USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1119
HERTZL SINAI,
Plaintiff, Appellee,
v.
NEW ENGLAND TELEPHONE AND
TELEGRAPH COMPANY, ET AL.,
Defendants, Appellants.
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No. 92-1153
HERTZL SINAI,
Plaintiff-Appellant,
v.
NEW ENGLAND TELEPHONE AND
TELEGRAPH COMPANY, ET AL.,
Defendants, Appellees.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. District Judge]
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Before
Torruella, Cyr and Oakes,*
Circuit Judges.
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* Of the Second Circuit, sitting by designation.
Amy D. Seifer, with whom John D. Corrigan, was on brief for
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defendants.
Gabriel O. Dumont, Jr. for plaintiff.
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August 24, 1993
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TORRUELLA, Circuit Judge. After failing to gain
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employment at NYNEX Information Resources Co. ("NIRC"), appellee
brought suit for race and national origin discrimination under 42
U.S.C. 1981 and Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000e et seq. A jury found for the plaintiff on race
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discrimination, and the district judge, finding himself bound by
the jury's factual findings, found for the plaintiff on national
origin discrimination.
Appellant contends that the evidence was insufficient
to sustain the judgments, such that the judge erred when he
refused to grant a judgment notwithstanding the verdict.
Appellant also contends that the district court instructed the
jury incorrectly and issued two erroneous evidentiary rulings.
Appellee, in response, complains that the district court refused
to grant an additional award of damages under Title VII. Finding
this volley of allegations unconvincing, we affirm.
We use the same standard to review the evidence in this
case that the district judge used when he ruled on the motion for
judgment n.o.v. Biggins v. Hazen Paper Co., 935 F.2d 1405, 1409
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(1st Cir. 1992). When a jury has delivered a verdict, we examine
the evidence, including all facts and inferences, in the light
most favorable to the verdict. Id. We overturn the verdict when
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the evidence leads a reasonable person to one conclusion and one
conclusion only: that the losing party was entitled to win. Id.
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The evidence, viewed in this light, follows.
Appellee was born in Israel of parents of Jewish/Hebrew
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heritage. He came to the United States in 1973 after a five-year
stint in the Israeli Air Force and a two-year stint in sales at a
private company. In the United States he received a Bachelor of
Science degree from Suffolk University and held various jobs.
When his wife, a NIRC employee, told him that positions in
directory advertising sales were available at NIRC, appellee
submitted a resume and cover letter. This was the first step in
appellee's quest to win a position at NIRC, and it occurred in
the spring of 1984. NIRC informed appellee that no positions
were available at the time, but that his application would be
added to the waiting list for future openings.
Appellee filed a new application in the Summer of 1984
and followed up with a phone call to the hiring supervisor,
Marlene Dumas. During the conversation, Ms. Dumas revealed that
applicants needed a college degree and sales experience to pass
the initial screening. Appellee responded that he had both, and
Ms. Dumas delved further into appellee's career background. Ms.
Dumas asked appellee where he came from, or where he received his
sales experience. When appellee responded Israel, Ms. Dumas
stated "Israel doesn't count." Ms. Dumas denies making this
comment, but testified that, in any event, appellee's sales
experience in Israel was too far removed in time from the
application date to satisfy the requirement. She explained that
sales experience garnered more than three to five years earlier
is considered stale.
Appellee filed a new application in late November and
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again followed up with a phone call. He was told that he would
be interviewed within the coming year. Indeed, appellee was
called for a test and interview in March, 1985. He passed the
test. During the subsequent interview, Ms. Dumas reportedly
asked "Did you say you were from Israel?" and appellee detected a
look of disgust on her face. A letter soon followed, informing
appellee that he would not be considered further.
Undaunted, appellee reapplied in the Summer of 1985,
and again in early 1986. In mid 1986, Ms. Dumas left NIRC.
Appellee filed yet another application to Ms. Dumas's replacement
and again followed up with a phone call. In this conversation,
appellee learned that NIRC had adopted a policy forbidding the
hiring of NIRC-employee spouses. As appellee's wife worked at
NIRC, appellee could not be hired. Stunned, appellee pursued
further information from various supervisors. He learned that
the alleged "no-spouse" policy was unwritten and informal.
Appellee was unsatisfied with this news, as he knew of a couple
that was hired after appellee submitted his several applications.
During the relevant time period, NIRC made other
pertinent hiring decisions. First, NIRC hired several adherents
of the Jewish faith for directory advertising sales positions.
Second, NIRC hired several individuals who did not meet the
stated screening criteria; these individuals either did not have
a college degree or did not possess sufficient sales experience.
