United States Court of Appeals

For the First Circuit

No. 00-1988

GARY WALTON,

Plaintiff, Appellant/Cross-Appellee,

v.

NALCO CHEMICAL COMPANY,

Defendant, Appellee/Cross-Appellant.

 

No. 00-2102

GARY WALTON,

Plaintiff, Appellant/Cross-Appellee,

v.

NALCO CHEMICAL COMPANY,

Defendant, Appellee/Cross-Appellant.

 

No. 00-2196

GARY WALTON,

Plaintiff, Appellant/Cross-Appellee,

v.

NALCO CHEMICAL COMPANY,

Defendant, Appellee/Cross-Appellant.

 

3

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

 

Before

Torruella, Circuit Judge,

Cyr, Senior Circuit Judge,

and Lynch, Circuit Judge.

 

Daniel G. Lilley, with whom Daniel G. Lilley Law Offices,

P.A. was on brief for plaintiff, appellant.

James B. Haddow, with whom Petruccelli & Martin, LLP was on

brief for defendant, appellee.

 

November 28, 2001

 
1All relevant facts are related in the light most favorable

to Walton. See White v. N.H. Dep’t of Corrections, 221 F.3d

254, 259 (1st Cir. 2000) (judgment-as-a-matter-of-law rulings

are reviewed de novo, whereas the evidence and inferences to be

drawn therefrom are viewed in the light most favorable to the

nonmoving party).

4

CYR, Senior Circuit Judge. Plaintiff Gary Walton

challenges various rulings which led the district court to

dismiss his state-law claim for intentional infliction of

emotional distress against his former employer, Nalco Chemical

Company (Nalco), and to disallow his motion to amend the

complaint to include a defamation claim under Maine law. 

In its cross-appeal, Nalco challenges various

evidentiary rulings, as well as the denial of its motion to

dismiss Walton's pendant state-law age-discrimination claim

under the Maine Human Rights Act ("MHRA"). We affirm the

district court judgment. 

I

BACKGROUND1

In 1977, Walton joined the staff at Nutmeg

Technologies, Inc. ("Nutmeg"), selling water treatment chemicals

and supplies to industrial and institutional customers in Maine.

Between 1977 and 1994, his annual sales increased from $223,000

to more than $1,000,000. By the time Diversey Water

Technologies, a Nalco subsidiary, announced its intention to
2Since Nalco acquired direct control of Diversey in December

1997, we simply refer to "Nalco."

5

acquire Nutmeg in October 1996, Walton then sixty years of age,

was earning $61,000 a year as Nutmeg's highest paid Maine

salesman.2

Prior to the time Nutmeg was actually acquired by

Nalco, Walton had explained to Nalco Vice-Presidents Peter

Hallson and Kenneth Yankowski that he wanted to retain his sales

accounts and intended to continue working until at least age

sixty-five. After Hallson and Yankowski acceded to his demands,

Walton entered into an agreement not to compete with Nalco

within his current sales territory for a period of eighteen

months following any termination of his employment with Nalco.

Whereupon Nalco agreed to disburse $5,500 to Walton as a

retention bonus, provided that Walton remained employed by Nalco

as of September 30, 1997.

In June 1997, however, Walton learned that Nalco had

reassigned some of his sales accounts, including the third

largest, to Troy Malbon, a thirty-one-year-old salesman

previously supervised by Walton. On August 20, 1997, Walton met

with Yankowski and Joseph Carney, Walton's direct supervisor, at

their request. Yankowski inquired into Walton's financial

condition, including the value of his residence and personal
3Around the same time, Yankowski stated in the presence of

Ray Field, another Nalco employee: "We can’t have a man

[Walton] in his sixties sitting on his accounts coasting. We

need to get a young rep in there selling business."

6

property, then announced that all of Walton's remaining sales

accounts would be transferred to Malbon, effective January 1998.

Finally, Yankowski related two anecdotes about former Nalco

employees who had been demoted or discharged at age sixty-two,

explaining that Nalco had forced one of them to accept early

retirement.

