
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1399                                 IRINA PETSCH-SCHMID,                                Plaintiff - Appellant,                                          v.                BOSTON EDISON COMPANY, ALISON ALDEN AND JAMES DILLON,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                     Aldrich and Campbell, Senior Circuit Judges.                                           _____________________                                 ____________________            Gretchen  Van  Ness with  whom  Lisa T.  Bacon  was  on  brief for            ___________________             ______________        appellant.            Keith B.  Muntyan, with whom Robert  P. Morris and Morgan, Brown &            _________________            _________________     _______________        Joy, were on brief for appellees.        ___                                 ____________________                                  February 27, 1997                                 ____________________                      STAHL,  Circuit  Judge.   Plaintiff-appellant Irina                      STAHL,  Circuit  Judge.                              ______________            Petsch-Schmid seeks  a  new trial  on  her state  claims1  of            disability2 and gender discrimination after a jury returned a            verdict   in  favor  of  defendants-appellees  Boston  Edison            Company, Alison Alden (Petsch-Schmid's supervisor)  and James            Dillon  (Director  of  Labor  Relations  for  Boston  Edison)            (collectively,  "Boston Edison").   In  this appeal,  Petsch-            Schmid attempts to identify reversible  error in a number  of            the district court's actions.   Some of the actions  of which            she now complains were in fact taken at her request.  To none            of her assignations of error did she object below.  Conceding            that  our review is for  "plain error" only,  see Poliquin v.                                                          ___ ________            Garden Way Inc., 989  F.2d 527, 531 (1st Cir.  1993), Petsch-            _______________            Schmid  endeavors to persuade us  that this is  the rare case            warranting  notice of such error.   We decline the invitation            because  we find  that her  contentions fail  to  satisfy the            plain error standard.            1.  Jury Instructions            _____________________                                            ____________________            1.  We  note  that,  although  the  district court  dismissed            related federal claims pretrial,  it exercised its discretion            to retain supplemental jurisdiction over the remaining  state            claims.  See Newman v. Burgin, 930 F.2d 955, 963-65 (1st Cir.                     ___ ______    ______            1991).            2.  Although  the  relevant Massachusetts  statute  refers to            "handicap"  discrimination, see  Mass.  Gen.  Laws ch.  151B,                                        ___              4(16), for  consistency with our other  cases, we generally            refer to "disability" discrimination.                                         -2-                                          2                      For  the  first   time  on  appeal,   Petsch-Schmid            challenges   a   number   of   the   district  court's   jury            instructions.  We have stated  repeatedly that the failure to            object before the jury  retires to the charge or  the verdict            form  constitutes a waiver.  See Scott-Harris v. City of Fall                                         ___ ____________    ____________            River, Nos. 95-1950/1951/1952/2100, slip  op. at 16 (1st Cir.            _____            Jan. 15, 1997); see also Fed. R. Civ. P. 51.   Some circuits,                            ___ ____            including  ours, have  recognized the  existence of  a "plain            error"   exception  for  noncompliance   with  Rule   51  for            "correcting  obvious instances  of  injustice  or  misapplied            law."  City of Newport v.  Fact Concerts, Inc., 453 U.S. 247,                   _______________     ___________________            256 (1981); see Morris  v. Travisono, 528 F.2d 856,  859 (1st                        ___ ______     _________            Cir. 1976).   The exception, however,  "warrants a new  trial            only  where  the  error  'seriously  affected  the  fairness,            integrity or public reputation of the judicial proceedings.'"            Poulin v. Greer, 18 F.3d 979, 982-83 (1st Cir. 1994) (quoting            ______    _____            Lash v. Cutts, 943  F.2d 147, 152 (1st Cir. 1991));  see also            ____    _____                                        ___ ____            Morris, 528 F.2d at  859 (explaining that plain error  should            ______            be  noticed  "only in  exceptional  cases  or under  peculiar            circumstances  to prevent  a  clear  miscarriage of  justice"            (internal quotation marks and citation omitted)).                      A.  Prima Facie Case                      ____________________                      Petsch-Schmid first challenges the district court's            description of  the prima  facie elements of  a Massachusetts            disability discrimination  claim under  Mass.  Gen. Laws  ch.                                         -3-                                          3            151B,   4(16).  Citing Garrity v.  