19 F.3d 755 (1st Cir. 1994), 93-1406, Keisling v. Ser-Jobs for Progress, Inc.
| Citation | 19 F.3d 755 |
| Party Name | Dania R. KEISLING, Plaintiff, Appellee, v. SER-JOBS FOR PROGRESS, INC., et al., Defendants, Appellants. |
| Case Date | March 29, 1994 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — First Circuit |
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Heard Oct. 6, 1993.
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Paul L. Foster, Cranston, RI, for appellants.
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Alicia Murphy with whom Rosemary Healey and Edwards & Angell, Providence, RI, were on brief for appellee.
Before BREYER, Chief Judge, BOUDIN, Circuit Judge, and POLLAK, [*] Senior District Judge.
LOUIS H. POLLAK, Senior District Judge.
This case involves a claim under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. sections 621 et seq. (1988), with a pendent claim under sections 28-5-1 et seq. of the Rhode Island General Laws. The plaintiff, Dania Keisling, claims that her firing by the corporate defendant, SER-Jobs for Progress, Inc. ("SER"), was the result of unlawful age discrimination on the part of SER and individual defendants Alma F. Green and Lois K. Turner. Finding liability both under ADEA and under state law, the jury (1) awarded Keisling $32,874 in compensatory damages against all three defendants, and (2) awarded Keisling $50,000 in exemplary damages against defendant Green and $25,000 in exemplary damages against defendant Turner. Memorandum and Order at 1 (D.R.I. Mar. 11, 1993). Appendix of Defendants-Appellants (hereinafter "A.") 121. 1 SER, Green and Turner now appeal. Because we conclude that the district court erred in excluding testimony proffered by the defendants, we reverse and remand for a new trial.
I. FACTS
The record developed at trial would support factual findings as follows:
SER is a non-profit Rhode Island social service agency whose operations are primarily geared to Rhode Island's Hispanic population. Dania Keisling became an associate director of SER in 1984. From 1984 until mid-1989, Keisling's work was supervised by Carlos Pedro, SER's executive director. Keisling also had extensive dealings with Alma Green, who was the president of SER's board of directors. During this time period, Keisling received regular increases in pay, and as SER expanded its services Keisling's job responsibilities increased dramatically. Keisling did not receive formal evaluations of her performance; she testified, however, that "[m]any times" Green "said that I was always there and I was doing a real good job" and "that I was always actually running that agency." Transcript of Defendants-Appellants (hereinafter "T.") 45.
In July 1989, Pedro resigned as executive director, and SER began the chore of finding a replacement. Both Keisling and Lynn Trudell, SER's other associate director, applied to fill the vacancy. Keisling testified that after she applied for the position she had at least two conversations with Green in which Green made age-related comments. As recounted by Keisling, the comments were:
Sure, you can run that agency but do you want to do that at your age?
Sure, you can run this agency and you have done it but do you want to do that and do you want that aggravation at your age?
T. 49. Two other witnesses, an independent bookkeeper employed by SER and the executive director of a sister agency, testified that Green made similar comments about Keisling to them during the time that SER was searching for a new executive director. T. 182, 218.
In November 1989, SER hired Dr. Lois K. Turner as executive consultant to the Board of Directors, a position in which Turner functioned essentially as interim executive director, supervising the daily operation of the agency in consultation with Green. Among other duties, Dr. Turner was responsible for
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performing an extensive review of the functioning of SER and for assisting in the hiring of a new executive director. A. 164-65. In reviewing the operation of the agency, Turner purportedly discovered some problems with Keisling's performance. On January 19, 1990, Turner met with Keisling and advised her of matters that had come to Turner's attention. Specifically, Turner told Keisling that staff members had complained that Keisling had yelled at them and had used profanity and obscene gestures. Turner also asserted that Keisling had failed to complete some of her tasks in a timely manner. T. 58-9.
Turner memorialized the meeting with Keisling in a memorandum dated February 1, 1990--a memorandum that Keisling stated she received on February 9. The memorandum repeated the charges of inappropriate behavior, and also set forth a number of alleged deficiencies in Keisling's performance. In the memorandum, Turner gave Keisling a thirty-day probationary period, beginning February 1, in which to demonstrate appropriate professional behavior and to improve her performance. A. 133, 135. Keisling responded to the February 1 memorandum with memoranda of her own, one to the Board of Directors and one to her personnel file, in which she attempted to refute Turner's allegations. A. 136, 138.
