United States Court of Appeals

For the First Circuit

Nos. 04-1902; 04-1969

JOHN MCDONOUGH,

Plaintiff, Appellee/Cross-Appellant,

v.

CITY OF QUINCY,

Defendant, Appellant/Cross-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

 Howard, Circuit Judge,

Coffin and Campbell, Senior Circuit Judges.

David Grunebaum, with whom Jonathan C. Green and Monica E.

Conyngham, City of Quincy Solicitor's Office were on brief, for

appellant/cross-appellee.

Marisa A. Campagna for appellee/cross-appellant.

June 23, 2006
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HOWARD, Circuit Judge. A jury sitting in the District of

Massachusetts found that the City of Quincy, Massachusetts,

violated Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e,

et seq., and Mass. Gen. Laws ch. 151B, by unlawfully retaliating

against police officer John McDonough for assisting a fellow

officer in pursuing an employment discrimination claim. The jury

awarded McDonough $300,000 in compensatory damages. The parties

cross-appealed. The City challenges the verdict on several

grounds, including that the action was barred by the claim

preclusion doctrine and that the evidence was insufficient to

support the verdict. McDonough challenges the district court's

refusal to instruct the jury on awarding punitive damages. We

reject the City's appeal but remand for further proceedings

concerning punitive damages.

I. Background

We present the facts in the light most favorable to the

verdict, reserving certain details for the discussion.

See Grajales-Romero v. Am. Airlines, Inc., 194 F.3d 288, 292 (1st

Cir. 1999). McDonough joined the Quincy Police Department in 1969,

subsequently held various ranks and was promoted to lieutenant in

1984. In 1990 he was assigned to command the drug unit, where he

has remained since.

In 1997, McDonough wrote to the then mayor of Quincy,

James Sheets, questioning certain decisions made by police
-3-

department management. In response, Sheets arranged a meeting with

McDonough to discuss his grievances. At the meeting, McDonough

presented Sheets with a packet of materials highlighting his

concerns. One page of the packet included a compilation of

allegations that McDonough had heard from other officers about

sexual harassment by department employees against police officer

Nancy Coletta. Sheets took no action on the Coletta matter. 

In late 1999, McDonough learned from other officers that

Coletta was planning to file a sexual harassment lawsuit against

the City. McDonough did not know Coletta but wanted to help her

pursue her claim. He therefore provided Susan Perch, another

officer who knew Coletta, with a copy of the page of allegations

that he previously had presented to Sheets. This page of

allegations was eventually given to Coletta.

On April 25, 2000, the Massachusetts Commission Against

Discrimination held a hearing on Coletta's claim against the City.

Captain William Falco, then administrative assistant to Chief of

Police Thomas Frane, attended the hearing at Frane's request. At

the hearing, Coletta presented the hearing officer with the page of

allegations that McDonough had passed to her and mentioned

McDonough's name. 

After the hearing, Falco reported to Frane about the

hearing and indicated that the "police department . . . or city had
-4-

some problems" because of Coletta's suit. Frane instructed Falco

to investigate the matter further. 

On May 5th, Falco contacted McDonough to discuss the page

of allegations that Coletta had presented at the hearing.

McDonough explained that he had given it to Mayor Sheets in 1997

and that, if Falco wanted to obtain a copy, he could contact the

mayor's office. Falco unsuccessfully attempted to obtain the page

from the mayor's office.

The members of the drug unit, including McDonough, worked

the night shift and as compensation received fifteen percent higher

pay than day-shift employees. Three days after Falco talked to

McDonough about the Coletta matter, Frane reassigned McDonough to

the day shift. As a result, McDonough lost the pay differential

and was essentially stripped of his supervisory duties because the

officers he supervised worked on the alternate shift. At the time

that McDonough was reassigned, another officer was placed in the

drug unit and assumed most of McDonough's supervisory

responsibilities.

Shortly after the reassignment was announced, McDonough,

who was on medical leave at that time, called Frane to inquire

about the transfer. Frane told him that he had ordered it because

McDonough had "trouble communicating." When McDonough objected to

this characterization, Frane told him "in everyone's life a little

rain must fall. You can always retire." On another occasion,
-5-

Frane told McDonough that he placed him on the day shift because

several city councilors had indicated that they wanted to increase

funding for the drug unit and that he wanted McDonough available to

answer questions from the councilors. At trial, Frane testified

that he had transferred McDonough as part of a department-wide

reorganization and because he wanted to better integrate McDonough

into the department's management team.

McDonough returned from his medical leave in August 2000

and assumed day-shift duties, where he "had no one to supervise"

and "nothing to do." He served in this role without significant

incident until March 8, 2001, when he signed several "court slips"

(authorizing extra pay for officers required to attend court

proceedings) for officers of the drug unit. McDonough learned the

next day that the court slips that he had signed were denied

because he no longer was authorized to sign such slips.

