of action. Asserting diversity of
citizenship, defendant removed the case to federal court.
The case was then tried before a jury.
At trial, plaintiff proffered evidence from which a
jury could have concluded that O'Donnell harbored sexist
attitudes. For example, Elliott testified that O'Donnell was
____________________
9. O'Donnell did not deny at trial that, when asked during
his deposition to detail the steps he took to keep
plaintiff's job, he failed to mention the January 31, 1990,
memorandum.
-11-
11
a "sexist."10 When asked how he came to know this about
O'Donnell, Elliott stated: "Well, there was a great deal of
loose talk, much of which described the female anatomy and it
was detrimental to women. So it was my opinion that
[O'Donnell's] attitude was highly sexist." When asked if he
could remember specific examples of O'Donnell's "loose talk,"
Elliott stated:
A: Well, when referring to a woman by the
name of Pat Pelletier, he, at a going-
away function, he indicated to her that
the thing he would miss most about her
was the fact that she had legs all the
way to her ass. . . .
Q: Do you remember any other specific
comments Mr. O'Donnell made about
specific women in terms of, you said he
made lots of comments, but do you
remember any other specific ones he made
about specific women?
A: The only ones that I can recall at
this point in time is that he indicated
that a lot of men wanted to sit next to
and be next to Heather MacDonald because
she had large breasts.
Pat Pelletier, a former employee of the Materials
Management department, testified that after nine and one-half
years of service to the company, she was honored at a going-
away party with a speech by her immediate supervisor. In
that speech, her supervisor thanked her for the work she had
done and said that she would be missed by the company.
____________________
10. At the time of trial, Elliott reported directly to
O'Donnell and had worked at the company for approximately
twenty-three years.
-12-
12
Following this speech, O'Donnell then made a few remarks.
When asked what O'Donnell had said, Pelletier testified:
A: I don't remember everything
[O'Donnell] said. I just remember the
last thing he said.
Q: What was that?
A: He said that the thing that they would
miss most about Pat were her legs, they
were so long they went, nobody knew where
they ended, they went up, and I don't
know what he said after that.
Q: And how did you feel about those
comments?
A: At that particular time, I was
embarrassed.
Carol Stewart, a three year former employee of the
company, also witnessed and corroborated O'Donnell's speech
about Pelletier:
Q: Do you remember what [O'Donnell] said?
A: Yes, I do.
Q: What did he say?
A: The comment that stopped the party
cold was that Pat Pelletier had legs all
the way from her ass to the ground.
Plaintiff corroborated Elliott's testimony about
O'Donnell's remarks concerning Heather MacDonald's breasts:
Q: Who is Heather MacDonald?
A: Heather MacDonald was a buyer in
Purchasing which is in the Materials
Department.
Q: Did you ever hear Mr. O'Donnell say
anything about Heather MacDonald?
-13-
13
A: Yes, sir.
Q: What did you hear him say?
A: I heard Mr. O'Donnell make remarks
about Heather to the effect that he and
everybody else liked to get close to
Heather because Heather had very large
breasts. That's not the terminology he
used, but.
Q: What was the terminology he used?
A: Boobs.
Q: How often did you hear him say this?
A: I personally heard him say that at
least twice in public, not in his office,
just talking to people.
Heather MacDonald, a former employee who had worked
at the company for approximately eight years, testified that
she remembered O'Donnell approaching her at a company
softball game and asking: "Gee, when are they going to have
the wet t-shirt contest?"
O'Donnell denied that he ever made comments about
Heather MacDonald's breasts, and testified that he did not
recall making a speech at Pat Pelletier's going-away party.
He then admitted, however, that he made the "wet t-shirt"
comment to Heather MacDonald at a company softball game.
Plaintiff also testified that she and several other
women in the Materials Management department once had
requested that O'Donnell give them permission to attend a
seminar in Providence dealing with the general topic of
professional women in business. According to plaintiff,
-14-
14
O'Donnell asked all of the women who had made the request to
come to his office. He then denied their request and said
that he wanted to know if "this was a woman's libber movement
or something" and that he "thought since he had promoted Pat
Pelletier, that he showed that he took care of woman all
right . . . ." O'Donnell denied having made the "woman's
libber" statement and testified that he simply refused to
allow the women to go to the meeting on company time.
In addition to the evidence that O'Donnell made
disparaging and sexist remarks about female employees within
his department, there was also evidence that, at the time
plaintiff was laid off, three men in Subcontracts who were
hired after plaintiff and who had salary grade levels lower
than plaintiff's (Mr. Hitchcock, hired 10/87; Mr. Roncka,
hired 7/88; Mr. Pagliaro, hired 11/88) were retained. The
evidence showed that plaintiff was qualified to do the work
of all three of these men and, in fact, had been supervising
them prior to her layoff. At the time of plaintiff's
discharge, the monthly salaries of the four employees were as
follows: (1) plaintiff $4,860; (2) Hitchcock $4,460; (3)
Roncka $4,475; (4) Pagliaro $4,885.
