Dichner v. Liberty Travel

• Decision Date: 02 February 1998
• Docket Number: No. 97-2046,97-2046
• Citation: 141 F.3d 24
• Parties: 8 A.D. Cases 111, 12 NDLR P 164 Frances DICHNER, Plaintiff, Appellee, v. LIBERTY TRAVEL, et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 24

141 F.3d 24

8 A.D. Cases 111, 12 NDLR P 164

Frances DICHNER, Plaintiff, Appellee, v. LIBERTY TRAVEL, et al., Defendants, Appellants.

No. 97-2046.

United States Court of Appeals First Circuit.

Heard Feb. 2, 1998.

Decided April 13, 1998.

James M. Andrews, with whom Douglas E. Edlin, Friedman & Siegelbaum, LLP, Evan Slavitt, and Gadsby & Hannah, LLP were on brief, for appellants.

Betsy Ehrenberg, with whom Harold L. Lichten, and Pyle, Rome & Lichten, P.C. were on brief, for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

SELYA, Circuit Judge.

Frances Dichner suffers from posttraumatic encephalopathy. Convinced that she had been refused employment because of her disability, Dichner sued Liberty Travel (Liberty) for violating both the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (1994) (ADA), and Mass. Gen. Laws Ann. ch. 151B, § 4 (West 1992) (Chapter 151B). ¹ A jury found that Liberty's conduct transgressed the state (but not the federal) antidiscrimination statute and awarded Dichner compensatory and punitive damages. Liberty appeals. We affirm.

I. BACKGROUND

We limn the facts in a light hospitable to the jury's verdict, consistent with record support.

Dichner, a resident of Danvers, Massachusetts, experienced her first encephalopathic seizure in the summer of 1989, following an automobile accident. With medication, her epilepsy-like condition metamorphosed from severe physical convulsions to absence seizures--trance-like states that render one unable to respond to environmental stimuli for brief periods. At all times relevant hereto, Dichner's catalepsies occurred infrequently, and, although her condition prevented her from operating a motor vehicle, it did not significantly hinder her ability to work.

Prior to the accident, Dichner managed an employment agency. During her convalescence, she toiled as an at-home solicitor for several travel agencies, and, contemplating a permanent career change, filled in as a sales agent for Saga Holidays (a travel firm located in downtown Boston).

In the spring of 1992, Dichner decided that she was ready to return to work on a full-time basis. In response to a newspaper advertisement, she contacted a Liberty recruiter who told her that Liberty wished to hire sales agents for its offices in Boston and on the North Shore (an area that includes Danvers). Her interest piqued, Dichner attended a Liberty-sponsored open house where company representatives distributed information about the firm, collected resumes, and conducted preliminary interviews.

Angelina Picini, the manager of Liberty's Danvers branch, met informally with Dichner at the open house. Dichner explained to Picini that she was interested in a career in travel, but that, because of her disability, she preferred a job near her home. Picini assured Dichner that there was a position open in the Danvers branch office and that her medical condition did not present a problem. Picini then arranged for Dichner to have a formal interview with Deborah Pickard (Liberty's regional manager).

Dichner met with Pickard in Danvers. The two discussed Dichner's previous experience in sales and travel. When Pickard questioned Dichner about her desire to be stationed in Danvers, Dichner explained that she did not drive. Pickard expressed compunction about that restriction, noting that employees sometimes were asked to go from branch to branch. In the end, however, she assured Dichner that the limitation on her driving ability would not impede her prospects for the Danvers opening. Despite this assurance, Dichner learned a few days later that the position had been filled.

Dichner reapplied in 1993 after Liberty once again announced the availability of employment opportunities on the North Shore. At another Liberty open house, Picini, who had become the manager of Liberty's Boston office, told Dichner that openings existed in Danvers and arranged for her to interview again with Pickard. Prior to this meeting, Dichner called Pickard and confirmed that a sales position was available in Danvers.

When Dichner arrived at Liberty's Danvers office for the interview, Pickard asked Dichner whether her epileptic condition persisted. Dichner responded affirmatively, but noted that she was on medication and that her seizures were under control. Pickard continued down that road and, in Dichner's eyes, appeared preoccupied with whether Dichner would be likely to undergo seizures while on the job. In answer to Pickard's insistent queries, Dichner explained that her seizures occurred rarely, that they never had caused a problem in the workplace, and that she had mentioned them only to explain her inability to drive. Pickard seemed dissatisfied with these assurances and continued to express concern for the "safety" of the branch.

