Brown v. Freedman Baking Co., Inc.

• Citation: 810 F.2d 6
• Decision Date: 03 December 1986
• Docket Number: No. 85-1598,85-1598
• Parties: 42 Fair Empl.Prac.Cas. (BNA) 1380, 42 Empl. Prac. Dec. P 36,779, 1 IER Cases 1364 Steven BROWN, et al., Plaintiffs, Appellees, v. FREEDMAN BAKING COMPANY, INC., et al., Defendants, Appellants. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 6

810 F.2d 6

42 Fair Empl.Prac.Cas. (BNA) 1380,

42 Empl. Prac. Dec. P 36,779, 1 IER Cases 1364

Steven BROWN, et al., Plaintiffs, Appellees, v. FREEDMAN BAKING COMPANY, INC., et al., Defendants, Appellants.

No. 85-1598.

United States Court of Appeals First Circuit.

Heard Dec. 3, 1986.

Decided Jan. 26, 1987.

Edwin R. Chyten, Chestnut Hill, Mass., for defendants, appellants.

Ann M. Gilmore, with whom Gilmore & Iandoli, Boston, Mass., was on brief, for plaintiffs, appellees.

Before BOWNES, TORRUELLA and SELYA, Circuit Judges.

BOWNES, Circuit Judge.

This is an appeal by defendants-appellants Freedman Baking Co., Inc. (the Company), its president and an owner, Daniel Freedman, and a senior management official, Mildred Lawsky, from a jury award of compensatory and punitive damages for civil rights violations and intentional infliction of emotional distress. We affirm the verdict and award of damages on the civil rights claims but reverse the verdict for intentional infliction of emotional distress.

I. BACKGROUND

The Company employed Steven Brown at its Faneuil Hall Marketplace facilities first as a store detective, then as night manager, from September 1, 1982, until he was fired on September 12, 1983. During his one-year employment, he received two raises in salary and an extra week's vacation pay. Steven Brown fired three black employees, including part-time sales clerks Tanya Brown and Donna Campfield, on Lawsky's instructions. When Campfield subsequently filed a complaint with the Equal Employment Opportunity Commission (the EEOC), Steven Brown agreed to testify on her behalf. He also provided a statement, of which Lawsky was aware, to the EEOC about Campfield's dismissal. A few days later, Freedman fired Steven Brown. In a report to the Division of Employment Security, Freedman opposed Steven Brown's application for unemployment benefits on the ground that he had been fired for misconduct and thus was not entitled to them.

Steven Brown brought a federal civil rights suit in district court, with pendent state claims for intentional infliction of emotional distress and defamation against the Company, Freedman, and Lawsky. His complaint was consolidated with civil rights suits brought by the two former part-time sales clerks, Tanya Brown and Campfield, who alleged that they were fired because they are black. Steven Brown hired the two women in August 1983 and fired them, on Lawsky's order, two weeks later.

Defendants counterclaimed that Steven Brown maliciously circulated trumped-up charges of racially discriminatory practices, that this defamed them, and that the lawsuit was a malicious abuse of process because it was instituted to compel the Company to reemploy Steven Brown, or to get them to withdraw their objection to his claim for unemployment benefits, or for both reasons.

The evidence presented to the jury to substantiate plaintiffs' allegations that Freedman and Lawsky made racially discriminatory management decisions included the following. Lawsky told Steven Brown that too many blacks were working in the Company's main store and this "just doesn't look good." Some employees testified that Lawsky generally treated black employees less favorably than white employees. When Steven Brown complained to Freedman about Lawsky's racially discriminatory actions, Freedman said that if too many blacks work together, "they get arrogant and that's been a problem down there lately." He told Steven Brown to do what Lawsky said or to look for another job. Defendants denied the allegations that plaintiffs were fired for racially discriminatory reasons. They presented evidence that Steven Brown was dismissed because of unsatisfactory performance and because he repeatedly violated company policy and procedures. They also attempted to prove that Tanya Brown and Campfield were fired for legitimate, nondiscriminatory reasons.

After a nine-day trial, the jury awarded plaintiffs a total of $198,000 in damages. The jury awarded Steven Brown $85,000 in damages: $20,000 compensatory, $50,000 punitive, and $5,000 for intentional infliction of emotional distress against the Company, and $2,000 compensatory, $3,000 punitive, and $5,000 for intentional infliction of emotional distress against Freedman. Steven Brown was awarded no damages from Lawsky and nothing on the defamation count. Tanya Brown was awarded $58,000: $3,600 compensatory and $50,000 punitive against the Company; $300 compensatory and $3,000 punitive against Freedman; and $100 compensatory and $1,000 punitive against Lawsky. Campfield was awarded $55,000: $750 compensatory and $50,000 punitive against the Company; $200 compensatory and $3,000 punitive against Freedman; and $50 compensatory and $1,000 punitive against Lawsky. The jury found against defendants on their counterclaims. Plaintiffs were awarded $67,399.25 for attorney's fees and $2,277.19 for costs. Defendants moved for a new trial on various grounds: the weight of the evidence, the amount of damages, the jury instructions, and evidentiary rulings. The motion was denied and this appeal ensued.

