United States Court of Appeals

For the First Circuit

No. 00-2582

JOHN LARCH,

Plaintiff, Appellee,

v.

MANSFIELD MUNICIPAL ELECTRIC DEPARTMENT,

Defendant, Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

 Torruella, Circuit Judge,

Gibson,* Senior Circuit Judge,

and Lipez, Circuit Judge.

Leonard H. Kesten, with whom Deidre Brennan Regan and Brody,

Hardoon, Perkins & Kesten were on brief, for appellant.

Alan R. Hoffman, with whom Lynch, Brewer, Hoffman & Sands

LLP were on brief, for appellee.

December 3, 2001

* Hon. John R. Gibson, of the Eighth Circuit, sitting by 

designation.
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LIPEZ, Circuit Judge. On February 2, 1998, the Board

of Commissioners of the Mansfield Municipal Electric Department

voted not to renew the contract of the Department's manager,

John Larch. Larch filed a complaint against the Department

under Mass. Gen. Laws ch. 149, § 185(b) (the "Whistleblower

Statute"), and 42 U.S.C. § 1983, alleging that his employment

had been unlawfully terminated in retaliation for his refusal to

obey Commissioner Frank Colella's order that he hire Michael

Forbes, a friend of Colella's, as an apprentice lineman/meter

reader or meter reader. The case went to trial, and the jury

returned a verdict for Larch on the Whistleblower claim,

awarding damages in the amount of $607,977.00. The court added

attorney's fees, costs, and prejudgment interest. The

Department appeals on numerous grounds. We affirm.

I. Background

From March of 1983 to June 30, 1998, John Larch was

manager of the Mansfield Municipal Electric Department (the

"Department" or the "Electric Department"), where he was in

charge of the day-to-day operation of the Department, including

the hiring and discharge of employees. The Board of Selectmen,

who under the town charter were also the Electric Department's

Board of Commissioners (the "Board"), were responsible for

setting Electric Department policy. The three Board members who
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voted not to renew Larch's contract in February of 1998 were

Frank Gerald Colella, Norman Mahana, and William C. Madan.

Madan and Mahana were elected to the Board in March of 1996;

Colella had been elected the previous year. Larch accused these

three Commissioners of acting in concert to retaliate against

him for his decision not to hire Forbes. The two Commissioners

who opposed the motion not to renew Larch's contract were Amos

M. Robinson and Dianne Royle (who replaced Joseph M. Pasquale on

the Board in 1997).

In March of 1998, Larch filed a complaint in Bristol

County Superior Court against defendants Madan, Royle, Colella,

Mahana, and Robinson, as members of the Mansfield Municipal

Electric Department Board of Commissioners, alleging that the

Board's decision not to renew his contract violated the

Massachusetts Whistleblower Statute, Mass. Gen. Laws ch. 149,

§ 185(b), because it was in retaliation for his refusal to

perform an act (hire Forbes) that he reasonably believed would

have been unlawful. Larch claimed that it would have been

unlawful to hire Forbes because under Massachusetts law the

"manager of municipal lighting" shall have "full charge" of "the

employment of . . . agents and servants," Mass. Gen. Laws ch.

164, § 56, and because under the collective bargaining agreement

a union member who expressed interest in the position had
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priority over Forbes. The complaint also alleged breach of

contract and unlawful discharge, and sought declaratory relief.

Larch filed an amended complaint in April of 1998, adding as

defendants Madan, Colella, and Mahana as individuals, and the

Mansfield Municipal Electric Department, and adding a federal

civil rights claim under 42 U.S.C. § 1983. In May of 1998 the

case was removed to the United States District Court for the

District of Massachusetts. In March of 1999 a suggestion of

death was filed as to Mahana.

The central issue at trial, which commenced on June 26,

2000, was whether the Board's decision not to renew Larch's

contract was in retaliation for Larch's decision not to hire

Forbes. Larch's theory of the case was that Colella had ordered

him to hire Forbes, and that when he refused to do so in June of

1996, a majority on the Board (Colella, Madan, and Mahana)

launched a protracted campaign of harassment against him that

culminated in February of 1998 with the vote not to renew his

contract. The Board argued that Colella never ordered Larch to

hire Forbes, but simply recommended him for the position, and

that the non-renewal decision was unrelated to the Forbes

affair. 

