
USCA1 Opinion

	




          M       a       y   1       8       ,   1       9       9       5                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT          94-1929             GENEVIEVE SCARFO, ET AL.,                               Plaintiffs - Appellees,                                          v.                           CABLETRON SYSTEMS, INC., ET AL.,                               Defendants - Appellants.                                 ____________________          94-1982                                  GENEVIEVE SCARFO,                                Plaintiff - Appellant,                                          v.                           CABLETRON SYSTEMS, INC., ET AL.,                               Defendants - Appellees.                                 ____________________                                    BRIAN MILLER,                                Plaintiff - Appellee.                                 ____________________          94-1983                                    BRIAN MILLER,                                Plaintiff - Appellant,                                          v.                           CABLETRON SYSTEMS, INC., ET AL.,                               Plaintiffs - Appellees.                                 ____________________                                        ERRATA                    The opinion released on May 12, 1995 should  be amended          as follows:                    Page 8, line 13:  "(c)" should read "(d)",  so that the          line reads "the Equal Pay Act, paragraph (d) below, in ...."                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1929                              GENEVIEVE SCARFO, ET AL.,                               Plaintiffs - Appellees,                                          v.                           CABLETRON SYSTEMS, INC., ET AL.,                               Defendants - Appellants.                                 ____________________          No. 94-1982                                  GENEVIEVE SCARFO,                                Plaintiff - Appellant,                                          v.                           CABLETRON SYSTEMS, INC., ET AL.,                               Defendants - Appellees.                                 ____________________                                    BRIAN MILLER,                                Plaintiff - Appellee.                                 ____________________          No. 94-1983                                    BRIAN MILLER,                                Plaintiff - Appellant,                                          v.                           CABLETRON SYSTEMS, INC., ET AL.,                               Plaintiffs - Appellees.                                 ____________________                                 GENEVIEVE A. SCARFO,                                Defendant - Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                [Hon. Martin F. Loughlin, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                           Cyr and Boudin, Circuit Judges,                                           ______________                             and Keeton,* District Judge.                                          ______________                                _____________________               Anil Madan,  with whom Madan  and Madan, P.C.  and Elizabeth               __________             ______________________      _________          Bartholet were on brief for defendants.          _________               Eleanor H. MacLellan, with whom Carol A. Fiore and  Sulloway               ____________________            ______________      ________          & Hollis were on brief for Genevieve A. Scarfo.          ________               Andru H. Volinsky, with whom Michael J. Sheehan and Shaheen,               _________________            __________________     ________          Cappiello, Stein & Gordon, P.A. were on brief for Brian Miller.          _______________________________                                 ____________________                                     May 11, 1995                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                                         -2-                    KEETON,  District  Judge.     Two  plaintiffs  and  two                    KEETON,  District  Judge                             _______________          defendants cross-appeal  from a final judgment  after jury trial.          The  plaintiffs  Genevieve Scarfo  and  Brian  Miller are  former          employees  of  defendant Cabletron  Systems,  Inc. ("Cabletron").          Craig  Benson   and  Robert  Levine,   supervisory  employees  of          Cabletron, were also defendants in the district court.                    Plaintiff Scarfo claimed,  inter alia, that  defendants                                               _____ ____          discriminated  against her on the basis of her sex and terminated          her employment in violation of Title VII of the Civil Rights Act,          42 U.S.C.   2000e-5(f).                    Plaintiff  Miller claimed, inter  alia, under Title VII                                               _____  ____          for  retaliatory  discharge  based  on his  alleged  refusal,  as          plaintiff  Scarfo's immediate supervisor, to discriminate against          her by terminating her employment on the basis of her sex.                    The  principal  claims  of  error  asserted  on  appeal          challenge  instructions to the jury.  Each party opposing a claim          of error asserts that no timely objection or request  was made in          the trial court.                    Counsel  representing defendants  on appeal  first came          into   the  case  after  completion  of  the  jury  trial.    Not          surprisingly,  they  seek  to present  contentions  substantially          different  from those  presented  by defense  counsel during  and          before the jury trial.  Whenever new counsel enter and raise  new          contentions,   opposing  counsel   may   find  irresistible   the          temptation  to counter with new contentions of their own.  Almost          inevitably,  then, the entry into  a case of  new counsel for one                                         -3-          party  increases litigation burdens for all parties.  An award of          attorneys' fees to a  prevailing party may offset this  burden in          part.  But unfairness may remain to opposing parties if the trial          or appellate court allows  new grounds of claim or  defense to be          asserted.    For  this  reason,  among  others,  we  encounter  a          threshold question in this case.                    One way  of framing  the threshold question  neutrally,          abjuring  "plain error,"  United States  v. Marder,  No. 93-1882,                                    _____________     ______          slip op. at 11-17 (1st Cir. Feb. 2, 1995), "waiver,"  id. (citing                                                                ___          United States v.  Olano, 113 S.  Ct. 1770 (1993)),  "forfeiture,"          _____________     _____          id.,   "invited  error," id.,  "abandon[ment]," United  States v.          ___                      ___                    ______________          Smith, Nos. 94-1326, 94-1327,  94-1328, slip op. at 22  (1st Cir.          _____          Feb.  10,   1995),   and   other   terminology   freighted   with          connotations, is to ask:   Should we hold that the appellant  (or          cross-appellant)  on each  claim of  error now  before us  is not          entitled to  be heard  on the  merits of  that contention  in the          circumstances of this appeal?                    Searching for  the  answer requires  that  we  consider          procedures  for  deciding  mixed  law-fact  issues  that  involve          unsettled  law, genuine  disputes of  fact, and  the exercise  of          discretion by jury,  or judge, or both.  The search requires also          that  we  take account  of  Supreme Court  and  circuit decisions          handed down  after  this case  was  argued, including  O'Neal  v.                                                                 ______          McAninch, 115  S. Ct.  992 (1995);  Lebr n  v. National  Railroad          ________                            ______     __________________          Passenger Corp., 115 S.  Ct. 961 (1995); United States  v. Smith,          _______________                          _____________     _____          Nos. 94-1326,  94-1327,  94-1328, slip  op.  (1st Cir.  Feb.  10,                                         -4-          1995);  and United States v.  Marder, No. 93-1882,  slip op. (1st                      _____________     ______          Cir. Feb. 2, 1995).                    In describing  the tasks of trial  and appellate courts          in circumstances  of this degree of  complexity, commentators and          opinion writers have invoked  imagery of the almost impenetrable.          They have  spoken, for example,  of the "esoteric,"  Marder, slip                                                               ______          op. at 13,  "The Bramble  Bush," Karl N.  Llewellyn, The  Bramble                                                               ____________          Bush (1930),  or -- in a more venerable and ominous allusion -- a          ____          "Serbonian Bog," Landress v. Phoenix Mut. Life Ins. Co., 291 U.S.                           ________    __________________________          491,  499  (1934)  (Cardozo,  J.,   dissenting)  ("The  attempted          distinction between accidental results and accidental  means will          plunge this branch of the law into a Serbonian Bog.").                    The imagery, even  if hyperbole in the classic sense of          a  figure  of  speech  rather  than  an  assertion  to  be  taken          literally,  may   nevertheless  aptly   call  attention   to  the          increasing  intricacy  of  a rapidly  evolving  jurisprudence  of          procedural preclusion.                    We conclude that we  need enter only a little  way into          this maze of precedents, and on a well-marked path, to decide the          case now before us.  This is so because rules and precedents have          erected  a gate  at  the point  of  entry upon  each  potentially          promising  path  through the  maze, and  each  gate is  closed to          appellants whose contentions have the  particular characteristics          of those before us in this appeal.  