The above culminated in appellee bringing a two-pronged
discrimination suit. He claimed that he suffered discrimination
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on the basis of his Jewish/Hebrew race and on the basis of his
national origin, Israel. The race claim arose under 1981,
which guarantees that "all persons" in the United States will
have the same rights as "white citizens" "to make and enforce
contracts." The national origin claim arose under Title VII,
which makes the refusal to hire an applicant because of his
"race, color, religion, sex, or national origin" unlawful. As
plaintiffs are entitled to a jury trial in 1981 cases, but not
in Title VII cases, the district judge conducted a jury trial on
race discrimination before he himself decided the national origin
discrimination claim.
Appellant argues that evidence of race and national
origin discrimination are not inextricably intertwined in this
case, and that appellee failed to adduce any evidence to support
a finding of discrimination on the basis of his Jewish/Hebrew
race, as opposed to his Israeli national origin. Appellant thus
concludes that a rational jury could not have found race
discrimination.
While we agree with the district court that the
evidence of race discrimination was thin in this case, we also
agree with the district court that the jury was entitled to reach
the result it did. Appellee made out a prima facie case of
discrimination as it was described in McDonnell-Douglas Corp. v.
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Greene, 411 U.S. 792 (1973). First, he established that he was
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Jewish/Hebrew, defined as a protected race by the Supreme Court
in Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987), and
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Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987). Second,
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he applied for a job for which he was qualified.1 Finally,
appellee was rejected, but the position remained available to
other candidates with similar credentials and even some others
with apparently fewer credentials.
In addition to establishing the prima facie case of
discrimination, appellee testified that Ms. Dumas twice
disparaged appellee's Israeli background. Although appellant
claims that these events do not establish race discrimination,
the jury could find that Israel is one of those countries in
which the populace is composed primarily of a particular race.
As Justice Brennan stated of race and national origin
discrimination, often "the two are identical as a factual matter:
one was born in the nation whose primary stock is one's own
ethnic group." Saint Francis College, 481 U.S. at 614 (Brennan,
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J., concurring). That Israel is a Jewish state, albeit not
composed exclusively of Jews, is well established. Furthermore,
it is undisputed that appellee is of Hebrew/Jewish descent, the
stock primarily associated with Israel. The jury thus could have
determined that NIRC, through Ms. Dumas, discriminated against
appellee on the basis of his Hebrew/Jewish race by disparaging
Israel.
The jury also could have chosen to disregard NIRC's
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1 It is undisputed that appellee earned a college degree. As
for his career experience, we are satisfied that he was qualified
because he passed the initial screening process and passed the
required test. Furthermore, appellee presented evidence that
less well qualified candidates were hired over him.
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evidence. NIRC attempts to defuse the allegation of
discrimination by pointing out that several adherents of the
Jewish faith were hired for directory advertising positions. The
jury could have determined, however, that the other Jewish hires
did not rebut appellee's contention of race discrimination. The
relevant issue in a discrimination claim is whether the defendant
discriminates against the plaintiff on an improper basis. The
fact that the defendant hired other members of the protected
class is evidence that the jury can consider in reaching the
ultimate issue, but is not dispositive in itself. The jury must
weigh all of the evidence. In this case, the jury could conclude
that appellant discriminated against appellee on the basis of
race in spite of the other Jewish hires.
The fact that NIRC advanced different reasons for
refusing to hire appellant at different times could have led the
jury simply to disbelieve NIRC. NIRC first alleged that no jobs
were available and that appellee's resume was unclear. NIRC then
alleged that appellee was not as qualified as other candidates.
Finally NIRC announced that it had adopted a "no-spouse" policy
barring appellee's employment. This policy was unwritten and,
according to Ms. Dumas, not communicated to her until May 1986,
even though it was adopted in late 1984 or early 1985. The jury
easily could have determined that these reasons were
unsatisfactory, not true, or a pretext to cover up racial animus.
Indeed, appellee presented evidence that applicants with fewer
credentials than appellee were hired -- directly contradicting
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one of NIRC's rationales.
We conclude that the evidence is not so heavily
weighted in appellant's favor to justify setting aside the jury
verdict. The jury was entitled to find that appellee's race led
to his failure to gain employment at NIRC. The evidence does not
lead inescapably to the opposite conclusion.
Appellant complains that the district court improperly
allowed the jury to mingle race discrimination with national
origin. During its deliberations, the jury presented the
following questions to the district judge: "Does discrimination
because of race carry the same weight as discrimination because
of national origin? Or are they to be considered the same in
this case?" The judge responded by emphasizing that the case
only confronted the jury with the issue of race discrimination.
The judge added that "you can also consider, however, whether any
comments or any evidence about national origin may bear, may have
a significance to you in determining whether there was a
discrimination on the basis of race."
We find no error in this instruction. We already noted
with approval the comments made by Justice Brennan in Saint
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Francis College, and believe that the exchange discussed above
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reflects those comments. To repeat, race and national origin
discrimination may present identical factual issues when a victim
is "born in a nation whose primary stock is one's own ethnic
group." The judge properly responded to the jury's question: in
certain circumstances, including the present case, national
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origin and race discrimination may overlap. The judge did not
tell the jury that national origin discrimination was identical
to race discrimination, however. He instructed them that
national origin discrimination could be used, together with other
evidence, to arrive at a conclusion vis-a-vis race
discrimination.