On March 2, at the conclusion of the probationary period, Turner and Green met with Keisling and informed her that her employment was to be terminated. They presented Keisling with a memorandum, dated March 2, stating that Green and the Executive Committee of SER had endorsed Turner's decision to terminate Keisling's employment. A. 144. They also presented Keisling with a letter from Turner, also dated March 2, detailing additional instances of alleged inappropriate behavior and inadequate performance. A. 141. Keisling was given an opportunity to appeal her termination to the Board of Directors, which upheld the termination. At the time she was terminated, Keisling was over 40 years old.
II. ANALYSIS
From the jury's verdict in favor of plaintiff Keisling, the three defendants have appealed. Four grounds for appeal are advanced. Of these, it is only necessary to address two in detail. 2 First, defendants claim that the district court erred in failing to grant their post-trial motion for judgment as a matter of law. Second, they argue that the district court committed prejudicial error in excluding testimony regarding age-related statements allegedly made by defendant Green and by Keisling herself. These arguments will be addressed in turn.
A. Denial of Motion for Judgment as a Matter of Law
Defendants argue that the district court erred in denying their motion for judgment as a matter of law. They claim that Keisling failed to introduce evidence at trial sufficient even to establish a prima facie case of discrimination, much less to carry her ultimate burden of proof.
Defendants' argument suffers from two flaws. First, as Keisling points out, defendants failed to preserve their argument properly for appeal by failing to make a motion for judgment as a matter of law at the close of all evidence. Rule 50(a) of the Federal Rules of Civil Procedure permits a motion for judgment as a matter of law to be made "at any time before submission of the case to the jury." Defendants, in compliance with this rule, made a motion for judgment as a matter of law at the close of Keisling's case. T. 289. That motion, however, was insufficient to preserve the issue that defendants are now seeking to present on appeal. If a defendant wishes to renew a motion for judgment as a matter of law at the post-trial stage, with a view to having denial of that motion considered by the court of appeals, the defendant is required to have moved for judgment as a matter of law at the close of all the evidence. Fed.R.Civ.P. 50(b). 3 Requiring
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the motion to be made at the close of all the evidence gives the opposing party an opportunity to respond to any evidentiary deficiencies noted by the motion by seeking to reopen the evidence prior to submission of the case to the jury. See Fed.R.Civ.P. 50(a) advisory committee's note (1991). This court therefore has held that it will not consider claims of insufficient evidence unless the district court was presented with a motion for judgment as a matter of law at the close of all the evidence. See Jusino v. Zayas, 875 F.2d 986, 991 (1st Cir.1989).
At oral argument, defendants contended that the rule of Jusino should not apply in the present case. They claimed that the comments of the district judge in denying defendants' motion at the close of plaintiff's case led them to believe that their motion was preserved for post-verdict consideration by both the district court and this court, and that their reasonable reliance on the district judge's comments removed the necessity for a renewed motion at the close of all the evidence. 4
We are far from persuaded that the district judge's comments could reasonably have been taken as an assurance by the judge that defendants need not move for judgment as a matter of law at the close of all the evidence. However, assuming arguendo that defendants did not read too much into the judge's comments, defendants' asserted reliance on those comments was, nonetheless, insufficient to obviate the need for conformity with the requirement that the adequacy of the plaintiff's case be challenged at the close of all the evidence. To be sure, the obligation to conform to the requirement is not absolute, but this court has emphasized that only very unusual circumstances will justify treating a motion at the close of the plaintiff's case as a surrogate for a motion at the close of all the evidence. Those circumstances--which, we have said, constitute a "very narrow exception," Della Grotta v. Rhode Island, 781 F.2d 343, 350 (1st Cir.1986), to the rule that the motion be renewed at the close of all the evidence--are presented "in a case ... combining judicial assurance concerning preservation of rights at the time of the motion and ... brief and inconsequential evidence following the motion...." Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968, 972 (1st Cir.1969); Beaumont v. Morgan, 427 F.2d 667, 670 (1st Cir.1970). In the present case, whatever reliance...
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