During the trial, the court dismissed the claims

against the individual defendants, directed a verdict for the
1 The district court found that the Department had breached

its contract with Larch when it unilaterally reduced the

threshold at which purchase orders required Board approval from

$10,000 (the figure in the contract) to $1,000. Larch requested

only nominal damages.

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Department on the civil rights claim, and directed a verdict for

Larch on the breach of contract claim (with nominal damages).1

The Whistleblower claim went to the jury, which on July 5, 2000,

returned a verdict for Larch in the amount of $607,977.00. In

a subsequent order the district court awarded prejudgment

interest from March 9, 1998, and attorney's fees and costs

pursuant to the Whistleblower Statute. 

The Department then moved for judgment as a matter of

law, for a new trial, and to alter or amend the judgment. It

argued that there was insufficient evidence that Larch

reasonably believed that hiring Forbes would have violated the

law; that there was insufficient evidence that his refusal to

hire Forbes was a substantial or motivating factor in the

Board's decision not to renew his contract; that the non-renewal

of Larch's contract was not a "retaliatory action" within the

meaning the Whistleblower Statute; that the district court erred

in admitting into evidence the statements of the deceased

Commissioner Mahana; and that the award of damages was too

speculative and should be reduced. The district court denied

these motions. The Department also moved for reconsideration of
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the court's order concerning attorney's fees and prejudgment

interest. The court granted these motions in part, adjusting

the date from which prejudgment interest would be awarded and

authorizing certain deductions from the attorney's fees award.

The court entered an amended judgment on October 20, 2000,

awarding Larch $607,977.00, plus prejudgment interest in the

amount of $168,498.84, attorney's fees in the amount of

$119,265.00, and costs of $8,523.00. The Department filed a

notice of appeal on November 16, 2000.

II. Sufficiency of the Evidence

Larch claims, and the jury found, that the Department

violated the Massachusetts Whistleblower Statute, Mass. Gen.

Laws ch. 149, § 185(b), which provides, in relevant part:

An employer shall not take any

retaliatory action against an employee

because the employee does any of the

following:

. . .

(3) Objects to, or refuses to

participate in any activity, policy or

practice which the employee reasonably

believes is in violation of a law, or a rule

or regulation promulgated pursuant to law,

or which the employee reasonably believes

poses a risk to public health, safety or the

environment.

The district court instructed the jury that Larch had to prove

(1) "that he objected to or refused to participate in an

activity, policy or practice that he reasonably believed was in
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violation of a law, rule or regulation;" (2) "that his refusal

to participate in the activity played a substantial or

motivating part in the decision not to renew his contract"; and

(3) "that the retaliatory action caused him damages." The

Department argues that there was insufficient evidence for the

jury to make findings one and two.

"We review the district court's denial of [a] motion

for judgment as a matter of law de novo, viewing the evidence in

the light most favorable to [the non-moving party] and drawing

all reasonable inferences in its favor. Our inquiry is whether

the evidence, when viewed from this perspective, would permit a

reasonable jury to find in favor of [the non-moving party] on

any permissible claim or theory." Foster-Miller, Inc. v.

Babcock & Wilcox Canada, 210 F.3d 1, 7 (1st Cir. 2000)

(citations and internal quotation marks omitted). We conclude

that the evidence was sufficient to support the jury's verdict.

(a) Reasonable Belief That Hiring Forbes Would Have Been

Unlawful

Larch testified that he reasonably believed that hiring

Forbes pursuant to Colella's order would have violated three

Massachusetts statutes. Because Larch only had to establish

that he reasonably believed that hiring Forbes would have
2 The other statutes Larch cited are Mass. Gen. Laws ch.

268A, § 23(b)(2) (government employees shall not use their

official position to secure, for themselves or for others,

"unwarranted privileges . . . of substantial value . . . which

are not properly available to similarly situated individuals");

and Mass. Gen. Laws ch. 150E, § 7(d) (terms of collective

bargaining agreement shall prevail over municipal personnel

ordinances, by-laws, rules, or regulations). 

