United States Court of Appeals

For the First Circuit

Nos. 03-1999, 03-2069

ALBERT JOHNSON,

Plaintiff, Appellee/Cross-Appellant,

v.

SPENCER PRESS OF MAINE, INC.,

Defendant, Appellant/Cross-Appellee,

SPENCER PRESS, INC.,

Defendant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

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

Before

 Lynch, Circuit Judge,

Cyr, Senior Circuit Judge,

and Howard, Circuit Judge.

U. Charles Remmel, II, with whom Jennifer A. Archer and Kelly,

Remmel & Zimmerman were on brief, for appellant/cross-appellee.

Eric J. Uhl, with whom Moon, Moss, McGill & Shapiro, P.A. was

on brief, for appellee/cross-appellant.

April 16, 2004
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LYNCH, Circuit Judge. These are cross-appeals in a Title

VII religious discrimination case. A jury found Spencer Press of

Maine liable for the harassment of its employee Albert Johnson on

account of his religion and awarded compensatory and punitive

damages, respectively $400,000 and $750,000, the sum of which was

reduced to the statutory cap of $300,000. 42 U.S.C. §

1981a(b)(3)(D); Me. Rev. Stat. Ann. tit. 5, § 4613(2)(B)(8)(e)(iv).

Johnson was repeatedly harassed over the course of his nine-year

employment in Spencer Press's janitorial department by his

supervisor, Steven Halasz. 

Spencer Press appeals from the denial of its new trial

motion, arguing that the evidence did not show that the harassment

was because of Johnson's religion and did not show that it was

severe and pervasive. Spencer Press also challenges the punitive

damages award and the jury instructions. We reject these

contentions and affirm. 

Johnson cross-appeals the district court's holding that

he was not entitled to any back pay or front pay after he was fired

from his next job, after leaving Spencer Press, for misconduct. He

also argues that the district court erred in rejecting the

contention that he was unable to get a subsequent job because he

was psychologically disabled, and that Spencer Press is responsible

for this disability because it stems from the harassment he endured

while he was an employee there. 
1Johnson also sued Spencer Press, Inc., the parent corporation

of Spencer Press of Maine, Inc. The district court granted summary

judgment to Spencer Press, Inc., and Johnson has not appealed that

decision. All references in this opinion to Spencer Press refer to

Spencer Press of Maine.

2Johnson also alleged that he had been the victim of unlawful

discrimination on the basis of a disability and that he had been

unlawfully retaliated against for invoking his rights. The

district court granted summary judgment to Spencer Press on the

disability discrimination claim, and Johnson does not appeal that

determination. The district court did not grant summary judgment

to Spencer Press on the retaliation claim, but, based on the jury's

verdict, judgment was entered against Johnson on this claim and

Johnson also does not appeal this determination. 

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We affirm the limitation on Johnson's front pay and back

pay, but we do so on alternative grounds. We hold that it is error

to cut off, as a matter of law, the ability of a successful Title

VII plaintiff to receive further back pay or front pay once he is

fired for misconduct from the position he takes after leaving the

discriminatory employer. As a result, we reach a second issue on

which Johnson's cross-appeal ultimately fails; Johnson was unable

to work because he was totally disabled and the evidence was

insufficient to support Johnson's claim that this disability was

attributable to the harassment he endured at Spencer Press. We

affirm.

I.

On April 3, 2002, plaintiff Albert Johnson filed suit

against his former employer, Spencer Press of Maine, Inc.,1

alleging that he had been discriminated against and harassed on the

basis of, inter alia,2 his religion in violation of Title VII of
3The parties have not argued that there are material

differences between Title VII and the Maine statute.

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the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et

seq., and the Maine Human Rights Act, Me. Rev. Stat. Ann. tit. 5,

§ 4551 et seq. (West 2002).3 The complaint sought all available

forms of relief, including compensatory and punitive damages and

front and back pay. Spencer Press promptly moved for summary

judgment on these claims. The district court denied the motions as

to Johnson's underlying discrimination and harassment claims and as

to the availability of punitive damages, but held, as a matter of

law, that Johnson was not entitled to any front pay or back pay for

any time after December 8, 2000. Johnson was fired for misconduct

on that date from Hannaford Brothers, his employer immediately

after he left Spencer Press. 

The case proceeded to trial before a jury on April 28,

2003 and lasted four days. The testimony presented at trial, which

is recounted in the light most favorable to Johnson, O'Rourke v.

City of Providence, 235 F.3d 713, 717 (1st Cir. 2001), established

the following account.

Johnson received a B.S. in Bible Studies from Valley

Forge Christian College in 1978 and served as a pastor at the Beech

Ridge Assembly of God Church from May 1979 to October 1981. In

1981, Johnson resigned from his position at the church and found a

new job at the Paul Dever State School for the mentally retarded,
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which he stayed in until July 1990. Despite leaving his official

position at the church, Johnson remained very active in religious

activities. 

In November of 1991, Johnson began working as a custodian

at Spencer Press, a printing company. After Johnson started at

Spencer Press, he expressed to both his supervisor at the time and

his co-workers a desire to have Sundays off from work. Although

Johnson had to work most Sundays, his first few months at Spencer

Press were incident-free. 

Stephen Halasz became the supervisor of the custodial

department at Spencer Press in May of 1992. Some time shortly

thereafter, Johnson expressed to Halasz a desire to have Sundays

off, if possible. Johnson had also had discussions with co-workers

in which he revealed his religious beliefs. Starting either in

late 1992 or early 1993, Halasz began asking Johnson about his

religious views. Halasz testified that he understood the reason

that Johnson did not like to work on Sundays was because he wanted

to go to church. Halasz also testified that he was aware that

Johnson was religious before he found out in 1995 that Johnson used

to be a minister. 