At the same time, Yankowski advised Walton that Nalco

was not prepared to offer him any early-retirement incentive,

suggesting instead that Walton accept part-time employment at

$20,000 per year — less than one-third his salary at the time.

Walton regarded Yankowski's remarks as warnings designed to

compel him to accept early retirement. In due course, Walton

retained counsel, who informed Nalco on October 3, 1997, that it

had engaged in age discrimination. On October 8, 1997,

Yankowski and Carney instructed Walton to bring additional

information regarding his financial condition, so that his

minimum financial needs could be calculated by Nalco with a

possible view to tendering him a buy-out offer.3

At Yankowski's direction, during another meeting in

November 1997, Walton was required to submit to an employee
4All Diversey employees were tendered new contracts at the

time the two firms merged.

7

evaluation pursuant to a so-called Personnel Regeneration Form;

Walton tested deficient in thirteen of its fifteen categories.

Walton declined to sign the written evaluation and rejected the

proffered employment contract,4 after informing Nalco VicePresident Richard Murphy, in writing, that he would not sign the

new contract unless Nalco first met with his attorney to discuss

the age-discrimination claims. During this period, Walton

experienced emotional distress and even fantasized about

suicide. In February 1998, Walton was discharged for refusing

to sign the new employment contract tendered by Nalco.

The day after Walton's discharge, a Nalco employee came

to the Walton home to reclaim a piece of testing equipment and

the company car. After rebuffing Walton's request that he be

allowed to retain the testing equipment for its "sentimental

value," the Nalco employee repossessed both the testing

equipment and the company car in the presence of Walton's family

and neighbors. Less than sixty days passed before Walton was

hired by a Nalco competitor and assigned to one of his former

Maine sales districts.

Walton instituted suit in the United States District

Court for the District of Maine, claiming violations of the Age
8

Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et

seq., and the fair employment provisions of the MHRA, Me. Rev.

Stat. Ann. tit. 5, § 4571 et seq., as well as intentional

infliction of emotional distress. Nalco counterclaimed that

Walton had breached the noncompetition agreement by accepting

employment with a Nalco competitor. In due course, the district

court denied Walton's motion to amend the complaint to include

a defamation claim, granted partial summary judgment to Nalco on

the issue of Walton's liability under the counterclaim, and

reserved for trial the issue of damages under the counterclaim.

At trial, Nalco's counterclaim was dismissed after all

its evidence on damages had been excluded. The district court

entered judgment as a matter of law for Nalco on the Walton

state-law claim for intentional infliction of emotional

distress. At the conclusion of the trial, the jury returned

verdicts on the ADEA and MHRA claims, awarding Walton $57,872 in

back pay, $250,000 for pain and suffering, and $1,250,000 in

punitive damages. The district court reduced the total jury

award to $357,872, consistent with the limitations prescribed in

the ADEA and the MHRA. 

II

DISCUSSION

A. The Walton Appeal
5As we conclude that there was insufficient evidence to

support the "intentional infliction" claim, see infra, we need

not discuss an alternative basis for its dismissal, viz., that

the MHRA preempts all claims for employment-related emotional

distress.

9

1. The Intentional Infliction of Emotional Distress Claim

Walton first contends that there was enough evidence

to establish that Nalco intended to inflict emotional distress

by discharging him. Judgments entered as a matter of law are

reviewed de novo, and will be affirmed "only if, after

scrutinizing the proof and inferences derivable therefrom in the

light most hospitable to [Walton], we determine that a

reasonable factfinder could have reached but one conclusion:

that [Nalco] w[as] entitled to judgment." Fleet Nat'l Bank v.

Anchor Media Television, Inc., 45 F.3d 546, 552 (1st Cir. 1995).5

Walton had the burden to prove that 

(1) [Nalco] intentionally or recklessly

inflicted severe emotional distress or was

certain that such distress would result from

[its] conduct; (2) the conduct was so

extreme and outrageous as to exceed all

possible bounds of decency and must be

regarded as atrocious, and utterly

intolerable in a civilized community; (3)

[Nalco's] actions . . . caused [his]

emotional distress; and (4) the emotional

distress . . . was so severe that no

reasonable [person] could be expected to

endure it.