McDonough immediately called acting Chief of Police

Terrence Kelly (Chief Frane was on a leave of absence after

suffering a heart attack; he never returned to his position) to

ask why the court slips were denied. Kelly told him that Captain

Robert Crowley, McDonough's direct supervisor, had removed

McDonough's signing authority. McDonough proceeded to explain that

the drug unit was investigating Crowley for potential corruption

and that Kelly therefore had to overrule Crowley's order. Kelly

refused, and McDonough "very heatedly screamed at him" that he
It was well-known in the department that McDonough had a 1

heart condition.

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would go to the newspapers and city hall if Kelly did not act.

McDonough gave Kelly a short deadline to change his position before

Kelly hung up the phone. After this conversation, Kelly described

to Falco the heated exchange with McDonough and told Falco that he

was afraid that McDonough might suffer a heart attack. But Kelly 1

took no immediate action.

Immediately thereafter, McDonough authored a letter to

Kevin Madden, the director of personnel for the department,

alerting him to the court-slip incident and other workplace

grievances. McDonough stated that he had given relevant documents

to another officer to be used in the case of his "sudden or

suspicious death." 

After Madden received this letter, he met with Kelly and

Falco to discuss the situation. It was agreed that McDonough

should be placed on paid administrative leave and that his service

weapon should be taken pending a fitness-for-duty evaluation by a

mental health provider.

After the meeting, Kelly and Falco summoned McDonough to

Kelly's office to inform him that he was being placed on

administrative leave. They then took his firearm and told him that

he had to leave the police headquarters immediately and could not

return unless and until he passed a mental health evaluation.
-7-

After McDonough was placed on leave, no one from the department

checked to make sure that McDonough had no other weapons in his

possession, contacted McDonough's family to alert them to the

concerns about his mental health, or arranged to ensure that

McDonough made it home safely.

McDonough subsequently met with a psychiatrist who

concluded that McDonough was fit to return to his post. McDonough

returned to his day-shift position in May 2001 and several weeks

later was returned to the night shift by Falco, who in the interim

had been appointed chief.

In October 2001, McDonough filed this action claiming

that the City had retaliated against him by, inter alia,

transferring him to the day shift and placing him on administrative

leave. After a five-day trial, the court submitted the case to the

jury but declined to allow the jury to consider awarding punitive

damages. The jury returned a general verdict for McDonough and

awarded him $300,000 in lost wages and emotional distress damages.

The City moved for judgment as a matter of law on the ground that

McDonough had not presented sufficient evidence to ground the

jury's retaliation finding and, alternatively, moved to have the

damage award remitted. The district court denied the motion and

entered judgment. 
-8-

II. The City's Appeal

A. Claim Preclusion

The City asserts that McDonough's action should have been

dismissed as it was barred under the claim preclusion doctrine as

a result of an unsuccessful Massachusetts state court action that

McDonough filed against the City in 1999. In 1998, McDonough was

passed over for promotion to police captain and subsequently sued

the City in Massachusetts Superior Court, claiming that he had been

denied the promotion in retaliation for his complaint to Sheets in

1997. The case went to trial in 2003, and a state court judge

entered judgment for the City at the close of McDonough's case-inchief. The City argues that the state and federal actions are

identical and that the federal action is therefore barred. It

bases this argument on a foundational assertion that both cases

center on the page of Coletta allegations that McDonough first

presented to Sheets at their 1997 meeting. 

The district court rejected this argument on the ground

that the federal and state actions are distinct. The court viewed

the state action as based primarily on the alleged retaliatory

conduct by Sheets after the 1997 meeting, while the federal action

is based primarily on retaliation perpetrated by members of the

department after McDonough helped Coletta in 1999. We review this

determination de novo. See Maher v. GSI Lumonics, Inc., 433 F.3d

123, 126 (1st Cir. 2005). 
-9-

"Under federal law, a federal court must give to a statecourt judgment the same preclusive effect as would be given that

judgment under the law of the state in which that judgment was

entered." Torromeo v. Fremont, 438 F.3d 113, 115 (1st Cir. 2006)

(internal citations omitted). Thus, the effect the Massachusetts

court's final judgment has on McDonough's federal action is

determined by applying the Massachusetts law of claim preclusion.

Id.

 Claim preclusion doctrine in Massachusetts "prohibits

the maintenance of an action based on the same claim that was the

subject of an earlier action between the same parties or their

privies." Bagley v. Moxley, 555 N.E.2d 229, 231 (Mass. 1990).