3 Mass. Gen. Laws ch. 164, § 56 reads, in relevant part: 

The mayor of a city, or the selectmen or municipal light

board, if any, of a town acquiring a gas or electric plant

shall appoint a manager of municipal lighting who shall,

under the direction and control of the mayor, selectmen or

municipal light board, if any, and subject to this chapter,

have full charge of the operation and management of the

plant, the manufacture and distribution of gas or

electricity, the purchase of supplies, the employment of

attorneys and of agents and servants, the method, time,

price, quantity and quality of the supply, the collection

of bills, and the keeping of accounts. 

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violated one of the statutes he cited,2 we limit our discussion

to Mass. Gen. Laws ch. 164, § 56, which provides that the

"manager of municipal lighting" shall have "full charge" of "the

employment of . . . agents and servants."3 Larch argues that

hiring Forbes pursuant to Colella's order would have entailed an

unlawful substitution of Colella's judgment for his own. The

Department asserts that Colella never ordered Larch to hire

Forbes, but simply recommended Forbes for the positions.

There was ample evidence at trial to support a jury

finding that Colella had ordered Larch to hire Forbes. On March

5, 1996, the Board voted to authorize a new position for an
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apprentice lineman/meter reader. Between March 5 and June 3,

1996, Colella indicated to Larch on at least three occasions

that he expected Forbes, a friend and co-worker of Colella's, to

be hired for the new position. While it was common for

Commissioners to recommend people for open positions, Larch

testified that he believed Colella was ordering him to hire

Forbes. Larch testified that he had decided not to hire Forbes

"as long as [Colella] was telling me to hire him."

Larch did not post the new position when it was

authorized, believing that "we were going to have a problem"

when Colella found out that Forbes was not getting the job. At

the beginning of June, however, Larch learned that Shawn Curran,

a meter reader in the Department, had decided to bid for the

position. Larch believed that Curran's bid would get him "off

the hook" with Colella because the union contract stipulated

that members of the bargaining unit had absolute preference for

open positions. After the June 3 Board meeting, he informed

Colella that the new position would go to Curran. Colella

testified that he was upset by this news. 

The next day, Colella indicated to Kym Gaissl, the

Department's Business Manager, that the Selectmen/Commissioners

were the "town fathers," a phrase which, Gaissl testified, the

Commissioners often used to indicate "that they had the right to
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tell people what to do and how to do it." On June 6, Mahana

told Gaissl that Colella was "very upset" about Forbes not

getting the job, and declared: "We are the town fathers and

people should do what we tell them to do." The jury could

reasonably have taken these statements as evidence of an order

rather than a recommendation.

Around June 14, Colella delivered a second job

application from Forbes to Gaissl, this time for either the

apprentice lineman/meter reader position, or the meter reader

position which would open up if Curran was hired into the new

position. On June 18, Colella indicated to Larch that "he was

one of the town fathers and the town fathers had the right to

have who they wanted to hire hired." Larch decided, however,

that there was not enough work to justify filling the meter

reader position. Colella was angry and disappointed when he

heard this news. Just before the June 26 meeting of the Board,

Mahana said to Larch that he and Gaissl had upset Colella, and

that "he or they were going to make our lives miserable until we

made [Colella] happy again." The jury could reasonably have

concluded that the persistent criticism of and interference with

Larch's management of the Department after his decision not to

hire Forbes (see infra) was evidence that Larch had disobeyed an

order rather than merely neglecting to adopt a recommendation.
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The Department offered evidence that Larch had a

longstanding policy of granting an interview to any job

candidate a Board member recommended, and that he had sometimes

hired such candidates in the past. The court's instruction to

the jury made clear the Board's "recommendation" theory: "the

statute does not prohibit job recommendations by a selectman or

commissioner. It is up to you to decide whether the statement

or statements made by selectmen were orders to hire Mr. Forbes

or recommendations." Since the court properly framed the issue

for the jury, a rejection of the Department's "recommendation"

theory is implicit in the jury's verdict for Larch.