Defendant's explanation at trial for plaintiff's
layoff was threefold: (1) the loss of the large contract in
early 1990; (2) the resulting need to trim the "overhead"
budget which, according to defendant, was accomplished by
-15-
15
eliminating plaintiff's job but could not be accomplished by
laying off any one of the three junior men in the
Subcontracts subdivision; and (3) the company's inability to
discharge one of the three men in Subcontracts because of a
long-standing "no-bumping" policy.11
After two days of trial, the district court granted
defendant's motion for judgment as a matter of law on both of
plaintiff's sex discrimination claims. In so holding, the
court ruled that plaintiff failed to produce sufficient
evidence of sex discrimination under either FEPA or RICRA.
During the trial, the district court also ruled that
plaintiff needed medical evidence of physical injury to prove
her compensatory damages under FEPA. This appeal challenges
those rulings. We address each in turn.
III.
III.
____
DISCUSSION
DISCUSSION
__________
A. Motion for Judgment as a Matter of Law on Plaintiff's Sex
A. Motion for Judgment as a Matter of Law on Plaintiff's Sex
_____________________________________________________________
Discrimination claim under FEPA
Discrimination claim under FEPA
_______________________________
At the outset, we note that -- despite the
confusion in the record over this question -- it is apparent
that plaintiff brought her FEPA claim of sex discrimination
under two separate sections of the statute. See FEPA 28-
___
____________________
11. According to defendant, the "no-bumping" policy
prohibits the company from laying off a less senior employee
with a specific job classification to make room for a higher
seniority employee with a different job classification.
-16-
16
5-7(1)(A)-(B); 28-5-7.3.12 As a result, we address the
viability of plaintiff's FEPA claim under each section.
1. Plaintiff's "mixed-motive" claim under FEPA
1. Plaintiff's "mixed-motive" claim under FEPA
_______________________________________________
In his January 29, 1992, bench ruling, the district
judge withheld plaintiff's claim of sex discrimination from
the jury because he found both that 28-5-7.3 required
"direct evidence" of sex discrimination and that plaintiff
had not presented any such evidence. Relying upon a recently
____________________
12. FEPA 28-5-7(1)(A)-(B) provides in relevant part:
It shall be an unlawful employment
practice . . . [f]or any employer . . .
[t]o refuse to hire any applicant for
employment because of his or her . . .
sex . . . or . . . [b]ecause of such
reason[], to discharge an employee . . .
.
At the time of trial, FEPA 28-5-7.3 provided:
An unlawful employment practice is
established in an action or proceeding
under this chapter when the complainant
demonstrates that . . . sex . . . was a
motivating factor for any employment
practice, even though such practice was
also motivated by other factors.
Borrowing from federal law, we will refer to plaintiff's
claim under 28-5-7.3 as her "mixed-motive" claim, and her
28-5-7(1)(A)-(B) claim as her "pretext" claim. See Price
___ _____
Waterhouse v. Hopkins, 490 U.S. 228, 247 n.12 (1989)
__________ _______
("Nothing in this opinion should be taken to suggest that a
case must be correctly labeled as either a "pretext" case or
a "mixed-motives" case from the beginning in [d]istrict
[c]ourt; indeed, we expect that plaintiffs often will allege,
in the alternative, that their cases are both."). See also
___ ____
Newport Shipyard Inc. v. Rhode Island Comm'n for Human
_______________________ ________________________________
Rights, 484 A.2d 893, 897-98 (R.I. 1984) (acknowledging 28-
______
5-7(1) as the statutory source of a "pretext" claim of
discrimination under FEPA).
-17-
17
enacted amendment to FEPA, plaintiff argues that this ruling
was erroneous and should be reversed.13 We agree with
plaintiff's contention.
It is well settled under both federal and Rhode
Island law that where legislative intent as to the
retroactivity of a statute is manifest, that intent is
controlling. See, e.g., Kaiser Alum. & Chemical Corp. v.
___ ____ ______________________________
Bonjorno, 110 S. Ct. 1570, 1577 (1990); Richtmyer v.