Vogt v. Churchill, 679 A.2d 522, 524 (Me. 1996) (internal

citations and quotation marks omitted). Moreover, it was
6See, e.g., Staples v. Bangor Hydro-Elec. Co., 561 A.2d 499,

501 (Me. 1989) (holding that supervisor, who humiliated employee

during staff meetings, demoted him without cause, and falsely

accused him of professional incompetence, had not engaged in

“extreme and outrageous” conduct); see also Green v. Me. Sch.

Admin. Dist. No. 77, 52 F. Supp. 2d 98, 114 (D. Me. 1999)

(noting that denial of tenure to teacher, though arguably

violative of the retaliation provision in the MHRA, was not

"extreme and outrageous"); Krennerich v. Town of Bristol, 943 F.

Supp. 1345, 1356-57 (D. Me. 1996) (observing that an

intentional-infliction claim, relying solely on wrongful

termination in violation of municipal employee's due process

rights, failed to meet "extreme and outrageous" standard).

10

necessary for the district court, in its "gatekeeper" role, to

determine, in the first instance, "'whether [Nalco's] conduct

may reasonably be regarded as so extreme and outrageous [as] to

permit recovery.'" Champagne v. Mid-Maine Med. Ctr., 711 A.2d

842, 847 (Me. 1998) (citation omitted).

Walton insists that the evidence demonstrated the

requisite "extreme and outrageous" conduct, in that Nalco (i)

abused its position of authority, qua employer; (ii) threatened

his livelihood and professional reputation by attempting to

pressure him to accept a buy-out package; and (iii) subjected

him to undue "humiliation" by, inter alia, transferring his

sales accounts to a less experienced employee, promulgating a

false and demeaning job-performance review, and repossessing

company property from him in the presence of his family and

neighbors.

The district court correctly ruled that Walton's claim6
7The cases Walton cites are factually inapposite and

inconclusive. Two cases involved elderly parents’ claims that

their children had engaged in inhumane attempts to evict them

from the family home after the title to the home had been

conveyed to the children by the parents. See Moulton v.

Moulton, 707 A.2d 74, 76 (Me. 1998); Latremore v. Latremore, 584

A.2d 626, 630 (Me. 1990). Such extreme conduct within a family

plainly entailed the infliction of much greater emotional

distress than that involved in the instant employer-employee

relationship. The third case cited by Walton involved an exhusband’s unrelenting, seven-month campaign to have his former

spouse's divorce attorney brought up on professional misconduct

charges, and the placement of local newspaper ads publicizing

those unfounded charges. See Vogt, 679 A.2d at 524.

11

should be dismissed because the evidence failed, as a matter of

Maine law,7 to demonstrate an intentional infliction of emotional

distress. 

2. The Motion to Amend

Walton next contends that the district court erred in

denying, as untimely, his motions to amend his complaint — made

immediately before and after trial — to include a defamation

claim under Maine law. See Fed. R. Civ. P. 15(a), (b). We

review only for abuse of discretion. See Kemper Ins. Cos. v.

Fed. Express Corp., 252 F.3d 509, 512 (1st Cir. 2001); Quaker

State Oil Ref. Corp. v. Garrity Oil Co., Inc., 884 F.2d 1510,

1517 (1st Cir. 1989) (trial court considering proposed amendment

must "examine the totality of the circumstances and exercise

sound discretion in light of the pertinent balance of equitable

considerations"). Although "leave [to amend] shall be freely
8Cf., e.g., Jordan v. Hawker Dayton Corp., 62 F.3d 29, 33

(1st Cir. 1995) (no abuse of discretion where amendment was

filed four months after scheduling order deadline and a few days

prior to close of discovery); Quaker State, 884 F.2d at 1517-18

(motion to amend filed within three weeks of deadline for filing

summary judgment motions held untimely where "[t]he facts upon

which the proposed [amendment] rested were known to [the movant]

all along").

