Linn v. Andover Newton Theological School, Inc.

• Decision Date: 11 January 1989
• Docket Number: Nos. 88-1257,88-1258 and 88-1394,s. 88-1257
• Citation: 874 F.2d 1
• Parties: 49 Fair Empl.Prac.Cas. 1176, 50 Empl. Prac. Dec. P 38,969, 57 USLW 2706, 53 Ed. Law Rep. 466 Edmund H. LINN, Plaintiff, Appellee, v. ANDOVER NEWTON THEOLOGICAL SCHOOL, INC., Defendant, Appellant. Edmund H. LINN, Plaintiff, Appellant, v. ANDOVER NEWTON THEOLOGICAL SCHOOL, INC., Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

874 F.2d 1

49 Fair Empl.Prac.Cas. 1176,

50 Empl. Prac. Dec. P 38,969, 57 USLW 2706,

53 Ed. Law Rep. 466

Edmund H. LINN, Plaintiff, Appellee, v. ANDOVER NEWTON THEOLOGICAL SCHOOL, INC., Defendant, Appellant.

Edmund H. LINN, Plaintiff, Appellant, v. ANDOVER NEWTON THEOLOGICAL SCHOOL, INC., Defendant, Appellee.

Nos. 88-1257, 88-1258 and 88-1394.

United States Court of Appeals, First Circuit.

Heard Jan. 11, 1989.

Decided April 27, 1989.

Warren H. Pyle, Boston, Mass., with whom Barbara Hickingbottom and Angoff, Goldman, Manning, Pyle, Wanger & Hiatt, P.C., Boston, Mass., were on brief, for Edmund H. Linn.

Leonard F. Clarkin with whom Susan A. Jackson, Timothy M. Hughes and Haussermann, Davison & Shattuck, Boston, Mass., were on brief, for Andover Newton Theological School.

Before COFFIN and BREYER, Circuit Judges, and PETTINE, ^* Senior District Judge.

COFFIN, Circuit Judge.

In 1981, plaintiff-appellee Edmund Linn was discharged from his tenured faculty position by the Andover Newton Theological School (the School). Believing he was fired unlawfully, Linn brought an action in the United States District Court for the District of Massachusetts alleging that his termination violated both the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. (ADEA), and his contract of tenured employment with the School. A jury agreed. Specifically, in response to three interrogatories, the jury found that (1) but for his age, Linn would not have been fired, (2) the School had acted willfully under the ADEA, and (3) with respect to Linn's contract claim, there was no bona fide financial exigency justifying the firing. The district court accordingly entered judgment for Linn and awarded him $604,154.08 in damages. ¹

The School now appeals, raising a number of issues, the most significant of which relate to the size of the verdict. Linn also raises an issue concerning the award, claiming he is entitled to an additional $38,263.17 in liquidated damages. Finding merit in two of the School's contentions, we reduce the award; in all other respects, we leave the judgment intact. We turn directly to these issues, seeing no need for a preliminary discussion of the case's general background.

I. EVIDENTIARY RULINGS

The School contests two of the district court's evidentiary rulings, but we need reach the merits of only one. The School admits that it did not object to the introduction of an agenda prepared by the School's president for an executive meeting, which it now claims was hearsay and highly prejudicial, but argues that we should overlook its failure to make a contemporaneous objection because the admission of the agenda constituted plain error. We have stated repeatedly that absent extraordinary circumstances, we will not in a civil case excuse a party's failure to make a contemporaneous objection. See, e.g., Freeman v. Package Machinery Co., 865 F.2d 1331, 1336 (1st Cir.1988); Allied International Inc. v. International Longshoremen's Ass'n, 814 F.2d 32, 39-40 (1st Cir.1987). The circumstances here being far from extraordinary, we do not address this issue.

The School also objects to the admission of a memorandum prepared for the faculty by one of its deans discussing the potential adverse effects on the School of Congress' decision to expand the ADEA's coverage to include employees between the ages of 65 and 70. ² The memo begins by stating that the change in the law is "an unfortunate turn of events" and that "we should deal with it as a faculty before any individual becomes the focus of attention." The dean then lists the "problems" he has with the ADEA's expanded coverage; chief among them are that:

(1) without a mandatory retirement age of 65, the School "probably would be a much less effective institution";

(2) with tenure, "a person could cease developing and go on for several years," and without a mandatory age of 65, we will have to accept "a further five unsatisfactory years";

(3) if retirement is fixed at 70, by 1992 10 faculty members will be in their 60's and 14 will be 56 or older; the change would mean a significant "bunching" of the faculty in the older age bracket.