Even if Colella did order Larch to hire

Forbes, the Department argues that Larch could not have

reasonably believed that hiring Forbes pursuant to Colella's

order would have violated Mass. Gen. Laws ch. 164, § 56, because

the statute bars the Board, not individual Board members, from

interfering with the manager's power to hire and discharge

employees. The Department cites Golubek v. Westfield Gas &

Electric Light Board, 591 N.E.2d 682, 683 (Mass. App. Ct. 1992),

for the proposition that Mass. Gen. Laws ch. 164, § 56 is not

violated unless a board action infringes on the prerogatives of

the manager. Golubek does not, however, support that reading of

the statute. It is simply a case where an action by the board
4 Although this opinion post-dates the Forbes episode, it

is evidence of the reasonableness of Larch's interpretation of

the statute.

5 Since a reasonable belief that hiring Forbes upon

Colella's order is enough to establish a violation of the

statute, we do not have to decide whether Colella's conduct in

fact violated § 56.

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was found to have violated the statute. Golubek states that

under § 56 the hiring power is "vested in the manager alone."

Id. at 684 (emphasis added). The town's own counsel, moreover,

advised the Board on September 4, 1997, that "[t]he [Electric]

Department manager has exclusive authority to hire and discharge

employees."4 In light of Golubek, the opinion of town counsel,

and the plain language of the statute (manager of municipal

lighting shall have "full charge" of hiring employees), the jury

could have found that Larch reasonably believed that to hire

Forbes at Colella's direction would have violated Mass. Gen.

Laws ch. 164, § 56.5

The Department suggests that Larch's failure to tell

Colella that it would be illegal to hire Forbes pursuant to his

order indicates that Larch did not believe he was being asked to

do anything illegal. The jury could have found, however, that

Larch kept this belief to himself to avoid a confrontation with

Colella.
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(b) Substantial or Motivating Factor in the Decision Not to

Renew

The Department argues that there was insufficient

evidence that Larch's decision not to hire Forbes was a

substantial or motivating factor in the decision not to renew

his contract. Viewing the evidence in the light most favorable

to Larch, and drawing reasonable inferences in Larch's favor,

there is ample evidence to support a jury finding that the Board

made its non-renewal decision in retaliation for Larch's refusal

to hire Forbes. See Foster-Miller, 210 F.3d at 7. 

On June 4, 1996, the day after Colella learned that

Forbes would not be getting the apprentice lineman/meter reader

position, Colella called Gaissl and said that he wanted to

cancel the purchase of a backhoe for the Department which the

Board had approved unanimously at the June 3 meeting. Colella

said to Gaissl: "John's done it to me again, he's not going to

hire this kid. . . . I'm looking like an idiot. . . . I'm

really, really mad." That same day, Colella told Gary D'Ambra,

an Electric Department employee, that he was upset and

frustrated that Larch had decided not to hire Forbes, and that

he was "all done with John Larch." On June 6 Mahana, who was

often seen passing time with Colella and Madan at a local pub

and outside a local ice cream store, told Gaissl that Colella
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was "very upset" about Forbes not getting the job. An

"extremely irate" Mahana communicated with Gaissl again on June

10, telling her that "he didn't know who the hell John Larch

thought he was, but he'd been doing it his way for a long time

and that wasn't going to happen anymore . . . that he would kick

his ass out of town and . . . make life miserable for the

department." Mahana told Gaissl that he would take away the

backhoe, take away Larch's car allowance, relocate the office

staff, and stop all overtime in the Department.

Larch, Gaissl, and Commissioner Pasquale testified

that, in contrast to previous Board meetings, which had been

professional and businesslike, the tone of the June 26 Board

meeting was hostile and antagonistic toward Larch. Most of the

meeting was devoted to Colella, Mahana and Madan grilling Larch

about alleged problems in the Department. Colella questioned

Larch about provisions in his contract providing for life

insurance and a vehicle for his official use, and moved to

reverse the Board's earlier decision to purchase a backhoe for

the Department. Mahana interrogated Larch about the

Department's longstanding practice of making payments to the

Town, suggested that the Department should be moved out of its

office condominium, criticized Larch for generating too much

revenue, questioned the granting of preferential electric rates
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to the high school, and mentioned ("I just want the public to

know") a debt the Department owed. Madan then questioned Larch

about alleged electrical problems in the industrial park. 

