746 F.2d 78 (1st Cir. 1984), 84-1130, Segal v. Gilbert Color Systems, Inc.

Docket Nº:84-1130.
Citation:746 F.2d 78
Party Name:Paul S. SEGAL, Plaintiff, Appellee, v. GILBERT COLOR SYSTEMS, INC., Defendant, Appellant.
Case Date:October 11, 1984
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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746 F.2d 78 (1st Cir. 1984)

Paul S. SEGAL, Plaintiff, Appellee,

v.

GILBERT COLOR SYSTEMS, INC., Defendant, Appellant.

No. 84-1130.

United States Court of Appeals, First Circuit

October 11, 1984

Argued Sept. 5, 1984.

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Meredith Peterson Tufts, Boston, with whom Fine & Ambrogne, Boston, was on brief, for defendant, appellant.

Francis G. Holland, Nashua, N.H., with whom Holland & Aivalikles, Nashua, N.H., was on brief, for plaintiff, appellee.

Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and SELYA, [*] District Judge.

SELYA, District Judge.

Paul S. Segal brought this suit against his former employer, Gilbert Color Systems, Inc. (Gilbert), charging that Gilbert had discharged him because of the demands inherent in his service as a federal grand juror, in violation of 28 U.S.C. Sec. 1875 (the Act). 1 While Segal originally

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contended, in a pendent state law claim, that Gilbert had also wrongfully breached the employment contract between the parties, he eventually abandoned that initiative. The case was tried on the Sec. 1875 claim before a jury, which returned a general verdict for the plaintiff in the amount of $30,000.00.

Each party then filed a pair of post-trial motions. Gilbert sought either to reduce the verdict or to set it aside; Segal countered by asking the district court to tack on prejudgment interest and to award counsel fees. The district judge granted three of these four motions: he (i) shrunk the verdict to $22,341.90, (ii) granted interest on the lessened verdict amount from the date suit was filed at an interest rate of 10% per annum, and (iii) awarded counsel fees to the appellee in the sum of $7,447.68 (one-third of the reduced verdict). Gilbert appealed. Segal did not.

In this proceeding, Gilbert no longer contests liability. Rather, its remonstrance is limited to the supposed excessiveness of the verdict as pared by the district court, the propriety of the award of prejudgment interest, and the amount and manner of calculation of attorneys' fees. We will address these points seriatim, presenting in connection with each asseveration the facts as they relate to the particular contention.

I. Excessiveness of Verdict

We need not tarry long on Gilbert's lament that the verdict, even after the remittitur, is overgenerous. The evidence before the jury revealed that Segal was hired in July of 1979 as a salesman for the appellant's color separator services. His base salary was $20,000.00 per year. His arrangement with Gilbert also called for the payment of commissions over and above salary if his sales performance topped a set annual plateau. There was evidence in the record that Gilbert's projections showed some expectation that Segal would earn, between salary and commissions, upward of $30,000.00 yearly. 2 In addition, Segal received the use of a company car 3 and a fringe benefit insurance package. Segal valued the former at $100.00 weekly, and automobile repair receipts limned the pertinent particulars of the vehicle (make, model, mileage, year, etc.). Gilbert's comptroller estimated the cost of the insurance package at $85.00 monthly.

Segal began his grand jury service in the United States District Court in Boston, Massachusetts on November 5, 1979. The term of the grand jury was eighteen months. On November 8, 1979, Segal was dismissed by his employer--a dismissal which, as Gilbert concedes for purposes of this appeal, was in derogation of 28 U.S.C. Sec. 1875. Except for his sporadic grand jury duties, Segal was unemployed from November 9, 1979 until the end of March, 1980. He then worked briefly as a salesman for a video equipment dealer, but the company did not survive. He remained unemployed thereafter until November, 1981, when he obtained another (and more remunerative) sales position. The record provides adequate support for an inference that Segal made bona fide efforts during the period to procure suitable alternate employment.

This court has consistently declined to play Monday morning quarterback in reviewing a jury's assessment of damages. A verdict should stand unless it is

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"grossly excessive," "inordinate," "shocking to the conscience of the court," or "so high that it would be a denial of justice to permit it to stand." McDonald v. Federal Laboratories, 724 F.2d 243, 246 (1st Cir.1984), quoting Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 159 & n. 4, 89 S.Ct. 331, 333 & n. 4, 21 L.Ed.2d 309 (1968); Betancourt, 554 F.2d at 1207; LaForest v. Autoridad de las Fuentes Fluviales, 536 F.2d 443, 447 (1st Cir.1976). Even in cases such as the one at bar, which involve only economic loss, review must proceed with great deference for the jury's assessment: "the jury is free to select the highest figures for which there is adequate evidentiary support." Kolb v. Goldring, Inc., 694 F.2d 869, 872 (1st Cir.1982). And, such a verdict will be reduced or set aside only if it is shown to exceed "any rational appraisal or estimate of the damages that could be based upon the evidence before the jury." Glazer v. Glazer, 374 F.2d 390, 413 (5th Cir.), cert. denied, 389 U.S. 831, 88 S.Ct. 100, 19 L.Ed.2d 90 (1967), quoted with approval in Kolb, 694 F.2d at 871.

