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Dimanche v. Massachusetts Bay Transportation Authority

United States Court of Appeals, First Circuit

June 18, 2018

MICHELLE DIMANCHE, Plaintiff, Appellee,


          Kevin P. Martin, with whom John C. Englander, Joshua Bone, Brian T. Burgess, and Goodwin Procter LLP, were on brief, for appellant.

          Christopher J. Trombetta, with whom Law Office of Christopher J. Trombetta was on brief, for appellee.

          Before Lynch, Kayatta, and Barron, Circuit Judges.

          LYNCH, Circuit Judge.

         The 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.

         The 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.

         Like the proverb that a battle can be lost for want of a nail, [1] the 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.

         I. Background

         The 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.[2]

         Dimanche 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.

         A. Dimanche's Suspension and Termination

         The 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.

         Several 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.

         The 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[3] 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.

         Dimanche 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.

         B. MBTA Default

         On 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.[4]

         The 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.

         The 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.[5] 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).

         The 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 . . . ."

         For the 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.

         C. Trial Proceedings and Evidence

         The trial lasted four days, beginning on October 17, 2016.[6] 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[7] 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.

         Dimanche 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 threat.
. 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."

         Dimanche 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.[8] 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 ...

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