II. APPELLANTS' ARGUMENTS

There are four issues: (1) whether the jury had been unfairly prejudiced by a statement the judge made during the charge; (2) whether the jury's verdict awarding damages for intentional infliction of emotional distress was proper; (3) whether the damages were excessive or contrary to the jury instructions; and (4) whether the verdicts on the civil rights claims are against the weight of the evidence. Appellees claim that this appeal is frivolous and ask for double costs and attorney's fees.

A. The Statement to the Jury

Appellants contend that the trial judge unfairly prejudiced the jury while instructing them on the law governing federal civil rights claims. Appellants did not comply with the requirement of Federal Rule of Civil Procedure 51 that a party must make its objections to jury instructions before the jury retires to consider its verdict. Failure to do so ordinarily precludes assigning error on this basis on appeal. "The reason for requiring that objections to instructions be made after the charge and that they state distinctly the matter to which a party objects and the grounds of the objection is to give the trial judge an opportunity to correct any errors before it is too late." McGrath v. Spirito, 733 F.2d 967, 968 (1st Cir.1984); see Campana v. Eller, 755 F.2d 212, 216 (1st Cir.1985); Emery-Waterhouse Co. v. Rhode Island Hosp. Trust Nat'l Bank, 757 F.2d 399, 411 (1st Cir.1985). We will reverse a judgment in the absence of the required objection only if there is plain error "in exceptional cases or under peculiar circumstances to prevent a clear miscarriage of justice." Nimrod v. Sylvester, 369 F.2d 870, 873 (1st Cir.1966); see Morris v. Travisono, 528 F.2d 856, 859 (1st Cir.1976).

The allegedly prejudicial statement, made by the court while explaining to the jury what constitutes compensable discriminatory treatment, was: "Unfortunately, it has to be differential treatment. I say unfortunately, because I don't think anybody likes to see it." According to appellants, these two sentences "could easily lead the jury to believe that the defendants did something wrong, that the mere discharge of employees by an employer is what the trial judge doesn't think 'anybody likes to see.' " Therefore, appellants argue, the jury might have held defendants liable simply because they fired plaintiffs. Appellants also argue that the jury could infer from this statement that the judge was disapproving of the requirement that the discharge must have been on the basis of race for the defendants to be held liable.

We do not think these two sentences are so misleading that they constitute plain error. We interpret the statement as saying that differential treatment is the basis of liability for discriminatory employment practices, and when there is such treatment, it is unfortunate. Furthermore, "a judgment will not be reversed for error in the jury instructions unless the error is determined to have been prejudicial after review of the record as a whole. Accordingly, we must look to the entire jury charge to determine whether the jury was properly apprised of the legal principles to be applied in this case." Almonte v. National Union Fire Ins. Co., 787 F.2d 763, 767 (1st Cir.1986). The district court gave clear instructions on the applicable law. It told the jury that for plaintiffs to prevail they must have proved by a preponderance of the evidence that defendants "intentionally discriminated against them on account of race with regard to their employment termination." It instructed the jury that "as long as the reasons for discharging these individuals are nondiscriminatory, you must find for the defendants even if you don't like what happened." Additionally, the court said that this "is not a wrongful termination case. You may, even if you think this was not fair, that it was wrong to do that, that it was not nice, you cannot base your decision on that. It must be race. It must be that blacks get treated differently from whites." Even if the statement were interpreted as appellants urge, the court's detailed and accurate instructions would have cleared up any doubt the jury might have had about the appropriate basis for liability.

B. The Claim for Intentional Infliction of Emotional Distress

It was not until 1976 that the Supreme Judicial Court of Massachusetts recognized a cause of action for the intentional infliction of emotional distress in the absence of physical injury. See Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E.2d 315 (1976). When it did so the court warned that "the door to recovery should be opened but narrowly and with due caution." Id. at 144, 355 N.E.2d at 318 (quoting Barnett v. Collection Serv. Co., 214 Iowa 1303, 1312, 242 N.W. 25, 28 (1932)). Liability is restricted to situations in which defendant's "conduct was 'extreme and outrageous,' wa...