104 F.3d 9 (1st Cir. 1997), 96-1117, Selgas v. American Airlines, Inc.

• Citation: 104 F.3d 9
• Party Name: Mary Jane Kerr SELGAS, Plaintiff, Appellee, v. AMERICAN AIRLINES, INC., and Whadzen Carrasquillo, Defendants, Appellants.
• Case Date: January 13, 1997
• Court: United States Courts of Appeals, U.S. Court of Appeals — First Circuit

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104 F.3d 9 (1st Cir. 1997)

Mary Jane Kerr SELGAS, Plaintiff, Appellee,

v.

AMERICAN AIRLINES, INC., and Whadzen Carrasquillo,

Defendants, Appellants.

No. 96-1117.

United States Court of Appeals, First Circuit

January 13, 1997

Heard Nov. 4, 1996.

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[Copyrighted Material Omitted]

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Howard B. Comet, New York City, with whom Andrew B. Steinberg and Vicente J. Antonetti, Hato Rey, PR, were on brief for appellants.

Judith Berkan, San Juan, PR, with whom Rosalinda Pesquera and Mary Jo Mendez-Vilella, Hato Rey, PR, were on brief for appellee.

Before TORRUELLA, Chief Judge, COFFIN and CAMPBELL, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

At issue in this case are the equitable remedies awarded to the plaintiff, Mary Jane Kerr Selgas ("Kerr Selgas"), in a sex discrimination suit against her employer, American Airlines ("American"). A jury awarded Kerr Selgas a lump sum award in that suit that included an unspecified amount for front pay. In an earlier appeal, this court affirmed the judgment. See Kerr-Selgas v. American Airlines, Inc., 69 F.3d 1205 (1st Cir.1995) ("Kerr I "). The district court subsequently ordered Kerr Selgas reinstated by American. American maintains in this appeal that front pay and reinstatement are mutually exclusive equitable remedies, and that the court therefore erred in allowing both to Kerr Selgas. It further claims that the district court erred in ordering reinstatement without conducting a hearing, without permitting American to conduct additional discovery, and in considering extra-record evidence submitted by Kerr Selgas. We affirm the court's legal judgment that both front pay and reinstatement are permissible, but we vacate the district court's order and remand for a hearing on whether reinstatement is an appropriate remedy here.

BACKGROUND

The facts of the underlying suit are discussed in detail in our opinion in Kerr I;

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accordingly, we relate here only those facts relevant to the instant appeal.

Mary Jane Kerr Selgas was fired by American Airlines in 1992 after 18 years with the company; she brought suit under federal and Puerto Rico law, alleging sex discrimination, harassment, and violation of her local law right to privacy. At the conclusion of a three week trial, a jury awarded her over $1 million in damages; under Puerto Rico law, this was doubled automatically to over $2 million. A remittitur and the rejection of punitive damages by this court in Kerr I resulted in a final damages award of $1.2 million.

While Kerr Selgas had requested reinstatement in her initial complaint, and also in subsequent motions, the district court set this issue aside during the course of the trial and during the pendency of the Kerr I appeal. One month after this court's decision in Kerr I on November 13, 1995, the district court ordered American to reinstate Kerr Selgas. The court did so without holding a full hearing on this issue, and its order was based on the evidence received at trial and on additional materials submitted with motions by Kerr Selgas. American claims that this reinstatement order is improper for two reasons. First, it argues that reinstatement and front pay are alternative remedies and that Kerr Selgas was fully compensated by the jury award including front pay. Second, if reinstatement is permissible, it argues that it should not have been ordered here without first giving American additional discovery and an opportunity to be heard on the issue, particularly if evidence obtained after the trial was to be considered.