In subsequent meetings, the Board continued to undercut

Larch's authority to run the Department. On October 7, 1996,

the Board voted to require its approval for contracts with

outside consultants and purchase orders over $1,000, and to put

the Department's non-union employees under the Town's personnel

policy. On November 4, 1996, Madan and Colella suggested that

too many Department employees had cell phones and beepers, and

Colella said he wanted the number of cell phones reduced to

three. On April 2, 1997, Madan questioned the Department's

provision of bottled water to its employees. 

On May 5, 1997, the Board denied Larch's request that

an employee who was performing two jobs at the same time receive

a wage increase of $2 per hour, and voted to have the Town's

accountant do the Department's books. On May 15, 1997, the

Board encouraged a Department employee to appeal an adverse

personnel decision to the Town Manager. On June 2, 1997,

Colella declared that he was "very upset" that two Department

employees had been denied vacation time (because other employees

had requested the same dates), and indicated that the Board

should make final decisions concerning vacation time in the
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Department. On September 29, 1997, the Board voted to eliminate

all scheduled overtime in the Department, except with the

approval of the Chairman of the Board. On January 12, 1998,

Madan criticized Larch for letting Department employees go home

early on December 24. 

On February 2, 1998, the Board voted not to renew

Larch's contract. At the meeting, Madan explained simply that

there had been "a lot of mismanagement" in the Electric

Department. Although Madan was more specific at trial about the

reasons for not renewing Larch's contract, there was evidence

that the explanations were pretextual. Madan pointed to the

Department's lack of a personnel policy, but there was evidence

that the Department used the Town's personnel policy, with a few

exceptions, and that the Board knew of this practice. Madan

cited outages in the industrial park, but there was evidence

that these problems were minor. Madan testified that the Board

was concerned about the Department's finances, but there was

evidence that the Department had substantial accumulated profits

($8,000,000 as of April 1997), that relatively modest losses in

1996 and 1997 were due to a rate cut designed to reduce the

Department's profits and to unexpected events, and that a 1997

financial audit stated that "the Department is in good financial

shape and is managed well." Madan cited an employee's theft of
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$500 from the Department, but there was evidence that the

detection of this small theft indicated that the theft-detection

system was functioning as it should. Madan also criticized

Larch's handling of a hostile work environment claim by an

employee, Rose McCarthy, against Business Manager Gaissl, but

Larch testified that the Town's labor counsel had indicated that

some of the incidents were too far back in time to act on, and

had recommended that Larch await the results of McCarthy's

litigation against the Department before deciding how to

proceed.

In sum, the jury could reasonably have concluded that

the persistent criticism of Larch's management of the

Department, starting with the June 26, 1996, meeting and

culminating with the non-renewal decision on February 2, 1998,

amounted to the Board majority making good on the threat, issued

at the time of Larch's decision not to hire Forbes, to "make

life miserable for the department" and "kick [Larch's] ass out

of town," and that the reasons the Department offered for not

renewing Larch's contract were pretextual. 

III. Non-Renewal as Retaliatory Action

The Department argues that the decision not to renew

Larch's contract does not constitute the "retaliatory action"

proscribed by the Whistleblower Statute. Mass. Gen. Laws ch.
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149, § 185(b). The statute defines "retaliatory action" as "the

discharge, suspension or demotion of an employee, or other

adverse employment action taken against an employee in the terms

and conditions of employment." Id., § 185(a)(5). The

Department argues that non-renewal of an employment contract

does not fall under the statutory definition. 

The Department has waived this argument, which first

appeared in its renewed motion for judgment as a matter of law:

A renewed motion for judgment as a matter of

law under Rule 50(b), like the similar

motion made under Rule 50(a) before the

submission of the case to the jury, must

state the grounds on which it was made.