Thus, we affirm in substance,          though  with  minor exceptions,  and  with  some modification  of          amounts of awards, and on condition that a judgment amended as to                                         -5-          form be entered in the district court.                    We first  explain the  terms of  the judgment  that was          ordered  in the district  court and the  nature of  the claims of          error.  Then we explain why, in the interests of justice, we hold          that  each claim  of  error asserted  in  this appeal  is  either          harmless  error  or  is raised  too  late  for  review under  the          harmless error standard  and cannot be  sustained under the  more          rigorous requirement that relief is to be granted only to avoid a          miscarriage of justice.                                          I.                                          I.                    The first error  we address  is one not  raised by  the          parties.   We consider  it because  it might  be thought to  have          jurisdictional  implications.   The "final  judgment"  entered in          this  case was, in its form, not literally in compliance with the          requirement  that  "[e]very  judgment shall  be  set  forth on  a          separate document."  Fed. R. Civ. P. 58.                    The district court made not one but a series of orders.          In most  instances, the order is not  self-explanatory.  Instead,          it refers to an opinion  or memorandum of the court to  which one          must go  to understand  precisely the meaning  of the order.   In          these circumstances,  if, for example, a  party seeks enforcement          of the  judgment -- perhaps even after the case is closed and the          file  is sent  to storage  -- the  parties and  any  other person          required  to  act will  have  great difficulty  finding  out what          exactly were the terms of the "final judgment."                                         -6-                    In support  of our  jurisdiction, however,  we conclude          that the  district court ordered  the functional equivalent  of a          "final judgment" in a sequence of orders that includes:                         the   "Judgment"   of   May   10,   1994                    (incorporating,  first, the Order  of June 2,                    1993 granting  in part  and  denying in  part                    defendants'  Motion  to Dismiss;  second, the                    Endorsed   Order   of   November   17,   1993                    concerning the defendants' Motion for Summary                    Judgment;  third, the Special Verdicts of May                    4, 1994;  fourth, the  Order of May  9, 1994,                    concerning the Court's  Calculation of  Title                    VII Damages);                         the Order of July  19, 1994 on  Miller's                    Motion for Prejudgment Interest;                         the Order  of July 19, 1994  on Miller's                    Motion for Attorneys' Fees;                          the  Order of July  19, 1994 on Scarfo's                    Motion for Attorneys' Fees; and                          the Order of  July 20, 1994  on Scarfo's                    Motion   for  Prejudgment   and  Postjudgment                    Interest.                    Were  we to remand for entry of a "final judgment" that          is  formally in full compliance with Rule 58, before deciding the          appeal  that has now  been briefed and argued,  the case would in          due course be back before us again with precisely the same issues                                         -7-          to be decided as those we perceive from the record now before us.          To avoid  the delay  and waste  of resources  incident to such  a          remand, we proceed  to consider  the issues now  and will  direct          entry of an appropriate amended judgment on remand.                    From  close  examination  of  the  several  orders  and          memoranda identified  above, we conclude that a final judgment of          the substance gleaned  from all these  orders would have  recited          provisions in substance as follows:                         (a)   judgment  for plaintiff  Scarfo on                    her claim under Title VII of the Civil Rights                    Act for sex discrimination against defendants                    Cabletron   and  Benson   for   the  sum   of                    $1,187,901.07  (consisting  of  the   sum  of                    $242,407.07  in back  pay, $744,744  in front                    pay,  and $228,750  for the  value of  stock,                    reduced by the jury's  award of $28,000 under                    the Equal Pay  Act, paragraph  (d) below,  in                    order to prevent duplicate  recovery) without                    prejudgment interest;                         (b)   judgment  for defendant  Levine on                    Scarfo's    Title    VII   claim    for   sex                    discrimination against him;                         (c)  judgment for  defendants Cabletron,                    Benson,  and  Levine  on  plaintiff  Scarfo's                    claim under Title VII of the Civil Rights Act                    for sexual  harassment based on  a hostile or                                         -8-                    abusive environment;                         (d)    judgment  for   plaintiff  Scarfo                    against Cabletron (but  not against Benson or                    Levine), on  her  claim under  the Equal  Pay                    Act,   in   the   sum   of   $28,000  without                    prejudgment interest;                         (e)   judgment for defendants Benson and                    Levine  on  plaintiff   Scarfo's  claim   for                    intentional   or   reckless   infliction   of                    emotional distress;                         (f)      plaintiff  Scarfo's   claim  of                    intentional infliction  of emotional distress                    against defendant Cabletron is dismissed;                         (g)    plaintiff  Scarfo's   claims  for                    breach   of   contract  and   defamation  are                    dismissed;                         (h)    judgment  for   plaintiff  Miller                    against defendants Cabletron  and Benson,  on                    his  claim  for   retaliatory  discharge   in                    violation   of  Title  VII,  in  the  sum  of                    $1,391,711.85  (consisting of  $190,651.85 in                    back pay, $995,000 in front pay, and $206,060                    for  the  value  of  stock  options)  without                    prejudgment interest;                         (i)    judgment  for   plaintiff  Miller                    against defendant Cabletron (but  not against                                         -9-                    Benson)  on his  claim  under  New  Hampshire                    state  law for  wrongful termination,  in the                    sum of $995,000  with prejudgment interest at                    a  per annum  rate of  ten percent  under New                    Hampshire state law from the date of  filing,                    April 14,  1992, to the date  of the verdict,                    May 4, 1994;                         (j)  plaintiff Miller's claims  of abuse                    of  process  and   intentional  or   reckless                    infliction  of   emotional  distress  against                    Benson, Levine, and Cabletron are dismissed;                         (k)    all  claims by  plaintiff  Miller                    against defendant Levine are dismissed;                         (l)     it   is  further   ordered  that                    plaintiff  Miller  will  not  be  allowed  to                    collect  more  than  the larger  of  the  two                    awards in his favor against  Cabletron as set                    forth in paragraphs (h) and (i).                    The substance of paragraph (l) is not explicitly stated          in any of the orders identified above.  Implicit in  those orders          and  the basis  on  which they  are  explained in  the  memoranda          referred  to,  however, is  an  assumption  that  the  awards  to          plaintiff Miller  overlap.  Because duplicative  collection would          be impermissible,  we conclude it is appropriate to interpret the          trial court's orders as  providing that Miller not be  allowed to          collect more than the  larger (i.e., the Title VII  award) of the                                         -10-          two awards against Cabletron.  See Part XIV, infra.                                         ___           _____                    On July 19, 1994, the district court awarded attorneys'          fees and disbursements to plaintiffs.  Thus, two more paragraphs,          as  stated below, may be added to reflect the entire substance of          a  final judgment that includes awards of attorneys' fees.  These          provisions,  we  note, might  have been  made  in a  later order,          rather than in the "final judgment" itself.  See Fed.  R. Civ. P.                                                       ___          54(d)(2).  These paragraphs are as follows:                         (m)    judgment  for   plaintiff  Scarfo                    against defendants Cabletron and  Benson, for                    attorneys'  fees  and  disbursements, in  the                    amount   of    $244,255.13   (consisting   of                    $225,300.13  incurred for services of one and                    $19,955 incurred for services of the other of                    two firms that represented her);                         (n)    judgment  for   plaintiff  Miller                    against defendants Cabletron and  Benson, for                    attorneys'  fees  and  disbursements, in  the                    amount of $117,510.97.                    The Order of July 20, 1994,  which was the last of  the          series  of Orders  constituting  the functional  equivalent of  a          Final Judgment, also requires the addition of one more paragraph:                         (o)  Post-judgment  interest is  allowed                    on  the awards in  paragraphs (a),  (d), (h),                    (i), (m), and (n).                                         -11-                    Defendants-Appellants Cabletron and Benson  appeal from          the judgment entered  against them on multiple  grounds.  Insofar          as the judgment was in favor of the defendants, Plaintiffs-Cross-          Appellants Scarfo and Miller also appeal on multiple grounds.                                         -12-                                 II.  CLAIMS OF ERROR                                 II.  CLAIMS OF ERROR                              IN THE CHARGE TO THE JURY                              IN THE CHARGE TO THE JURY          A.   Defendants'   Appeal   from   Judgment   on   Scarfo's   Sex          A.   Defendants'   Appeal   from   Judgment   on   Scarfo's   Sex               Discrimination Claim               Discrimination Claim                    Defendants  ask us  to vacate  the judgment  for Scarfo          against  them  on  her  Title  VII  claim  because  of  erroneous          instructions to the jury.                    On  the  element of  causation  in  Scarfo's Title  VII          claim, the trial judge instructed the jury:                    Ms.  Scarfo may  prove her  claims; that  is,                    make  out a prima  facie case, in  one of two                    ways.  First she may  simply produce evidence                                          _______________________                    that her  gender was a factor which motivated                    the  defendants  in  making   the  challenged                    employment  decisions.   [Ms.  Scarfo h]aving                                             ____________________                    done so,  the defendants are  liable even  if                    _____________________________________________                    they  would  have  made  the  same  decisions                    _____________________________________________                    absent  the  discriminatory motive.   Second,                    ___________________________________                    she  may  also establish  a prima  facie case                    without  direct  evidence  of  discriminatory                    intent by producing  indirect evidence  which                    is  sufficient to  raise  a presumption  that                    absent any other  explanation the  defendants                    acted for discriminatory  reasons.  She  need                    not  prove  that  Cabletron  acted  with  any                    discriminatory intent.                    We   conclude,  as   defendants   contend,  that   this          instruction  was  flawed  in  its  treatment  of  the  issue   of          causation.   The instruction  understated  plaintiff's burden  of          proof  as initially defined in McDonnell  Douglas Corp. v. Green,                                         ________________________    _____          411 U.S. 792 (1973), and further developed in later cases.                    Before  the trial  court charged  the jury,  defendants          filed  an  appropriate request  for  jury  instruction, correctly          stating  a rule of law  declared in Price  Waterhouse v. Hopkins,                                              _________________    _______          490 U.S.  228 (1989).   But defendants did  not object after  the                                         -13-          charge  was given  to the  jury, as  required by  Rule 51  of the          Federal Rules of Civil Procedure.                    To  what extent can the defendants now be heard on this          claim of error?  We return to this question in Part IV below.          B.   Defendants' Appeal  from Judgment on Scarfo's  Equal Pay Act          B.   Defendants' Appeal  from Judgment on Scarfo's  Equal Pay Act               Claim               Claim                    Defendants  ask us  to vacate  the judgment  for Scarfo          against them on her claim under the Equal Pay Act ("EPA") because          of erroneous instructions to the jury.                    Specifically, they  contend that the trial judge failed          to  give any instruction on causation or on statutory defenses to          liability.                    The  trial  judge's  instructions  on   the  EPA  claim          included the following:                    Ms.    Scarfo    alleges    that    Cabletron                    discriminated against her based on her sex in                    violation of the  federal Equal Pay  Act law.                    Ms.  Scarfo  need  not  prove  that Cabletron                    intended  to  discriminate against  her.   In                    comparing her  work  to that  of higher  paid                    men, Ms.  Scarfo need not show  that her work                    was  precisely equal,  but  only that  it was                    substantially equal.... Ms. Scarfo  need only                    show  unequal pay  as compared with  one male                    employee....  If you  find  that    Cabletron                    violated the Equal Pay  Act, she is  entitled                    to recovery for unpaid wages.                     The  special   verdict  form  submitted   to  the  jury          contained the following question:                    [D]o you  find that during the  course of Ms.                    Scarfo's employment Cabletron  paid her at  a                    lower  rate than  it paid  men who  performed                    jobs  requiring  substantially  equal  skill,                    effort   and  responsibility   and  involving                                         -14-                    similar working conditions?                    The jury was instructed to make a finding of damages if          they answered this question in the affirmative.                    Defendants   made   no  objection,   within   the  time          prescribed in Rule 51, either to the question on the verdict form          or to the  instructions.  Thus, they failed to  call to the trial          judge's  attention  the  alleged   lack  of  any  instruction  on          causation or on statutory defenses to Scarfo's EPA claim.                    We return to this alleged error in Part V, below.          C.   Plaintiff Scarfo's Appeal of Her Hostile Environment Claim          C.   Plaintiff Scarfo's Appeal of Her Hostile Environment Claim                    Plaintiff-Cross Appellant Scarfo argues on cross-appeal          that  the court's instruction on  her sexual harassment claim was          erroneous.                    The trial court instructed the jury as follows:                    In order to establish  a prima facie case for                    sexual  harassment  under  Title VII  of  the                    Civil Rights  Act,  [Scarfo] must  prove  the                    following  elements by a preponderance of the                               ________                    evidence. One,  she was subject  to unwelcome                    sexual  conduct.     Two,  unwelcome   sexual                    conduct was based upon [her] sex.  Three, the                    unwelcome  sexual conduct  was  so severe  or                    pervasive  that it had the effect of creating                    an    abusive   working    environment   that                                                             ____                    unreasonably   interfered   with   her   work                    _____________________________________________                    performance.                    ____________                    After the  jury charge was  given, plaintiff's  counsel          made an objection to the court as follows:                         In this instruction that was given, this                    wording on the elements that she has to prove                    the sexual  harassment claim has  the wording                    in  it  "that  unreasonably  interfered  with                    Plaintiff Scarfo's work  performance," and  I                                         -15-                    think the way it was read, that comes out  as                    sounding  like an  element  that she  has  to                    prove,  and the  Harris  case,  which we  had                                     ______                    requested instruction on, . . . [states that]                    that's one factor that can be considered, but                    it's not an element of her claim.                         And we had  requested . . . a  paragraph                    that was  not given  but that comes  from the                    recent Harris  case that says  that you don't                           ______                    have  to  have the  unreasonable interference                    with  work performance.  It can be harassment                    that affects the psychological well-being and                    detract[s] from  one's work and we would like                    to   have  that   instruction  given   and  a                    clarification that this isn't an  element she                    has to prove.                    We return to this matter in Part VI, below.          D.   Plaintiff Miller's Appeal of His Wrongful Discharge Claim          D.   Plaintiff Miller's Appeal of His Wrongful Discharge Claim                    Plaintiff-Cross Appellant Miller argues on cross-appeal          that the court's instruction on damages with  respect to Miller's          wrongful discharge claim was erroneous.                    There are three types of damages at issue in this case:          "pecuniary  damages," such  as damages  for economic  harm; "non-          pecuniary damages," such  as damages for pain  and suffering; and          "enhanced compensatory damages," claimed under New Hampshire law.          The parties do not  contest, and for present purposes  we assume,          that  "enhanced  compensatory  damages"  may be  awarded  in  the          discretion   of  the   jury  if   the  defendant's   conduct  was          particularly egregious.                    See, e.g., DCPB, Inc. v. City of Lebanon, 957 F.2d                    _________  __________    _______________               913 (1st Cir. 1992)(New Hampshire law).                    Miller  argues  that the  court  erred  in refusing  to          instruct the  jury on nonpecuniary damages.   Defendant Cabletron                                         -16-          asserts  that,  in  fact, the  court  did  instruct  the jury  on          nonpecuniary damages.                    