"[C]laim preclusion makes a valid final judgment conclusive on the

parties or privies, and bars further litigation of all matters that

were or should have been adjudicated in the action." Id. "There

are three essential elements to the doctrine of claim preclusion:

(1) the identity or privity of the parties to the present and prior

actions; (2) identity of the cause[s] of action; and (3) a prior

final judgment on the merits." Bui v. Ma, 818 N.E.2d 572, 579

(Mass. App. Ct. 2004). Causes of action are identical if they

"derive[] from the same transaction or series of connected

transactions." TLT Const. Corp. v. A. Anthony Tappe, 716 N.E.2d

1044, 1052 (Mass. App. Ct. 1999). "What factual grouping

constitutes a transaction is to be determined pragmatically, giving
-10-

weight to such factors as whether the facts are related in time,

space and origin or motivation, whether they form a convenient

trial unit, and whether their treatment as a unit conforms to the

parties' expectations." Mancuso v. Kinchla, 806 N.E.2d 427, 438

(Mass. App. Ct. 2004).

There is no question that the parties to the state and

federal actions are the same and that the state action resulted in

a final judgment on the merits adverse to McDonough. Thus, the

only issue is whether the causes of action share sufficient

identity.

We agree with the district court that they do not. The

transaction on which the state action was based was McDonough's

failure to be appointed captain in 1998, which he attributed to

retaliation orchestrated by Sheets for exercising his First

Amendment rights in 1997. The transactions on which the federal

suit is based were McDonough's transfer and his placement on

administrative leave, which he claims were ordered by members of

the department after they learned in 2000 that he had assisted

Coletta in her lawsuit. McDonough's suits against the City were

premised on separate acts of protected conduct that occurred years

apart. Moreover, the allegedly retaliatory actions were ordered by

different City agents over a several year period. These

differences support the district court's ruling that the federal

action is not barred. See, e.g., Gonzalez-Pina v. Rodriguez, 407
In addition, the causes of action do not present a convenient 2

trial unit. The key witnesses for the state action were Sheets and

McDonough, while the federal action required several department

witnesses and substantial documentary evidence about police

department procedure and policies. See Catullo v. Metzner, 834

F.2d 1075, 1078 (1st Cir. 1987).

-11-

F.3d 425, 430 (1st Cir. 2005) (concluding, in an employment

discrimination case, that "subsequent conduct, even if it is of the

same nature as the conduct complained of in a prior lawsuit, may

give rise to an entirely separate cause of action"); Herrmann v.

Cencom Cable Assocs. Inc., 999 F.2d 223, 226 (7th Cir. 1993)

(Posner, J.) (concluding that claim preclusion did not bar two

tangentially related employment claims because the essential facts

underlying the claims were distinct); Manning v. City of Auburn,

953 F.2d 1355, 1359 (11th Cir. 1992) (ruling that claim preclusion

did not bar a second employment discrimination claim, where the

facts underlying the second suit had not occurred when the first

suit was filed).2

The page of allegations that McDonough gave to Sheets

was, of course, relevant evidence in each case. But the district

court correctly recognized that this is too tenuous a connection to

warrant a finding of claim preclusion and to deprive McDonough of

his day in court. See Herrmann, 999 F.2d at 226 (refusing to find

claim preclusion when the claims had only limited shared facts);

see also Andersen v. Chrysler Corp., 99 F.3d 846, 853 (7th Cir.

1996) (cautioning that a claim preclusion analysis should not
-12-

proceed at too high a level of generality because of the risk of

unfairly precluding a litigant from having her day in court).

B. Sufficiency of the Evidence

The City argues that it was entitled to judgment as a

matter of law because McDonough failed to present sufficient

evidence to warrant the jury's retaliation finding. It claims that

the evidence demonstrates, at most, that the actions taken against

McDonough "were based on personal conflicts with [City] officials,"

and that such evidence is inadequate to sustain a retaliation

verdict. The district court rejected this argument, concluding

that there was sufficient proof from which a jury could infer that

the City's actions against McDonough were motivated by retaliatory

animus stemming from his assisting Coletta.

We review de novo the denial of the City's motion for

judgment as a matter of law, see Marrero v. Goya of P.R., 304 F.3d

7, 14 (1st Cir. 2002), and we examine the evidence presented at

trial in the light most favorable to McDonough. See White v. N.H.

Dep't of Corr., 221 F.3d 254, 259 (1st Cir. 2000). We "may not

consider the credibility of witnesses, resolve conflicts in

testimony or evaluate the weight of the evidence." Katz v. City

Metal Co., 87 F.3d 26, 28 (1st Cir. 1996). Our review "is weighted

toward preservation of the jury's verdict, for we must affirm

unless the evidence was so strongly and overwhelmingly inconsistent

with the verdict[] that no reasonable jury could have returned
-13-

[it]." Crowley v. L.L. Bean, Inc., 303 F.3d 387, 393 (1st Cir.

2002).

