Provencher v. CVS Pharmacy, Div. of Melville Corp.

• Decision Date: 08 January 1998
• Docket Number: Nos. 97-1711,97-1732,s. 97-1711
• Citation: 145 F.3d 5
• Parties: 76 Fair Empl.Prac.Cas. (BNA) 1569, 73 Empl. Prac. Dec. P 45,393 Richard PROVENCHER, Plaintiff, Appellee, v. CVS PHARMACY, DIVISION OF MELVILLE CORPORATION, et al., Defendants, Appellants. Richard PROVENCHER, Plaintiff, Appellant, v. CVS PHARMACY, DIVISION OF MELVILLE CORPORATION, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 5

145 F.3d 5

76 Fair Empl.Prac.Cas. (BNA) 1569,

73 Empl. Prac. Dec. P 45,393

Richard PROVENCHER, Plaintiff, Appellee, v. CVS PHARMACY, DIVISION OF MELVILLE CORPORATION, et al.,

Defendants, Appellants.

Richard PROVENCHER, Plaintiff, Appellant, v. CVS PHARMACY, DIVISION OF MELVILLE CORPORATION, et al.,

Defendants, Appellees.

Nos. 97-1711, 97-1732.

United States Court of Appeals First Circuit.

Heard Jan. 8, 1998.

Decided May 26, 1998.

Mark G. Furey for CVS Pharmacy, et al.

Andru H. Volinsky for Provencher.

Before LYNCH, Circuit Judge, COFFIN and CYR, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

These appeals arise out of Richard Provencher's federal claims against CVS Pharmacy (CVS) of sexual harassment and retaliation and Deborah Banaian's state counterclaims for false arrest and imprisonment, intentional infliction of emotional distress, and defamation. A jury found CVS retaliated against Provencher for filing a sexual harassment claim, and declined to find defamation. CVS appeals the jury instruction on retaliation and the punitive damages award. Banaian appeals the dismissal of her first two counterclaims; in turn, Provencher appeals the dismissal of his sexual harassment claim. We affirm the district court in all respects.

I. FACTUAL AND PROCEDURAL OVERVIEW

Provencher was employed by CVS from July 1988 until his termination in May 1995. He worked as Banaian's assistant manager from late 1989 until April 1992, when he was promoted to manager of another CVS store. At the time CVS fired him, he managed a CVS store in Manchester, New Hampshire.

The core of Provencher's case was that he was sexually harassed by Banaian because he was a gay man and ultimately fired by CVS because he reported the harassment. Provencher alleged that Randy Ellis, his supervisor in 1989, directed Banaian to harass him, with the goal of leading him to resign. Rather than quit, Proventure reported the harassment to company officials, who took no remedial action. In 1995 he filed a sexual harassment complaint with the New Hampshire Commission for Human Rights. Around that same period, he served on a jury, which he reflected on his CVS time sheet as a forty hour work week of jury service. Shortly thereafter, he was terminated by CVS, allegedly for falsifying payroll records during this period. ¹ Provencher claimed, and the jury agreed, that he was discharged in retaliation for filing a sexual harassment claim.

The central tenets of the defense were: Ellis did not know Provencher was gay until late 1993 and therefore could not have acted as alleged; CVS did not pursue remedial action because Provencher specifically directed it not to do so; and, finally, Provencher was terminated for violating company policy. Banaian's counterclaims arise from her allegation that Provencher improperly had police remove her from the store he managed, thereby embarrassing and humiliating her in front of co-workers.

As no insufficiency of the evidence claim has been raised, we are not concerned with the adequacy of the jury's findings of fact, but rather with the legal decisions made by the judge. We address first CVS' contentions that the district court erred in the nature of the instructions given and the damages imposed. We then examine the dismissal of the counterclaims of intentional infliction of emotional distress and false arrest and imprisonment. Finally, we turn to Provencher's sexual harassment hostile work environment claim to review its dismissal on summary judgment.

II. THE JURY INSTRUCTIONS

The parties agree that at all times during the litigation CVS maintained that Provencher was fired for falsifying payroll records, and Provencher alleged the termination amounted to retaliatory discharge. CVS argues on appeal that the jury could have found that both reasons contributed to the termination, ² and it was error to use the language "played a part" and "a motivating factor" in the retaliation instruction. According to CVS, where a discriminatory motive can be one of multiple factors resulting in discharge, the jury should be instructed that liability attaches only where the impermissible motive is a "determination" "dominant" or "substantial" factor in the employer's decision.