________ _________
Richtmyer, 461 A.2d 409, 411 (R.I. 1983). Where a statute is
_________
amended while a case is on direct review, and the statute
dictates that it shall be applied to "pending" actions, the
Rhode Island Supreme Court has applied the amended version of
the statute to the case. See Spunt v. Oak Hill Nursing Home,
___ _____ ______________________
Inc., 509 A.2d 463, 465 (R.I. 1986); Pezzulli v. State, 494
____ ________ _____
____________________
13. During the pendency of this appeal, the Rhode Island
legislature amended 28-5-7.3 in the following manner:
An unlawful employment practice may be
may be
established in an action or proceeding
under this chapter when the complainant
demonstrates that . . . sex . . . was a
motivating factor for any employment
practice, even though such practice was
also motivated by other factors. Nothing
Nothing
contained herein shall be construed as
contained herein shall be construed as
requiring direct evidence of unlawful
requiring direct evidence of unlawful
intent or as limiting the methods of
intent or as limiting the methods of
proof of unlawful employment practices
proof of unlawful employment practices
under section 28-5-7.
under section 28-5-7.
1992 R.I. Pub. Laws, ch. 447, 1 (effective July 14, 1992)
(also referred to as the "`mixed-motive' amendment").
Section 2 of the "mixed-motive" amendment further provides
that it "shall take effect upon passage and shall apply to
all pending cases."
-18-
18
A.2d 540, 542-43 (R.I. 1985); Richtmyer, 461 A.2d at 411.
_________
See also United States v. 1002.35 Acres of Land, 942 F.2d
___ ____ ______________ ______________________
733, 736 (10th Cir. 1991) ("Where . . . Congress expressly
provides . . . that a statute `shall apply to cases pending
on or commenced on or after the date of the enactment,'
courts have no choice but to follow its dictates.") ("A case
is a `pending' one . . . if an appeal on the merits was
pending when the [a]mendments were enacted.").
In light of these precepts, it is evident that the
amendment applies to plaintiff's claim. In its "mixed-
motive" amendment, the Rhode Island legislature made manifest
its intention that the statute "shall apply to all pending
cases." See 1992 R.I. Pub. Laws, ch. 447, 2. As this
___
direct appeal was pending when the amendment became law, we
must therefore give the amendment retroactive effect. And,
as the amendment makes clear, "direct evidence" is not
required in a "mixed-motive" sex discrimination case. See
___
1992 R.I. Pub. Laws, ch. 447, 1. As such, plaintiff does
not need "direct evidence" to get her claim before a jury.
Defendant argues, however, that even under the
"mixed-motive" amendment, plaintiff did not make out a
sufficient case of sex discrimination. We disagree.
To make out a claim under the new statute, a
plaintiff must show that it is more likely than not that
her/his sex was "a motivating factor[,]" see 1992 R.I. Pub.
_ ___
-19-
19
Laws, ch. 447, 1 (emphasis supplied), in the adverse
employment decision. Further, a plaintiff can satisfy
her/his initial burden without "direct evidence" that sex
_______
animus entered into the decisional calculus. See id. Thus,
___ ___
in determining whether a "mixed-motive" claim survives a
motion for judgment as a matter of law, a court must
determine whether the plaintiff has put forth sufficient
evidence for a jury to conclude that it is more likely than
not that the plaintiff's sex was "a motivating factor" for
the defendant's employment decision.14
In the instant case, plaintiff presented the
following evidence in an effort to prove that her sex was "a
motivating factor" in defendant's decision to terminate her:
____________________
14. We note that, when compared to federal law in existence
prior to the enactment of the Civil Rights Act of 1991, the
new Rhode Island statute places fewer obstacles in the way of
a plaintiff alleging a "mixed-motive" case of sex
discrimination. Compare 1992 R.I. Pub. Laws, ch. 447, 1
_______
with Price Waterhouse, 490 U.S. at 237-58 (outlining the
____ ________________
burden-shifting framework for a "mixed-motive" claim of sex
discrimination under federal law) (requiring plaintiff to
prove that it is more likely than not that sex animus played
a part in employment decision; if plaintiff satisfies that
burden, the defendant must then prove that it would have made
the same decision absent the sex animus); Jackson v. Harvard
_______ _______
Univ., 900 F.2d 464, 467 (1st Cir.) (interpreting Price
_____ _____
Waterhouse as requiring plaintiff to prove with "direct
__________
evidence" that sex animus played a part in employment
decision), cert. denied, 111 S. Ct. 137 (1990).
_____ ______
-20-
20
(1) testimony tending to show that
O'Donnell was the de facto decision-
__ _____
maker;
(2) O'Donnell's admission that he had
"some discretion" over exactly how to
reduce his budget;
(3) O'Donnell's testimony that he chose
to lay off plaintiff rather than three
less senior male employees, one of whom
had a higher salary than plaintiff;
(4) O'Donnell's testimony that he
selected plaintiff for layoff because she
was part of his "overhead" budget
(whereas the three less senior male
employees were part of the "direct
charge" budget), in contrast to his
admission, when pressed at trial, that he
did not know how much of plaintiff's work
could be categorized as "overhead" and/or
"direct charge";15
(5) O'Donnell's testimony that the
company's "no-bumping" policy precluded
him from laying off one of the less
senior male employees in Subcontracts, in
contrast to other testimony which showed
that plaintiff was qualified to assume
their responsibilities and could have
received the type of "direct charge"
assignments for which the they were
responsible;
(6) the testimony of several witnesses
that O'Donnell harbored and was wont to
express sexist attitudes in the
workplace.16
____________________
15. In its brief, defendant asserts that "[t]he federal
government would not pay for [plaintiff's position] on a
direct charge basis." O'Donnell testified at trial, however,
that he was unaware of any such rule or agreement.