We return to this matter in Part VII, below.                  III.  PROCESS, PRECLUSION, AND STANDARDS OF REVIEW                  III.  PROCESS, PRECLUSION, AND STANDARDS OF REVIEW                       FOR ALLEGED ERRORS IN CHARGING THE JURY                       FOR ALLEGED ERRORS IN CHARGING THE JURY                    Rule 51 of the Federal  Rules of Civil Procedure states          in relevant part:                    No party  may assign  as error the  giving or                    the  failure to  give  an instruction  unless                    that  party objects  thereto before  the jury                    retires  to  consider  its  verdict,  stating                    distinctly  the matter  objected  to and  the                    grounds of the objection.   Opportunity shall                    be  given to  make the  objection out  of the                    hearing of the jury.          Fed. R. Civ. P. 51.                    If a party  complies with Rule  51, then the  "harmless          error" standard of Rule 61 governs the trial or appellate court's          consideration  of any  request  for relief  based on  the alleged          error.   The court  is  directed not  to treat  as  a ground  for          granting a new trial,  or setting aside a verdict, or vacating or          modifying  a judgment or order,  any error or  defect or anything          done or omitted by the court                    unless refusal to take such action appears to                    the   court  inconsistent   with  substantial                    justice.   The  court at  every stage  of the                    proceeding must disregard any error or defect                    in the proceeding  which does not  affect the                    substantial rights of the parties.          Fed.  R. Civ. P. 61.  The  recent decision in O'Neal v. McAninch,                                                        ______    ________          115  S. Ct. 992 (1995), directs reviewing judges to inquire, when                                         -17-          determining whether  an alleged  error is harmless,  whether they          are "in  grave doubt about the  likely effect of an  error on the          jury's verdict,"  id.  at 994;  if the  court does  have a  grave                            ___          doubt, then the error must be held harmful.  A party who does not          timely  object in accordance with Rule 51, however, does not have          the  benefit of  review under  Rule 61,  either before  the trial          court (on a post-trial motion) or on appeal.                    If review is allowed at all  at the instance of a party          who did not comply with Rule 51, it is under a standard requiring          substantially  more than that the  party show that  the error was          harmful (the Rule 61  standard).  It has long been  settled that,          in general, an objection or request for jury instruction not made          in compliance with Civil Rule 51 cannot be raised successfully on          appeal.   Roto-Lith, Ltd.  v. F.P. Bartlett &  Co., 297 F.2d 497,                    _______________     ____________________          500  (1st Cir. 1962).   The rule has  been rigorously enforced in          this  circuit, and its clear language will be overlooked "only in          exceptional cases  or under  peculiar circumstances to  prevent a          clear  miscarriage of justice,"  Elgabri v. Lekas, 964 F.2d 1255,                                           _______    _____          1259  and n.1  (1st Cir.  1992), or  "where the  error 'seriously          affected  the  fairness,  integrity  or  public  reputation    of          judicial proceedings,'"  Lash v. Cutts,  943 F.2d  147, 152  (1st                                   ____    _____          Cir. 1991)  (quoting Smith v. Massachusetts  Inst. of Technology,                               _____    __________________________________          877  F.2d 1106,  1110  (1st Cir.),  cert.  denied, 493  U.S.  965                                              _____  ______          (1989)).                    A   rigorously   enforced   timeliness   principle   is          fundamental both to  fair process and to avoiding  adverse effect                                         -18-          on substantial rights of the parties.  Under such a principle,  a          clearly  defined  opportunity to  present  a  contention must  be          exercised  at a precisely defined time  in the trial proceedings.          It  is  a now-or-never  opportunity that  a  party must,  at that          precise time,  use or lose.   Cf.  Arenson v. Southern  Univ. Law                                        ___  _______    ___________________          Ctr., 43 F.3d 194, 198 (5th Cir. 1995) (invoking  the phrase "use          ____          it or  lose it" in relation to timeliness of motions for judgment          as  a matter  of law  and, alternatively,  for a  conditional new          trial).                    One of these contexts is the preparation of the  charge          to the  jury, including  the specific  phrasing of  any questions          submitted  to the jury.   The moment immediately  before the jury          retires  to  deliberate   is  a  time  when  hard  choices,  with          significant  consequences, must be made by the parties and by the          trial judge.  Interests  of fairness to each party  weigh heavily          in  favor of requiring that  every other party,  at this critical          moment, use  or lose any  right to  assert that  the trial  court          should change in some way the court's instructions to the jury on          the substantive law governing the case.   It is awkward to change          instructions after the jury has  commenced deliberating, and as a          practical  matter,  once  the   jury  has  been  disbanded  after          returning a verdict, it  can never be called back to  receive the          corrected charge that the  trial court might have given  if asked          at the right time to do so.                    Failure to exercise the right to  object to the court's          charge  at the critical moment  prescribed by Rule  51 results in                                         -19-          the loss of an  opportunity for review  under a standard no  more          burdensome for  the appellant  than the harmless  error standard.          Unless the reviewing court concludes that the charge has caused a          miscarriage of  justice or  has undermined  the integrity of  the          judicial process,  the  charge is  treated  as having  an  effect          closely  analogous to  law-of-the-case doctrine, and  for similar          reasons of policy and fairness of process.  Moore, slip op. at 6.                                                      _____                    The use-or-lose principle applies with special force to          mixed law-fact issues.  Cf. Cheshire Medical Ctr. v. W.R. Grace &                                  ___ _____________________    ____________          Co., No. 94-1687, slip op. at  21 (1st Cir. Mar. 6,  1995)(citing          ___          Chellman  v.  Saab-Scania AB,  637  A.2d  148, 151  (N.H.  1993))          ________      ______________          ("Clear  and  intelligible  jury  instructions  are  particularly          important to explain  complex or confusing legal concepts.").  If          the  trial  counsel  and the  trial  court  are  able to  fashion          interrogatories that disentangle law  from fact and ask the  jury          all  of  the  purely   fact  questions  that  are   essential  to          determining the outcome of  the case once the disputed  issues of          law are finally resolved, the rights of the parties to jury trial          can be protected even  though a final decision on  critical legal          issues is deferred to a later time.   If, however (either because          of a preference for doing so or because of  a sense that there is          no other practical option)  the trial court elects to  submit one          or  more mixed law-fact questions to the jury, full protection of          the  rights of the parties to have  their dispute resolved by the          jury to whom the  case is first submitted weighs  compellingly in          favor of  the conclusion that applying  the use-or-lose principle                                         -20-          is  essential to  fair  process and  a  just disposition  of  the          controversy.                    We conclude that no  party in this case is  entitled to          have  any  of  the alleged  errors  it  presents  in this  appeal          considered under the  harmless error  standard of Rule  61.   The          reason is that each appellant and cross-appellant now complaining          of some  aspect of  the  charge to  the jury  had  the right  and          opportunity  to state  its contention  to  the trial  judge after          completion  of the  judge's charge  (including the  trial judge's          modification of  the charge after hearing objections)  -- and did          not  use  it.   Having  failed to  make a  timely  objection, the          complaining party is entitled  to relief only to prevent  a clear          miscarriage of justice  or otherwise to preserve the integrity of          the judicial process.  In  most instances, nevertheless, we  have          determined in our review of the  record before us that we are not          in "grave  doubt," as defined in  O'Neal v. McAninch, 115  S. Ct.                                            ______    ________          992, and conclude instead that correction of jury instructions at          the  appropriate time would not have affected the verdict in this          case.  In each of those  instances, since we have determined that          the alleged error  was harmless,  it follows a  fortiori that  no                                                       ___________          miscarriage of justice has occurred.                    Before explaining the  relevant characteristics of  the          record before us that lead to our conclusion, we pause to explain          why two kinds  of precedents do not apply to  the kinds of claims          of  error before  us  here.   First,  an additional  standard  of          appellate review  was  invoked to  allow  new contentions  to  be                                         -21-          considered on the merits,  in "special circumstances," in Newport                                                                    _______          v. Fact  Concerts, Inc.  453 U.S.  247, 256  (1981).  