Our focus in this case must, of course, be not on the verdict itself, but on the verdict as adjusted by the trial judge. As previously noted, the district court did trim the verdict; it deducted from the jury's award the amounts earned by the appellee attributable to his grand jury service and the monies which he garnered in his short-lived employment in the Spring of 1980. 4 The resultant total--$22,341.90--is not beyond the pale; given the facts of this case, it does not even hover near the periphery. The jury had before it a smorgasbord of evidence: it could rationally have found damages in excess of $30,000.00 by any one of a number of combinations of salary, commissions, and fringe benefits for all or some substantial part of the eighteen month period. 5

We have made the "detailed appraisal of the evidence bearing on damages" which Gruenthal, 393 U.S. at 159, 89 S.Ct. at 333, demands; and we are completely satisfied, on this record, that the verdict is supportable "as a matter of just and reasonable inference" from the evidence. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 1192, 90 L.Ed. 1515 (1946). The sum which Segal will receive for Gilbert's egregious breach of faith fails to shock--or even to tweak--our collective conscience. Pegging Segal's compensatory damages for wrongful discharge at $22,341.90 cannot be characterized as excessive or inordinate. The verdict, particularly after its massaging at the hands of the district judge, falls well "within the universe of possible awards that are supported by the evidence ...", Clark v. Taylor, 710 F.2d 4, 14 (1st Cir.1983), and must be allowed to stand.

II. Prejudgment Interest

We turn next to the district court's award of prejudgment interest. The essential facts pertinent to this issue are not in dispute: the appellee did not request an instruction on prejudgment interest; the judge did not, therefore, charge the jury in respect to such interest; no stipulation was entered into anent the subject; no objection was taken to the interest-free charge as given; and the jury returned only a general verdict.

The question of Segal's entitlement to interest rose, like Lazarus, from the dead only after the jury had spoken; it was raised by the appellee's counsel for the

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first time in a post-trial motion. In granting that motion, the district court was not explicit in its reasoning; yet, by fair implication from the trial judge's statements on the counsel fee issue, see text post, he was doubtless motivated by his view that "while the statute may or may not be considered punitive, at least it is remedial and the case should be a tocsin to all employers who impugn the integrity of our inviolate jury system." Segal v. Gilbert Color Systems, No. C-80-17-L, slip op at 6-7 (D.N.H. Dec. 29, 1983). But, although we share and echo these sentiments we cannot as a matter of law set the issue to rest so easily.

Gilbert's assignment of error does not condemn the availability of prejudgment interest per se in a Sec. 1875 action; rather, the appellant argues that the issue was one for jury consideration. Because Segal forfeited his opportunity to have the fact-finders pass upon his claim for interest, see Fed.R.Civ.P. 51, the asseveration runs, the district judge was wrong in augmenting the verdict in this manner. The appellee demurs. He urges, first, that prejudgment interest should be allowable in Sec. 1875 cases (a concept which, as noted above, Gilbert does not directly dispute); and proceeds to argue that, since the statute is designed both to deter undesirable conduct and to make whole the victims of such conduct, prejudgment interest is an essential adjunct to recovery. In short, the appellant visualizes his entitlement to interest as a matter of principle.

Our consideration of this issue must start with 28 U.S.C. Sec. 1875 itself, a statutory enactment which is as silent as the tomb on the topic of prejudgment interest. Nothing in the text of the Act itself fairly addresses the question.

We have next examined the legislative history of Sec. 1875. Until quite recently, Congress had not faced up to the problem of curbing an employer who was hostile to the idea of federal jury duty and who used his economic leverage to discourage his workers from meeting the obligations of such service or who punished them for doing so. While an occasional effort was made to use the contempt powers of the district courts to thwart such shenanigans, e.g., In re Adams, 421 F.Supp. 1027, 1030-31 (E.D.Mich.1976), such a remedy was largely ineffectual; under optimum circumstances, it could only be invoked when the errant conduct of the employer was brought to the court's attention, and...

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