Soon after Halasz was promoted to the position of

supervisor, he started making inappropriate and lewd comments to

Johnson. Johnson recounted one incident in late 1992 in which

Halasz told him to "help hold my dick" and another incident in
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which Halasz said Johnson looked tired and told a co-worker that

"if Al fucks like he works, then he must be slow as a nigger."

Halasz made multiple other inappropriate and sexually explicit

comments to Johnson throughout 1992 and 1993. 

At least two of these remarks specifically targeted

Johnson's religious beliefs. At one point, Halasz tried to show

Johnson a Playboy magazine and said that he "must be Catholic"

because he got flustered whenever Halasz made comments about sex.

Johnson said that on another occasion in 1992, Halasz proclaimed to

another custodian that "Al doesn't fuck, drink or smoke, he must be

a Catholic." Halasz admitted to making derogatory remarks to

Johnson and teasing him for being Catholic. He also said that he

remembered calling Johnson a Catholic when he refused to look at a

Playboy magazine. 

Upset by Halasz's treatment of him, Johnson started in

1994 to keep notes of "significant" events that he considered

"hostile or demeaning." Johnson kept notes of numerous instances

of harassment by Halasz that occurred from 1992 until May 2000,

when Johnson left Spencer Press. These included Halasz's comments

that Johnson should suck Halasz's dick, that Halasz hoped a deer

would "run[] out of the woods and suck[] [his] cock," and that

Johnson should give his boss a "blow job." Halasz did not make

comments like these to any of the other custodians at Spencer

Press. One of Johnson's former co-workers, Patrick Hubbard,
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confirmed that Halasz consistently and frequently called Johnson

names such as "fucking queer," "fucking cock sucker," and "fucking

lazy." Hubbard testified that he never heard Halasz call any other

workers by these names. 

A significant percentage of the derogatory comments that

Halasz made from 1994 to 2000 involved Johnson's religion. Halasz

called Johnson a "religious freak" and told Johnson that he was

tired of his "religious bullshit." According to Johnson, Halasz

told him that because of his religious beliefs he "wasn't out

basically getting pussy." On April 27, 2000, a day before Johnson

tendered his resignation to Spencer Press, Halasz told Johnson that

"he was getting real tired of hearing that [Johnson] couldn't work

overtime on Sundays, that [he] was involved in church and classes,

and [that Halasz] didn't like it." Halasz then asked Johnson "if

you could work overtime . . . and make $120 or love Jesus, what

would you do?" When Johnson answered that he would love Jesus,

Halasz screamed "well, why don't you take Mary and turn her upside

down and pull her dress over her head."

Halasz's derogatory remarks involving religion were also

corroborated by the testimony of Johnson's former co-worker. Karen

Hart, who worked with Johnson as a custodian in 1999, testified

that Halasz harassed Johnson about his religion and called him a

"religious freak." Hart recalled Halasz telling Johnson that "I

don't want to hear about your religious bullshit" and, on another
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occasion, that he should "go work with people that are Jehovah

Witnesses and keep your comments to yourself [because] I don't want

to hear about the religious stuff." Halasz also told Johnson that

Johnson's job was more important than his church affairs. Halasz

made these comments, according to Hart, "on a daily basis" while

she was working at Spencer Press. Hart testified that she was so

distraught by these comments that she told Halasz that he

"shouldn't be harassing [Johnson] about his religion." 

Johnson's testimony that Halasz consistently harassed him

about his religious beliefs was also corroborated by Norma

Crawford, a friend of Johnson. Crawford testified that Johnson

frequently called her from work when he was upset and told her that

he was being harassed at work because of his religion. On several

of these occasions, according to Crawford, Johnson was crying when

he called her. Crawford testified that Johnson told her about

Halasz's comment regarding the Virgin Mary. 

Johnson also testified about several instances in which

Halasz threatened to kill him with a hand grenade, run him over

with a car, and shoot him with a bow and arrow. At one point,

Halasz took a knife out of its sheath and put the point of it under

Johnson's chin. 

Johnson complained to the human resources department

about the treatment he was receiving from Halasz about six

different times over the course of his employment. Each time, he
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was told that there was nothing that could be done and, that if he

did not like the treatment he was receiving, he could leave the

company. At one point, the human resources person to whom Johnson

complained told him that she could not pursue his complaints about

Halasz because if she did she would be fired. Johnson also filed

several requests to transfer into another division within Spencer

Press, each of which was denied. 

On April 28, 2000, Halasz resigned his position from

Spencer Press. He had been experiencing frequent panic attacks at

work, and at one point he had needed to be taken to the hospital in

an ambulance as a result of a panic attack. He also had suffered

from severe depression. On May 2, he began another job at

Hannaford Brothers, a supermarket chain. 

Johnson subsequently filed a complaint with the Maine

Human Rights Commission and the Equal Employment Opportunity

Commission. After Johnson filed these complaints, Halasz came to

Johnson's house and threatened to beat him up if he maintained his

complaints. He also told Johnson that as a result of the

complaints, he had been forced to take harassment classes at

Spencer Press and that he had learned that he had discriminated

against Johnson on the basis of his religion. 