United Airlines, Inc., 653                                   _______     _____________________            N.E.2d 173,  177  (Mass. 1995),  Petsch-Schmid requested  the            court to instruct the  jury that she prove, inter  alia, that                                                        _____  ____            Boston  Edison fired  her solely  because of  her disability.                                      ______            See  also Tate  v. Department  of Mental  Health, 645  N.E.2d            ___  ____ ____     _____________________________            1159,  1163 (Mass. 1995).  Petsch-Schmid  now claims that her            requested instruction was  wrong in light  of Blare v.  Husky                                                          _____     _____            Injection  Molding Sys.,  646 N.E.2d  111, 115  (Mass. 1995),            _______________________            which  sets   forth  the  prima  facie  elements  of  an  age            discrimination case under ch.  151B without a "solely because                                                _______            of" requirement.  See id.                              ___ ___                      In response, Boston Edison  contends that Blare  is                                                                _____            distinguishable because it concerned  allegations of age, not            disability, discrimination.  Moreover, Boston  Edison argues,            the  Massachusetts Supreme  Judicial Court  reaffirmed Tate's                                                                   ____            prima  facie elements of  a disability-discrimination case in            Garrity,  issued  months  after  the  Blare  decision.    See            _______                               _____               ___            Garrity, 653 N.E.2d at 177.  Boston Edison concludes that the            _______            district court's reliance -- at Petsch-Schmid's request -- on            the Garrity  formulation cannot  constitute plain error.   We                _______            agree.                      Although  Petsch-Schmid's  argument based  on Blare                                                                    _____            may well be  plausible, it  calls upon this  court, on  plain            error  review, to  differ with  the Supreme  Judicial Court's            formulation   of   a   prima   facie   case   of   disability                                         -4-                                          4            discrimination as set  forth in  Garrity and  Tate; this,  we                                             _______      ____            will  not do.3  Given the state of the Massachusetts caselaw,            any misapplication of the law with respect to Petsch-Schmid's            initially  requested but  now-challenged  charge  is  neither            "obvious,"  City of Newport, 453  U.S. at 256,  nor a "clear"                        _______________            miscarriage  of justice, Morris, 528 F.2d at 859.  Because of                                     ______            Petsch-Schmid's  jury-charge waiver, the requirement that she            prove that  Boston Edison terminated her  "solely because of"            her disability  is  the law  of  the case.   See  Wells  Real                                                         ___  ___________            Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803,            ____________    ______________________________            809 (1st Cir.  1988) (explaining that, given Rule  51 waiver,            "the instruction as given becomes the law of the case").4                      B.  Mixed Motive                      ________________                      In a  related vein,  Petsch-Schmid claims  that the            court erred when it "apparently attempted to explain  the law            governing the  plaintiff's burden of proof  in 'mixed motive'            discrimination cases."    The "mixed-motive  instruction"  to                                            ____________________            3.  We  note here that, in its February 2, 1996 memorandum of            decision  and order  on  Boston Edison's  motion for  summary            judgment,  the district  court,  cognizant  that  only  state            claims remained, informed the  parties that it would consider            a request to remand  the case to state court.   Neither party            sought remand.            4.  At  oral  argument   before  this  court,   Petsch-Schmid            contended for the first  time that, in fact, the  jury charge            erroneously  reflected  a  "reasonable   accommodation  case"            rather  than   a  case  of  "disparate   treatment  based  on            disability."   We deem waived  such arguments raised  for the            first time at oral  argument.  See Carreiro v.  Rhodes Gill &                                           ___ ________     _____________            Co., 68 F.3d 1443, 1449 (1st Cir. 1995).            ___                                         -5-                                          5            which  Petsch-Schmid  refers  was  embedded  in  the  court's            explanation  of the  requirement that  she prove  that Boston            Edison  terminated her  "solely  because of"  her disability.            The court charged the jury as follows:                           By  "solely," the law  means that an                      employee's  handicap   was  the  deciding                      factor in  her termination and  that were                      she . . .  not handicapped, she would not                      have been fired  even if everything  else                      the employer  says about the  reasons for                      her  termination  are  true.    