That  case,             ____________________          however,  is easily  distinguished  from the  present appeal;  it          involved  equitable   relief   and  did   not   involve   alleged          infringements of the rights of parties,  in a case tried before a          jury, to have disputed fact questions finally decided by the jury          empaneled to try the case.                    The  second   kind  of  inapplicable  precedent   is  a          development under  the rubric  of "waiver."   In  criminal cases,          precedents  have  added  a  distinctive  element  to  procedural-          preclusion analysis  by recognizing that in  some instances, even          when the  court is satisfied  that "plain  error" was  committed,          still the  appealing party  may be  barred by circumstances  that          constitute "waiver."  In Olano the Court stated:                                   _____                    Waiver is different from forfeiture.  Whereas                    forfeiture is the failure to make the  timely                    assertion   of   a  right,   waiver   is  the                    "intentional relinquishment or abandonment of                    a  known  right." ...   Whether  a particular                    right is waivable; whether the defendant must                    participate personally in the waiver; whether                    certain procedures are  required for  waiver;                    and  whether the  defendant's choice  must be                    particularly   informed  or   voluntary,  all                    depend  on  the  right  at  stake....    Mere                    forfeiture,  as opposed  to waiver,  does not                    extinguish an  "error" under Rule  52(b) ....                    If  a  legal  rule  was  violated during  the                    District  Court  proceedings,   and  if   the                    defendant did not waive the rule, then  there                    has  been an  "error" within  the meaning  of                    Rule  52(b) despite  the absence of  a timely                    objection.          Marder, slip op. at 13 (quoting Olano, 133 S. Ct. at 1777).          ______                          _____                    Recently  a panel  of  this circuit  has observed  that                                         -22-          there  have been "conflicting signals" on the scope and nature of          a waiver.  See Marder, slip op. at 14 (comparing United States v.                     ___ ______                            _____________          Rojo-Alvarez, 944 F.2d 959, 971 (1st Cir. 1991); United States v.          ____________                                     _____________          Espinal,  757 F.2d  423, 426  (1st Cir.  1985); United  States v.          _______                                         ______________          Drougas, 748  F.2d 8, 30  (1st Cir.  1984); and United  States v.          _______                                         ______________          Kakley,  741 F.2d  1,  3 (1st  Cir.),  cert. denied,  741 F.2d  1          ______                                 _____ ______          (1984)).   Because in  this case  we have concluded  that we  are          satisfied that correction  of the errors called to  our attention          would not have  affected the verdict,  in any event, we  need not          consider whether "waiver" in  the Olano sense may be  extended to                                            _____          the civil context  (and might  then be an  additional reason  for          concluding that appellants  (and cross-appellants) cannot prevail          on this appeal).   "Forfeiture" in the Olano  sense is a  concept                                                 _____          quite similar  to principles underlying enforcement of timeliness          requirements.  We next  turn to applying those principles  to the          claims of error asserted in this appeal.                              IV.  ERROR IN INSTRUCTIONS                              IV.  ERROR IN INSTRUCTIONS                         ON SCARFO'S SEX DISCRIMINATION CLAIM                         ON SCARFO'S SEX DISCRIMINATION CLAIM                    As  noted  in  Part  II.A  above,  the  instruction  on          Scarfo's sex discrimination claim was flawed  in its treatment of          the issue of causation  because it understated plaintiff's burden          of proof.          Is the  effect of the error  so egregious as  to warrant reversal          even though  defendants did  not object  at the  time and  in the          manner prescribed by Civil Rule 51?  Because we conclude that the          jury  would  have  reached the  same  verdict  even  had it  been                                         -23-          properly instructed, the  error was harmless.   Thus, it  readily          follows that no  miscarriage of  justice or other  blight on  the          judicial process has resulted from the error.                    The  evidence  of  discrimination  is  powerful.     It          contains numerous examples of Cabletron's different treatment  of          Scarfo and her male  colleagues who were similarly situated.   On          the other hand, it is also true that some evidence  in the record          tends to  support defendants'  theory that Scarfo  was fired  for          legitimate  business reasons.   In  these circumstances,  we must          explain the evidence of record in somewhat greater detail.                    Of  course,  a  jury  is   not  required  to  credit  a          plaintiff's evidence, even if the evidence is uncontradicted, and          neither are we.   But a realistic assessment of the likelihood of          a different verdict in this case, had different instructions been          given,  depends  in part  on an  examination  of the  strength of          Scarfo's  evidence  and  the  findings  it  would  support.    We          summarize that evidence.                    The strongest evidence on record supporting defendants'          theory  was  the  review  of  Scarfo  by  Brian  Miller, Scarfo's          immediate supervisor  at Cabletron.    Miller's report  contained          several  positive  comments.    But  negative  remarks  regarding          Scarfo's management  and purchasing skills dominated  his review.          Miller  also   reported  internal  discipline  problems   in  the          purchasing department.                    The  evidence on  record supporting  plaintiff Scarfo's          theory, however, is overwhelming.                                         -24-                    First, Scarfo's requests to improve her department were          overlooked while the  same requests made by  her male replacement          were  granted.    After  Scarfo  was hired  as a  buyer and  then          promoted to purchasing  supervisor, she was  told that she  would          not be eligible for a raise until July 1988.  Scarfo continued to          receive a  buyer's salary, though she performed all the functions          of a  supervisor.  But in this position she was repeatedly denied          requests  to  hire additional  buyers,  train  staff, and  update          equipment so that she could focus on her managerial duties.                    After  Scarfo  was   terminated,  Justin  O'Connor,   a          purchasing  manager,  was  allowed  to  hire  additional  buyers,          upgrade equipment,  implement training programs,  and make  other          improvements that Scarfo  had previously been  refused permission          to make.  Further, unlike Scarfo, O'Connor was permitted to limit          his  buying responsibilities so that he could devote more time to          his managerial responsibilities.                    Second,  when  the  purchasing  department moved  to  a          larger  space, Scarfo  was  denied an  office  although her  male          colleague was given a  separate office.  Craig Benson,  the chief          operating officer at Cabletron,  did not want Scarfo to  have her          own office.  Benson, however, knew that Tim Jacobs, who was hired          with Scarfo, would have a separate office.                    Third,  Scarfo's business trip  expenses were carefully          examined.  In contrast,  the expenses of a male colleague who was          on  the  same trip  were  not questioned.    Specifically, Benson          examined Scarfo's expense vouchers  for a two-week business trip.                                         -25-          He  did not  review expense  vouchers of  Roger Lawrence,  a male          employee who went on the same trip and whose expenses were nearly          identical to those of Scarfo.                    Fourth, Benson singled out Scarfo to take the blame for          an over-purchase of circuit boards, although other employees were          involved with this transaction.   Scarfo had ordered the  boards,          but the boards  were subsequently  not needed.   Although  Benson          knew that others  besides Scarfo were responsible for  this over-          purchase, he  told Miller, "I don't like  being ripped off, and I          blame Jeanne Scarfo for this."                    Fifth,  Scarfo was treated  differently with respect to          stock  options.   Despite  Benson's explanation  that Scarfo  was          omitted from the stock option list and his promise that she would          be on the next list of stock recipients,  Scarfo, unlike her male          counterparts, never received any stock options.                    Sixth, in  addition to  the evidence of  these poignant          examples of disparate treatment, correlated with gender, there is          in the  record other strong  evidence of discrimination.   Scarfo          offered evidence that in April 1990, Benson told Miller to hire a          "guy"  for her  position, but  Miller refused.   Benson  said, "I          don't  care if you fire  or demote her, but I  want a guy in that          position." Approximately ten days later, Miller was fired.                    After Miller's  departure, Scarfo was demoted  to buyer          but was asked to continue to perform all management functions.                    In  October 1990,  when  Justin O'Connor  was hired  as          purchasing manager, Benson told  him that he did not  like Scarfo                                         -26-          and urged O'Connor to fire her.  