On May 1, 2003, a jury returned a verdict in which it

concluded that Spencer Press harassed Johnson because of his

religion or religious beliefs and that Johnson was constructively
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discharged from Spencer Press because of that harassment. The jury

also found that Spencer Press had not independently taken any

specific adverse employment action against Johnson on the basis of

his religion. The jury awarded Johnson $400,000 in compensatory

damages and $750,000 in punitive damages. Spencer Press did not

file a Rule 50 motion for judgment as a matter of law.

Spencer Press did move for a new trial pursuant to Fed.

R. Civ. Proc. 59, arguing that there was insufficient evidence to

support the jury's verdict. That motion was denied, and judgment

was entered in favor of Johnson on the harassment claim. Pursuant

to 42 U.S.C. § 1981a(b)(3)(D), the sum of compensatory and punitive

damages was capped at $300,000. Johnson was also awarded $1,227.94

in back pay, which represented Johnson's wage loss between May 2,

2000 and December 8, 2000, the period he was employed at Hannaford

Brothers. 

Spencer Press appeals both the district court's denial of

its motion for a new trial and the underlying judgment. Johnson

cross-appeals the district court's ruling limiting the availability

of front and back pay.
4Spencer Press argues in its opening brief that it is also

appealing the district court's refusal to grant judgment as a

matter of law, and that this holding should be reviewed de novo.

But after the jury reached its verdict, Spencer Press filed only a

motion for a new trial under Rule 59, and not for a judgment as a

matter of law under Rule 50(b). Accordingly, Spencer Press has

waived its earlier motion for judgment as a matter of law and is

not entitled to appellate review on the issue. See Cambridge

Plating Co. v. Napco, Inc., 85 F.3d 752, 759 (1st Cir. 1996);

Pinkham v. Burgess, 933 F.2d 1066, 1070 (1st Cir. 1991). Even so,

we observe that an objectively reasonable jury could easily have

reached the result here.

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II. Direct Appeal

A. Denial of Spencer Press's Motion for a New Trial

We review the district court's denial of Spencer Press's

motion for a new trial for an abuse of discretion.4 Marrero v.

Goya of P.R., Inc., 304 F.3d 7, 14 (1st Cir. 2002). In doing so,

we recognize that motions for a new trial are generally "directed

to the trial court's discretion and th[e] remedy is sparingly

used." Dall v. Coffin, 970 F.2d 964, 969 (1st Cir. 1992) (internal

quotation marks omitted). A district court should only grant such

motions if "the outcome is against the clear weight of the evidence

such that upholding the verdict will result in a miscarriage of

justice." Ramos v. Davis & Geck, Inc., 167 F.3d 727, 731 (1st Cir.

1999) (internal quotation marks omitted). 

The jury found in favor of Johnson on his workplace

harassment claim based on religion. Spencer Press argues that

there was no causal link to religion and that the harassment was

not severe and pervasive. To prevail on a harassment claim based
5Rivera upheld an award of summary judgment to the employer on

de novo review. 331 F.3d at 185. Had Spencer Press moved for

judgment as a matter of law under Rule 50, the same standard of

review would apply. See Reeves v. Sanderson Plumbing Prods. Inc.,

530 U.S. 133, 150 (2000). Here, by contrast, the denial of Spencer

Press's motion for a new trial under Rule 59 must meet the more

difficult standard of abuse of discretion. See supra. 

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on a supervisor's conduct, Johnson needed to carry his burden that:

(1) he was a member of a protected class; (2) he was subject to

uninvited harassment; (3) the offending conduct was because of his

religion; (4) the harassment was sufficiently severe or pervasive

to affect the terms and conditions of employment; (5) the offending

conduct was both objectively and subjectively offensive; and (6)

there was a basis for employer liability. Rivera v. P.R. Aqueduct

& Sewers Auth., 331 F.3d 183, 189 (1st Cir. 2003); O'Rourke, 235

F.3d at 728. Spencer Press argues that the jury's conclusion in

favor of Johnson was against the clear weight of the evidence on

both prongs (3) and (4). 

In advancing the claim that any harassment was not due to

religion, Spencer Press relies heavily on Rivera, in which we noted

a "conceptual gap between an environment that is offensive to a

person of strong religious sensibilities and an environment that is

offensive because of hostility to the religion guiding those

sensibilities." 331 F.3d at 190.5 Although Spencer Press admits

that there may have been several isolated incidents in which the

harassment manifested itself in comments implicating religion, it
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argues that this was not sufficient for the jury to conclude that

Johnson was harassed because of his religion. 

The district court did not abuse its discretion in

declining to grant a new trial. Soon after Halasz was promoted to

custodial supervisor, he became aware that Johnson was a religious

person. At approximately the same time, he started making

extremely inappropriate and lewd comments to Johnson. At first,

only some of these remarks explicitly targeted Johnson's religion:

Halasz repeatedly said that Johnson "must be Catholic" because he

did not want to do certain things. Gradually, though, the

harassment came to focus unabashedly on Johnson's religious views.

Halasz repeatedly called Johnson a "religious freak," told him not

to talk about "religious bullshit," said that because of his

religion he was not getting sex, and told him to "take [the Virgin]

Mary and turn her upside down and pull her dress over her head." 