The jury was instructed to consider McDonough's claim

under the McDonnell-Douglas burden-shifting framework. See

McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). Under

McDonnell-Douglas, the plaintiff must make a prima facie showing

that (i) he engaged in protected conduct, (ii) he was thereafter

subject to an adverse employment action, and (iii) a causal

connection exists between the protected conduct and the adverse

action. See Ramirez Rodriguez v. Boehringer Ingelheim

Pharmaceuticals, Inc., 425 F.3d 67, 84 (1st Cir. 2005). If the

plaintiff makes this showing, the burden of production shifts to

the defendant to articulate a legitimate, nondiscriminatory reason

for its employment decision. See id. Finally, if the defendant

presents such a reason, the plaintiff must demonstrate that the

defendant's proffered reason is pretext masking illegal

retaliation. See id. Evidence that the defendant's reason was

pretext may, but need not, ground a finding of liability. Fite v.

Digital Equip. Corp., 232 F.3d 3, 7 (1st Cir. 2000). 

The City has not presented in its main brief a developed

argument that McDonough failed to establish a prima facie case of

retaliation. It focuses instead on the evidence that McDonough

presented to undermine the City's asserted reasons for taking the

challenged employment actions. As discussed above, the jury was
The City does not argue that these actions were insufficient 3

to establish a retaliation claim on the basis that they were not

severe enough "to dissuade a reasonable worker from making or

supporting a charge of discrimination." Burlington Northern &

Santa Fe Railway v. White, 548 U.S. --, 2006 WL 1698953, at *10

(June 22, 2006).

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presented with two adverse employment actions: McDonough's

reassignment to the day shift and his placement on administrative

leave. We consider whether McDonough presented sufficient evidence

of pretext such that the jury could conclude that retaliation was

the real motive for each of the challenged actions.3

Chief Frane ordered McDonough's transfer to the day shift

within days of learning that McDonough had assisted Coletta in

pursuing her sex discrimination claim. At trial, the City claimed

that Frane's decision to transfer McDonough was part of a

department-wide reorganization and that the timing was

coincidental. 

There is "no mechanical formula" for determining pretext,

Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 39 (1st Cir. 2003)

(internal citation omitted), and we have recognized that pretext

can be proven in many ways, see Santiago-Ramos v. Centennial P.R.

Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000). One way is for

the plaintiff to show that the employer gave "different and

arguably inconsistent explanations" for taking the adverse

employment action. Dominguez-Cruz v. Suttle Caribe, Inc., 202

F.3d 424, 432 (1st Cir. 2000). 
-15-

Here, there was evidence that Frane provided several,

arguably inconsistent, explanations for transferring McDonough.

When McDonough first confronted Frane about the transfer, Frane

told him that it was because he had "trouble communicating" and

that, if he did not like it, he "could retire." Several months

later, when McDonough again asked Frane why he had been

transferred, Frane stated that "some city councilors wanted to put

additional funding into the drug unit," and that the transfer was

intended to help secure this funding. At trial, Frane testified

that the transfer was part of a "major transformation" of the

department and that it was designed to integrate McDonough into the

department's management team. These shifting explanations provided

a basis for the jury to conclude that the reason the City presented

at trial was false.

 Moreover, there was testimony from two police captains,

who attended management meetings with Chief Frane just before the

transfer, that there was no discussion of restructuring the drug

unit. The jury could have concluded that this evidence was

inconsistent with the City's contention that the transfer decision

was a part of a systemic restructuring process. See Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (stating

that a jury can find pretext where "the employer's proffered

explanation is unworthy of credence").
-16-

There also was evidence from which the jury could have

found pretext masking retaliation in the City's claim that it

placed McDonough on administrative leave because it perceived him

to be a safety risk. Acting Chief Kelly, the person who decided to

place McDonough on leave, testified that it was common knowledge

that McDonough often became highly emotional but that he would

quickly calm down. This testimony was given during Kelly's account

of his conversation with McDonough that led him to be primarily

concerned that McDonough might have a heart attack. Kelly admitted

that he did not perceive McDonough to be a safety threat when this

conversation occurred. Moreover, no one in the department

investigated McDonough's letter to Madden to determine the basis

and motivation for his statements. From this evidence, the jury

could infer that Kelly, Madden, and Falco used McDonough's phone

call and letter to establish a pretextual safety rationale for the

decision to put McDonough on administrative leave. 

In addition, a jury could view the actions that Kelly and

Falco took when they informed McDonough that he was being placed on

leave as tending to undermine the asserted safety rationale. Falco

testified that he was so concerned about the possibility of

McDonough becoming violent that he wore a bullet-proof vest to the

meeting at which Kelly informed McDonough of the decision to place

him on leave. But Kelly did not take any such precautions for

himself or his secretary who was sitting directly outside of the
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door to the office in which the meeting was held. Nor did Kelly or

Falco arrange to have an officer on alert in case the meeting

turned violent. And, after the meeting, no one at the department

checked to see if McDonough had other weapons in his possession,

alerted McDonough's family that he was a potential danger to

himself or others, or arranged to ensure that McDonough traveled

home safely. Indeed, the next contact between the department and

McDonough did not occur until several days later, when someone from

the department called to provide him with the details of his

fitness-for-duty evaluation. Though the inference is not

inevitable, the jury reasonably could have concluded that this is

not how experienced police officers would have handled placing an

officer on leave if they truly believed that he posed a safety

risk. See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 167 (1st

Cir. 1998) (stating that pretext may be proven by showing

"weaknesses, implausibilities, incoherencies, or contradictions in

the employer's proffered legitimate reasons").