12

given when justice so requires[,]" Fed. R. Civ. P. 15(a),

"parties seeking the benefit of . . . [Rule 15(a)'s] liberality

[must] exercise due diligence; unseemly delay, in combination

with other factors, may warrant denial of a suggested

amendment." Quaker State, 884 F.2d at 1517 (amendments may be

foreclosed where movant’s delay is "extreme" or unexplained).

The first motion to amend the Walton complaint was

submitted eight months after the due date prescribed in the

scheduling order, six months after discovery closed, and one

week prior to the trial date initially established by the

district court.8 Yet Walton offered neither an explanation nor

a justification for the inordinate delays, relying instead on

the naked assertion that Nalco could not have been prejudiced.

Walton nonetheless insists that his post-trial motion

to conform the complaint to the evidence is distinguishable, in

that Nalco implicitly consented to the trial of his defamation

claim. By way of example, Walton points to evidence that Nalco

personnel falsely represented that he was incompetent, and
13

contends that falsity is an element of his defamation claim.

His characterization misses the mark.

"'Consent to the trial of an issue may be implied if,

during the trial, a party acquiesces in the introduction of

evidence which is relevant only to that issue.'" United States

v. Davis, 261 F.3d 1, 59-60 (1st Cir. 2001) (emphasis in

original; citation omitted). In the present case, however,

where evidence of the alleged falsifications by Nalco

representatives was independently material to establish pretext

on the Walton age-discrimination claims under the ADEA and MHRA,

the district court did not abuse its discretion by denying

Walton's amendatory motions.

B. The Nalco Cross-Appeal

1. Proof of the Maine Human Rights Commission Charge

The cross-appeal is predicated on the contention that

Nalco was entitled to judgment as a matter of law, on the MHRA

age-discrimination claim brought by Walton, because Maine law

allows neither damages nor attorney fees unless the plaintiff

"alleges and establishes" that the MHRC has taken final action

on the administrative charge or issued a right-to-sue letter.

See Me. Rev. Stat. Ann. tit. 5, § 4622 (1)(C); see also Gordan
9The Nalco cross-appeal, if successful, would reduce

Walton’s net recovery from $357,872 to $115,744, the maximum

allowable under the ADEA. See 29 U.S.C. §§ 216, 626(b). 

10Walton’s citations to case law holding that various

statutory limits on damages are affirmative defenses, which may

be waived unless pleaded, are inapposite. See Jakobsen v. Mass.

14

v. Cummings, 756 A.2d 942, 944-45 (Me. 2000).9 The district

court ruled that Nalco waived its contention by (i) failing to

raise it, either in its answer or as an affirmative defense, and

(ii) engaging in "trial by ambush" by withholding its objection

until the close of Walton's evidence.

The Maine Supreme Judicial Court (“SJC”) has yet to

determine the proper allocation of burdens of proof under

section 4622. Consequently, we must make "an informed prophecy

of what the [SJC] would do in the same situation," seeking

"guidance in analogous state court decisions, persuasive

adjudications by courts of sister states, learned treatises, and

public policy considerations identified in state decisional

law." Blinzler v. Marriott Int’l, Inc., 81 F.3d 1148, 1151 (1st

Cir. 1996). We review statutory interpretations de novo. See

Laaman v. Warden, N.H. State Prison, 238 F.3d 14, 16 (1st Cir.

2001).

Section 4622, by its plain language, precludes any

characterization of the MHRC exhaustion issue as a mere

affirmative defense,10 since it explicitly states that the
Port Auth., 520 F.2d 810, 813 (1st Cir. 1975). Unlike section

4622, statutory "caps" on damages do not depend upon any presuit conduct by the plaintiff, but merely delimit arbitrarily

the maximum exposure to damages for any defendant.

11As the section 4622 requirement is nonjurisdictional, it

may be waived. Cf. O’Rourke v. City of Providence, 235 F.3d

713, 725 (1st Cir. 2001) (noting that Title VII exhaustion

requirement is nonjurisdictional). Here, however, the issue is

whether Nalco waived the requirement.

12If section 4622 were an element of an MRHA claim, arguably

Nalco could have delayed, until the close of Walton’s evidence,

before moving for a Rule 12(b)(6) dismissal, which may even be

raised for the first time at trial. See Fed. R. Civ. P. 8 &

12(h)(2). 