Since the post-submission motion is nothing

more than a renewal of the earlier motion

made at the close of the presentation of the

evidence, it cannot assert a ground that was

not included in the earlier motion.

9A Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 2537, at 344-45 (2d ed. 1994) (footnotes omitted);

accord Correa v. Hospital San Francisco, 69 F.3d 1184, 1196 (1st

Cir. 1995) ("The movant cannot use [a renewed motion for

judgment as a matter of law] as a vehicle to introduce a legal

theory not distinctly articulated in its close-of-evidence

motion for a directed verdict."). The Department rightly points

out that "whether there had been retaliation" was a central

issue at trial, but neglects to mention that until the
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Department's post-verdict motion it had played out as a factual

issue, not a legal one. We also note that the Department failed

to object to the jury instruction on retaliation, which stated:

"A decision not to renew an employment contract is an adverse

employment action under the statute." In failing to bring its

contrary reading of the statute to the court's attention until

after the verdict had been rendered, the Department waived the

argument it now seeks to advance.

IV. Admission of Mahana's Statements

The Department argues that the district court erred in

admitting the statements of the deceased Commissioner Mahana,

such as "[w]e are the town fathers and people should do what we

tell them to do," and that "he would kick [Larch's] ass out of

town and . . . make life miserable for the department." The

district court admitted Mahana's statements as admissions of the

Department, pursuant to Fed. R. Evid. 801(d)(2)(D), which

excludes from the hearsay rule statements offered against a

party and made "by the party's agent or servant concerning a

matter within the scope of the agency or employment, . . .

during the existence of the relationship." The Department

argues that Mahana's statements do not qualify as nonhearsay

under Rule 801(d)(2)(D) because threatening the manager of the

Electric Department in this fashion was not within the scope of
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his employment. It points out that the statements were neither

authorized by the Department nor made for the purpose of

furthering its interests.

We review a district court's admission of evidence for

abuse of discretion. See United States v. Gilbert, 181 F.3d

152, 160 (1st Cir. 1999). There was no abuse of discretion

here:

To qualify as nonhearsay under Rule

801(d)(2)(D), a statement must concern "a

matter within the scope" of the declarant's

agency or employment. The statement itself

is not required to be "within the scope of

the declarant's agency. Rather, it need

only be shown that the statement be related

to a matter within the scope of the agency."

5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal

Evidence, § 801.33[2][c], at 801-69 (2d ed. 2001) (footnotes

omitted). While Mahana's job description obviously did not

include making life miserable for the Electric Department, the

statements were related to a matter within the scope of his

employment: oversight of the Department. See White v.

Honeywell, Inc., 141 F.3d 1270, 1276 (8th Cir. 1998)

(supervisor's racial slur against employee admissible against

employer as statement "concerning a matter within the scope of

the employment" under Fed. R. Evid. 801(d)(2)(D)). The district

court properly admitted Mahana's statements as nonhearsay under

Rule 801(d)(2)(D).
6 Federal Rule of Evidence 403 provides: "Although

relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence."

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V. The Sexual Harassment Evidence

The Department argues that the district court erred in

excluding certain details of the sexual harassment allegations

against Business Manager Gaissl that Madan cited as a reason for

not renewing Larch's contract. The excluded testimony was that

Department employees had discussed the smell of semen. Although

the court admitted testimony about other alleged sexuallycharged conduct at the Department, it concluded that the

testimony it decided to exclude would be "just too much for a

jury." The Department also argues that it should have been

permitted to ask Gaissl if she was personally involved in the

alleged incidents, and to ask Larch whether Gaissl had

acknowledged the truth of some of the allegations. 

We review the district court's exclusion of evidence

under Fed. R. Evid. 403 for abuse of discretion.6 See United

States v. Reeder, 170 F.3d 93, 107 (1st Cir. 1999). "'[O]nly

rarely - and in extraordinary circumstances - will we, from the

vista of a cold appellate record, reverse a district court's onthe-spot judgment concerning the relative weighing of probative
-22-

value and unfair effect.'" Id. (quoting Williams v. Drake, 146

F.3d 44, 47 (1st Cir. 1998) (alteration in original)). 