16. The record also contains a memorandum dated January 31,
1990, from O'Donnell to Steiner, which defendant introduced
at trial to prove O'Donnell's commitment to plaintiff.
Plaintiff, however, introduced the following evidence to cast
-21-
21
Viewing the sum total of this evidence and its
reasonable inferences in a light most favorable to plaintiff,
we find that a jury could have concluded that it was more
likely than not that plaintiff's sex was a motivating factor
_
in defendant's decision to terminate her. We therefore
reject defendant's argument that, even under the "mixed-
motive" amendment, plaintiff failed to put forth sufficient
evidence to withstand its motion for judgment as a matter of
law.17
2. Plaintiff's "pretext" claim under FEPA
2. Plaintiff's "pretext" claim under FEPA
__________________________________________
____________________
doubt on the facially exculpatory nature of this memorandum:
(a) O'Donnell allegedly wrote the
memorandum shortly after he had suggested
_____
to Steiner that plaintiff's name be
placed on the list of layoffs;
(b) O'Donnell's hyperbolic praise for
plaintiff in the memorandum, ("A
Senseless Loss of a Unique Division
Resource"), stands alone in the record as
_____
evidence that O'Donnell held plaintiff in
such high esteem (and may be inconsistent
with his admitted failure at an earlier
time to give her any consideration for a
promotion for which her immediate
supervisor considered her qualified); and
(c) O'Donnell did not deny that, when
asked at his deposition what steps he
took to retain plaintiff, he failed to
mention the memorandum.
17. Because we decide this issue under the recently amended
version of 28-5-7.3, we need not address the question of
whether a motion for judgment as a matter of law was
warranted under the pre-amendment version of the statute.
-22-
22
The district court also ruled that plaintiff did
not put forth sufficient evidence to make out a "pretext"
claim of sex discrimination under FEPA.18 For the
following reasons, we disagree with the district court's
decision.
A Rhode Island plaintiff alleging that sex
discrimination infected an employer's decision to discharge
her/him can proceed under either 28-5-7.3 ("mixed-motive"
theory) or 28-5-7(1)(A)-(B) ("pretext" theory).19 While
the Rhode Island legislature amended 28-5-7.3, that
amendment does not appear to alter the analytical framework
of a "pretext" claim under 28-5-7(1)(A)-(B).20 Thus, a
plaintiff whose evidence is insufficient to show that her/his
sex was "a motivating factor" in defendant's employment
decision can attempt to prove her/his case under a "pretext"
theory of discrimination. See generally McDonnell Douglas
___ _________ _________________
Corp. v. Green, 411 U.S. 792, 802-04 (1973) (explaining the
_____ _____
____________________
18. The bench ruling below does not make clear the grounds
upon which the court relied in granting defendant's motion
for judgment as matter of law on plaintiff's "pretext" claim.
19. As we previously noted, oftentimes a plaintiff alleging
sex discrimination will proceed under both of these statutes.
See supra note 12.
___ _____
20. Indeed, the amendment's language highlights the fact
that a "mixed-motive" theory of discrimination is merely one
way in which a plaintiff can prove "an unlawful employment
practice." See 1992 R.I. Pub. Laws, ch. 447, 1 ("An
___
unlawful employment practice may be established . . . when
___ __
the complainant demonstrates that . . . sex . . . was a
motivating factor . . . .") (emphasis supplied).
-23-
23
"pretext" burden-shifting framework). See also Newport, 484
___ ____ _______
A.2d at 898-99 (applying the McDonnell Douglas to a claim
_________________
under 28-5-7(1)(A)-(B)).
Under the now familiar McDonnell Douglas tripartite
_________________
burden-shifting analysis, a plaintiff must first make out a
prima facie case of sex discrimination. Fields v. Clark
______ _____
Univ., 966 F.2d 49, 51 (1st Cir. 1992), petition for cert.
_____ ________ ___ _____
filed, 61 U.S.L.W. 2047 (U.S. Nov. 9, 1992) (No. 92-809);
_____
Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 153
________ ____________________________
(1st Cir. 1990). The burden placed on a plaintiff at this
stage "is not onerous." Fields, 966 F.2d at 51 (quoting
______
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
_________________________________ _______
253 (1981)). In a "reduction in force" case, a plaintiff can
make out a prima facie case by showing that: (1) s/he is in
the protected class; (2) s/he performed her/his job
adequately; (3) s/he was nevertheless dismissed; and (4) the
employer did not treat sex neutrally or that opposite sex
employees doing the same or similar work were retained. Cf.
