Smith v. Massachusetts Institute of Technology

• Decision Date: 01 May 1989
• Docket Number: No. 88-1654,88-1654
• Citation: 877 F.2d 1106
• Parties: 50 Fair Empl.Prac.Cas. 169, 50 Empl. Prac. Dec. P 39,121, 14 Fed.R.Serv.3d 281, 54 Ed. Law Rep. 808, 28 Fed. R. Evid. Serv. 385 William B. SMITH, Plaintiff, Appellant, v. MASSACHUSETTS INSTITUTE OF TECHNOLOGY, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1106

877 F.2d 1106

50 Fair Empl.Prac.Cas. 169,

50 Empl. Prac. Dec. P 39,121, 14 Fed.R.Serv.3d 281,

54 Ed. Law Rep. 808, 28 Fed. R. Evid. Serv. 385

William B. SMITH, Plaintiff, Appellant, v. MASSACHUSETTS INSTITUTE OF TECHNOLOGY, et al., Defendants, Appellees.

No. 88-1654.

United States Court of Appeals, First Circuit.

Heard May 1, 1989.

Decided June 22, 1989.

As Amended June 27, 1989.

Scott A. Lathrop, P.C., for plaintiff, appellant.

Estelle D. Franklin, Charles A. Shanor, Gen. Counsel, Gwendolyn Young Reams, Washington, D.C., Associate Gen. Counsel, and Lorraine C. Davis, Asst. Gen. Counsel, on brief for the E.E.O.C., amicus curiae.

Robert E. Sullivan with whom Judith A. Malone, Margaret Wood Hassan and Palmer & Dodge, Boston, Mass., were on brief, for defendants, appellees.

Before BOWNES and BREYER, Circuit Judges, and GRAY, ^* Senior District Judge.

BOWNES, Circuit Judge.

Plaintiff-appellant, William B. Smith, appeals a jury verdict finding that defendants-appellees, Massachusetts Institute of Technology and MIT Lincoln Laboratory, did not violate the Age Discrimination In Employment Act, 29 U.S.C. Secs. 621-634, by giving him disproportionately low salary increases and subsequently terminating his employment. Plaintiff raises three issues on appeal: erroneous jury instructions; the district court's refusal to strike certain evidence ; and the court's exclusion of certain evidence.

Defendant claims that plaintiff waived his right to object to the jury instructions by not following the strictures of Fed.R.Civ.P. 51. We agree. We first deal with the waiver question.

I. JURY INSTRUCTIONS--WAIVER

Fed.R.Civ.P. 51 provides in pertinent part: "No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection."

Because the facts bearing on the rule are somewhat unusual, we state them in detail. The trial took 16 days. On the 16th day, February 11, 1988, the court instructed the jury. Counsel for the plaintiff objected to one part of the instructions. Defense counsel agreed that the objection was well taken and the court gave an additional instruction, correcting its previous mistake. No further objections were taken. The jury began deliberations at 12:35 p.m.

After the jury retired for deliberations, plaintiff's counsel informed the court that he would be out of state all of the following week. He requested that judgment not be entered until February 22, so he would have time after he returned to file any motions that might be necessary. Defense counsel did not object and the court granted the request. February 11, the day the case went to the jury, was a Thursday.

Sometime in the early afternoon of February 11, the jury submitted two questions to the court. At 3:05 p.m. the jury returned to the courtroom for further instructions in response to the questions. Before instructing the jury the court stated:

Counsel would ordinarily be here but because I released them to go back to their offices and so forth, I thought it would take up a considerable amount of time to wait for them to return. And they have agreed that I can instruct you provided I understand the question clearly. Okay. And it is a matter of record what I say, so they're satisfied with this process.

Among the instructions given was the following:

I suggest to you that in addition to proving that he, Mr. Smith, was discriminated against on the basis of his age, Mr. Smith must prove that the alleged discrimination was purposeful or intentional. Mr. Smith must also prove that age was the motivating or determinative factor in MIT's decision to give him lower than expected salary increases or to discharge him in the sense that but for MIT's discrimination he would not have received lower than expected salary increases or have been discharged. Mr. Smith need not establish that the age was the sole or only factor causing MIT to act but that age was the motivating or determinative factor.

Since counsel were not present, no objections to any of the supplementary instructions were taken.

The jury failed to return a verdict on the following day, Friday, February 12.

The next record of any proceedings is for Tuesday, February 16. Another jury question had been submitted to the court. Before instructing the jury, the court stated:

I have a jury question. It is the latest question referenced to me and it is now marked juror question No. 5, and filed this day February 16th. I have called counsel, and counsel representing defendant is present. Counsel representing plaintiff is unavailable. But my understanding is that he chooses not to be here, and again I must continue without his presence. That's a fair statement.