Only ten days after he came onto          the  job, O'Connor wrote a  negative review of  Scarfo and placed          her on probation through February 1991.                    O'Connor terminated Scarfo on January 10, 1991, a month          before  the probationary period  expired.  His  reason for firing          Scarfo  was   her  failure   to  show   improvement.     In   the          circumstances, it would have been difficult  for O'Connor to make          a reasonable determination as to whether Scarfo's performance had          improved  because Scarfo's  time records  indicated that  she was          legitimately absent during her probation period.                    Taking  into account  the  weight of  this evidence  of          discrimination,  we   conclude  that   the  error  in   the  jury          instructions  on Scarfo's Title VII  claim was not  an error that          "seriously affected  the fairness, integrity or public reputation          of judicial  proceedings,"  Lash,  943 F.2d at  152, or caused  a                                      ____          miscarriage of justice, Elgabri, 964 F.2d at 1269.                                  _______                    We  conclude also  that no  other  basis exists  in the          circumstances of this case to  warrant an exception from applying          the use-or-lose  proposition stated in Rule 51  and explained, in          Part  III  of this  Opinion, as  a  principle aimed  at achieving          outcomes of jury trial that are fair and just on the merits.                           V.  SCARFO'S EQUAL PAY ACT CLAIM                           V.  SCARFO'S EQUAL PAY ACT CLAIM                    By instructing  the jury  that plaintiff merely  had to          show disparity of treatment  between the sexes and  not sex-based          discrimination, and by failing  to instruct on statutory defenses                                         -27-          included in the EPA, the trial court erred.                    The EPA reads in relevant part:                    No  employer  ...   shall  discriminate   ...                    between  employees  on  the basis  of  sex by                    paying wages to employees ...  at a rate less                    than the  rate at  which [the  employer] pays                    wages to  employees of the  opposite sex  ...                    for  equal work  on jobs  the performance  of                    which  requires  equal  skill,   effort,  and                    responsibility, and which are performed under                    similar working conditions, except where such                    payment  is made pursuant  to (i) a seniority                    system; (ii)  a merit system; (iii)  a system                    which  measures  earnings   by  quantity   or                    quality of production; or (iv) a differential                    based on any other factor other than sex.          29 U.S.C.   206(d).                    The  evidence  of  record  overwhelmingly   supports  a          finding for  plaintiff (even under  a legal standard  of intended          sex-based  discrimination,  had  the  instruction  so  required).          Defendants had the right  and opportunity to object to  the trial          court's instruction and tell  the trial judge how to  correct the          error.  As defendants did not use the right, we review the record          before us only for evidence of a miscarriage of justice.                    In  addition to  the  evidence summarized  in Part  IV,          above,  we note additional support  in the record  for the jury's          finding on the EPA claim.                    Scarfo's economic expert testified that he reviewed and          processed  Cabletron  data  on  pay  increments,  education,  and          employment  history.   His analysis  showed a  $14,000 difference          between  male   and  female   pay  for  Cabletron   managers  and          supervisors.  The program accounted for education and seniority.                    Further, the  evidence in  the record before  the jury,                                         -28-          and before us,  includes data  from personnel files  for men  and          women holding similar positions.   For example, at the  same time          Cabletron  hired Scarfo, it hired Tim Jacobs.  Unlike Scarfo, who          was paid a starting salary of $27,000, Jacobs was given the title          of supervisor and paid a starting salary of $35,000.                    Moreover, in 1990,  Cabletron hired Justin  O'Connor as          purchasing manager at a salary of $65,000.                    In  an   attempt  to  justify  this   pay  discrepancy,          defendants  call attention  to  evidence that  O'Connor had  more          education and  vastly greater experience than Scarfo.   Given the          strength of the evidence supporting the EPA claim, however, it is          very  unlikely that  the  jury would  have  returned a  different          verdict had the  error in the  instruction been corrected  before          they deliberated.                VI.  SCARFO'S APPEAL OF HER HOSTILE ENVIRONMENT CLAIM                VI.  SCARFO'S APPEAL OF HER HOSTILE ENVIRONMENT CLAIM          A.   The Form of Scarfo's Objection to the Charge and Request for          A.   The Form of Scarfo's Objection to the Charge and Request for               Instruction               Instruction                    Scarfo presents on appeal  a contention that she frames          as  a single  alleged error  in  the charge  to the  jury on  her          hostile environment claim.  In our  view, however, the contention          raises two  issues that,  though interwoven and  related, involve          distinct points,  neither of which  was clearly expressed  in the          objection before the trial court.                    First,   Scarfo  argues   that  the   court   erred  in          instructing  the  jury that  Scarfo  had  to prove  "unreasonable          interference  with her  work performance"  as an  element  of her                                                            _______                                         -29-          claim.                    Second, Scarfo  argues, at  least implicitly,  that the          court  should  have  instructed  that  in  order  to   show  such          interference, the  plaintiff  did  not need  to  prove  that  her          tangible productivity had declined,  but only that the harassment          so  altered her working conditions  as to make  it more difficult          for her to do the job.                    Defendants argue  that the  objection, quoted  from the          transcript  in  Part  II.C  above,  lacked  the  specificity  and          distinctness required by Rule 51 to preserve for appeal any issue          regarding the instructions to the jury on the hostile environment          claim.  See Fed. R. Civ. P. 51.                  ___                    We conclude that  the language of the objection is less          explicit than a well-crafted objection  should be.  Although  the          objection was  sufficient to inform  the trial court  that Scarfo          contended  she was entitled to a "factors" instruction as part of          the  Title VII charge, it failed to proffer a correct instruction          or  in any  other way  to explain  how the  alleged error  in the          charge  could  be  corrected.    Also,  the  objection  failed to          identify explicitly  the second of  the two issues  stated above,          and to explain how the alleged error could be corrected.                    Plaintiff  Scarfo's objection  thus fell  short of  the          clarity  and precision required to  alert the trial  judge to the          contentions  now advanced  on  appeal.   It  matters not  whether          Scarfo  had by that time  formulated the contentions  as they are          now  argued   (rather  than  developing   them  through   further                                         -30-          reflection during  later proceedings,  either in the  trial court          after verdict,  or on appeal).  In any event, the trial court was          not alerted to the contentions now advanced.                    We  discuss the  two  related but  separable issues  in          turn.          B.   "Unreasonable Interference" As a Factor, Not an Element          B.   "Unreasonable Interference" As a Factor, Not an Element                    Plaintiff  Scarfo  says that  the  court  erred in  its          instruction  to the  jury  that the  plaintiff  must prove  by  a          preponderance of  the evidence  an abusive work  environment that          "unreasonably  interfered with her  work performance."  Plaintiff          argues, citing Harris, that "unreasonable interference" was not a                         ______          separate  element of the claim  (failure to prove  which would be                    _______          fatal  to the claim),  but only a  factor to  be considered along          with all other relevant factors in determining whether an abusive          work environment had been proved.                    In Scarfo's favor,  we accept the point that  the terms          "element" and "factor",  as they appear in  judicial opinions and          commentaries, often signify a key difference between two types of          legal tests prescribed by law,  for use by decisionmakers (juries          or  judges), in determining whether the  evidence in a particular          case satisfies the requirements for a legal theory (of a claim or          defense).                    One  type   of  legal  test  prescribes   two  or  more          "elements"  of  a  claim or  defense.    Each  "element" must  be          satisfied.   Failure  to  satisfy  any  one  among  two  or  more                                         -31-          "elements" is fatal  to the claim or defense  for which the legal          test was prescribed by law, even if all other elements are proved          beyond doubt.                    The other  type of  legal test  prescribes that two  or          more "factors" are to be weighed and evaluated in making a single          "evaluative"  determination  that takes  account  of  all of  the          evidence  bearing on  all  of the  "factors."   Weakness  of  the          showing of one factor, or  even total failure to show it,  is not          fatal;  a strong  showing as  to other  factors may  outweigh the          deficiency.                    