___
Connell v. Bank of Boston, 924 F.2d 1169, 1173 n.5 (1st Cir.)
_______ ______________
(age discrimination), cert. denied, 111 S. Ct. 2828 (1991);
_____ ______
Schuler v. Polaroid Corp., 848 F.2d 276, 278 (1st Cir. 1988)
_______ ______________
(same).21
____________________
21. In assessing the sufficiency of plaintiff's evidence at
this stage, a court should keep its analytical eye focused on
the central inquiry in a disparate treatment sex
discrimination case: whether the employer treated "`some
people less favorably than others because of their . . . sex
-24-
24
Once the prima facie case is established, an
inference of discrimination arises. Cumpiano, 902 F.2d at
________
153. Next, the burden of production, not persuasion, shifts
to the defendant to articulate a plausible, legitimate, and
nondiscriminatory justification for the discharge. Fields,
______
966 F.2d at 51; Ramos v. Roche Products, Inc., 936 F.2d 43,
_____ ____________________
47 (1st Cir.), cert. denied, 112 S. Ct. 379 (1991); Cumpiano,
_____ ______ ________
902 F.2d at 153. Once the employer proffers such a
justification, "`the inference raised by plaintiff's prima
facie case vanishes.'" Cumpiano, 902 F.2d at 153 (quoting
________
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st
____________ _________________________
Cir. 1990)). The plaintiff "must then carry her burden of
proof by demonstrating that `the legitimate reasons offered
by the defendant were not its true reasons, but were a
pretext for discrimination.'" Id. (quoting Burdine, 450 U.S.
___ _______
at 253).
To satisfy this third prong, a plaintiff must do
more than simply cast doubt upon the employer's
justification. Ramos, 936 F.2d at 48. Rather, the plaintiff
_____
must prove that the employer's proffered justification was a
pretext for sex discrimination. Id.; cf. Lawrence v.
___ ___ ________
Northrup Corp., No. 92-1702, slip op. at 6-8 n.1 (1st Cir.
_______________
Nov. 25, 1992) (age discrimination) (explaining that, at the
____________________
. . . .'" Thomas v. Digital Equip. Corp., 880 F.2d 1486,
______ _____________________
1490 (1st Cir. 1989) (quoting Furnco Constr. Corp. v. Waters,
____________________ ______
438 U.S. 567, 577 (1978)).
-25-
25
final stage of McDonnell Douglas, a plaintiff must come
__________________
forward with "minimally sufficient evidence, direct or
indirect, both of pretext and of the employer's
___
discriminatory animus") (emphasis in original).
To show pretext, a plaintiff must present evidence
either that a discriminatory reason more likely motivated the
employer or that the employer's justification is questionable
or unworthy of belief. See Fields, 966 F.2d at 52. See also
___ ______ ___ ____
Ramos, 936 F.2d at 48 ("Pretext can be exposed in several
_____
different ways. . . . `The more idiosyncratic or
questionable the employer's reason, the easier it will be to
expose it as pretext, if indeed it is one.'") (quoting Loeb
____
v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979));
_____________
Brown v. Trustees of Boston Univ., 891 F.2d 337, 347 (1st
_____ __________________________
Cir. 1989) ("To prove the proffered motive is not worthy of
belief, evidence of a comparative sort is appropriate: if
others were hired or promoted though by the same reasoning
they ought to have been excluded, then the motive is a
`pretext.'") (quoting Namenwirth v. Bd. of Regents, 769 F.2d
__________ ______________
1235, 1240 (7th Cir. 1985), cert. denied, 474 U.S. 1061
_____ ______
(1986)), cert. denied, 496 U.S. 937 (1990).
_____ ______
To prove the employer's discriminatory animus, a
plaintiff is not required to come forward with evidence of
the "smoking gun" variety. Mesnick v. General Elec. Co., 950
_______ _________________
F.2d 816, 824 (1st Cir. 1991), cert. denied, 112 S. Ct. 2965
_____ ______
-26-
26
(1992). Rather, "there are many veins of circumstantial
evidence that may be mined by a plaintiff to this end[,]"
id., including comments by decision-makers which denigrate
___
women. Cf. id. (holding that "comments by decision-makers
___ ___
that denigrate those over forty" would be sufficient
circumstantial evidence of animus in an age discrimination
suit).