Almost all of the inappropriate comments concerning

Johnson's religion focused on a consistent theme: that Johnson was

too chaste and sober for Halasz's taste and that this was because

of Johnson's religious beliefs. Halasz did not make similarly

inappropriate and offensive comments to other Spencer Press

employees. Given the consistency of the harassment that

specifically invoked Johnson's religion and the more frequent

harassment that did not, the jury could easily have concluded that

the underlying motivation -- religious discrimination -- was the
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same for each. The jury also could have easily concluded that this

motivation stemmed from Halasz's animosity towards Johnson's

religious beliefs; indeed, Halasz explicitly attributed Johnson's

chastity and sobriety to his religious convictions. As explained

in Rivera, "conduct need not be explicitly religious to constitute

harassment because of religion." 331 F.3d at 190 n.2; see Venters

v. City of Delphi, 123 F.3d 956, 973 (7th Cir. 1997) (religious

harassment can be established through indirect comments that are

not on their face about religion); cf. Landrau-Romero v. Banco

Popular de Puerto Rico, 212 F.3d 607, 614 (1st Cir. 2000) ("Alleged

conduct that is not explicitly racial in nature may, in appropriate

circumstances, be considered along with more overtly discriminatory

conduct in assessing a Title VII harassment claim.").

For similar reasons, we reject Spencer Press's argument

that it was against the clear weight of the evidence for the jury

to find that the harassment endured by Johnson was sufficiently

"severe or pervasive" to affect a "term, condition, or privilege of

employment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67

(1986). Whether the harassment was severe or pervasive "must be

answered by reference to 'all the circumstances,' including the

'frequency of the discriminatory conduct; its severity; whether it

is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee's work performance.'" Marrero v. Goya of Puerto Rico,
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Inc., 304 F.3d 7, 18 (1st Cir. 2002) (quoting Harris v. Forklift

Sys., Inc., 510 U.S. 17, 23 (1993)). "Subject to some policing at

the outer bounds, it is for the jury to weigh those factors and

decide whether the harassment was of a kind or to a degree that a

reasonable person would have felt that it affected the conditions

of her employment." Id. (internal quotation marks omitted).

The description of facts set forth earlier provides more

than ample support for the jury's conclusion. Halasz repeatedly

and continuously insulted Johnson and mocked his religious

convictions. The harassment occurred throughout Johnson's work

day, including when he was attempting to perform his custodial

duties. On multiple occasions, Halasz threatened Johnson with

violence and once he actually placed the point of a knife under

Johnson's chin. In sum, there was more than ample evidence to

support the jury's conclusion that the harassment was severe and

pervasive. See White v. N.H. Dep't of Corr., 221 F.3d 254, 260-61

(1st Cir. 2000) (finding that "disgusting comments" and

conversations that occurred "everyday" could support a finding that

harassment was severe and pervasive). 

B. Spencer Press's Challenge to the Punitive Damages Award

Spencer Press argues that the jury did not have

sufficient evidence to award punitive damages because Halasz was

not acting "in a managerial capacity" during the course of

Johnson's employment. Kolstad v. Am. Dental Ass'n, 527 U.S. 526,
6This amount did not include the district court's additional

award to Johnson of $1,227.94 in back pay. 

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545-46 (1999). Spencer Press admits that the jury rationally could

have rejected its affirmative defense to an award of punitive

damages that it had exercised reasonable care to avoid harassment

and to eliminate it when it might occur. Id. at 545. 

The availability of punitive damages is not a live issue.

The jury awarded Johnson $400,000 in compensatory damages and

$750,000 in punitive damages. Acting pursuant to 42 U.S.C. §

1981a(b)(3)(D) and Me. Rev. Stat. Ann. tit. 5, §

4613(2)(B)(8)(e)(iv), both of which cap the sum of punitive and

compensatory damages for employers with over 500 employees, the

district court entered judgment for Johnson for $300,000.6 Because

the compensatory damages award was itself greater than the

statutory cap, the award would have been the same regardless of

whether the jury awarded any punitive damages. See Quint v. A.E.

Staley Mfg. Co., 172 F.3d 1, 14 (1st Cir. 1999) (declining to

address whether a compensatory damages award was excessive because

the award of punitive damages exceeded the statutory cap); Hogan v.

Bangor & Aroostook R.R. Co., 61 F.3d 1034, 1037 (1st Cir. 1995)

(avoiding the issue of punitive damages because the jury's award of

compensatory damages was the same as the statutory cap). 

C. Spencer Press's Challenge to the Jury Instructions on the 

 Severe or Pervasive Requirement
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Spencer Press argues that the district court erred in its

explanation to the jury of the requirement that the harassment be

"severe or pervasive." Spencer Press preserved the objection. 

The district court instructed the jury that, to succeed

on his harassment claim, Johnson must show:

that the harassment was sufficiently severe or

pervasive so as to alter the conditions of his

employment and create an abusive working

environment. . . . 

Religiously discriminatory remarks, innuendos,

ridicule, and intimidation can be sufficiently

severe or pervasive in their accumulated effect to

alter the conditions of employment and create an

abusive working environment. But offhand comments,

rudeness, occasional teasing and isolated incidents

are not alone sufficient. This is not a general

civility code for the workplace.

Spencer Press's argument is that this instruction was flawed

because it did not include a statement that the conduct must be

"extreme." This argument is premised on the Supreme Court's

statement in Faragher that "conduct must be extreme to amount to a

change in the terms and conditions of employment." 524 U.S. at 788

(emphasis added).

We review the district court's choice of language in

instructing the jury for an abuse of discretion. Gray v. Genlyte

Group, Inc., 289 F.3d 128, 133 (1st Cir. 2002). The district court

did not abuse its discretion in omitting the word "extreme" from

its instructions to the jury. It is the district court's

prerogative to craft the "particular verbiage" that it will use in

its jury instructions. Febres v. Challenger Caribbean Corp., 214
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F.3d 57, 62 (1st Cir. 2000). So long as that language properly

explains the controlling legal standards and is not unduly

confusing or misleading, it will not be second-guessed on appeal.