15

plaintiff, rather than the defendant, must "plead[]" the

requisite MHRC filing. Cf. Fed. R. Civ. P. 8.11 On the other

hand, the section 4622 requirement, strictly speaking, is not an

element of the statutory age-discrimination claim, since it does

not preclude a jury finding of discrimination, but merely limits

the types of recovery available to prevailing plaintiffs.12

Since section 4622 more closely resembles a condition

precedent, cf. Jensen v. Frank, 912 F.2d 517, 520 (1st Cir 1990)

(noting that Title VII exhaustion requirement is "condition

precedent" to suit); MHRC v. Local 1361, UPIU AFL-CIO, 383 A.2d

369, 375 (Me. 1978) (observing that Title VII case law may

provide guidance in interpreting MHRA), it is governed by Fed.

R. Civ. P. 9(c), see 5 Charles A. Wright & Arthur R. Miller,

Federal Practice and Procedure § 1302, (2d ed. 1987) ("[Rule
13Rule 9(c) governs not only contractual conditions

precedent, but statutory conditions precedent as well, such as

section 4622. See 5 Wright & Miller § 1303 n.1; see also, e.g.,

Weir v. United States, 310 F.2d 149, 155 (8th Cir. 1962); cf.

Vasys v. Metro. Dist. Comm’n, 438 N.E.2d 836, 840 n.4 (Mass.

1982).

16

9(c)] is applicable in all actions in the federal courts, even

when the pleading practice in the state in which the court is

sitting is different.").

Federal Rule of Civil Procedure 9(c) provides as

follows:

In pleading the performance or occurrence of

conditions precedent, it is sufficient to

aver generally that all conditions precedent

have been performed or have occurred. A

denial of performance or occurrence shall be

made specifically and with particularity,

but when so made the party pleading the

performance or occurrence has the burden of

proving it.13

Fed. R. Civ. P. 9(c). "Rule 9(c) has the effect of forcing

defendant to raise the issue [of noncompliance with a condition

precedent] whenever he believes there actually is a question

about performance." 5 Wright & Miller § 1304; id. § 1302 ("Rule

9(c) is designed to eliminate the detailed and largely

unnecessary averments that resulted under common law procedure,

and to prevent nonmeritorious dismissals for failure to plead

the fulfillment of conditions precedent that are not at issue in

the suit.").
14Some courts have held that where a plaintiff utterly fails

to plead a general averment, the defendant need not assert

"failure of performance" as an affirmative defense in order to

preserve the issue, but instead may raise the issue for the

first time at trial. See 5 Wright & Miller § 1304; see also 2

James W. Moore, Moore's Federal Practice § 9.04[1] (3d ed. 1997)

("Neither Rule 9(c) nor Rule 8(a)(2) expressly requires that the

performance or occurrence of conditions precedent be pled at all

by a claimant.").

17

As we have noted, supra, section 4622 explicitly

requires that the plaintiff plead the requisite MHRC filing.

Consequently, provided the complaint includes a general averment

that all conditions precedent to suit or recovery have been met,

and the "defendant does not deny the satisfaction of the

preconditions specifically and with particularity, then the

plaintiff’s allegations are assumed admitted, and the defendant

cannot later assert that a condition precedent has not been

met." Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992,

1010 (11th Cir. 1982).14

 Accordingly, the appropriate inquiry in the present

case is whether either the original or amended complaint

included an adequate "general averment" that Walton had met all

conditions precedent to the recovery of damages under the MHRA,

even though neither complaint explicitly alleged that Walton had

filed an MHRC charge. The original complaint alleged that

Walton had satisfied "all conditions precedent to jurisdiction

under the ADEA," including the timely filing of a discrimination
15At trial, Nalco maintained that it had preserved its

objection by pleading, in its original answer, the general

defense of "failure to state a claim" pursuant to Rule 12(b)(6).

