FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. William G. Young, U.S. District Judge]
P. Martin, with whom John C. Englander, Joshua Bone, Brian T.
Burgess, and Goodwin Procter LLP, were on brief, for
Christopher J. Trombetta, with whom Law Office of Christopher
J. Trombetta was on brief, for appellee.
Lynch, Kayatta, and Barron, Circuit Judges.
Massachusetts Bay Transportation Authority ("MBTA")
appeals from the entry of a jury verdict awarding over $2.6
million in damages to a black female former employee who
brought suit under 42 U.S.C. § 1981 and Mass. Gen. Laws
ch. 151B, § 4. She alleges, inter alia, that her
supervisors at the MBTA conspired to terminate her employment
because of her race. The jury awarded her over $1.3 million
in compensatory damages on her discrimination claim and $1.3
million in punitive damages.
MBTA makes three levels of argument on appeal. First, the
MBTA says that the evidence produced at trial was
insufficient to support either the compensatory or the
punitive damages awards comprising the over $2.6 million
verdict. Second, the MBTA argues that the trial judge
committed two types of reversible error in (a) imposing a
draconian sanction as the price for removing the entry of
default, and (b) allowing a hostile work environment theory
not explicitly pled in the complaint to go to the jury.
Third, the MBTA contends that it should be able to take
advantage of Buntin v. City of Boston, 857 F.3d 69
(1st Cir. 2017), decided while this case was on appeal, to
vacate the judgment and to dismiss this action.
the proverb that a battle can be lost for want of a nail,
MBTA loses its appeal largely for want of its making
appropriate objections and offers of proof before the trial
court. The evidence was more than sufficient to support the
compensatory damages award for wrongful termination and to
justify the punitive damages amount. We do agree that the
trial judge committed clear error in imposing the default
sanction order. But, reviewing for plain error, we do not
agree that the MBTA has shown that it was prejudiced either
by the default sanction order or by the hostile work
environment charge. We also find the MBTA's belated
Buntin argument waived. Accordingly, we
affirm the entry of judgment.
plaintiff, Michelle Dimanche, is a black woman of Haitian
descent, who worked as a motor person on the MBTA Green Line
from 2000 until 2013. In 2015, she filed suit in federal
district court, alleging, among other things, wrongful
termination on the basis of her race. We trace the events
leading up to this appeal.
had an unhappy tenure at the MBTA. She testified that,
throughout her employment, she was repeatedly harassed by her
colleagues -- often her supervisors -- because of her race.
Following a disagreement with a co-worker on January 25,
2013, Dimanche was suspended and then her employment was
terminated on March 20, 2013.
Dimanche's Suspension and Termination
event triggering Dimanche's discharge occurred on the
evening of January 25, 2013, at the MBTA Riverside Station
office. During her night shift, Dimanche got into an argument
with a co-worker, Gilberthe Pierre-Millien, who is also a
black, Haitian woman. Both women allege that the other was
the aggressor who yelled, cursed, spat, and continued the
altercation from the office into the lobby area.
MBTA employees witnessed the event. It is undisputed that
Pierre-Millien reported the incident to a supervisor and also
called the transit police. It is also undisputed that both
women were suspended during the pendency of the investigation
into the altercation.
nighttime supervisor, Rico Gomes, initiated an investigation
that same evening, and alerted the Director of Light Rail
Operations, William McClellan, of the incident. The next day,
the Deputy Director of Light Rail Operations, Edward Timmons,
took over the investigation. At the time of the altercation,
Dimanche had already received four disciplinary
warnings and a five-day suspension imposed by
Tamieka Thibodeaux, the Division Chief of Light Rail
Operations. Under the MBTA's policies, a fifth infraction
could lead to termination. Based on Dimanche's
disciplinary history and Gomes's report, Timmons
recommended discharging Dimanche. McClellan concurred in the
decision before passing it up the disciplinary chain of
command. Ultimately, the MBTA's then-General Manager,
Beverly Scott, decided to suspend Dimanche for thirty days
and then to terminate her employment.
alleges and maintains on appeal that all five disciplinary
events leading up to her dismissal were fabricated or blown
out of proportion as part of the MBTA's concerted effort
to discharge her because of her race.
January 8, 2015, Dimanche filed suit in federal district
court, alleging three counts: (1) racial discrimination under
42 U.S.C. § 1981; (2) racial discrimination under Mass.
Gen. Laws ch. 151B, § 4; and (3) intentional infliction
of emotional distress. The complaint alleged that the MBTA
"subjected Ms. Dimanche to racial discrimination as a
means to humiliate and ultimately terminate her, " and
pointed to six co-workers and supervisors as the perpetrators
of the alleged racial harassment.
