456 F.3d 228 (1st Cir. 2006), 05-2602, Azimi v. Jordan's Meats, Inc.

Docket Nº:05-2602.
Citation:456 F.3d 228
Party Name:Abdul AZIMI, Plaintiff, Appellant, v. JORDAN'S MEATS, INC., Defendant, Appellee.
Case Date:August 03, 2006
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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456 F.3d 228 (1st Cir. 2006)

Abdul AZIMI, Plaintiff, Appellant,


JORDAN'S MEATS, INC., Defendant, Appellee.

No. 05-2602.

United States Court of Appeals, First Circuit.

August 3, 2006

Heard June 8, 2006.


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[Copyrighted Material Omitted]

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Michelle Allot, with whom Daniel Bates, John Lemieux, and Farris Law were on brief, for appellant.

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Lawrence C. Winger for appellee.

Stephanie E.F. Jazlowiecki, with whom Jeffrey Neil Young, McTeague, Higbee, Case, Cohen, Whitney & Toker, P.A., Zachary L. Heiden, and Maine Civil Liberties Union Foundation, were on brief, for Maine Civil Liberties Union Foundation, amicus curiae.

Before Lynch and Howard, Circuit Judges, and Stafford, [*] Senior District Judge.

LYNCH, Circuit Judge.

A federal jury in Maine found that Abdul Azimi, a Muslim immigrant from Afghanistan, had suffered racial, religious, or ethnic harassment at his former workplace, Jordan's Meats, Inc., in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

The jury did not find that Azimi had suffered any harm for which it would award compensatory damages. Azimi had put on no evidence of any out-of-pocket costs he had incurred for medical treatment or psychological counseling, or of any wages lost as a result of the abuse he suffered at his workplace; instead, he relied only on his own testimony and the testimony of his wife and a friend about his emotional distress -- testimony that the jury reasonably rejected as a basis for awarding compensatory damages.

On appeal, Azimi, supported by amicus Maine Civil Liberties Union Foundation (MCLUF), advances the argument that, as a matter of law, a finding of a hostile work environment requires that there be an award of compensatory damages, even if a jury has rejected plaintiff's causation-of-damages evidence. This argument was long ago rejected by the Supreme Court.

Azimi also did not receive nominal damages. That is because he did not ask for them in a timely fashion; he chose not to submit the question of nominal damages to the jury, and he waited far too long to request them from the district court. He thus has forfeited the issue. Azimi now asserts that nominal damages must be awarded as a matter of law even if nominal damages were not timely requested. We reject the argument.

Because Azimi had not been awarded back pay, or compensatory damages, or nominal damages, the law of this circuit, at least with respect to his Title VII claim, is that he could not receive punitive damages. Although Azimi now wishes us to reconsider that rule, he failed to timely raise this issue with the trial court. Further, as to both his Title VII and § 1981 claims, he did not object to the jury instruction on punitive damages or to the special verdict form, both of which stated that punitive damages could not be awarded if compensatory damages were not. Indeed, his argument that punitive damages ought not be contingent on compensatory damages was not made until his motion for a new trial, which was denied by the district court.

Azimi now asks that we hold that in § 1981 cases, whatever the rule in Title VII cases, there is no prerequisite that there be nominal or compensatory damages before punitive damages may be granted. We decline to reach the issue; it, too, was not preserved.

Finally, Azimi contends that the district court erred in entering summary judgment for Jordan's Meats on Azimi's unlawful discharge claims. Azimi had argued that his discharge was discriminatory and that it was also in retaliation for his earlier complaints to the Maine Human Rights

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Commission (MHRC). The district court found that Azimi had produced no evidence of pretext countering Jordan's Meats' explanation that it terminated Azimi's employment because he engaged in serious misconduct, including threatening a female co-worker in a dark parking lot. We affirm the district court's judgment in all respects. This case potentially raised a number of serious issues; none were preserved for appeal.

Where appropriate, we recite the facts in the light most favorable to the jury's verdict, Torres-Rivera v. O'Neill-Cancel, 406 F.3d 43, 45 (1st Cir. 2005), and discuss the pertinent facts with the issues raised.