The district court admitted the evidence of sexual

harassment for the limited purpose of permitting the Department

to establish the factors that influenced the Board's decision

not to renew Larch's contract. The court weighed the probative

value of the evidence against the potential for unfair

prejudice, and let in almost all of the sexual harassment

allegations. It declined to let the Department inquire into

Gaissl's personal involvement in the incidents, on the ground

that "we're not going to have mini trials on each one of those

allegations." There was no abuse of discretion in the court's

decision not to conduct a "mini trial" on the issue of sexual

harassment, or in its exclusion of some limited testimony on

that issue that it believed would be unduly prejudicial to

Larch. Indeed, the argument to the contrary is frivolous.

VI. Excessive Damages

The Department argues that it was error to award

damages based on the assumption that Larch's contract would be

renewed until he reached the age of 65. It noted that Larch had

worked under a series of two- and three-year contracts, which

the Board could elect not to renew with or without cause. The
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Department therefore suggests that the proper measure of damages

would be one additional employment contract.

We review the district court's decision not to reduce

the jury's award of damages for abuse of discretion. Blinzler

v. Marriott Int'l, Inc., 81 F.3d 1148, 1161 (1st Cir. 1996).

"An award of damages will not be deemed unreasonably high . . .

as long as it comports with some rational appraisal or estimate

of the damages that could be based on the evidence before the

jury," and is not "grossly excessive, inordinate, shocking to

the conscience of the court, or so high that it would be a

denial of justice to permit it to stand." Id. (citations and

internal quotation marks omitted). 

The Department argues that the award of damages beyond

the period of one additional employment contract should be

overturned because it was "necessarily speculative." However,

the Supreme Judicial Court of Massachusetts ("SJC") has stated

that "the law of the Commonwealth has traditionally allowed, as

an element of tort damages, compensation for the loss of

capacity to generate prospective earnings. Mere uncertainty in

the award of damages is not a bar to their recovery . . . ."

Conway v. Electro Switch Corp., 523 N.E.2d 255, 257 (Mass. 1988)

(citation and footnote omitted) (interpreting the Massachusetts

employment discrimination statute). This principle applies
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under the Whistleblower Statute, which provides that "[a]ll

remedies available in common law tort actions shall be available

to prevailing plaintiffs." Mass. Gen. Laws ch. 149, § 185(d).

In Kelley v. Airborne Freight Corp., 140 F.3d 335 (1st

Cir. 1998), we upheld an award of $1,000,000 in front pay

damages under the Massachusetts employment discrimination

statute, Mass. Gen. Laws ch. 151B, § 9. We explained:

An award of front pay, constituting as it

does, an estimate of what a plaintiff might

have earned had s/he been reinstated at the

conclusion of trial, is necessarily

speculative. Massachusetts law is clear

that uncertainty in the award of future

damages does not bar their recovery, and we

have said that the generousness of a jury's

award does not alone justify an appellate

court in setting it aside [unless] it is

shown to exceed any rational appraisal or

estimate of the damages. 

Id. at 355 (citations and internal quotation marks omitted); see

also Cummings v. The Standard Register Co., 265 F.3d 56 (1st

Cir. 2001) (upholding an award of 14 years of front pay under

Massachusetts law). 

Although the SJC in Conway cautioned that "damages may

not be determined by speculation or guess," 523 N.E.2d at 257,

the jury's award of $607,977 in compensatory damages was based

on evidence presented at trial. Larch was 55 years old when his

employment terminated in June of 1998. He had served as manager

of the Electric Department for 15 years under a series of two-
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and three-year contracts. The last three contracts contained a

clause that would automatically renew the contract for an

additional two- or three-year term unless the Board gave notice

of non-renewal within four months of the contract's end. Larch

testified that he had intended to work at the Electric

Department until he reached the age of 65. 

Larch had received positive evaluations of his job

performance in December of 1993 and January of 1995.