If Boston                                                      _________                      Edison's  motives are mixed, in the sense                      ___________________________                      that Ms.  Schmid's disability was  only a                      minor factor in a decision  influenced by                      proper, nondiscriminatory considerations,                      a  decision  that  would have  been  made                      regardless  of  whether  Ms.  Schmid  was                      handicapped, then she will have failed to                      meet her  burden on  this element of  her                      claim. (emphasis added).                      Petsch-Schmid neither initially requested  a mixed-            motive   instruction  with   respect   to   her   disability-            discrimination claim, nor lodged  an objection to this charge            below.    She now  argues  that  the instruction  erroneously            removed from the  jury's purview whether  and to what  extent            her disability  played a motivating role  in her termination,            and  whether Boston Edison would have  made the same decision            without its  consideration of  her disability.   We disagree.            Contrary  to her contention,  the court's  charge, read  as a            whole,  could   be  taken  as  submitting  to  the  jury  the            determination  of   whether  or  not  she   would  have  been            terminated regardless of any consideration of her disability.                                         -6-                                          6                      True,  the  court did  not  place  the burden  upon            Boston Edison to prove  that it would have made  the decision            absent  the  discriminatory motive  (as  in  a typical  mixed            motive case5).   Our  research, however, reveals  no reported            Massachusetts  cases  that  have  applied   the  mixed-motive            framework to a disability discrimination case under ch. 151B.            Further, for the  purposes of this case, the requirement that            the disability be the  sole reason for -- rather than only "a            motivating part"  in --  the termination renders  suspect the            application of the Price Waterhouse balance of burdens.  This                               ________________            issue  is  potentially  complex  and, had  it  been  properly            preserved  for appeal,  it might  have presented  us with  an            interesting  legal  question.   Having  failed,  however,  to            request a separate mixed-motive instruction on her disability            discrimination  claim,  to  object  to the  jury  charge  and            verdict form, or even to offer developed argumentation of the            point on appeal, Petsch-Schmid cannot prevail under the plain            error standard.6                                            ____________________            5.  See  Price Waterhouse  v. Hopkins,  490 U.S.  228, 244-45                ___  ________________     _______            (1989)  (plurality opinion); see also, Smith  v. F.W. Morse &                                         ___ ____  _____     ____________            Co., 76 F.3d 413, 421 (1st Cir. 1996).            ___            6.  Petsch-Schmid   further  hints   that,   on  her   gender            discrimination claim,  the court should have  instructed that            Boston Edison  bore the burden of persuasion  with respect to            any  mixed-motive.    We  deem  waived  her  perfunctory  and            unadorned argument  in this  respect.   See United  States v.                                                    ___ ______________            Zannino, 895  F.2d  1, 17  (1st Cir.  1990).   In any  event,            _______            Petsch-Schmid fails to identify any direct evidence of gender            discrimination that  might trigger such an  instruction.  See                                                                      ___            Smith v. F.W. Morse & Co., 76 F.3d 413, 421  (1st Cir. 1996);            _____    ________________                                         -7-                                          7                      C.  Pretext                      ___________                      Petsch-Schmid   claims   error   in   the   court's            instruction that  she must  have proven  either that  she was            fired because  of her disability, or that  Boston Edison lied            about  her  reasons  for  termination.    She  says  that  by            requiring   proof  that   Boston  Edison   lied,  the   court            effectively  compelled "smoking  gun" evidence;  she contends            that she should  have been  able to rely  upon the  inference            arising  from her proof  that similarly situated non-disabled            employees had  not been terminated.   Petsch-Schmid, however,            overlooks   the  fact  that  by  potentially  permitting  her            recovery upon proof of Boston  Edison's lies, she enjoyed the            benefits of the court's  "pretext-only" instruction.  Compare                                                                  _______            Blare,  646   N.E.2d  at  117  (entitling   a  discrimination            _____            plaintiff to recovery upon establishing pretext) with LeBlanc                                                             ____ _______            v. Great Am. Ins. Co., 6 F.3d 836, 843 (1st Cir. 1993) (under               __________________            federal  law, permitting,  but  not compelling,  inference of            intentional discrimination  upon proof of pretext).   