A. Azimi's Claim for Compensatory Damages

Azimi was employed at the Jordan's Meats plant in Portland, Maine, from November 1999 to November 2001. During the period Azimi was employed, the company had about 150 full-time employees. Azimi worked in various positions while at the plant, including as a meat slicer and a meat stripper. At trial, Azimi testified that he had been the subject of discriminatory treatment and abusive and harassing behavior by some of his former co-workers and supervisors. The incidents of maltreatment are myriad and outrageous; we recite only a few examples.

On multiple occasions, one of Azimi's line leaders, Steve Mitton, physically obstructed the hot water tap so as to prevent Azimi from washing his hands, which were swollen from handling frozen meat. While Azimi was only allowed access to the cold water tap, Mitton permitted other, white employees to use the hot water.

Subsequently, Azimi was transferred to another department. There, a co-worker, George Libby, made numerous disparaging comments to Azimi about his religion, including: "If you eat pork and pussy, you become strong like me." When Azimi told Libby that both oral sex and the consumption of pork were against his religion, Libby said, "fuck you and fuck your God; fuck your religion." On separate occasions, Libby, whom Azimi described as weighing about three hundred pounds, also grabbed Azimi by the neck and tried to shove pork into Azimi's mouth; held Azimi by the waist and pumped him from behind, simulating sexual intercourse; and told Azimi to "suck my dick" and, when Azimi took umbrage at the comment, picked Azimi up and dangled him, off the floor, by his arms, while other co-workers watched and laughed. Libby and another co-worker, Phil Ryan, also called Azimi on one of the phones in the plant and said to him, among other things, "Nigger, Sudan [sic] Hussein is waiting for you."

In addition to a number of other instances of verbal abuse and maltreatment by co-workers, Azimi was also subject to other offensive conduct, often by anonymous perpetrators. For example, he received an unsigned note in his locker; on one side of the note was scrawled a swastika and on the other side was written:

Hey MotherFucker Why don't You GO BACK to your Own Country.

You don't bE long HERE you Fucking musselum



You Don't don't bElong here AT JORDANSMEAT.

YOUR NOTHing but a Fucking NIGGER ....

Azimi also once found pieces of pork in the pockets of his work jacket; found a picture in his locker of Osama Bin Laden, on which was written the words "Abdul,"

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"Mother Fucker," and &quot Your Dad need [sic] Help"; and discovered that his goggles and hearing-protection equipment were smashed to pieces, and that his personal shoes had been taken from his work locker and stuck in the toilet.

Azimi testified that he reported the harassment to his supervisors; that Brian Smith, the Human Resources Manager, and other supervisors failed to adequately investigate the incidents and to impose appropriate punishment on the wrongdoers; and that the harassment continued despite his complaints and his supervisors' promises to address them.

After hearing the evidence, the jury found, by way of a special verdict form, that Azimi "was subjected to an offensive work environment that was hostile to his race, religion[,] or ethnic origin," and that Jordan's Meats "knew or should have known of the offensive hostile work environment and failed to take adequate and effective remedial measures." The jury, however, answered "no" to the question of whether "Defendant Jordan's Meats, Inc.'s unlawful harassment legally caused [Azimi] to be damaged by emotional distress, pain, suffering, emotional anguish, loss of enjoyment of life[,] and/or inconvenience."1 As a result of this finding, the jury followed the district court's instructions and the special verdict form, and did not go on to consider what amount Azimi was entitled to recover as compensation for any injuries suffered. There were no objections to the special verdict form and the jury instructions, a point that we analyze later.

On appeal, Azimi's contention is that the jury was required to award compensatory damages, either as a matter of law or because the evidence compelled it.

Azimi, supported by the MCLUF, first argues that inherent in a finding of a hostile work environment is a finding that

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the claimant suffered damages, such that any liability finding must be accompanied by an award of compensatory damages.2 Azimi and amicus present the issue as one of inconsistency in the jury verdict. They also argue that the importance of the interests at stake requires that there be an award of damages.

Both arguments have been repudiated by the Supreme Court. Indeed, in Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), the Court rejected, in the context of a claim under 42 U.S.C. § 1983, the arguments (1) that injury should be presumed from the violation of a constitutional right and (2) that damages should be awarded for a deprivation of a constitutional right regardless of whether any injury was caused. See id. at 25498 S.Ct. 1042. The Court noted that "[r]ights, constitutional and otherwise, do not exist in a vacuum," and that "[t]heir purpose is to...

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