In assessing pretext, "everything depends on the

individual facts." Thomas v. Eastman Kodak Co., 183 F.3d 38, 57

(1st Cir. 1999). As such, we are "particularly cautious" about

setting aside a jury's determinations that an employer's proffered

explanation was pretext. Hodgens, 144 F.3d at 167.

"Determinations of motive and intent, particularly in

discrimination cases, are questions better suited for the jury."
We also reject the City's contention that we should order a 4

new trial. As discussed above, the evidence was adequate for the

jury to find retaliation. See Marrero, 304 F.3d at 14 (stating

that a new trial should only be ordered if "the outcome is against

the clear weight of the evidence such that upholding the verdict

will result in a miscarriage of justice").

The court did allow the City to introduce the fact that there 5

was a prior lawsuit between McDonough and the City.

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Mulero-Rodriguez v. Ponte, 98 F.3d 670, 677 (1st Cir. 1996). While

the jury could have accepted the City's explanations for its

actions, we cannot say that it was irrational for the jury to have

concluded that the explanations were pretextual and that

retaliation was the motivation for the City's actions.4

C. Trial-Error Claims

1. Evidentiary Claims

The City challenges several evidentiary rulings. We

review these claims for an abuse of discretion. See Ramirez v.

Debs-Elias, 407 F.3d 444, 449 (1st Cir. 2005). Erroneous

evidentiary rulings are harmless if it is highly probable that the

error did not affect the outcome of the case. See RodriguezHernandez v. Miranda-Velez, 132 F.3d 848, 855 (1st Cir. 1998). 

The City's first claim is that the district court abused

its discretion by declining to allow it to introduce evidence that

McDonough had lost his previous lawsuit against the City. See 5

supra at 8. The City argues that this evidence was relevant

because it showed that McDonough was litigious and had a history of

bringing meritless lawsuits.
-19-

 Because the "charge of litigiousness is a serious one,

likely to result in undue prejudice against the party charged[,]"

Outley v. City of New York, 837 F.2d 587, 592 (2d Cir. 1988),

ordinarily proof that the plaintiff filed prior similar lawsuits is

admissible to show the plaintiff's litigiousness only if there is

also evidence that the prior lawsuits were fraudulently filed,

see McCormick on Evidence, § 196 at 691 (5th ed. 1999). Here,

there is evidence that McDonough filed one prior lawsuit against

the City after he was denied a promotion. But, while that lawsuit

was unsuccessful, there is nothing suggesting that it was

fraudulently filed. See Mathis v. Phillips Chevrolet, Inc., 269

F.3d 771, 776-77 (7th Cir. 2001) (concluding that there was no

abuse of discretion in declining to admit evidence of prior

lawsuits where the evidence was in dispute whether the prior suits

were fraudulently brought or merely unsuccessful). The district

court did not abuse its discretion in excluding evidence about the

result of McDonough's prior lawsuit against the City. 

The City next contends that the district court improperly

precluded it from questioning McDonough about his contentious

relationship with the mayor and the police department. We disagree

with the City's characterization of the district court's ruling.

The City was permitted to ask McDonough about his strained

relationships with certain department officials, to introduce the

fact that McDonough had sued the City on a prior occasion, and to
-20-

present documents highlighting various points of dispute between

McDonough and the department. The ruling in question involved the

court telling the City to "move on" after counsel had asked

McDonough several repetitive questions about his relationship with

Captain Falco.

Under Fed. R. Evid. 403, the district court retains

discretion to "prevent the needless presentation of cumulative

evidence." Donovan v. Burger King Corp., 672 F.2d 221, 225 (1st

Cir. 1982). The court provided the City with ample opportunity to

highlight McDonough's sour relationship with the City. It was

within the court's discretion to draw the line where it did.

The City's third evidentiary argument is that the

district court abused its discretion by permitting McDonough to

present a chalk to the jury stating that Coletta had settled her

lawsuit for $500,000. Even if this information should not have

been presented to the jury, the City did not timely object to the

chalk, and the court sua sponte explained that the jury should not

infer anything from the amount of the Coletta settlement. "We have

held, [that] the potential for prejudice . . . [often] can be

satisfactorily dispelled by appropriate curative instructions," as

"[j]urors are presumed to follow such instructions, except in

extreme cases." United States v. Richardson, 421 F.3d 17, 41 (1st

Cir. 2005). Given the tangential relevance of the Coletta
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settlement and the court's timely limiting instruction, we are

confident that the verdict was not swayed by the chalk.