Before examining the adequacy of the instruction, we consider whether, as Provencher claims, CVS failed to raise its challenge below. If it did not object, we review for plain error. See Cambridge Plating Co. v. Napco, Inc., 85 F.3d 752, 767 (1st Cir.1996). Plain error applies only where the error results in a clear miscarriage of justice or seriously affects the fairness, integrity or public reputation of the proceedings. See id. The record shows that CVS objected generally to the instruction given, and specifically requested the court to describe the prohibited motivation as "substantial," "principal," "dominant," or some other language conveying that the jury could not find liability if the discriminatory motive was de minimus. While better practice would have been to object to the specific language it now contests-- "played a part" and "a motivating factor" --CVS' objection did go to the heart of its current argument, namely, that the jury might believe it could impose liability even where the discriminatory motive was small and the permissible motive large.

Finding therefore that CVS sufficiently raised the issue below, we examine the jury instructions de novo to determine if, taken as a whole, they confused or misled the jury on the applicable law. See Tatro v. Kervin, 41 F.3d 9, 13 (1st Cir.1994). We will not reverse a judgment if we determine that the instruction, examined in this light, is harmless. See Davet v. Maccarone, 973 F.2d 22, 26 (1st Cir.1992).

Because we must examine the jury instruction on retaliation as a whole, we repeat in full that portion concerning causation:

[U]nder Title VII, it is unlawful for an employer to discriminate against any employee because that employee has opposed what he or she believed to have been sex discrimination by an employer, or because the employee filed a charge of sex discrimination ....

....

It is not necessary for Mr. Provencher to prove that a retaliatory motive was the sole motivation of, or even a primary motivation for, the defendant's decision to terminate him. The plaintiff need only prove that it played a part in the decision even though other factors may have motivated the defendant. Once Mr. Provencher shows that a retaliatory motive was a motivating factor in the defendant's decision, it is the defendant's burden to articulate a legitimate, nonretaliatory reason for its decision to terminate him. If the defendant does so, Mr. Provencher must prove by a preponderance of the evidence that the proffered legitimate reason is in fact a pretext and that retaliation was a motivating factor in the defendant's decision. Mr. Provencher retains the ultimate burden of persuading you by a preponderance of the evidence that he was retaliated against as he claims. Mr. Provencher claims that the defendant's reasons for terminating him are not the true reasons why he was terminated, that such reasons are unworthy of belief, and that the true reason for his termination was that he opposed an employment practice or practices he reasonably believed to have been sexually discriminatory, and/or that he filed a charge of employment discrimination with the commission. When you consider Mr. Provencher's evidence that the reason advanced by the defendant is a pretext, keep in mind that the relevant question is whether or not the defendant's reason was the real reason for its actions.... An employer is entitled to make an employment decision for a good reason, a bad reason, or for no reason at all, so long as the decision is not motivated by unlawful retaliation. However, you may consider whether the defendant's reason is merely a cover-up for unlawful retaliation.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and again in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (to which we refer generally as McDonnell Douglas/Burdine), the Supreme Court set forth the standard to be applied in cases where either a legitimate or an illegitimate motive applies. Although appellants argue for some adjusted standard, they offer no supporting authority for this proposition. As both parties consistently argued at trial that the jury had one of two factual versions to believe--fabrication violative of company policy or retaliation--we apply the McDonnell Douglas/Burdine standard to this case.

The plaintiff must first prove, by a preponderance of the evidence, a prima facie case of retaliation. See Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (defining the standard in a sex discrimination case). If the plaintiff succeeds, the defendant has a burden of production to articulate a legitimate, non-discriminatory reason for its challenged actions. See id. at 254-55, 101 S.Ct. 1089. Then by a preponderance of the evidence, the plaintiff must show that the proffered reason is pretextual. See id. at 256, 101 S.Ct. 1089. At all times, however, the plaintiff retains the ultimate burden to show that he has been the victim of intentional discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (quoting Burdine, 450 U.S. at 253, 101 S.Ct. 1089).

In this case, the district court accurately stated that, in order to impose liability, the jury had to find that the adverse action was taken because Provencher filed a sex discrimination charge. The court correctly defined that applicable standard of proof, explained that the jury must determine whether CVS' proffered reason was pretextual, and instructed that liability could be imposed if it determined that retaliation was the "real" and "true" reason for the employment decision.

The district court, however, also used the problematic language, ...