In assessing this evidence, a court must be mindful
that its role "is not to second-guess the business decisions
of an employer, imposing [its] subjective judgment[] of which
person would best fulfill the responsibilities of a certain
job." Rossy v. Roche Products, Inc., 880 F.2d 621, 625 (1st
_____ ____________________
Cir. 1989). "While an employer's judgment or course of
action may seem poor or erroneous to outsiders, the relevant
question is simply whether the given reason was a pretext for
illegal discrimination." Id. (quoting Loeb, 600 F.2d at 1012
___ ____
n.6). Finally, before granting a defendant's motion for
judgment as a matter of law on a McDonnell Douglas claim, a
_________________
court must be satisfied that no reasonable juror could find
for plaintiff. See Richmond Steel, 954 F.2d at 22.
___ ______________
Here, plaintiff satisfied her initial burden of
making out a prima facie case of sex discrimination. She is
a member of the protected class; the evidence is undisputed
that plaintiff was performing her job adequately when she was
-27-
27
laid off in March 1990; and, there is evidence that males
doing the same or similar work were retained.22
As plaintiff made out a prima facie case, the
burden of production then shifted to defendant to articulate
a legitimate, nondiscriminatory justification for discharging
plaintiff. By coming forward both with evidence of necessary
"overhead" budget cuts and with evidence that the company's
longstanding "no-bumping" policy precluded it from laying off
one of the three less senior male employees in Subcontracts,
defendant more than adequately met that burden.
The proof pendulum then swung back to plaintiff.
She was required to come forward with enough evidence to
expose defendant's articulated justification as a pretext, or
cover-up, for sex discrimination. To satisfy this burden,
plaintiff proffered evidence of both pretext and sex animus.
____________________
22. The record reveals that, until March 1989, plaintiff's
official job title was "Subcontract Specialist." At some
point during that month, plaintiff's job title was changed to
a "Procurement Contracts Advisor." However, plaintiff
testified that, despite her new job title, her day-to-day job
description remained the same from the day she started until
the day she was discharged. Plaintiff also presented
evidence that three less senior male Subcontract Specialists,
whose jobs she was qualified to perform, remained with the
company after her discharge. Finally, evidence was adduced
at trial which suggested that, although plaintiff was listed
as a member of Policy and Planning, her work frequently
spilled over into Subcontracts.
We think that the sum total of this evidence raises at
least a question of fact about whether plaintiff and the
three less senior male Subcontract Specialists retained by
the company were doing similar work. In so holding, we are
mindful that the burden on a plaintiff at this stage is not
an onerous one. See, e.g., Fields, 966 F.2d at 51.
___ ____ ______
-28-
28
First, on the question of pretext, the evidence revealed
that, when making the selection to discharge plaintiff,
O'Donnell did not know how much of her time was spent doing
"overhead" work. O'Donnell also admitted at trial that he
did not research the cost-saving potential of discharging one
of the three less senior and, allegedly less qualified, male
employees (including Mr. Pagliaro, who notwithstanding his
lower salary grade level, received a higher salary than
plaintiff). Further, evidence adduced at trial tended to
show that the distinction between "overhead" or "direct
charge" work was tied to specific assignments rather than
individual employees, and that plaintiff was at least as
qualified to do "direct charge" work as the three less senior
male employees in the Subcontracts subdivision. Moreover,
plaintiff's evidence raised at least a question of fact about
whether defendant could have discharged one of the three less
senior men in Subcontracts without violating its "no-bumping"
policy.23 Finally, on the question of sex animus,
plaintiff proffered evidence that the decision-maker,
____________________
23. For instance, it is not clear from the record whether
defendant could have discharged Mr. Pagliaro and assigned
plaintiff "direct charge" work (that would have otherwise
been assigned to him) without violating its "no-bumping"
policy. However, O'Donnell testified that, had defendant
discharged Mr. Pagliaro and retained plaintiff, more "direct
charge" work might have been available for plaintiff without
a change in her job classification.
-29-
29
O'Donnell, frequently made denigrating comments about women
in the workplace.24
Reviewing all of this evidence in a light most
favorable to plaintiff, we find that a reasonable juror could
reach a verdict for plaintiff on her "pretext" claim.25 As
a result, we reject defendant's argument that, under either a
"pretext" or "mixed-motive" theory of sex discrimination,
plaintiff did not put forth enough evidence to submit her
claim to a jury.
B. Exclusion of Plaintiff's Evidence of Compensatory Damages
B. Exclusion of Plaintiff's Evidence of Compensatory Damages
_____________________________________________________________
under FEPA
under FEPA
__________
Plaintiff next challenges the district court's
decision to exclude her nonphysical and nonmedical evidence
____________________
24. As for the January 31, 1990, memorandum from O'Donnell
to Steiner, (which defendant offers as direct proof that
O'Donnell's alleged sexism could not have infected his
attitude toward plaintiff), we have previously noted
plaintiff's attempt to discredit this facially exculpatory
memorandum. See supra note 16.