Whatever the  law may  have been previously,  Harris v.                                                                  ______          Forklift Sys., 114 S.  Ct. 367 (1993),  leaves no doubt that  the          _____________          legal test prescribed by Title VII, as interpreted by the Supreme          Court, is, in part at least, a factors-type test.                    Whether  an  environment   is  "hostile"   or                    "abusive"  can be determined  only by looking                    at all the  circumstances, which may  include                    the frequency of the  discriminatory conduct;                    its  severity;  whether   it  is   physically                    threatening   or   humiliating,  or   a  mere                    offensive    utterance;   and    whether   it                    unreasonably  interferes  with an  employee's                    work  performance....   [W]hile psychological                    harm, like any other  relevant factor, may be                    taken  into  account,  no  single  factor  is                    required.          Id.  at  371.   Thus,  that  discriminatory conduct  unreasonably          ___          interferes  with  the  plaintiff's  work performance  is  not  an          element,  proof of  which  is  essential,  but  a  factor  to  be          _______                                            ______          considered  in determining  whether  an  "abusive"  or  "hostile"          environment has been proved.                    The legal test set  forth in Harris is in  fact neither                                                 ______                                         -32-          entirely  an  "elements"  test  nor entirely  a  "factors"  test.          Instead, the Harris test has both elements and factors within it.                       ______          First,  it is comprised of several "elements" -- each alone fatal          to  the claim if not satisfied.   One of these "elements" is that          the work environment was "hostile" or "abusive."                    Second, the test (or "sub-test," one may prefer to say,          to distinguish between the overall test and the internal test for          one  "element") for determining whether one of the "elements" has          been satisfied is a  "factors" type of test.   More specifically,          one  of  the  elements  of  the Harris  test  is  proof  that the                                          ______          environment  in  which  the  plaintiff worked  was  "hostile"  or          "abusive."   And the test  (or sub-test) for  determining whether          this  "element"  has been  satisfied in  a  particular case  is a          "factors"  test.   The  passage from  Harris, quoted  immediately                                                ______          above, identifies  both of these two characteristics of the legal          test set forth by the Court in that case.                    This  reading of the  Opinion for a  unanimous Court is          reinforced by the Concurring Opinions  of both Justice Scalia and          Justice Ginsburg.  Justice Scalia noted that                    "[o]ne  of  the  factors  mentioned   in  the                    Court's  nonexhaustive  list  -- whether  the                    conduct   unreasonably  interferes   with  an                    employee's  work performance -- would,  if it                    were made an  absolute test, provide  greater                    guidance to juries and  employers.  But I see                    no  basis  for  such   a  limitation  in  the                    language of the statute.          Id. at 372 (Scalia, J., concurring).  Justice Ginsburg, using the          ___          word  "dominantly" rather  than an  absolute or  conclusive term,          also  recognized  that   "unreasonable  interference  with   work                                         -33-          performance" was  not alone  decisive  as to  whether an  abusive          environment exists.           [T]he                                        adjud                                        icato                                        r ' s                                        inqui                                        r   y                                        shoul                                        d                                        cente                                        r   ,                                        domin                                        antly                                        ,  on                                        wheth                                        e   r                                        t h e                                        discr                                        imina                                        tory                                        condu                                        c   t                                        h a s                                        unrea                                        sonab                                        l   y                                        inter                                        fered                                        with                                        t h e                                        plain                                        tiff'                                        s                                        work                                        perfo                                        rmanc                                        e.          Id. at 372 (Ginsburg, J., concurring).          ___                    Thus,  the trial court's  instruction was  incorrect in          stating  that  "unreasonable[e]   interfere[nce]  with  her  work          performance"  was  an   absolute  requirement  for   showing  the          existence of a hostile or abusive work environment.                    The problem  is that plaintiff Scarfo  did not properly          preserve  this  issue  for   appeal  because  plaintiff  Scarfo's                                         -34-          statement to the trial court of the grounds of her objection  was          deficient in several ways.                    First,  it  was  susceptible  of being  interpreted  as          saying that the Harris test is entirely a "factors" test.  It did                          ______          not  acknowledge  that the  Harris test  is  in some  respects an                                      ______          "elements" test,  one element being that the work environment was          hostile or abusive.  Thus, the trial judge was not alerted to why          his use of the language of an "elements" test in the charge might          be error because  of the particular  way he used it,  even though          language such as his would be  proper and even essential as  part          of an entirely correct instruction.                    Second, the  objection did not  correctly formulate the          Harris "element" over which there was dispute and satisfaction of          ______          which must  be  determined by  a  "factors" test  (or  sub-test).          Thus, even  if the trial judge  understood plaintiff's contention          that some  aspect, at  least, of  the overall  Harris test  was a                                                         ______          "factors" test  (or sub-test) for deciding  whether one "element"          was satisfied, still the objection did not formulate that element          clearly enough to tell the trial judge how to correct the alleged          error  in  his  instruction.   That  "element,"  as  now  clearly          formulated  on appeal,   is  not "unreasonable  interference with          work performance."  It is, instead, that the work environment was          hostile or abusive.                    In general, objections to a trial judge's charge to the          jury must be clear enough  and explicit enough to tell the  trial          judge what  the party wishes the  trial judge to say  in order to                                         -35-          correct the alleged error.                         See Linn v.  Andover Newton  Theological                         ___ ____     ___________________________                    Sch.,  Inc., 874  F.2d 1 (1st  Cir. 1989)("If                    ___________                    there is a problem with the instructions, the                    judge must be told precisely what the problem                    is,  and  as importantly,  what  the attorney                    would consider a satisfactory cure.").          For the reasons stated above, we conclude that plaintiff Scarfo's          objection  was not sufficient to preserve the issue for appeal in          accordance with Rule 51.   Since the plaintiff  failed to make  a          timely objection, we will reverse or award a new trial only if we          determine,  based on  our review  of the  record, that  the error          resulted in a miscarriage  of justice or "seriously affected  the          fairness,  integrity   or  public  reputation  of   the  judicial          proceedings."  Lash v. Cutts, 943 F.2d at 152.                         ____    _____                    It  is  true  that  the  court's  explanation  of  what          constitutes a "hostile or  abusive environment" did not precisely          conform  with Harris.    Harris, however,  does  not prescribe  a                        ______     ______          particular instruction  on what constitutes a  hostile or abusive          work  environment.  Rather, it  clearly implies that  its list of          factors is nonexhaustive.                         See Harris, 114 S.  Ct. at 371 ("Whether                         ___ ______                    an environment is "hostile" or  "abusive" can                    be  determined  only by  looking  at  all the                    circumstances,   which    may   include   the                                     _____    ___   _______                    frequency of the discriminatory  conduct, its                    severity    . . . .")(emphasis added).          We have  no basis  for concluding now  -- if,  indeed, Scarfo  is          asking  us to  do so  -- that  the jury  interpreted  the court's          instruction to mean that "unreasonable interference" was the only          factor they were allowed to consider in determining the existence                                         -36-          of a hostile or abusive environment.  