Kearns v. Keystone Shipping Co.
| Decision Date | 03 November 1988 |
| Docket Number | No. 88-1655,88-1655 |
| Citation | 863 F.2d 177 |
| Parties | 48 Fair Empl.Prac.Cas. 969, 48 Empl. Prac. Dec. P 38,511 John T. KEARNS, Plaintiff, Appellant, v. KEYSTONE SHIPPING COMPANY, Defendant, Appellee. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Edmund M. Pitts with whom Pitts & Pitts, Boston, Mass., was on brief for plaintiff, appellant.
Douglas F. Seaver with whom Timothy Q. Feeley and Gaston & Snow, Boston, Mass., were on brief for defendant, appellee.
Before BREYER and SELYA, Circuit Judges, and CAFFREY, * Senior District Judge.
At the close of a three-day trial on the plaintiff's age discrimination claim, the jury retired at 3:25 in the afternoon to deliberate. After failing to reach a verdict, the jury was excused at 4:10 p.m. and resumed its deliberations the following morning at 9:30. At 10:08 that morning, after a total of one hour and eighteen minutes of deliberation over two days, the jury returned its verdict for the plaintiff and awarded him $99,000 in back pay. Finding that the verdict went against the clear weight of the evidence, Judge Mazzone of the United States District Court of Massachusetts granted the defendant's motion for a new trial. At the subsequent trial, with Judge Harrington presiding, the jury reached a verdict in favor of the defendant. Plaintiff timely appealed Judge Mazzone's order granting the new trial and we now affirm.
Two issues are now before us: (1) whether it was an abuse of discretion for the district court to set aside the initial verdict for the plaintiff on the grounds that it went against the clear weight of the evidence, and (2) what effect we should give to the jury's brief deliberation time. In the numerous cases where we have considered a trial court's grant or denial of a motion for a new trial, we have applied the following standard of review:
[A]n appellate court must sustain the granting of a new trial unless there has been an abuse of discretion. Where the basis for a new trial is that the verdict is contrary to the great weight of the evidence, the modern trend has been away from earlier decisions that the district court's discretion is virtually unlimited.
Borras v. Sea-Land Service, Inc., 586 F.2d 881, 887 (1st Cir.1978), and cases cited therein. As we explained in Borras Today it is often said that an appellate court will exercise "a closer degree of scrutiny and supervision" where the basis for the new trial is the trial court's evaluation of the weight of the evidence rather than the trial court's feeling that an "undesirable or pernicious element," such as trial error or prejudicial statements, obtruded into the trial.
Id. Thus, while the district court's discretion is not unlimited when it comes to considering a new trial motion, the district court's ruling should be disturbed on review only when there has been a clear abuse of discretion. In order to determine whether such an abuse occurred here, we must review the record below. We do this not in the role of "a thirteenth juror," assessing the credibility of witnesses and weighing testimony, but rather to isolate the factual basis for the trial court's ruling and provide the foundation for our action today.
The plaintiff-appellant, John T. Kearns ("Kearns"), was hired by the defendant-appellee, Keystone Shipping Co. ("Keystone"), on August 4, 1983, to work as a Qualified Member of the Engine Department ("QMED") on the S.S. Energy Independence. When he was hired, Kearns had 35 years of experience in the merchant marine and was 60 years old. The Energy Independence was a new ship and Kearns was part of her first crew. This was also a permanent or "steady" job, and, as such, was hard to come by in the shipping business.
At first Kearns worked a rotation of 45 days on board and 45 days off, but Keystone changed its scheduling policies so that unlicensed crew members like Kearns worked 30 days on and 30 days off. Kearns' job duties essentially involved monitoring and servicing the ship's mechanical systems, general cleaning, and maintenance. He worked regular "watches" in the engine department from 4:00 to 8:00 a.m. and 4:00 to 8:00 p.m. daily, and worked overtime from 8:30 a.m. to 3:45 p.m. daily, with breaks for meals. Every third week Kearns had "sanitary" duty, which involved cleaning the laundry and recreational rooms and the passageways and hallways of the ship. Peter Garthwaite, then 29 years old and a second assistant engineer, was Kearns' boss during his daily regular watch hours on his first 45-day tour on the Energy Independence. Garthwaite was later promoted to first assistant engineer and in that position he supervised Kearns' overtime assignments. Garthwaite then was responsible for Kearns' overtime duties not on a regular basis, as on the first tour, but rather whenever his 45-day tours and Kearns' 30-day tours overlapped.
On direct examination at trial, Kearns testified that, after six months without receiving any complaints about his work, sometime around mid-February 1984 Garthwaite suddenly confronted him and told him to get off the ship. When Kearns asked why, Garthwaite allegedly answered that the Energy Independence was "a young man's ship" and Kearns did not belong on it because he was over 50 years old. Kearns testified that he related this conversation to the chief engineer, Lewis Ludwig, who responded, "Do me a favor, John, stay on." Kearns completed his tour and after 30 days off, returned to the ship. Another confrontation with Garthwaite then occurred and on March 17, 1984, Kearns signed a letter of resignation that read, "I, John Kearns, am resigning from my position as QMED as of this date." Kearns left the Energy Independence on March 19, 1984.
On cross examination, Kearns admitted that his first six months on the Energy Independence had not been entirely free of complaints. A second assistant engineer, Mr. Drake, complained that Kearns did not answer the telephones in the engine room while he was on watch. A third assistant engineer, Mr. Cowans, complained that Kearns pumped the bilges while the ship was in port, in violation of Coast Guard regulations, and eventually instructed Kearns never to pump the bilges while Cowans was on watch. Keystone also introduced into evidence a warning letter Kearns received, dated January 26, 1984, that reads in its entirety:
The first engineer Mr. P. Garthwaite has warned you in the past about when trach [sic] can be dumped. On this day Jan. 26, 84 at approx. one half hour after departure from the bar, after our discharge in Brayton Pt., still in sight of land you dumped trash which included waste furl [sic] oil. This caused pollution of the outter [sic] harbor.
You are hear by [sic] worned [sic] that a repeat of this or any other offense will be cause of dismissal from this vessel.
This letter is signed by chief engineer Ludwig, Garthwaite, Kearns, and a union representative. When questioned about the first sentence of the letter, Kearns could not explain the discrepancy between his statement that there had been no other complaints about his work and the statement, "The first engineer ... has warned you in the past...."
Kearns' case in chief consisted of his testimony and the testimony of Cecil Curtis, another QMED on the Energy Independence. Mr. Curtis' testimony addressed only the issue of wages and established the amount Kearns might have earned had he stayed on the Energy Independence. Keystone's case consisted of the testimony of several witnesses, including Garthwaite, chief engineer Ludwig, Ted Cowans, a third assistant engineer, and Cecil Curtis. Their combined testimony presents a story quite different from Kearns'. Whereas Kearns had testified that he did not answer the telephone in the engine room because he could not hear it or was in the "fiddly" checking stack temperatures, both Curtis and Garthwaite testified that the telephone system had a siren that could be heard throughout the engine room and the only way to check stack temperatures was on the main console, not on the stacks themselves. Curtis also testified that the Energy Independence was equipped with holding tanks so that it would not be necessary to pump the bilges into the harbor while the ship was in port, even for several days. Finally, Curtis testified that he had never been ordered to throw trash overboard while the ship was in port or near land, in direct conflict with Kearns' statement that he had only been following instructions when he dumped trash in sight of land.
Garthwaite testified that Kearns frequently pumped the bilges without authorization and in port, against regulations and contrary to instructions posted on the bilge pump....
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