See id.; Brown v. Trustees of Boston Univ., 891 F.2d 337, 353 (1st

Cir. 1989); see also Webster's Third New International Dictionary

807 (1993) (one definition of "extreme" is "marked by great

severity"). There is no requirement that the word "extreme" be

used in instructing the jury on a harassment claim.

III. Johnson's Cross-Appeal Regarding Damages

Johnson cross-appeals the district court's summary

judgment and post-trial determinations that, as a matter of law, he

is not entitled to any back pay or front pay for any period beyond

December 8, 2000. Spencer Press raises no questions about

Johnson's preservation of these issues for appeal. 

The availability of back pay and front pay is not

affected by the cap on compensatory and punitive damages. Both

federal and Maine law clearly exclude awards of back pay from the

statutory cap on the sum of compensatory and punitive damages. See

42 U.S.C. § 1981a(b)(2); Me. Rev. Stat. Ann. tit. 5, §

4613(2)(B)(8)(d). And the Supreme Court has recently clarified

that the same rule applies to awards of front pay. Pollard v. E.I.

du Pont de Nemours & Co., 532 U.S. 843, 848 (2001).

An award of back pay compensates plaintiffs for lost

wages and benefits between the time of the discharge and the trial
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court judgment. See Lindemann & Grossman, Employment

Discrimination Law 635-37 (Cane, Jr. et al. eds., 3d ed. 1996).

Front pay, by contrast, is "money awarded for lost compensation

during the period between judgment and reinstatement or in lieu of

reinstatement." Pollard, 532 U.S. at 846; see Lindemann &

Grossman, at 639-42. Front pay thus compensates plaintiffs for

lost wages that may accrue after the conclusion of the trial. 

Both back pay and front pay are authorized by 42 U.S.C. § 2000e5(g)(1), which provides: 

If the court finds that the respondent has intentionally

engaged in or is intentionally engaging in an unlawful

employment practice charged in the complaint, the court

may . . . order such affirmative action as may be

appropriate, which may include, but is not limited to,

reinstatement or hiring of employees, with or without

back pay (payable by the employer, employment agency, or

labor organization, as the case may be, responsible for

the unlawful employment practice), or any other equitable

relief as the court deems appropriate. Back pay liability

shall not accrue from a date more than two years prior to

the filing of a charge with the Commission. Interim

earnings or amounts earnable with reasonable diligence by

the person or persons discriminated against shall operate

to reduce the back pay otherwise allowable.

During the back pay period, individuals have an

obligation to exercise "reasonable diligence" in finding

alternative suitable employment. See 42 U.S.C. § 2000e-5(g)(1);

Ford Motor Co. v. EEOC, 458 U.S. 219, 231-32 (1982) (an "unemployed

or underemployed claimant, like all other Title VII claimants, is

subject to the statutory duty to minimize damages set out in" 42

U.S.C. § 2000e-5(g)(1)); Carey v. Mt. Desert Island Hosp., 156 F.3d
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31, 41 (1st Cir. 1998). Thus, awards of back pay are offset by any

wages that could have been earned with reasonable diligence after

the illegal discharge, regardless of whether they were actually

earned. See § 2000e-5(g)(1); Quinones Candelario v. Postmaster

Gen. of United States, 906 F.2d 798, 799-802 (1st Cir. 1990).

Failures to mitigate damages can take a variety of forms, including

not looking for new employment, see, e.g., Hansard v. Pepsi-Cola

Metro. Bottling Co., 865 F.2d 1461, 1468 (5th Cir. 1989), finding

new employment but voluntarily quitting, see, e.g., EEOC v. Delight

Wholesale Co., 973 F.2d 664, 670 (8th Cir. 1992), or, as in this

case, finding new employment and getting discharged for misconduct,

see, e.g., Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1277

(4th Cir. 1985).

The Supreme Court laid out the basic standards for

awarding back pay in Albemarle Paper Co. v. Moody, 422 U.S. 405

(1975). That opinion clarified that in cases of unlawful

discrimination, "back pay should be denied only for reasons which,

if applied generally, would not frustrate the central statutory

purposes of eradicating discrimination throughout the economy and

making persons whole for injuries suffered through past

discrimination." Id. at 421. Despite its equitable nature, back

pay is therefore "a presumptive entitlement of a plaintiff who

successfully prosecutes an employment discrimination case."

Thurman v. Yellow Freight Systs., Inc., 90 F.3d 1160, 1171 (6th
7However, "[w]here only reinstatement and back pay are

requested or if they are the only issues, in addition to liability,

remaining in the case then both reinstatement and back pay shall be

for the court." Santiago-Negron, 865 F.2d at 441. 

8There is some dispute, which need not concern us, as to

whether a jury should make calculations, if disputed, for purposes

of the award. See Lindemann & Grossman, at 640-41. 

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Cir. 1996). In this circuit, juries are generally entrusted with

decisions on back pay when the jurors are already resolving issues

of liability and compensatory damages.7 See Santiago-Negron v.

Castro-Davila, 865 F.2d 431, 441 (1st Cir. 1989).

Awards of front pay, by contrast, are generally entrusted

to the district judge's discretion8 and are available in a more

limited set of circumstances than back pay. See Lussier v. Runyon,

50 F.3d 1103, 1108-09 (1st Cir. 1995). Front pay should not be

awarded unless reinstatement is impracticable or impossible.

