54 F.3d 931 (1st Cir. 1995), 94-1929, Scarfo v. Cabletron Systems, Inc.

Docket Nº:94-1929, 94-1982, and 94-1983.
Citation:54 F.3d 931
Party Name:Genevieve SCARFO, et al., Plaintiffs-Appellees, v. CABLETRON SYSTEMS, INC., et al., Defendants-Appellants. Genevieve SCARFO, Plaintiff-Appellant, v. CABLETRON SYSTEMS, INC., et al., Defendants-Appellees. Brian Miller, Plaintiff-Appellee. Brian MILLER, Plaintiff-Appellant, v. CABLETRON SYSTEMS, INC., et al., Plaintiffs-Appellees. Genevieve A. Scarfo
Case Date:May 12, 1995
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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54 F.3d 931 (1st Cir. 1995)

Genevieve SCARFO, et al., Plaintiffs-Appellees,


CABLETRON SYSTEMS, INC., et al., Defendants-Appellants.

Genevieve SCARFO, Plaintiff-Appellant,


CABLETRON SYSTEMS, INC., et al., Defendants-Appellees.

Brian Miller, Plaintiff-Appellee.

Brian MILLER, Plaintiff-Appellant,


CABLETRON SYSTEMS, INC., et al., Plaintiffs-Appellees.

Genevieve A. Scarfo, Defendant-Appellee.

Nos. 94-1929, 94-1982, and 94-1983.

United States Court of Appeals, First Circuit

May 12, 1995

Heard Jan. 12, 1995.

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Anil Madan, with whom Madan and Madan, P.C., Boston, MA, and Elizabeth Bartholet, Cambridge, MA, were on brief, for defendants.

Eleanor H. MacLellan, with whom Carol A. Fiore and Sulloway & Hollis, Concord, NH, were on brief, for Genevieve A. Scarfo.

Andru H. Volinsky, with whom Michael J. Sheehan and Shaheen, Cappiello, Stein &

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Gordon, P.A., Concord, NH, were on brief for, Brian Miller.

Before CYR and BOUDIN, Circuit Judges, and KEETON, [*] District Judge.

KEETON, District Judge.

Two plaintiffs and two defendants cross-appeal from a final judgment after jury trial. The plaintiffs Genevieve Scarfo and Brian Miller are former employees of defendant Cabletron Systems, Inc. ("Cabletron"). Craig Benson and Robert Levine, supervisory employees of Cabletron, were also defendants in the district court.

Plaintiff Scarfo claimed, inter alia, that defendants discriminated against her on the basis of her sex and terminated her employment in violation of Title VII of the Civil Rights Act, 42 U.S.C. Sec. 2000e-5(f).

Plaintiff Miller claimed, inter alia, under Title VII for retaliatory discharge based on his alleged refusal, as plaintiff Scarfo's immediate supervisor, to discriminate against her by terminating her employment on the basis of her sex.

The principal claims of error asserted on appeal challenge instructions to the jury. Each party opposing a claim of error asserts that no timely objection or request was made in the trial court.

Counsel representing defendants on appeal first came into the case after completion of the jury trial. Not surprisingly, they seek to present contentions substantially different from those presented by defense counsel during and before the jury trial. Whenever new counsel enter and raise new contentions, opposing counsel may find irresistible the temptation to counter with new contentions of their own. Almost inevitably, then, the entry into a case of new counsel for one party increases litigation burdens for all parties. An award of attorneys' fees to a prevailing party may offset this burden in part. But unfairness may remain to opposing parties if the trial or appellate court allows new grounds of claim or defense to be asserted. For this reason, among others, we encounter a threshold question in this case.

One way of framing the threshold question neutrally, abjuring "plain error," United States v. Marder, 48 F.3d 564, 569-72 (1st Cir.1995), "waiver," id. (citing United States v. Olano, --- U.S. ----, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)), "forfeiture," id., "invited error," id., "abandon[ment]," United States v. Smith, 46 F.3d 1223, 1235 (1st Cir.1995), and other terminology freighted with connotations, is to ask: Should we hold that the appellant (or cross-appellant) on each claim of error now before us is not entitled to be heard on the merits of that contention in the circumstances of this appeal?

Searching for the answer requires that we consider procedures for deciding mixed law-fact issues that involve unsettled law, genuine disputes of fact, and the exercise of discretion by jury, or judge, or both. The search requires also that we take account of Supreme Court and circuit decisions handed down after this case was argued, including O'Neal v. McAninch, --- U.S. ----, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995); Lebron v. National Railroad Passenger Corp., --- U.S. ----, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995); United States v. Smith, 46 F.3d 1223 (1st Cir.1995); and United States v. Marder, 48 F.3d 564 (1st Cir.1995).