The court in instructing the jury stated, inter alia: "Mr. Smith need not establish that the age was the sole or only factor causing MIT to act but that age was a motivating determinative factor." No verdict was returned on February 16.

On February 17, a problem arose when one of the jurors indicated that the jury was hopelessly deadlocked and he had to return to work within a few days. Defense counsel was present, having been notified by the court that there was a jury problem. The court noted, "I have notified the other office but counsel for the plaintiff is not available." The court discussed the problem on the record. Before the jury came in, it expressly asked defense counsel to sit in the spectator section, "because I don't want to emphasize his [counsel for plaintiff] absence." No supplementary instructions were given. No verdict was returned on February 17.

On February 18, the jury asked the court another question. The court gave further supplementary instructions which contained the following:

The plaintiff Mr. Smith must prove that age was the motivating or determinative factor in MIT's decision to give him lower than expected salary increases or to discharge him in the sense that but for MIT's discrimination he would not have received lower than expected salary increases or had been discharged.

Although plaintiff's counsel was not present, he specifically objects to this instruction. He states in his reply brief at page 4:

On February 18, 1988, the trial court gave the jury instruction in question, which was in response to Jury Question No. 6. Prior to giving the jury instruction, the trial court had a telephone conference with counsel, which lasted on the order of one half hour, as to their objections and comments. Counsel for Smith strongly opposed any instruction based on Loeb v. Textron, 600 F.2d 1003 (1st Cir.1976). Despite hearing this objection, the trial court indicated that it would give such an instruction. And it gave such an instruction.

No mention is made by plaintiff of the other two supplementary instructions similar to the one given on February 18.

This circuit has consistently held that the strictures of Rule 51 must be followed without deviation. In McGrath v. Spirito, 733 F.2d 967, 969 (1st Cir.1984), we held:

A trial court's statement after the charge that objections made prior to it will be saved does not absolve an attorney from following the strictures of the rule. Objections cannot be carried forward. The rule is binding on both the court and attorneys and neither can circumvent it.

This admonition was repeated in Ouimette v. E.F. Hutton & Co., Inc., 740 F.2d 72, 76 (1st Cir.1984). Although the court made no record reference to the telephone conversation, we accept counsel's representation that there was one and as to what was said. But regardless of any assurances the court may have implied as to saving objections to the proposed instruction, ¹ it had no authority to allow counsel to deviate from or circumvent the rule.

We have construed the Rule's requirement that a party must object "before the jury retires to consider its verdict" to mean that the objection must be made after the instructions are given to the jury:

Even if plaintiff's requested instruction had been proper, counsel failed to raise that objection again subsequent to the actual charge. According to a long line of precedents in this circuit, such an omission constitutes waiver of the objection pursuant to Federal Rule of Civil Procecure 51. See, e.g., Brown v. Freedman Baking Co., Inc., 810 F.2d 6, 9 (1st Cir.1987); Coy v. Simpson Marine Safety Equipment, Inc., 787 F.2d 19, 26 (1st Cir.1986); Emery-Waterhouse Co. v. Rhode Island Hosp. Trust Nat'l Bank, 757 F.2d 399, 411 (1st Cir.1985); McGrath v. Spirito, 733 F.2d 967, 968-69 (1st Cir.1984); Monomoy Fisheries, Inc. v. Bruno & Stillman Yacht Co., 625 F.2d 1034, 1036 (1st Cir.1980); Carrillo v. Sameit Westbulk, 514 F.2d 1214, 1219 (1st Cir.1975); United States v. Taglianetti, 456 F.2d 1055, 1056-57 (1st Cir.1972); Rivera v. Rederi A/B Nordstjernan, 456 F.2d 970, 976 (1st Cir.1972); Dunn v. St. Louis-San Francisco Ry. Co., 370 F.2d 681 (10th Cir.1966) (Aldrich, J., sitting by designation); Marshall v. Nugent, 222 F.2d 604, 615 (1st Cir.1955).

Wells Real Estate v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir.) (footnote omitted), cert. denied, --- U.S. ---- 109 S.Ct. 392, 102 L.Ed.2d 381 (1988). The reason for "firm adherence to Rule 51 is to give the trial court an 'opportunity to correct any errors before it is too late.' " Kelley v. Schlumberger Technology Corp., 849 F.2d 41, 44 (1st Cir.1988) (quoting Brown v. Freedman Baking Co., 810 F.2d 6, 9 (1st Cir.1987)).

The failure of plaintiff's counsel to be present when the third set of supplementary instructions was given to the jury constituted a waiver of any objections to the instructions. And the waiver could not be cured by telephonic objection to the proposed instruction beforehand. Supplementary instructions in response to jury questions may be just as important as the initial charge, if not more so. It is the duty of counsel...