Wildman v. Lerner Stores Corp., 771 F.2d 605, 616 (1st Cir. 1985).

Even then, awards of front pay are discretionary, in part because

they necessarily involve predictions of events yet to come. See

id.; Lussier, 50 F.3d at 1109. For these reasons, district court

decisions as to front pay are generally afforded more deference

than decisions as to back pay. 

The district court ruled that Johnson stopped mitigating

his damages about seven months after he left Spencer Press, when he

was fired on December 8, 2000 from his subsequent job at Hannaford

Brothers, a major supermarket chain in Maine. Johnson had started
9The district court's initial ruling on this issue was that

"the value of the Hannaford wages and benefits, whatever it is, can

be treated as an ongoing offset to Johnson's loss resulting from

leaving [Spencer Press]." This holding would have entitled Johnson

to receive the differential between his wages at Hannaford and

Spencer Press not only for the period he was employed at Hannaford

from May 2 to December 8, 2000 (the $1,227.94), but also for the

period after December 8, 2000. After trial, the district court

altered its decision, holding that back pay was only available "for

the time during which the plaintiff was employed at Hannaford

Bros." 

10The district court, in light of its ruling on the

availability of front pay, granted Spencer Press's motion in limine

to exclude an expert witness who would present a statistical model

predicting Johnson's lost front pay. Because we ultimately

conclude that Johnson was not entitled to front or back pay beyond

December 8, 2000, we affirm the district court's refusal to

consider the expert testimony offered to prove the economic

consequences of Johnson's termination from Hannaford.

-22-

that job only a few days after leaving Spencer Press. Johnson was

found eating food for which he had not paid, in violation of

Hannaford company rules. This failure to mitigate damages, held

the district court, eliminated the availability of either back pay

or front pay for any time period after December 8.9 Moreover, the

district court found that there was insufficient evidence that the

mistreatment Johnson endured at Spencer Press was causally

responsible for his being fired from Hannaford. The court

concluded that Johnson's own lay testimony to this effect did not

create an issue of fact and that Johnson's expert was not "specific

enough" on the link between Johnson's disability and his

misbehavior at Hannaford.10
-23-

Johnson's cross-appeal does not dispute the conclusion

that Spencer Press was not responsible for his termination from

Hannaford. Instead, Johnson's basic argument is that the district

court misunderstood the implications of his being fired from

Hannaford for the availability of both front and back pay. Johnson

argues that his termination from Hannaford only tolled the

availability of back pay until he was able to find another job, and

that the district court erroneously held that the availability of

back pay was permanently cut off at that point. Johnson makes a

similar argument as to front pay, claiming that the district court

still had discretion to award front pay even after he was fired

from Hannaford. Furthermore, Johnson says that he was unable to

find a job after he was fired from Hannaford because he was

psychologically completely disabled and Spencer Press is

responsible for this disability. As a result, Johnson argues,

Spencer Press is liable for back pay after he was fired from

Hannaford because it was responsible for his inability to end the

tolling period. Similarly, Johnson says that the district court

could also have awarded front pay on this rationale. The

analytical issues as to back pay and front pay are similar.

A. Back pay

Review of the legal principles used by the district court

in determining the availability of back pay is de novo. Reich v.

Cambridgeport Air Sys., 26 F.3d 1187, 1190 (1st Cir. 1994).
11If this conclusion was incorrect -- as we think it was --

then a series of issues normally would arise about how to calculate

back pay once an employee is fired from interim employment while

attempting to mitigate damages stemming from unlawful

discrimination. One such issue is whether back pay should be

withheld for the period during which the employee is trying to find

another job, or should remain at the level it was at prior to the

firing. Although we note this question below, we leave it

unresolved because of an intervening dispositive fact: Johnson was

unable to find employment after being fired from Hannaford because

he was totally disabled and he did not produce sufficient evidence

that Spencer Press caused that disability. 

12The district court's failure to address Johnson's argument

that Spencer Press was responsible for his total disability is

attributable to the court's belief that the issue was irrelevant

because Johnson's termination from Hannaford was dispositive of the

issue. After all, Johnson filed a motion for reconsideration that

specifically claimed that the district court had neglected Spencer

Press's responsibility for his ultimate disability, and the

district court denied it without comment. In the end, however, the

reason for the district court's error is not relevant to the

analysis; all that is pertinent is that the error was made.

-24-

Johnson's appeal raises a number of difficult issues. As Johnson

notes, the district court's final holding was that once Johnson was

fired from Hannaford, he was no longer eligible for any back pay.11

The district court was correct that once Johnson was

fired from Hannaford for misconduct, he was no longer mitigating

his damages, as was required. But that did not mean that the

possibility of back pay was permanently cut off. Although the

district court did not explicitly endorse, or even give reasons

for, such a rule, its holding necessarily relied on this

supposition of law.12 We hold that this was error.