___ _____
25. In so holding, we are aware that the record is devoid of
direct evidence that O'Donnell's sexism infected his decision
______ ________
to select plaintiff for layoff. Under McDonnell Douglas,
_________________
however, a plaintiff is not required to produce "smoking gun"
evidence of the illegal discrimination. See, e.g., Mesnick,
___ ____ _______
950 F.2d at 824. Rarely, if ever, in fact, will a plaintiff
employee have the kind of direct evidence that would,
unassisted by inferences, raise the specter of sex
discrimination. While we find the instant case a close one,
we are satisfied -- after reading the record in a light most
favorable to plaintiff -- that plaintiff came forward with
enough evidence on her "pretext" claim to withstand
defendant's motion for judgment as a matter of law.
-30-
30
of compensatory damages under R.I. Gen. Laws 28-5-
24(2).26 Plaintiff's argument again rests upon a recent
change in the law which, we find, supports her position.
At the same time that it amended its "mixed-motive"
statute, 28-5-7.3, the Rhode Island legislature also
amended 28-5-24(2). See 1992 R.I. Pub. Laws, ch. 447, 1
___
(effective July 14, 1992). The amendment to 28-5-24(2)
added the following sentence: "The complainant shall not be
required to prove that he or she has suffered physical harm
or physical manifestation of injury in order to be awarded
compensatory damages." See id. Further, as with the "mixed-
___ ___
motive" amendment, 28-5-24(2)'s amendment applies "to all
pending cases." See 1992 R.I. Pub. Laws, ch. 447, 2.27
___
Based upon the amendment to 28-5-24(2),
therefore, plaintiff does not need evidence of physical harm
to submit her claim for compensatory damages to a jury.
Accordingly, the district court's ruling to the contrary
____________________
26. At the time of trial, R.I. Gen. Laws 28-5-24(2)
provided:
If the commission finds that the
respondent has engaged in intentional
discrimination in violation of this
chapter, the commission . . . may award
compensatory damages. As used in this
section, the term `compensatory damages'
shall not include back pay or interest
thereon . . . .
27. As a result, our analysis of the retroactivity and
applicability of the "mixed-motive" amendment applies equally
to 28-5-24(2)'s amendment. See supra pp. 18-19.
___ _____
-31-
31
cannot stand.28 C. Motion for Judgment as a Matter
C. Motion for Judgment as a Matter
_____________________________________
of Law on Plaintiff's Sex Discrimination Claim under RICRA
of Law on Plaintiff's Sex Discrimination Claim under RICRA
__________________________________________________________
Plaintiff's final argument is that the district
court erred in granting defendant's motion for judgment as a
matter of law on her sex discrimination claim under RICRA,
R.I. Gen. Laws 42-112-1 (Supp. 1991) (effective July 10,
1990).29 Defendant responds that, because the statute does
not apply retroactively to its alleged discriminatory conduct
(which occurred prior to RICRA's effective date), we should
affirm the district court's ruling. We agree with
defendant's argument.30
____________________
28. Because we decide this issue under the recent amendment,
we need not address the question of whether the district
court correctly interpreted the version of 28-5-24(2) in
effect at the time of trial.
29. R.I. Gen. Laws 42-112-1(a) provides in relevant part
that:
All persons within the state, regardless
of . . . sex . . . shall have . . . the
same rights to make and enforce contracts
. . . .
Subsection (b) further explains that:
[T]he right to "make and enforce
contracts . . ." shall include the
making, performance, modification and
termination of such contracts . . . and
the enjoyment of all benefits, terms and
conditions of the aforesaid contractual .
. . relationship[].
30. In granting defendant's motion for judgment as a matter
of law on plaintiff's RICRA claim, the district court
reasoned that plaintiff's failure to come forward with
sufficient evidence of sex discrimination under FEPA
precluded a finding in her favor on her RICRA claim. On
-32-
32
Under Rhode Island law, statutes that create new
substantive rights "are presumed to operate prospectively
unless it appears by clear, strong language or by necessary
implication that the Legislature intended to give the statute
retroactive effect." VanMarter v. Royal Indem. Co., 556 A.2d
_________ ________________
41, 44 (R.I. 1989). See also Lawrence v. Anheuser-Busch,
___ ____ ________ _______________
Inc., 523 A.2d 864, 869 (R.I. 1987) (holding that substantive
____
statutes "must be construed to operate prospectively" in the
absence of strong language to the contrary); Scuncio Motors,
_______________
Inc. v. Subaru of New England, Inc., 715 F.2d 10, 12 (1st
____ ____________________________
Cir. 1983) ("The Rhode Island cases consistently have
required `clear, strong language' expressing an intent to
give a substantive statute retroactive effect before the
presumption of prospective effect may be overcome.") (quoting
State v. Healy, 410 A.2d 432, 434 (R.I. 1980)).