Commissioner Pasquale testified that he had rated Larch "above

average" in most categories. Commissioner Royle also testified

that Larch had been performing well. Larch testified that his

efforts to obtain new employment during the time between his

termination and the trial (he cited specific positions for which

he had applied) had been unsuccessful. He testified that

because of deregulation, utilities were laying off employees

rather than hiring, and that the current phase of deregulation

would continue for 10 years.

There was also evidence that the non-renewal of Larch's

contract and Madan's charge of "a lot of mismanagement" in the

Department were reported in the local media. Pasquale, a human

resources professional, testified that prospective employers

would likely take into account the allegations of mismanagement

surrounding the termination of Larch's tenure at the Department.
7 An actuary estimated these figures for the jury at trial.

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Based on this evidence, a reasonable jury could have

found, as this jury did, that Larch's damages amounted to the

discounted value of the benefits and compensation he would have

received if he had worked until age 65, less the discounted

value of the pension payments he would receive because of his

termination.7 There is nothing "grossly excessive" or "shocking

to the conscience" about this calculation of Larch's damages.

Blinzler, 81 F.3d at 1161.

VII. Attorney's Fees

We review an award of attorney's fees for abuse of

discretion. Coutin v. Young & Rubicam Puerto Rico, Inc., 124

F.3d 331, 336 (1st Cir. 1997). The Department argues that the

district court erred in awarding Larch attorney's fees because

the court, in an order explaining its decision not to award

Larch multiple damages, observed that "[t]his case did not

involve invidious discrimination, corruption, or self-dealing,

but misguided cronyism involving a commissioner with a 'big

heart.'" The Department reasons that since the court declined to

award multiple damages on this basis, it should also have

declined to award attorney's fees.

The Massachusetts Whistleblower Statute provides that

"[t]he court may . . . order payment by the employer of
8 The Department does not make clear what alternative it

proposes to prejudgment interest on "the entire amount" of the

award.

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reasonable costs, and attorneys' fees." Mass. Gen. Laws ch.

149, § 185(d)(5). As the statute confers broad power to award

attorney's fees, without setting forth criteria for deciding

when to award them, and its evident purpose is to protect

employees who are found to have been subject to retaliation for

refusing to engage in unlawful conduct, as was Larch, we have no

basis for questioning the district court's exercise of its

discretion to award attorney's fees in this case.

VIII. Prejudgment Interest

The Department argues that the district court erred in

awarding Larch pre-judgment interest on "the entire amount" of

the damages award.8 The Department has waived this argument.

Subsequent to the jury's verdict for Larch, the district court

issued an order stating that, "having received no opposition to

the plaintiff's letter . . . which outlines the plaintiff's

understanding regarding interest on the judgment," the court was

awarding Larch prejudgment interest on the entire amount of the

judgment at a rate of 12%, from the date the complaint was filed

(March 9, 1998). The Department then filed a motion for

reconsideration of the district court's order, asserting that

prejudgment interest should have been awarded not from the date
9 The stipulation reads: "The parties have agreed to

resolve their outstanding dispute regarding the prejudgment

interest and now stipulate that the Court should award

prejudgment interest calculated from June 30, 1998, up to and

including the date of said amended judgment."

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of the complaint, but from the date plaintiff first sustained

damages (June 30, 1998, the final day of his employment at the

Department). The district court granted this motion, and the

parties then stipulated that prejudgment interest would run from

June 30, 1998.9

The Department's argument on appeal, that the court

erred in awarding prejudgment interest on the entire amount of

Larch's damages, was never raised below. In Eastern Mountain

Platform Tennis, Inc. v. The Sherwin-Williams Co., Inc., 40 F.3d

492 (1st Cir. 1994), the defendant argued on appeal that

prejudgment interest should not have been awarded on future lost

profits. We held that the defendant had waived the argument

because it had not made the argument before the trial court.

See id. at 504. "The law in this circuit is crystalline: a

litigant's failure to explicitly raise an issue before the

district court forecloses that party from raising the issue for

the first time on appeal." Boston Beer Co. Ltd. P'ship v. Slesar

Bros. Brewing Co., Inc., 9 F.3d 175, 180 (1st Cir. 1993).

Affirmed.