In fact, at least two circuit courts have found that back

pay awards can accrue for periods after an employee is terminated
-25-

from an "employer B" when the job at "employer B" was serving to

mitigate damages arising from discriminatory conduct by "employer

A." See Delight Wholesale, 973 F.2d at 670 (back pay period was

temporarily tolled after plaintiff voluntarily quit for personal

reasons and began to run once she found a new job); Brady, 753 F.2d

at 1278-80 (back pay is temporarily tolled after an employee is

fired for misconduct in the course of mitigating damages from a

previous illegal discharge and begins again once the employee finds

another job). These holdings stem, at least in part, from the

NLRB's rule on the issue, first articulated in Knickerbocker

Plastic Co., 132 N.L.R.B. 1209, 1215 (1961): 

We further find that, as a result of such quitting, each

of these claimants shall be deemed to have earned for the

remainder of the period for which each is awarded back

pay the hourly wage being earned at the time such

quitting occurred. Therefore, an offset computed on the

appropriate rate per hour will be deducted as interim

earnings from the gross back pay of each of these

claimants. This offset shall be made applicable from the

date of the unjustified quitting throughout the remainder

of the back pay period for each particular claimant. 

(emphasis added). Because Title VII's back pay language was

"'expressly modeled' on the analogous remedial provision of the

National Labor Relations Act (NLRA)" the "principles developed

under the NLRA generally guide, but do not bind, courts in

tailoring remedies under Title VII." Ford Motor Co., 458 U.S. at

226 n.8 (internal citations omitted).

We hold that back pay is not permanently terminated when

an employee is fired for misconduct or voluntarily quits interim
13We do not suggest that a jury is required to extend the

period of back pay under the circumstances, but only that there is

no rule of law precluding it from doing so. 

14This issue is different from the issue of cutting off back

and front pay when there is after-acquired evidence of wrongdoing

that would have resulted in the employee's discharge from employer

A. In such cases, the Supreme Court has held that both front and

back pay are indeed cut off at the time that the defendant

discovers evidence that would have led it to fire the plaintiff on

legitimate grounds. McKennon v. Nashville Banner Publ'g Co., 513

U.S. 352, 361-62 (1995). That result follows from the simple

guiding principle that the employee should be restored to the

position he or she would have been in absent the discrimination:

the employee would have been fired regardless of the discrimination

as a result of the misconduct at the defendant's place of

employment. See id. at 362. 

15There is a sub-issue about whether back pay, offset by deemed

wages from employer B, should continue while the employee

diligently searches for post-employer-B employment. The view of

the Fourth and Fifth Circuits is that back pay should equal zero

during "periods of unemployment following justified discharge"

because "[d]uring such a period the claimant has excluded himself

from the employment market." Brady, 753 F.2d at 1280; see

Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 935 (5th Cir.

1996). Notably, though, this perspective is in opposition to the

NLRB's rule in Knickerbocker, which would leave a back pay award

unchanged after an employee had been fired from a job at which she

was mitigating damages from a prior unlawful termination. See

Knickerbocker, 132 N.L.R.B. at 1215. It also appears to be at odds

-26-

employment.13 This view comports with the purpose of the back pay

remedy as articulated in Albermarle. Albermarle taught that back

pay is a presumptive entitlement of a victim of discrimination and

that the discriminating employer is responsible for all wage losses

that result from its unlawful discrimination, at least until the

time of judgment.14 422 U.S. at 419-21. Had there been no

discrimination at employer A, the employee would never have come to

work (or have been fired) from employer B.15 The discriminating
with the rule in the Eighth Circuit. See NLRB v. Hopcroft Art &

Stained Glass Works, Inc., 692 F.2d 63, 65 (8th Cir. 1982) ("[T]he

amount the employee would have earned had he not quit is to be

offset for the remainder of the back pay period."). Leaving the

back pay award unchanged after the employee is fired from interim

employment, the logic goes, would put the employee in the position

that he would have been in had he exercised reasonable diligence in

never being fired. 

16Yet another sub-issue that we note involves how to calculate

the back pay award while the plaintiff is employed at employer C.

This is particularly difficult when the salary at employer B was

higher than the salary at employer C. The Brady court held that

the greater of the two salaries should be used for calculating back

pay while the employee is at employer C. See Brady, 753 F.2d at

1278-80. We do not reach this issue. 

-27-

employer (employer A) should not benefit from the windfall of not

paying the salary differential when the employee is re-employed by

employer C.16 Further, the use of per se rules is contrary to the

general principle that the necessary balancing of the equities

requires a case-by-case approach. Rosario-Torres v.

Hernandez-Colon, 889 F.2d 314, 321 (1st Cir. 1989) (en banc)

("[T]he hallmark of equity is the ability to assess all relevant

facts and circumstances and tailor appropriate relief on a case by

case basis."); Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 555

(10th Cir.), cert. denied, 528 U.S. 813 (1999).

Ultimately, we need not craft general principles for how

back pay should be calculated when an employee who has been

discriminated against is fired from intervening employment. But

our holding does require us to reach a second issue. Here, once

Johnson was fired from Hannaford, he never sought out employment
17Why this should be so is not self-evident. If the plaintiff

would have been entitled to some form of salary continuation or

benefits for disability had he remained employed at the

discriminatory employer, it is not clear why he would not be

entitled to the equivalent if he became disabled from working postemployment and before trial. Indeed, at least one circuit has held

that back pay awards should not be cut off due to a posttermination disability if the plaintiff would have been entitled to

some form of salary continuation or disability benefits had he not

been unlawfully terminated. Thornley v. Penton Publ'g, Inc., 104

F.3d 26, 31 (2d Cir. 1997). This reasoning is simply a logical

outgrowth of the principle that back pay should put the plaintiff

in the position he or she would have been in but for the unlawful

discrimination. Cf. Gutzwiller v. Fenik, 860 F.2d 1317, 1333 (6th

Cir. 1988) (back pay "should include the salary, including any

raises, which plaintiff would have received but for the

discrimination, as well as sick leave, vacation pay, pension

benefits and other fringe benefits she would have received but for

discrimination"). 