Finally the City argues the district court wrongly

admitted out-of-court statements by Falco and Madden concerning the

decision to place McDonough on administrative leave. The City

contends that these statements were hearsay and could not be

received as admissions under Fed. R. Evid. 801(d)(2)(D) because the

declarants were not "policymakers," (which the City would limit in

this case to the chief of police and the mayor).

For a statement to be an admission under Fed. R. Evid.

801(d)(2)(D), it must be made by a party, a party's agent, or a

servant within the scope of an agency or employment. See Gomez v.

Rivera Rodriguez, 344 F.3d 103, 116 (1st Cir. 2003). The employee's

station within the organization is not relevant to the Rule

801(d)(2) analysis. See Woodman v. Haemonetics Corp., 51 F.3d

1087, 1093-94 (1st Cir. 1995) (rejecting argument that statements

by "first-line supervisor" with no firing authority could not be

admissions under Rule 801(d)(2)(D)). The relevant inquiry is

whether the employee's statement was made within the scope of

employment. See id.

Here, there is no question that Falco and Madden made the

challenged statements within the scope of their employment. Both

were department officials involved in personnel management, and the

statements related to a possible personnel action against
The City also challenges the propriety of McDonough's closing 6

argument. It did not, however, object below, and therefore we

review for plain error. See Santos v. Sunrise Med. Ctr., 351 F.3d

587, 592-593 (1st Cir. 2003). There was no such error, for there

is no reason to think that any of the challenged statements came

close to causing the City substantial prejudice. See Smith v.

Kmart Corp., 177 F.3d 19, 25-26 (1st Cir. 1999) (describing plain

error as "a rare species in civil litigation"). 

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McDonough. See id. (concluding that statement by employee involved

in the plaintiff's termination was admissible under Fed. R. Evid.

801(d)(2)(D)). The statements were properly admitted.6

2. Jury Instruction

In addition to challenging the transfer and leave

decisions, McDonough presented evidence that he was subject to

adverse employment actions by being denied the use of a department

car, by not having his supervisory responsibility restored after he

was returned to the night shift, and by being denied the authority

to sign court slips. After the close of the evidence, the district

court directed a verdict for the City on these claims and only

permitted the jury to consider the transfer and leave allegations.

The City contends that the district court's charge did not

adequately explain that McDonough's claim was limited to those

allegations. We review this claim for abuse of discretion. See

Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d 121, 133 (1st Cir. 2004).

The court's instructions were more than adequate to

explain the nature of McDonough's claims. The court explained:

[T]his case [is] grounded in two

incidents. One, the transfer of Mr.
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McDonough . . . from nights to days .

. . and later on a determination that

he was to surrender his firearms and stay

on administrative leave until he went to

a psychiatrist and was certified for

duty in that period of time.

Later, the court instructed that "this case is about" McDonough

being "taken from nights and placed on days" and being placed on

"administrative leave." The instructions were more than sufficient

to apprise the jury of the actionable theories. 

D. Damages

The City argues that the district court erred by

declining to reduce McDonough's $300,000 damages award because the

award was "grossly excessive" and "shocking to the conscience." We

review the district court's denial of remittitur for an abuse of

discretion. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S.

415, 433 (1996). "We will not disturb an award of damages because

it is extremely generous or because we think the damages are

considerably less." Koster v. Trans World Airlines, 181 F.3d 24,

34 (1st Cir. 1999). Rather, the defendant must establish that the

award "is so grossly disproportionate to any injury established by

the evidence as to be unconscionable as a matter of law." Id.

The award in this case comprised both economic and

emotional distress damages. McDonough lost some salary due to the

City's actions, but acknowledges on appeal that the bulk of the

award was for emotional distress. McDonough testified that he had

been a Quincy police officer for over thirty years and that he
-24-

"loved [his] job." In light of his commitment to his job as a

police officer, McDonough claimed that the City's actions caused

him substantial humiliation and damage to his reputation. As a

result of this trauma, McDonough claimed that his relationship with

his family suffered. He testified that he became easily enraged at

his grandchildren and was therefore no longer able to see them. He

also made his wife and sisters cry and cried himself on occasion.

McDonough's testimony is similar to the evidence in other

cases where we have sustained comparable emotional distress awards

against excessiveness challenges. In Koster, for example, we

allowed a $250,000 award where the plaintiff testified that the

employer's conduct caused him to suffer anxiety and insomnia and

damaged his family life. Id. at 35-36. Also in Rodriguez-Torres

v. Caribbean Forms Mfg., Inc., 399 F.3d 52, 64 (1st Cir. 2005), we

affirmed a $250,000 emotional distress award where the plaintiff

testified that employment discrimination had caused her marriage to

suffer and had put her into a depression "for quite some time." In

neither of those cases did the plaintiff seek medical treatment or

have long-term physical symptoms as a result of the employer's

actions. 