We come now to two evidentiary rulings that appellant
claims were erroneous. We review them only for abuse of
discretion. Losacco v. F.D. Rich Construction Co., 992 F.2d 382,
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385 (1st Cir. 1993); Willhauck v. Halpin, 935 F.2d 689, 717 (1st
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Cir. 1991).
Appellant first contends that the district court judge
improperly allowed certain testimony by appellee's expert
psychologist. According to the doctor, Mr. Sinai was extremely
depressed, but his prognosis was good if appellee was vindicated
by the court in his discrimination claim. In anticipation of
this testimony, appellant raised an objection, arguing that it
only served to encourage a verdict on improper grounds, and was
therefore unduly prejudicial.
The trial transcript shows that the judge carefully
considered the objection. He found the doctor's prognosis for
Mr. Sinai's depression to be such an important piece of evidence
that it would have been unfair to exclude it. He concluded that
the testimony gave the jury a way to limit damages for future
emotional distress, in the event that it rendered a verdict for
Mr. Sinai. Furthermore, the judge felt that appellant's counsel
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could undo any prejudice by arguing in summation that the trial
process was not a therapeutic process for the jury to cure
Mr. Sinai's ailments regardless of fault. Finally, the judge
vowed to intervene if the witness entered into any improper
testimony. In short, the district judge realized that he faced a
close issue, weighed the alternatives, and reached the most
satisfactory conclusion. Under these circumstances, we cannot
find an abuse of discretion in the district court's ruling.
Appellant's next claim of evidentiary error concerns
appellee's deteriorating relationship with his wife, and her own
discrimination and harassment claims. Again, the disputed
testimony came from appellee's psychologist, this time during
redirect examination. The doctor stated that "[s]he experienced
what she believed was harassment by [appellant] because of . . .
her husband's decision to file charges against [appellant] for
job discrimination against himself." According to the doctor,
this harassment formed the basis of the Sinai's marital
difficulties, and, in turn, Mr. Sinai's depression. It appears
that Mrs. Sinai filed a claim against appellant with the
Massachusetts Commission Against Discrimination and received a
favorable ruling, which fact came out in the doctor's testimony.
During the previous cross-examination, appellant's
counsel used the doctor's testimony to imply that appellant's
depression stemmed from preexisting marital difficulties, not
from difficulties related to appellant's discrimination claim.
By opening the door to the issue of appellee's marital
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relationship, appellant exposed itself to rebuttal testimony such
as that offered. Appellant cannot now complain about that
testimony. See McDonald v. Federal Laboratories, Inc., 724 F.2d
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243, 248 (1st Cir. 1984) (we will not reverse an evidentiary
ruling "where the party claiming error invited or elicited the
alleged error").
Furthermore, the district judge found appellant's
objection to this testimony untimely and therefore unavailing.
Indeed, the witness, knowing that his testimony was
controversial, paused before proceeding and asked the judge
whether to continue. The judge noted that he heard no
objections, and therefore told the doctor to proceed. While an
objection was raised immediately after this ruling, it was not an
abuse of discretion to conclude to reject it.
We come now to appellee's contention that the district
court erred in not granting a separate recovery for the Title VII
claim. Appellee claims that the jury award, $95,000, is legal in
character; Title VII, on the other hand, is equitable and carries
with it equitable remedies. Appellee believes that he is
entitled to both kinds of remedies; essentially, he contends that
he is entitled to the $95,000 plus money for front pay, the pay
that he would have received had the district court ordered
appellant to hire him.
We cannot accept this argument. The purpose of damages
under Title VII is to make the plaintiff whole. Albemarle Paper
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Co. v. Moody, 442 U.S. 405 (1975). The district court is vested
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with a broad range of equitable powers to carry out this mandate.
See 42 U.S.C. 2000e-5(g) (listing "reinstatement or hiring of
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employees, with or without back pay . . . or any other equitable
relief as the court deems appropriate" as available relief).
Contrary to appellee's protestations, the district
judge did not allow the 1981 verdict to limit his equitable
powers under Title VII improperly. He simply found that the jury
already gave appellee all that he was entitled to receive. Cf.
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Wildman v. Lerner Stores Corp., 771 F.2d 605, 616 (1st Cir. 1985)
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(in Age Discrimination in Employment Act suit, the district court
has discretion on whether award of front pay is necessary). The
jury was presented in the 1981 claim with evidence concerning
back pay, front pay, and emotional distress, and instructed to
determine the appropriate level of damages for them. These are,
essentially, the damages authorized under Title VII. The
district court properly concluded that any further relief would
have been improper.
Affirmed.
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