DISCUSSION

Our review of the district court's decision that both front pay and reinstatement could be awarded together as part of the remedies available to a Title VII plaintiff is de novo, as we review for legal error. Compagnie De Reassurance D'Ile de France v. New England Reinsurance Corp., 57 F.3d 56, 71 (1st Cir.1995) (review of legal rulings is de novo ). However, in reviewing a district court's decision to actually award equitable relief, we utilize the abuse of discretion standard. Lussier v. Runyon, 50 F.3d 1103, 1111 (1st Cir.1995). Our review is deferential, and we will not normally find an abuse of discretion absent strong evidence of a lapse in judgment. Texaco Puerto Rico v. Department of Consumer Affairs, 60 F.3d 867, 875 (1st Cir.1995). In Title VII cases, we must be mindful of the statute's dual purposes of eliminating discrimination and making its victims whole. Id.

1. Equitable Remedies Under Title VII: Front Pay and Reinstatement.

   The remedial scheme in Title VII is designed to make a plaintiff who has been the victim of discrimination whole through the use of equitable remedies. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975). These remedies (which include reinstatement, back pay, and front pay) are accordingly intended to compensate a plaintiff for the effects of the discrimination, both past and future, and to bring the plaintiff to the position which s/he would have occupied but for the illegal act(s). See Shore v. Federal Express Corp., 777 F.2d 1155, 1159 (6th Cir.1985). Under Title VII, the first choice is to reinstate the plaintiff at the original employer; this accomplishes the dual goals of providing full coverage for the plaintiff and of deterring such conduct by employers in the future. See Scarfo v. Cabletron Systems, Inc., 54 F.3d 931, 954 (1st Cir.1995).

   Where reinstatement is not immediately available as a remedy, either due to the plaintiff's condition, or due to conditions at the employer that preclude the plaintiff's return (such as hostility of other employees, or the need for an innocent employee to be "bumped" in order to reinstate the plaintiff), front pay is available as an alternative to compensate the plaintiff from the conclusion of trial through the point at which the plaintiff can either return to the employer or obtain comparable employment elsewhere. See id.; see also Powers v. Grinnell Corp., 915 F.2d 34, 42 (1st Cir.1990); Wildman v. Lerner Stores Corp., 771 F.2d 605, 616 (1st Cir.1985) (front pay may be awarded in ADEA suits where reinstatement is impracticable or impossible; circumstances of each

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   case to be considered); Dillon v. Coles, 746 F.2d 998, 1006 (3rd Cir.1984). It is this context, where the overarching preference is for reinstatement and front pay is an alternative for finite periods during which reinstatement is unavailable, ¹ which is the key to understanding the construction of remedial packages. In this context, it can be seen that front pay and reinstatement are not mutually exclusive. Front pay takes a plaintiff to the point of employability. Reinstatement at that point would, in effect, "perfect" the remedy because the plaintiff would be back in the very job she lost unlawfully.

   Trial courts have discretion to fashion the awards in Title VII cases so as to fully compensate a plaintiff in a manner that suits the specific facts of the case; this discretion includes the selection of the elements which comprise the remedial recovery. ² Albemarle, 422 U.S. at 415-16, 95 S.Ct. at 2370-71. Traditionally, the court determines the whole remedial package in one fell swoop. Hybrid awards combining front pay with other equitable elements, while rare, are not novel. The Court of Appeals for the District of Columbia in Thompson v. Sawyer, 678 F.2d 257, 268 (D.C.Cir.1982), commended a district court's award (although it reformulated certain of the elements) which included back pay and front pay to be paid to female bindery workers at the Government Printing Office through such time as women comprised half of the litigated positions. Reinstatement and front pay were explicitly cobbled together as part of the relief afforded the plaintiff in Valdez v. Church's Fried Chicken, Inc., 683 F.Supp. 596 (W.D.Tx.1988), where reinstatement to a managerial position was ordered as soon as a position became available and front pay was ordered to continue until the reinstatement occurred. This court, while it has not previously addressed this particular issue, has indicated a preference for a flexible approach in the construction of remedial awards. See Lussier, 50 F.3d at 1112 (remedial tapestry is made up of multiple strands of relief). ³ The district court...