MBTA was properly served on February 20, 2015, but failed to
file a timely answer due to a clerical error. The district
court entered default for Dimanche on June 2, 2015. The MBTA
filed a motion to set aside the default one week later,
arguing that the default was inadvertent, and that the MBTA
had a meritorious defense. The district court denied the
motion without prejudice. The entirety of that order read:
Motion denied without prejudice to it being refiled within 30
days from the date of this order supported by detailed
evidentiary affidavits setting forth the so-called
"meritorious" defense. The MBTA will be limited to
the information set forth therein at trial.
MBTA did not object to the order. Instead, on July 31, it
refiled the motion to set aside default, attaching thirteen
affidavits and two exhibits. Six weeks later, the district
court lifted the default (over Dimanche's objection) and
reiterated the condition for its vacatur. The entirety of
this order read:
Motion allowed. The MBTA must understand, however, that its
entire affirmative case is set forth in the data
submitted in support of this motion.
(emphasis in original).
MBTA again did not object. On February 10, 2016 --nearly five
months after the district court had issued its order imposing
the sanction -- Dimanche moved to clarify the scope of the
sanction. Specifically, she asked the district court whether
"documents" that were "referenced in the
MBTA's affidavits, " but were not attached to the
affidavits, should be deemed inadmissible at trial. The MBTA
opposed this motion, arguing that it should only be limited
to the "information set forth in the affidavits
at trial, " not to the affidavits and attachments
themselves. The district court denied Dimanche's motion
for clarification in a February 26, 2016 order, stating,
"No clarification is necessary." It also
emphasized: "This order is not a ruling that
documents not disclosed in response to the Court's
earlier order are some how [sic] admissible . . . ."
third time, the MBTA did not object. Instead, the MBTA filed
its own motion for clarification of the February 26, 2016
order. The MBTA suggested that the order had a
"typographical error" and asked the district court
to revise the order to read, "This is not a ruling that
the documents not disclosed in response to the Court's
earlier order are somehow inadmissible."
(emphasis added). The district court denied the motion. The
MBTA did not object, or make any offer of proof, or seek
reconsideration. It chose to proceed to trial.
Trial Proceedings and Evidence
trial lasted four days, beginning on October 17,
2016. Dimanche took the stand and also presented
three other witnesses: two former co-workers, Virginia Davis
and Perry Spencer, and her treating psychiatrist, Dr. Stephen
Dubin. The MBTA presented nine witnesses, including three
eyewitnesses to the altercation: Gilberthe Pierre-Millien
(who Dimanche had said instigated the altercation on January
25, 2013), and James Civil and John Foster (who witnessed
it); and three MBTA staff involved in disciplining and
terminating Dimanche: Tamieka Thibodeaux, William McClellan,
and Edward Timmons.
and her witnesses testified that throughout Dimanche's
employment with the MBTA, she was subjected to unrelenting
racial harassment by MBTA staff. For instance:
. Dimanche said that John Foster, a white inspector, refused
to let her use the restroom during her shift, commenting that
Dimanche's "black ass always want to go to the
bathroom every two second [sic]." She said Foster called
her a "black bitch, " and told her he was
"going to pill [her], " which she interpreted as a
. Dimanche also testified that Joe Napoli, a white inspector,
repeatedly called her "black bitch" to her face and
referred to her as "cuckoo" over the Green Line
radio. Those radio statements were heard by many people.
Napoli also blocked Dimanche from entering a work building,
and threatened, "I'll talk to my colleagues and see
what they're going to do." Dimanche testified that
she felt so unsafe that she ended up filing a police report
against Napoli based on this and on five other instances of
harassment by him.
. Virginia Davis, Dimanche's former co-worker, testified
that Green Line officials often mimicked Dimanche's
Haitian accent and "ma[d]e noise[s] like animals at
her" over the radio. Davis also testified that she heard
"a lot of inspectors" say things about Dimanche
like, "I'm going to get that . . . B-I-T-C-H."
. Perry Spencer, another former co-worker, corroborated
Dimanche's testimony. He stated that Napoli mocked
Dimanche's accent, "telling her that she needed to
go back to her country."
testified that she reported these instances to management,
but the harassment continued. According to Dr. Dubin,
Dimanche developed post-traumatic stress disorder as a result
of the hostile work environment and was forced to take a
leave of absence. When she returned to work in late 2010,
the racial harassment persisted. Specifically:
. Dimanche testified that Napoli and Foster continued their
behavior. Foster even wrote Dimanche up for an absence that
he had previously excused. Dimanche also testified that
another Green Line supervisor, Fred Olson, refused to process
her complaints. Olson told her that McClellan instructed him
not to speak to Dimanche without a witness ...