See Fed. R. Civ. P. 12(b)(6). Absent any indication of the

case-specific basis for the objection, however, its Rule

12(b)(6) objection was insufficient to place a condition

precedent, such as section 4622, in issue. See EEOC v. Standard

Forge & Axle Co., 496 F.2d 1392, 1395 (5th Cir. 1974) (noting

that, where Title VII claimant carried burden under Rule 9(c),

with general averment that "all conditions precedent to the

institution of this lawsuit have been fulfilled[,]" defendant

was not entitled to dismissal for want of more definite

statement, pursuant to Rule 12(e), since defendant never denied

18

charge with the EEOC. Moreover, Count 1 — the ADEA claim —

alleged “damages, including, but not limited to loss of income,

loss of benefits, liquidated damages, attorneys' fees, costs,

prejudgment interest, and declaratory and injunctive relief." 

Further, the prayer for relief in Count 1 demanded "all

available remedies under the Maine Human Rights Act including

reinstatement, back pay and penal damages . . . [and] such other

relief and further relief as the Court deems just and proper."

Finally, the amended complaint made crystal clear that

Count 1 of the original complaint had been brought under both

the ADEA and the MHRA and that Walton was demanding "damages,

including, but not limited to, loss of income, loss of benefits,

liquidated damages, attorneys' fees, costs, prejudgment

interest, and declaratory and injunctive relief." (Emphasis

added.) Yet Nalco neither opposed the motion to amend the

complaint, nor submitted an amended answer.15
plaintiff's satisfaction of conditions precedent, "specifically

and with particularity"); Vasys, 438 N.E.2d at 840 n.5 ("A bare

allegation, in a responsive pleading, that the complaint fails

to state a claim upon which relief can be granted (as was made

by the defendant in its answer) would not be sufficient to

preserve a claim" that plaintiff failed to satisfy a condition

precedent.); see also Brooks v. Monroe Sys. for Bus., Inc., 873

F.2d 202, 205 (8th Cir. 1989) ("[M]ere assertion [in answer] of

'failure to state a claim' was not specific enough to [preserve]

the issue" as to whether plaintiff failed to file an EEOC

charge.); see also 5 Wright & Miller § 1304 ("A party who

intends to controvert the claimant's general allegation of

performance [of a condition precedent] thus is given the burden

of identifying those conditions he believes are unfulfilled and

wishes to put into issue; he cannot raise an issue of

nonperformance by a general denial or by asserting that the

plaintiff has failed to state a claim for relief.").

19

Under the liberal "notice pleading" standards, see Fed.

R. Civ. P. 8(e)(1) & (f), these original and amended complaints

met the "general averment" requirements prescribed by Rule 9(c).

Although the complaints neither explicitly alleged compliance

with all preconditions to recovery under the MHRA, nor with the

requirement that an MHRC charge be filed, such compliance was

plainly implicit. Cf., e.g., Kiernan v. Zurich Cos., 150 F.3d

1120, 1123 (9th Cir. 1998) (holding it sufficient to satisfy

"the loose guidelines of Rule 9(c)" that plaintiff allege that

insurance policy was in "full force and effect," thus by

implication that all conditions precedent to valid policy were

met).

First, Walton alleged that he had filed an EEOC charge.

Second, it is common practice to file simultaneous EEOC and MHRC
16In addition, there is no serious dispute that Walton

received a right-to-sue letter from the MHRC, as a copy was

attached to his opposition. Accordingly, the Nalco cross-appeal

reduces to the technical contentions that the letter was neither

authenticated nor introduced in evidence. Thus, there was no

substantial contention that Walton in fact failed to comply with

section 4622. Cf. Harris v. Int’l Paper Co., 765 F. Supp. 1509,

1525 (D. Me. 1991) ("Civil penalties are not available in this

case because Plaintiffs failed to file a complaint with the MHRC

before bringing suit in this Court.") (emphasis added).

20

charges. Furthermore, by explicitly demanding MHRA damages,

both in the original and amended complaints, Walton plainly

placed Nalco on reasonable notice that he was claiming

compliance with section 4622. Indeed, at trial Nalco’s counsel

acknowledged: "I’ll be candid to say I did not have in mind

this [affirmative defense] when I drafted the answer."16

Consequently, the parties proceeded to trial with no hint

whatsoever that section 4622 compliance was in dispute.