Pickard and Dichner talked briefly about Dichner's qualifications and about the salary and benefits that Liberty offered. When Pickard inquired about Dichner's interest in working at other Liberty offices, Dichner responded that she was interested only in Danvers. Pickard then suggested, for the first time, that a Danvers position might not be available after all, and she continued to voice concerns about Dichner's epilepsy ("I've seen your type before, and I have to tell you, I'm not sure that this isn't going to be a problem."). Dichner reacted angrily and accused Pickard of acting unprofessionally by harping on the disability without the slightest justification. Pickard responded that, in her view, Dichner would not be a good fit for the company.

Dichner departed in high dudgeon. She testified that she became emotionally distraught, that she was unable to eat or sleep for several weeks, and that she lost faith in her ability to overcome her disability.

II. THE LITIGATION

After touching the prescribed administrative bases, see 42 U.S.C. § 12117(a) (incorporating the exhaustion procedures detailed at 42 U.S.C. § 2000e-5); Mass. Gen. Laws. Ann. ch. 151B, § 9, Dichner sued Liberty in the federal district court. ² Her complaint alleged that, by twice refusing to hire her on account of her disability, Liberty violated both the ADA and Chapter 151B. Liberty denied the charges of discrimination. It asserted that it had hired someone with significantly more experience in 1992, and that there were no positions available in the Danvers office in the spring of 1993. During a four-day jury trial, Dichner presented evidence that Liberty's excuses were lame, including evidence tending to show that several sales agents were hired for, or transferred into, the Danvers office around the time of Dichner's 1993 interview.

In his charge, Judge Stearns outlined the plaintiff's four claims to the jury: disability discrimination in 1992 under the ADA; disability discrimination in 1992 under Chapter 151B; disability discrimination in 1993 under the ADA; and disability discrimination in 1993 under Chapter 151B. He then explained that, under both state and federal law, the plaintiff bore the burden of establishing by a preponderance of the evidence that the defendant had discriminated against her. Under either rubric, the judge noted, the plaintiff had to make out a prima facie case of discrimination and prove that the defendant's proffered reasons for rejecting her application were pretextual. The court's instructions made clear, however, that state and federal law diverged with regard to the evidentiary effect of a finding of pretext:

Under Massachusetts law, Ms. Dichner is required to prove only the reasons Liberty has offered for its actions are untrue. If she persuades you that Liberty's explanation lacks credibility, you are permitted to draw the inference that the true reasons for Liberty's actions were discriminatory.

...

To prevail under federal law, Ms. Dichner must show something more, that is, not only that the explanation by Liberty is pretext, but that there is evidence of a discriminatory "plus" as well. In other words, Ms. Dichner must prove that Liberty's decision not to hire her was actually motivated by handicap discrimination.

Neither party objected to these portions of the charge.

Judge Stearns further instructed that, if the jury found Liberty liable under either state or federal law, it could award both compensatory and punitive damages. The judge gave the following instruction on punitive damages:

Finally, if you find that the conduct of Liberty Travel was beyond the pale of the tolerable, you may award punitive damages to Ms. Dichner. These are damages not intended to compensate but to punish a defendant and to serve as a warning to other like-minded individuals or entities that society will not tolerate outrageous discriminatory behavior.

Any sum that you award should be commensurate with your own conscience, the degree of reprehensibility of the defendants' conduct as you find it, the ratio of any punitive damages to the actual damages that you find Ms. Dichner incurred and the likelihood of the award's having a deterrent effect on both this and other potential defendants.

Liberty objected generally to the giving of a charge on punitive damages, but interposed no specific objections to the phraseology that the judge employed.

Judge Stearns submitted the case to the jury by means of a special verdict form tailored to the resolution of Dichner's four claims. Using this matrix, the jury found for the plaintiff with regard to the claim that Liberty discriminated against her in 1993 within the meaning of Chapter 151B, and awarded her $10,000 in compensatory damages and $75,000 in punitive damages. The jury found for Liberty on the three remaining claims. Judge Stearns denied Liberty's post-trial motions.

On appeal, Liberty spins several lines of argument. To the extent that these asseverations implicate the jury's liability finding, we treat them in the ensemble. ³ We then address Liberty's complaint that an award of punitive...