After subtracting the economic damages that McDonough

likely received, McDonough's emotional distress damages are very

close to the awards that we permitted to stand in Koster and

Rodriguez-Torres. Given this precedent, the deferential standard

of review, and "the esoteric nature of damages for emotional
The City also contends that remittitur is required because 7

the jury's $300,000 award was the maximum amount allowed under

Title VII. 42 U.S.C. § 1981a(b)(3). According to the City, only

cases of extreme emotional distress can support an award at or near

the Title VII cap. This argument fails as "nothing in the language

of the statute suggests that the cap on damages is intended . . .

to alter the standard of judicial review for [damage] awards."

Luciano v. Olsten Corp., 110 F.3d 210, 221 (2d Cir. 1997). "The

statutory cap is not the limit of a damages spectrum, within which

the judge might recalibrate the award given by the jury." Deters v.

Equifax Credit Inform. Servs., Inc., 202 F.3d 1262, 1273 (10th Cir.

2000); EEOC v. W&O, Inc., 213 F.3d 600, 617 (11th Cir. 2000)

(same). In any event, McDonough was also awarded these damages

under Mass. Gen. Laws ch. 151B, which does not have a damages cap.

See LaBonte v. Hutchins & Wheeler, 678 N.E.2d 853, 862 (Mass.

1997).

-25-

distress," the award in this case, while high, is not so high that

we should disturb it. Koster, 181 F.3d at 36. 7

III. McDonough's Cross-Appeal

In his cross-appeal, McDonough argues that the district

court erred by declining to instruct the jury on punitive damages.

We review de novo the decision to decline a punitive damages

instruction. See Che, 342 F.3d at 41. 

The Supreme Court established the standard for punitive

damages under Title VII in Kolstad v. American Dental Ass'n, 527

U.S. 526 (1999). Under Kolstad, a finding of intentional

discrimination, which is the basis for a compensatory damages

award, does not by itself establish a basis for awarding punitive

damages. 527 U.S. at 534. Rather, the plaintiff must make the
The plaintiff must also show that there is a basis for 8

imputing the bad acts of the employer's agent to the employer. One

way for the plaintiff to do this is by demonstrating that the agent

was acting in a managerial capacity and committed the bad acts

within the scope of his employment. Id. at 542-43. The employer

may also avoid punitive damages liability by demonstrating that it

has made good-faith efforts to comply with Title VII. Id. at 545-

46. The City does not defend the district court's ruling by

arguing either that the City's agents were not managerial employees

acting within the scope of employment or that it sustained the

good-faith compliance defense as a matter of law. See Romano v. UHaul Int'l, 233 F.3d 655, 670 (1st Cir. 2000) (the burden of

demonstrating good-faith compliance is on the employer). 

-26-

additional showing that the employer acted with malice or reckless

indifference to federally protected rights. Id. at 536. 8

The district court was therefore correct to treat the

question of whether to instruct on punitive damages as distinct

from whether there was sufficient evidence to allow the jury to

find a Title VII violation. See Che, 342 F.3d at 41. But with

the benefit of hindsight, we part ways with the district court in

its conclusion that no reasonable jury could award punitive damages

on the evidence presented.

The City argues that there was no evidence that its

agents acted with reckless indifference to McDonough's Title VII

rights because it presented legitimate non-retaliatory reasons for

its actions. This argument fails because the jury found that the

City (through its agents) intentionally retaliated against

McDonough and therefore rejected these reasons as the basis for the

City's actions. There was proof introduced by McDonough that the

department published an anti-discrimination policy and provided
Conversely, in an appropriate case, an employer might seek to 9

admit this type of evidence on the question of the employer's good

faith efforts at compliance, but that issue is not raised in this

appeal. See supra at n.8. 

-27-

anti-discrimination training for its workforce. See RodriguezTorres, 399 F.3d at 65 (stating that a punitive damages instruction

was appropriate where the employer posted signs notifying employees

about the anti-discrimination laws). Moreover, the retaliating 9

employees were all high-ranking department officials involved in

personnel management. In light of the important role that Title

VII plays in modern personnel management, we cannot conclude on

this record that a reasonable jury would be compelled to find that

these officials were unaware that retaliating against an employee

for assisting with another employee's sexual harassment claim

violates federal law. See Powell v. Alexander, 391 F.3d 1, 20 (1st

Cir. 2004) (stating that city solicitor, by nature of her position

as an attorney, knew or should have known that retaliating against

a public employee for filing a lawsuit is unlawful); DiMarco-Zappa

v. Cabanillas, 238 F.3d 25, 38 (1st Cir. 2001) (stating that "the

extent of federal statutory and constitutional law preventing

discrimination . . . suggests that defendants had to know that such

discrimination was illegal"). The evidence was therefore adequate

for a rational jury to conclude that the City acted with reckless

indifference to McDonough's Title VII rights.