Accordingly, the district court correctly rejected the motion

for judgment as a matter of law on the MHRA claim.

The Age-Discrimination Claim Evidence

Nalco contends that the evidence was insufficient to

support the jury verdicts on the ADEA and MHRA claims. We

review these Rule 50 motions de novo, drawing all reasonable

inferences in favor of the prevailing party. See Negron v.

Caleb Brett U.S.A., Inc., 212 F.3d 666, 668 (1st Cir. 2000). We

must affirm unless the evidence was "so strongly and
21

overwhelmingly" inconsistent with the verdicts that no

reasonable jury could have returned them. See id. (citation

omitted). This demanding standard was not met.

Nalco contends that Walton was discharged due to his

refusal to sign the employment agreement tendered to him, and

that his age was immaterial. The record evidence nonetheless

reasonably permitted a contrary inference. Walton adduced

competent evidence that Vice-President Yankowski, who attempted

to intimidate Walton into accepting early retirement, had

related several anecdotes regarding former employees of Walton's

vintage who had been forced into early retirement by Nalco.

More particularly, Yankowski stated to another Nalco employee:

"We can't have a man in his sixties [viz., Walton] sitting on

his accounts coasting. We need to get a young rep in there

selling business." Walton thus presented competent evidence of

an age-based animus by a Nalco decisionmaker. See Kirk v.

Hitchcock Clinic, 261 F.3d 75, 79 (1st Cir. 2001) (noting that

direct evidence of discriminatory animus may consist of

"'statements by a decisionmaker that directly reflect the

alleged animus and bear squarely on the contested employment

decision'") (citation omitted).

Moreover, Walton adduced evidence that Nalco maneuvered

to establish a pretextual basis for discharging him. See
22

Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46,

56 (1st Cir. 2000) (noting that pretext may be established with

evidence that "nondiscriminatory reasons were after-the-fact

justifications, provided subsequent to the beginning of legal

action"). After Nalco received a letter, from Walton's

attorney, claiming age discrimination, Joseph Carney, Walton's

direct supervisor, administered the so-called Personnel

Regeneration Form to Walton at Yankowski's direction, which

purported to show that Walton was not a competent salesman. At

trial, however, Walton adduced compelling evidence of his

competence as a salesman, evidence Nalco conveniently excluded

from consideration in its final evaluation. For example, Nalco

never received a client complaint regarding Walton's work

performance. Moreover, Walton had long been the "highest

grossing" salesman in his territory, and consistently enjoyed

exceptional customer loyalty as evidenced by the fact that he

had never lost a client in more than twenty years. Furthermore,

his supervisor testified that Walton was "outstanding at

building relationships with his customers." Additionally,

rather than demonstrating laxity in developing new business, the

sales volume generated by Walton increased by 92% even as Nalco

was transferring 20% of Walton's client accounts to Malbon, his

designated replacement. Moreover, even though the performance
23

evaluation prepared by Nalco assigned Walton a "deficient"

rating in regard to producing a business plan, it omitted

mention that Walton already had been excluded from Nalco

meetings at which new sales prospects were divided amongst his

fellow sales associates. In addition, though Walton was rated

"deficient" in recordkeeping, Nalco adduced no sales reports

supporting its assessment.

Finally, given the record evidence before it, the jury

reasonably could have found that Nalco orchestrated the

Personnel Regeneration Form as pretextual support for its agebased decision to discharge Walton. See Santiago-Ramos, 217

F.3d at 56 (noting that memo setting forth legitimate grounds

for discharging employee, prepared after it became apparent that

former employee was initiating litigation, could be considered

"pretextual post hoc justifications because [grounds] were only

provided in anticipation of litigation").

2. Admission of Age-related Remark by Yankowski

Nalco contends that the Yankowski statement — "[w]e

can't have a man in his sixties sitting on his accounts

coasting. . . . [w]e need to get a young rep in there selling

new business" — was irrelevant to the issue of age animus,

because Walton did not prove that Yankowski played any
17By failing to renew its motion in limine at trial, Nalco

waived its contention that the challenged testimony was unduly

prejudicial, hence excludable under Federal Rule of Evidence

403. See O'Rourke v. City of Providence, 235 F.3d 713, 727 (1st

Cir. 2001).

