108 F.3d 328 (1st Cir. 1997), 96-1399, Petsch-Schmid v. Boston Edison Co.

Docket Nº:96-1399.
Citation:108 F.3d 328
Party Name:Irina PETSCH-SCHMID, Plaintiff--Appellant, v. BOSTON EDISON COMPANY, Alison Alden and James Dillon, Defendants--Appellees.
Case Date:February 27, 1997
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 328

108 F.3d 328 (1st Cir. 1997)

Irina PETSCH-SCHMID, Plaintiff--Appellant,


BOSTON EDISON COMPANY, Alison Alden and James Dillon, Defendants--Appellees.

No. 96-1399.

United States Court of Appeals, First Circuit

February 27, 1997

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA1 Rule 36 regarding use of unpublished opinions)


Gretchen Van Ness with whom Lisa T. Bacon was on brief for appellant.

Keith B. Muntyan, with whom Robert P. Morris and Morgan, Brown & Joy, were on brief for appellees.

Before STAHL, Circuit Judge, ALDRICH and CAMPBELL, Senior Circuit Judges.

STAHL, Circuit Judge.

Plaintiff-appellant Irina Petsch-Schmid seeks a new trial on her state claims 1 of disability 2 and gender discrimination after a jury returned a verdict in favor of defendants-appellees Boston Edison Company, Alison Alden (Petsch-Schmid's supervisor) and James Dillon (Director of Labor Relations for Boston Edison) (collectively, "Boston Edison"). In this appeal, Petsch-Schmid attempts to identify reversible error in a number of the district court's actions. Some of the actions of which she now complains were in fact taken at her request. To none of her assignations of error did she object below. Conceding that our review is for "plain error" only, see Poliquin v. Garden Way Inc., 989 F.2d 527, 531 (1st Cir.1993), Petsch-Schmid endeavors to persuade us that this is the rare case warranting notice of such error. We decline the invitation because we find that her contentions fail to satisfy the plain error standard.

1. Jury Instructions

For the first time on appeal, Petsch-Schmid challenges a number of the district court's jury instructions. We have stated repeatedly that the failure to object before the jury retires to the charge or the verdict form constitutes a waiver. See Scott-Harris v. City of Fall River, Nos. 95-1950/1951/1952/2100, slip op. at 16 (1st Cir. Jan. 15, 1997); see also Fed.R.Civ.P. 51. Some circuits, including ours, have recognized the existence of a "plain error" exception for noncompliance with Rule 51 for "correcting obvious instances of injustice or misapplied law." City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 256 (1981); see Morris v. Travisono, 528 F.2d 856, 859 (1st Cir.1976). The exception, however, "warrants a new trial only where the error 'seriously affected the fairness, integrity or public reputation of the judicial proceedings.' " Poulin v. Greer, 18 F.3d 979, 982-83 (1st Cir.1994) (quoting Lash v. Cutts, 943 F.2d 147, 152 (1st Cir.1991)); see also Morris, 528 F.2d at 859 (explaining that plain error should be noticed "only in exceptional cases or under peculiar circumstances to prevent a clear miscarriage of justice" (internal quotation marks and citation omitted)).

A. Prima Facie Case

Petsch-Schmid first challenges the district court's description of the prima facie elements of a Massachusetts disability discrimination claim under Mass. Gen. Laws ch. 151B, § 4(16). Citing Garrity v. United Airlines, Inc., 653 N.E.2d 173, 177 (Mass.1995), Petsch-Schmid requested the court to instruct the jury that she prove, inter alia, that Boston Edison fired her solely because of her disability. See also Tate v. Department of Mental Health, 645 N.E.2d 1159, 1163 (Mass.1995). Petsch-Schmid now claims that her requested instruction was wrong in light of Blare v. Husky Injection Molding Sys., 646 N.E.2d 111, 115 (Mass.1995), which sets forth the prima facie elements of an age discrimination case under ch. 151B without a "solely because of" requirement. See id.

In response, Boston Edison contends that Blare is distinguishable because it concerned...

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