As discussed above, malice and reckless indifference

concern, not the employer's awareness that it is discriminating,
The result is the same under Mass. Gen. Laws ch. 151B. 10

Punitive damages are authorized under Massachusetts law where the

conduct is "outrageous because of the defendant's evil motive or

his reckless indifference to the rights of others." Dartt v.

Browning-Ferris Indus., 691 N.E.2d 526, 537 (Mass. 1998). For the

reasons stated above, the evidence was sufficient for a jury to

have concluded that the City acted with "reckless indifference" to

McDonough's rights under the Massachusetts anti-discrimination

laws. See id. (suggesting that punitive damages would have been

warranted if there was evidence that employer knowingly violated an

anti-discrimination law).

-28-

but the employer's knowledge that it is acting in violation of

federal law. In Kolstad, the Supreme Court provided examples of

situations in which intentional discrimination does not give rise

to punitive damages. 527 U.S. at 536-37. Such situations may

occur where the employer believes that it can lawfully

discriminate, where the theory of discrimination is novel or

poorly recognized, or where the employer believes that its

discrimination falls within a statutory exception. Id.; see Farias

v. Instructional Sys., Inc., 259 F.3d 91, 102 (2d Cir. 2001)

(concluding that no punitive damages instruction was warranted

under Kolstad in a retaliation case where the employer took the

retaliatory act on advice of counsel that its conduct was lawful).

A jury could conclude that the City's conduct falls into none of

these categories. Accordingly, the jury should have been permitted

to consider awarding punitive damages for the Title VII violation.10

This conclusion obliges us to consider the scope of our

remand. McDonough contends that retrial must be limited to the

punitive damages question. In support of this argument, he cites
-29-

Che, 342 F.3d at 31, where we remanded solely for a retrial on

punitive damages while allowing an emotional distress award to

stand.

The Fifth Circuit has identified a potential problem in

remanding a case for a trial limited solely to punitive damages

where the first jury awarded emotional distress damages. See

Hardin v. Caterpillar, Inc., 227 F.3d 268, 272 (5th Cir. 2000). As

the court explained, "the difficulty inheres in the very nature of

a jury's decisionmaking." Id. Emotional distress damages are "the

classic black box decision" because the precise sum of emotional

damages cannot be independently quantified. Id. A jury awards

such damages based on the degree of emotional harm that it believes

that the plaintiff endured. But, especially where there is limited

evidence of the plaintiff's physical symptoms, this award is

closely linked to the jury's view concerning the defendant's

unlawful conduct. See id. In other words, the jury's conclusion

about the plaintiff's level of emotional trauma might well reflect

its view concerning the reprehensibility of the defendant's

conduct. See id. This potential overlap creates a risk that the

plaintiff will recover twice for the reprehensibility of the

defendant's conduct, if a second jury is allowed to consider only

punitive damages. See id.; see also Coastal Fuels of P.R. v.

Caribbean Petroleum Co., 79 F.3d 182, 201 (1st Cir. 1996) ("The law

abhors duplicative recoveries."). 
-30-

This is not to say that a serious risk of double recovery

exists in every case. In Che, for example, the emotional distress

award was relatively low ($125,000), given the evidence of

emotional injury. See 342 F.3d at 36 (the plaintiff suffered

several diagnosed mental and physical disorders). In those

circumstances, we determined that it was permissible to remand for

a retrial limited to punitive damages. Id. at 34. But in reaching

this conclusion, we recognized that this ruling was discretionary

and that an "appellate court has broad discretion to remand for a

new trial on all, or only some of the issues in the case." Id.

As Hardin recognized, whether a retrial limited to

punitive damages would be fair must be decided case by case. See

227 F.3d at 273. The emotional distress award in this case, unlike

the award in Che, was generous in light of the limited evidence

that McDonough presented. Some reason for concern therefore

exists, a concern that was absent in Che, that the high award may

partly reflect punishment for what the jury may have concluded was

the degree of reprehensibility of the City's conduct. See Horney

v. Westfield Gage Co., 77 Fed. Appx. 24, 33 (1st Cir. 2003)

(unpublished disposition) (concluding that a retrial limited to

punitive damages may be unfair because the issues of intent,

emotional distress damages, and punitive damages were "so

intertwined"). That said, the district court is in a better

position to make the judgment call because it viewed McDonough's

evidence of emotional distress first hand. See id. at 33. If the
-31-

district court determines that the punitive damages issue should

not be tried alone, the court should so indicate and provide

McDonough the opportunity to accept the $300,000 compensatory award

and withdraw his punitive damages claim. See id. 

IV. Conclusion

The district court's ruling denying McDonough's request

for an instruction on punitive damages is reversed and the case is

remanded for further proceedings consistent with this opinion. In

all other respects, the court's rulings are affirmed. Costs are

taxed in favor of Appellee/Cross-Appellant John McDonough.

So ordered.