We find            no error and certainly no plain error.            2.  "Stipulation Error"            _______________________                      One  week  before  trial, Boston  Edison  moved  in            limine to  limit the  presentation of evidence  pertaining to            Petsch-Schmid's  medical condition.   Boston Edison based the            motion, in  part, on the  district court's pretrial  grant of                                            ____________________            id. at 431 (Bownes, J., concurring).            ___                                         -8-                                          8            summary judgment  in its favor on  Petsch-Schmid's claim that            it failed  reasonably  to accommodate  her alleged  disabling            condition.   See Mass. Gen. Laws  ch. 151B,   4(16).   In its                         ___            motion,  Boston  Edison  offered  to stipulate,  in  lieu  of            medical evidence, that (1) Petsch-Schmid in fact has multiple            sclerosis,  and  (2)  Petsch-Schmid  first  asserted  to  her            supervisor  in May 1991 that she had multiple sclerosis.  The            parties never prepared a written stipulation to this effect.                      After  opening  arguments, Petsch-Schmid's  counsel            attempted to read what  he believed to be the  stipulation to            the   jury.    Boston  Edison's  counsel  objected,  however,            agreeing  only that  "the  company acknowledges  that it  now            knows that, in fact, Ms. Schmid had multiple sclerosis on May            13, 1991.  It did not know  it on that date."  The court then            told the jury:                      [T]he  parties  agree  .  .  .  that  Ms.                      Schmid,   indeed,   was  suffering   from                      multiple sclerosis.  There is, as you may                      gather from the interchange, a dispute as                      to whether an when the company learned of                      this fact.   But  that she did  have that                      condition  on  May  13, 1991,  is  not in                      dispute.            Petsch-Schmid lodged no objection to the ultimate formulation            of the stipulation.                      Petsch-Schmid  now  claims  that there  was  "plain            error   in  the   key  stipulation"   which  undermined   her            credibility at  trial and unfairly burdened  her with proving            the  date  by  which  Boston Edison  knew  of  her  disabling                                         -9-                                          9            condition.  She also contends that  the court's related order            limiting evidence of her  diagnosis and treatment impeded her            ability to  counter-balance Boston Edison's  theory that  she            used her illness "as an excuse" once her job was  in jeopardy            for performance-related reasons.  We are unpersuaded.                      Petsch-Schmid's failure to object  in any manner to            the  stipulation as  presented to  the jury  both  robbed the            district court of any on-the-spot corrections, and raises the            specter  that Petsch-Schmid  did not,  at the  time, consider            detrimental  the stipulation  as  entered.7   Further,  there            exists a  logical  disconnection  between  the  exclusion  of            evidence regarding  her condition,  and the disputed  date by            which Boston  Edison knew of her illness.  The court did not,            in  any way,  prevent Petsch-Schmid  from producing  evidence            (which she did) to  establish that Boston Edison knew  of her            condition in May 1991.8  Nor did Petsch-Schmid claim surprise                                            ____________________            7.  See  Anderson v. Cryovac,  Inc., 862  F.2d 910,  919 (1st                ___  ________    ______________            Cir.  1988)  ("If   a  slip  has   been  made,  the   parties            detrimentally affected must act expeditiously to cure it, not            lie in  wait and ask for another  trial when matters turn out            not to their liking").            8.  We note that Petsch-Schmid  cites Ward v. Westvaco Corp.,                                                  ____    ______________            859  F. Supp. 608, 614  (D. Mass. 1994),  for the proposition            that,  as long as the employer has some notice of disability,            it need  not  know the  specific  details of  the  condition.            Here,  Petsch-Schmid's  supervisor,  Alden,   testified  that            Petsch-Schmid told  her in May 1991 that she was "handicapped            . . . [and] needed  reasonable accommodation."  Thus, Petsch-            Schmid  elicited from Boston  Edison pertinent testimony that            it  had some notice of an asserted disability on the disputed            date.   Under her  own cited authority,  therefore, it  seems            that  Petsch-Schmid  has  even  less reason  to  complain  of                                         -10-                                          10            or prejudice  in this respect at  trial.  In sum,  we find no            reversible error.                      For  the foregoing  reasons,  the judgment  of  the            district court is affirmed.  Costs to appellees.                              affirmed.  Costs to appellees.                              ________   __________________                                            ____________________            prejudice from the asserted stipulation error.                                         -11-                                          11