Johnson does not raise this issue here because he presents no

evidence and makes no claim that he would have been entitled to

disability benefits at Spencer Press had he not been unlawfully

terminated.

-28-

before trial in a further attempt to mitigate damages. Johnson

explains that he did not seek further employment because he was

unable to work as he suffered from a total psychological

disability; indeed, Johnson received a 100 percent non-service

connected disability rating from the Veteran's Administration.

Some courts have adopted a rule that if a plaintiff is unable to

mitigate damages due to a disability not caused by the

discriminatory employer, that disability cuts off back pay

liability.17 Lathem v. Dep't of Children & Youth Servs., 172 F.3d

786, 794 (11th Cir. 1999) ("[C]ourts exclude periods where a

plaintiff is unavailable to work, such as periods of disability,

from the back pay award."); Starceski v. Westinghouse Elec. Corp.,
-29-

54 F.3d 1089, 1101 (3rd Cir. 1995) ("[A]s a general rule . . . an

employer who has discriminated need not reimburse the plaintiffs

for salary loss attributable to the plaintiffs and unrelated to the

employment discrimination." (internal quotation marks omitted)).

Here, Johnson does not argue that a disability arising

independently of the discriminatory employer does not cut off back

pay, so we do not rule on the issue. Johnson does, however, argue

that there was evidence that his disability was caused by the

harassment he endured at Spencer Press. If it was, he says, then

both back pay and front pay should have been available even after

he was fired from Hannaford for misconduct. 

Johnson is correct that several courts have held that an

employee who is unable to work due to a disability is not precluded

from receiving back pay when the employer "caused" the disability.

This court has, applying Massachusetts law, endorsed that rule.

See Blockel v. J. C. Penney Co., 337 F.3d 17, 27-28 (1st Cir.

2003). We now extend that holding to Title VII; an employee who

cannot mitigate damages because of the unlawful actions of the

employer can still receive back pay. See Lathem, 172 F.3d at 794

("[A] Title VII claimant is entitled to an award of back pay where

the defendant's discriminatory conduct caused the disability.");

Durham Life Ins. Co. v. Evans, 166 F.3d 139, 157 (3d Cir. 1999)

("Because [the employer's] conduct affirmatively impaired [the

employee's] ability to mitigate her damages, it would be
-30-

inequitable to reduce her back pay award in this case."). This

rule is merely a logical corollary of the principle that the

victims of discrimination should be restored, "so far as possible

. . . to a position where they would have been were it not for the

unlawful discrimination." Albermarle, 422 U.S. at 421. If the

employer's unlawful conduct caused the employee's inability to

mitigate damages, then the employer should be liable for the

resulting consequences. 

Nonetheless, the evidence provided by Johnson does not

allow him to take advantage of this rule. That evidence does no

more than create an issue regarding whether the harassment at

Spencer Press was one among numerous other independent and

significant contributing factors to Johnson's psychological

disability. Besides his own testimony, the only evidence that

Johnson offered was the testimony of one expert, Dr. Ananis. Dr.

Ananis stated in a deposition that Johnson

had been able to maintain a certain degree of functioning

and employment until the events which took place during

his employment at Spencer Press, including the harassment

he stated he received while he worked there. I am aware

that Mr. Johnson had other issues in his life, including

family deaths, divorce, and problems with his sons, and

I did not make a determination as to what event or

events, if any, caused his depression and panic and

anxiety disorders. Nevertheless, it is clear to me that

the events at Spencer Press relating to the harassment he

stated he received from his supervisor exacerbated his

depression and panic and anxiety disorders.

Although this testimony may have created a genuine question of fact

about whether there was some relationship between the harassment at
-31-

Spencer Press and Johnson's disability, it was not sufficient for

Johnson to escape summary judgment on the issue. Given that

Johnson was able to find a new job at Hannaford immediately after

leaving Spencer Press and then to keep the job for the next seven

months and given that Johnson has had numerous other significant

problems in his life that may have been causally related to his

disability, the evidence was insufficient. 

Johnson's own testimony does not bridge the gap. Johnson

confirmed that he had suffered from depression and anxiety since

1993, and that he had family problems as well as the problems he

suffered at Spencer Press. But he did not, and could not (owing to

his lack of expertise), testify that his inability to get a job

after Hannaford was caused by the harassment at Spencer Press. 

B. Front Pay

For the same reasons that we affirm the denial of back

pay after December 8, 2000, we conclude that there was no abuse of

discretion in the district court's refusal to grant front pay. 

IV.

The district court's judgment is affirmed.

Concurring opinion follows.
-32-

CYR, Senior Circuit Judge, concurring. Although I agree

that the grant of summary judgment must be upheld, I write

separately because the discussion in the majority opinion regarding

whether the district court improperly predicated its decision on

the legal principle that Johnson’s termination by Hannaford

permanently severed his entitlement to back pay is an academic

exercise wholly unnecessary to the disposition of the appeal. Even

if it were to be assumed that this principle constituted an

implicit rationale upon which the district court relied – which I

seriously doubt – its adoption plainly did not constitute outcomedeterminative error. Rather, just as the Rule 56 proffer made by

Johnson (viz., the Ananis deposition) was not sufficient to prove

that SPM caused the misconduct that led to his termination by

Hannaford, so too it logically could not constitute evidence that

SPM caused Johnson's full disability. Thus, as Johnson was

required to bear the burden of proof on causation, SPM was entitled

to summary judgment under either legal theory.