_____ _____
Unlike the language in FEPA, RICRA contains no
"clear, strong language" regarding retroactivity. In the
absence of such language, we must therefore apply the
presumption of prospectivity to this substantive statute.
See, e.g., VanMarter, 556 A.2d at 44; Lawrence, 523 A.2d 869.
___ ____ _________ ________
____________________
appeal, "`[w]e are . . . free to affirm a district court's
decision on any ground supported in the record even if the
issue was not pleaded, tried or otherwise referred to in the
proceedings below.'" Chamberlin v. 101 Realty, Inc., 915
__________ _________________
F.2d 777, 783 n.8 (1st Cir. 1990) (quoting Norris v.
______
Lumbermen's Mut. Casualty Co., 881 F.2d 1144, 1151-52 (1st
______________________________
Cir. 1989)). See also Mesnick, 950 F.2d at 822 (similar).
___ ____ _______
-33-
33
As a result, plaintiff's claim under RICRA must fail.31 We
therefore affirm, albeit on different grounds, the district
court's decision to grant defendant's motion for judgment as
a matter of law on plaintiff's RICRA claim.
____________________
31. We note that the fact that plaintiff filed her complaint
after the effective date of RICRA does not alter our
retroactivity analysis, which hinges instead on the date of
the actionable conduct.
-34-
34
IV.
IV.
___
CONCLUSION
CONCLUSION
__________
For the reasons outlined above, the district
court's decisions to grant defendant's motion for judgment as
a matter of law on plaintiff's sex discrimination claim under
FEPA and to exclude nonmedical evidence of her compensatory
damages are reversed, and its ruling with respect to
________
plaintiff's RICRA claim is affirmed.
_________
This case is remanded to the district court for
___________________________________________________
proceedings consistent with this opinion.
_________________________________________
-35-
35
Related
McDonnell Douglas Corp. v. Green
411 U.S. 792 (Supreme Court, 1973)
Furnco Construction Corp. v. Waters
438 U.S. 567 (Supreme Court, 1978)
Texas Department of Community Affairs v. Burdine
450 U.S. 248 (Supreme Court, 1981)
Price Waterhouse v. Hopkins
490 U.S. 228 (Supreme Court, 1989)
Kaiser Aluminum & Chemical Corp. v. Bonjorno
494 U.S. 827 (Supreme Court, 1990)
Edna Bonfilio Carlson, Administratrix of the Estate of John D. Bonfilio v. American Safety Equipment Corporation
528 F.2d 384 (First Circuit, 1976)
Frank L. LOEB, Plaintiff, v. TEXTRON, INC., Et Al., Defendants
600 F.2d 1003 (First Circuit, 1979)
Scuncio Motors, Inc. v. Subaru of New England, Inc.
715 F.2d 10 (First Circuit, 1983)
Norman SCHULER and Grace J. Schuler, Plaintiffs, Appellants, v. POLAROID CORPORATION, Defendant, Appellee
848 F.2d 276 (First Circuit, 1988)
Julie ROSSY, Et Al., Plaintiffs, Appellants, v. ROCHE PRODUCTS, INC., Defendant, Appellee
880 F.2d 621 (First Circuit, 1989)
Samuel Thomas v. Digital Equipment Corporation
880 F.2d 1486 (First Circuit, 1989)
Richard D. Norris v. Lumbermen's Mutual Casualty Company
881 F.2d 1144 (First Circuit, 1989)
Julia Prewitt Brown v. Trustees of Boston University
891 F.2d 337 (First Circuit, 1990)
Jose MEDINA-MUNOZ, Etc., Et Al., Plaintiffs, Appellants, v. R.J. REYNOLDS TOBACCO COMPANY, Defendant, Appellee
896 F.2d 5 (First Circuit, 1990)
Barbara Jackson v. Harvard University
900 F.2d 464 (First Circuit, 1990)
Wilma Cumpiano A/K/A Wilma Cumpiano Sanchez v. Banco Santander Puerto Rico
902 F.2d 148 (First Circuit, 1990)
Thomas B. Connell v. Bank of Boston and John S. Ingalls
924 F.2d 1169 (First Circuit, 1991)
Nixa Ramos v. Roche Products, Inc.
936 F.2d 43 (First Circuit, 1991)
Rona Fields v. Clark University
966 F.2d 49 (First Circuit, 1992)
Newport Shipyard, Inc. v. Rhode Island Commission for Human Rights
484 A.2d 893 (Supreme Court of Rhode Island, 1984)
Cite This Page — Counsel Stack
Bluebook (online)
Resare v. Raytheon Company Etc, Counsel Stack Legal Research, https://law.counselstack.com/opinion/resare-v-raytheon-company-etc-ca1-1992.