The memo concludes by stating that "we have here a potentially damaging situation" and that, depending upon its legality, the School should consider the possibility of adopting a "covenant" that would abolish tenure at 65 and contain a general understanding that everyone will retire at 65, with the possibility of remaining on by invitation on a yearly basis.

The School argues that because it, like any other institution, has an obligation to keep abreast of changes in the law and to study those changes, it was improper to allow the jury to infer discriminatory motive from the memo. Indeed, the School points out that the law requires it to be aware of the ADEA's regulations, citing 29 U.S.C. Sec. 627 (employers must post conspicuous notices on premises with information about the Act). In the School's view, therefore, its consideration of the pending changes in the law is not a reasonable basis from which a jury could infer that the School intended to violate the law. The School also contends that even if the memo was relevant, it nonetheless should have been excluded on public policy grounds because the School could not have avoided study of the pending changes.

Institutions must of course be free to study and consider legislation affecting them and to inform their members of the possible effects of such legislation. But trial courts are afforded wide latitude in assessing the relevancy of proffered evidence, and therefore it is not necessary for us to conclude that we would have ruled similarly. It is enough that the district court remain within permissible limits in admitting the memo. Willco Kuwait (Trading) S.A.K. v. deSavary, 843 F.2d 618, 626-27 (1st Cir.1988); United States v. Sorrentino, 726 F.2d 876, 886 (1st Cir.1984).

In this case, while one might well interpret the memo in a benign manner, we Stanojey v. Ebasco Services, Inc., 643 F.2d 914 (2nd Cir.1981), relied upon by the School, is not to the contrary. There, the Second Circuit upheld the district court's decision to exclude evidence that an employer "was aware of the impending amendment to the ADEA and was studying its likely effect." Id. at 922 (emphasis added). ⁴ Because we are told nothing more about the evidence, we must accept the second circuit's characterization of it as a "study." As we stated above, we do not disagree with this general proposition. But here, the district court supportably found that the memo was more than a study. ⁵

                cannot say that the district court abused its discretion in deeming it "a far different situation than a study.  It's actually an editorial comment by the dean to the faculty."    Given its purpose of exploring ways to relieve the School of the burden of older professors, a not unreasonable inference to be drawn from the memo is that the dean believed older professors, as a group, were simply less valuable than their younger colleagues.  In enacting the ADEA, it is precisely this type of stereotyping on the basis of age that Congress prohibited employers from acting upon.  The memo, therefore, was clearly relevant to the central question in the case:  whether the School would fire a faculty member because of his age. 3
                

As for the School's independent public policy argument, we believe institutions are amply protected by the rules of evidence. Had the School simply studied the pending changes in the law, it would have had a strong case to exclude the memo on relevancy grounds.

II. JURY INSTRUCTIONS

The School objects to two instructions given by the district court. We find that both objections were waived at trial.

A. Financial Exigency

At trial, the School relied on evidence of its financial condition as a defense to Linn's breach of contract claim. It is undisputed that, under the contract, Linn could be fired in the event of "financial exigency." It is also undisputed that Linn's 1980 contract incorporated by reference the 1972 Recommended Institutional Regulations on Academic Tenure and Freedom, which discuss the School's right to discharge a tenured professor because of "financial exigency," but apparently do not define the term. The dispute here is over whether the district court properly defined that term for the jury.

In an effort to ensure that the court did not base its instructions on the revised 1976 regulations, which had not been incorporated into the contract, the School submitted requests for jury instructions based on cases interpreting the 1972 guidelines. The court denied the requests, but stated that it would use the 1972 regulations in defining "exigent circumstances." The School now claims that the court ultimately did not use the 1972 regulations but looked instead to the 1976 regulations for guidance in defining "financial exigency."

The School objects specifically to the following portion of the court's instructions:

an imminent financial crisis that threatens the survival of the institution as a whole and that cannot be alleviated by Because we find that the School's objections following the charge were not sufficient under Fed.R.Civ.P. 51, we need not decide whether the district court's definition of exigency did violence to the parties' intentions. We have warned trial attorneys countless times that "Rule 51 means what it says: the grounds for objection must be stated 'distinctly' after the charge to give the judge an opportunity to correct his error." Jordan v. United States Lines, Inc. 738 F.2d 48, 51 (1st Cir.1984). See also, e.g., Elwood v. Pina, 815 F.2d 173, 175-76 (1st Cir.1987); Joia v. Jo-Ja Service Corp., 817 F.2d 908, 919 (1st Cir.1987). This is not a mere technical requirement serving no useful end. Trial judges are not mind readers. If there is a problem with the instructions, the judge must be told precisely what the problem is, and as importantly, what the attorney...