In describing the tasks of trial and appellate courts in circumstances of this degree of complexity, commentators and opinion writers have invoked imagery of the almost impenetrable. They have spoken, for example, of the "esoteric," Marder, 48 F.3d at 570, "The Bramble Bush," Karl N. Llewellyn, The Bramble Bush (1930), or--in a more venerable and ominous allusion--a "Serbonian Bog," Landress v. Phoenix Mut. Life Ins. Co., 291 U.S. 491, 499, 54 S.Ct. 461, 463, 78 L.Ed. 934 (1934) (Cardozo, J., dissenting) ("The attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog.").

The imagery, even if hyperbole in the classic sense of a figure of speech rather than an assertion to be taken literally, may nevertheless aptly call attention to the increasing

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intricacy of a rapidly evolving jurisprudence of procedural preclusion.

We conclude that we need enter only a little way into this maze of precedents, and on a well-marked path, to decide the case now before us. This is so because rules and precedents have erected a gate at the point of entry upon each potentially promising path through the maze, and each gate is closed to appellants whose contentions have the particular characteristics of those before us in this appeal. Thus, we affirm in substance, though with minor exceptions, and with some modification of amounts of awards, and on condition that a judgment amended as to form be entered in the district court.

We first explain the terms of the judgment that was ordered in the district court and the nature of the claims of error. Then we explain why, in the interests of justice, we hold that each claim of error asserted in this appeal is either harmless error or is raised too late for review under the harmless error standard and cannot be sustained under the more rigorous requirement that relief is to be granted only to avoid a miscarriage of justice.


The first error we address is one not raised by the parties. We consider it because it might be thought to have jurisdictional implications. The "final judgment" entered in this case was, in its form, not literally in compliance with the requirement that "[e]very judgment shall be set forth on a separate document." Fed.R.Civ.P. 58.

The district court made not one but a series of orders. In most instances, the order is not self-explanatory. Instead, it refers to an opinion or memorandum of the court to which one must go to understand precisely the meaning of the order. In these circumstances, if, for example, a party seeks enforcement of the judgment--perhaps even after the case is closed and the file is sent to storage--the parties and any other person required to act will have great difficulty finding out what exactly were the terms of the "final judgment."

In support of our jurisdiction, however, we conclude that the district court ordered the functional equivalent of a "final judgment" in a sequence of orders that includes:

the "Judgment" of May 10, 1994 (incorporating, first, the Order of June 2, 1993 granting in part and denying in part defendants' Motion to Dismiss; second, the Endorsed Order of November 17, 1993 concerning the defendants' Motion for Summary Judgment; third, the Special Verdicts of May 4, 1994; fourth, the Order of May 9, 1994, concerning the Court's Calculation of Title VII Damages);

the Order of July 19, 1994 on Miller's Motion for Prejudgment Interest;

the Order of July 19, 1994 on Miller's Motion for Attorneys' Fees;

the Order of July 19, 1994 on Scarfo's Motion for Attorneys' Fees; and

the Order of July 20, 1994 on Scarfo's Motion for Prejudgment and Postjudgment Interest.

Were we to remand for entry of a "final judgment" that is formally in full compliance with Rule 58, before deciding the appeal that has now been briefed and argued, the case would in due course be back before us again with precisely the same issues to be decided as those we perceive from the record now before us. To avoid the delay and waste of resources incident to such a remand, we proceed to consider the issues now and will direct entry of an appropriate amended judgment on remand.

From close examination of the several orders and memoranda identified above, we conclude that a final judgment of the substance gleaned from all these orders would have recited provisions in substance as follows:

(a) judgment for plaintiff Scarfo on her claim under Title VII of the Civil Rights Act for sex discrimination against defendants Cabletron and Benson for the sum of $1,187,901.07 (consisting of the sum of $242,407.07 in back pay, $744,744 in front pay, and $228,750 for the value of stock, reduced by the jury's award of $28,000 under the Equal Pay Act, paragraph (d)

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below, in order to prevent duplicate recovery) without prejudgment interest;

(b) judgment for defendant Levine on Scarfo's Title VII claim for sex discrimination against him;

(c) judgment for defendants Cabletron, Benson, and Levine on plaintiff Scarfo's claim under Title VII of the Civil Rights Act for sexual harassment based on a hostile or abusive environment;

(d) judgment for plaintiff Scarfo against Cabletron (but not against Benson or Levine), on her claim under the Equal Pay Act, in the sum of $28,000 without prejudgment interest;

(e) judgment for defendants Benson and Levine on plaintiff Scarfo's claim for intentional or reckless infliction of emotional distress;

(f) plaintiff Scarfo's claim of intentional...

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