24

decisionmaking role in the discharge.17

Evidentiary rulings are reviewed for abuse of

discretion. Invest Almaz v. Temple-Inland Forest Prods. Corp.,

243 F.3d 57, 69 (1st Cir. 2001). Evidence that discriminatory

remarks were made by persons in a position to influence the

challenged employment action may suffice to establish pretext.

See, e.g., Straughn v. Delta Airlines, Inc., 250 F.3d 23, 35

(1st Cir. 2001). The jury was entitled to disbelieve the trial

testimony that Richard Murphy unilaterally discharged Walton

without consultation or input from Yankowski, who was one of

Walton's superiors and the vice president for Nalco's eastern

sales division. See Febres v. Challenger Caribbean Corp., 214

F.3d 57, 60-61 (1st Cir. 2000). Yankowski initiated not only

the conversations regarding Walton's retirement plans, but also

the telltale age-related anecdotes. Moreover, when Walton's

attorney advised Yankowski of the age-discrimination claims, it

was Yankowski who directed Carney to administer the so-called

Personnel Regeneration Form to Walton, see supra, whose grossly

inaccurate results strongly suggested a pretextual basis for the

Walton discharge. Three months after the Personnel Regeneration
18Although the exact date of the Yankowski remark is

unclear, it occurred in 1997. Cf. McMillan v. Mass. SPCA, 140

F.3d 288, 301 (1st Cir. 1998) (finding that remarks made several

years before challenged employment decision were temporally

remote).

25

Form was administered to Walton, his employment was terminated.

The jury reasonably could have inferred, without

difficulty, that Yankowski played a pivotal role in the

termination decision implemented by Vice-President Murphy, and

that the statement Yankowski made to Ray Field, see supra note

3, was both directly related and temporally proximate to the

challenged employment action. See Fernandes v. Costa Bros.

Masonry, Inc., 199 F.3d 572, 583 (1st Cir. 1999) (observing that

comment by decisionmaker — "I don't have to hire you locals or

Cape Verdean people" — was not mere "stray remark" where

employer refused to rehire people of Cape Verdean descent).18

The district court did not abuse its discretion by admitting the

Yankowski testimony.

3. Exclusion of the "Lost Profits" Evidence

Finally, Nalco contends that it was an abuse of

discretion for the district court to exclude the evidence it

proffered in support of its counterclaim for damages, viz., the

profits allegedly lost due to Walton's post-discharge

solicitation of former Nalco clients in violation of the

noncompetition agreement. Specifically, Joseph Carney, the
26

Nalco district sales manager for Maine, sought to tender a lay

opinion as to the net profits lost by Nalco. The opinion was

predicated exclusively upon Carney's lay review of corporate

reports reflecting the gross profits generated by Nalco in its

Maine sales district. Carney concededly possessed no personal

or independent knowledge as to how the Nalco corporate data were

compiled. Moreover, these corporate reports contained data

pertaining exclusively to 1997, but none relating to the crucial

1998-99 period.

A trial court ruling excluding lay-opinion testimony

is reviewed for a "clear abuse of discretion." United States v.

Vega-Figueroa, 234 F.3d 744, 755 (1st Cir. 2000); see Fed. R.

Evid. 701. As we have explained, Rule 701 "permits the

rendering of lay opinion testimony when [it] is (a) 'rationally

based upon the perception of the witness,' and (b) 'helpful to

a clear understanding of the witness' testimony or the

determination of a fact in issue.'" Lynch v. City of Boston,

180 F.3d 1, 16 (1st Cir. 1999) (citation omitted). "[T]he

modern trend favors the admission of opinion testimony provided

it is well founded on personal knowledge and susceptible to

cross-examination." Vega-Figueroa, 234 F.3d at 755. The

district court acted well within its broad discretion in

excluding the Carney opinion testimony, which was based neither
27

on personal knowledge nor apposite data.

Affirmed.