Also, we have  no basis for          determining  that   the  jury,  in  deciding   whether  the  work          environment  was hostile or abusive, did not consider, as part of          their  understanding of  the  instruction, factors  such as  "the          frequency  of the  discriminatory  conduct; its  severity;  [and]          whether it is physically threatening."  Id.  We  conclude that it                                                  ___          is  very  unlikely  that the  jury,  if  it  had been  instructed          correctly, would  have returned  a different verdict.   Thus,  no          miscarriage of justice occurred.                    In  summary, we  are left  with no  good reason  not to          apply the use-or-lose principle in view of the lack of clarity of          the objection made by Scarfo at the time prescribed by Rule 51.          C.   Meaning of "Unreasonable Interference With Work Performance"          C.   Meaning of "Unreasonable Interference With Work Performance"                    Plaintiff-Appellant  Scarfo  raises  a second,  related          issue  with  respect to  the  court's instruction  on  her sexual          harassment  claim.  She  argues that the  court's instruction was          erroneous  because  it  required  the   jury  to  find  that  the          plaintiff's work  performance was inadequate  and that  harassing                                            __________          discriminatory conduct was a cause of that inadequacy.  Plaintiff          asserts  on  appeal that  she never  intended  to prove  that the          quality  or quantity of her work performance declined as a result          of her treatment; the plaintiff's theory of her case was that she          continued to perform well  despite the sexual harassment.   Thus,          she contends that the court's instruction precluded the jury from          considering her theory that the discriminatory conduct  adversely                                         -37-          affected  her  work  conditions,  but  not  the  quality  of  her          performance.                    Was Scarfo's objection to the trial court sufficient to          alert the court to the refinement of her theory of  the case that          she now argues before us?                    The relevant portion of her objection stated:                    And we  had requested in our Jury Instruction                    22 a  paragraph that  was not given  but that                    comes from  the recent Harris case  that says                    that you don't have to have the  unreasonable                    interference with  the work performance.   It                    can be harassment that  affects psychological                    well-being and detract[s] from one's work and                    we would like to have that instruction given                     . . . .                    Plaintiff's counsel's  use  of the  phrase  "detract[s]          from one's work" was not sufficient to apprise the trial court of          the  plaintiff's  contention that  there  was no  decline  in her          productivity and instead only a  hostile or abusive alteration of          her working conditions,  over which she had  the wit and will  to          triumph, thus performing up to full productivity.                         See United States v.  Slade, 980 F.2d 27                         ___ _____________     _____                    (1st  Cir.  1992)(passing  allusions are  not                    adequate to preserve an  argument in either a                    trial or appellate setting);                         Linn, 874 F.2d at 5.                         ____          Although  plaintiff-cross-appellant's brief in  this court points          to Justice Ginsburg's discussion of this issue in her concurrence          in Harris v. Forklift, Justice Ginsburg's discussion was not  the             ______    ________          subject of  any of the  plaintiffs' proposed instructions  in the          trial  court.   Plaintiff's  proposed  Jury  Instruction 22  does          include a paragraph from  the Opinion for the unanimous  Court in                                         -38-          Harris, but that paragraph does not speak to this issue.          ______                    The  trial judge  could not  be expected  to glean  the          substance  of  the present  argument  from  plaintiff's counsel's          statements and requests.   Thus, the  plaintiff failed to  object          specifically on this ground as required by Fed. R. Civ. P. 51.                    Plaintiff Scarfo correctly  notes that Justice Ginsburg          made a statement in  her concurrence in Harris that  supports the                                                  ______          argument plaintiff now makes.                    To  show  such  interference, "the  plaintiff                    need not  prove  that  his  or  her  tangible                    productivity has declined as a  result of the                    harassment."   It  suffices to  prove  that a                    reasonable    person     subject    to    the                    discriminatory  conduct  would  find, as  the                    plaintiff did, that the harassment so altered                    working  conditions  as  to  "make   it  more                    difficult to do the job."          Harris   v.  Forklift,  114   S.  Ct.   at  372   (Ginsburg,  J.,          ______       ________          concurring)(quoting Davis  v. Monsanto  Chem. Co., 858  F.2d 345,                              _____     ___________________          349  (6th Cir. 1988), cert.  denied, 490 U.S.  1110 (1989)(a case                                _____  ______          concerning race-based discrimination)).   But it is also relevant          that  Justice   Ginsburg's   explanation  of   the   meaning   of          "unreasonable  interference"  was neither  expressly  adopted nor          disavowed by the Opinion for the unanimous Court.                    For the  reasons  stated  below,  we have  no  need  to          decide,  and refrain from deciding,  whether, had a more explicit          objection been made, the trial court should  have adopted Justice          Ginsburg's interpretation of "unreasonable interference with work          performance."                    Even  if we assume that the quoted passage from Justice                                         -39-          Ginsburg's concurrence is also the view of the Court, we conclude          that  plaintiff Scarfo has not met her  burden of showing that an          exception to  the use-or-lose  principle should be  invoked here.          The  trial court's instruction  on plaintiff's  sexual harassment          claim did not elaborate  on the phrase "unreasonable interference          with work  performance."  That  instruction did not  preclude the          jury  from  considering the  theory  of her  case  that plaintiff          Scarfo now emphasizes  -- the theory that her  working conditions          had been unreasonably altered even though her performance was not          affected.    Justice  Ginsburg's  concurrence treats  the  phrase          "interference with the plaintiff's work performance" as including          an alteration of the  working conditions that makes it  harder to          do  the job.  Nothing in any  of the opinions in Harris suggests,                                                           ______          as  plaintiff now  does  on  appeal,  that  this  phrase  can  be          interpreted  to mean only a tangible decline in productivity.  In                               ____          addition,  the  plaintiff  has  not  shown   any  basis  for  our          concluding that the particular instruction at issue in this case,          either as a whole or in part, gave the jury the impression that a          tangible decline in productivity  was something the plaintiff was          required to prove as an element of her claim.                    Viewed another way, plaintiff's  argument on appeal  is          that the  trial court  should have  given an instruction  stating          that the plaintiff can  prove unreasonable interference with work          performance either (1) by proving that the discriminatory conduct          would cause the quality or quantity of a reasonable person's work          to decline  and the plaintiff's  work did so  decline; or (2)  by                                         -40-          proving  that a  reasonable person,  subjected to  the harassment          that she proved, would  find, and the plaintiff did so find, that          the harassment so altered  working conditions as to make  it more          difficult  to  do  the job.    If  Scarfo  thought that  such  an          instruction would  have been helpful to  the jury's understanding          of her claim, Scarfo had the right and opportunity to make such a          request.    No  such request  was  made  at  the critical  moment          prescribed by Rule 51.          D.   Plaintiff Scarfo's Argument  That the  Evidence Compelled  a          D.   Plaintiff Scarfo's Argument  That the  Evidence Compelled  a               Finding for Her               Finding for Her                    Appellant  Scarfo  argues,   alternatively,  that   the          evidence  in support  of her  claim of  sexual harassment  was so          overwhelming as to compel a verdict in her favor.                    We do not reach the merits of her contention,  however,          because she  did not  preserve the issue  for appeal.   She could          have preserved the  issue by moving for  judgment as a matter  of          law under Rule 50,  or by moving for a  new trial under Rule  59.          See Wells Real Estate v. Greater Lowell Bd. of Realtors, 850 F.2d          ___ _________________    ______________________________          803, 810 (1st Cir.), cert. denied, 488 U.S. 955 (1988) (waiver of                               _____ ______          the right  to  request  judgment as  a  matter of  law  does  not          preclude a party from moving for a new trial).  Her failure to do          either is fatal to her appeal on grounds of sufficiency or weight          of the evidence, as was made clear in Wells.                                                _____                         We  do   not  reach  the  issue  of  the                    sufficiency of  the  evidence .  . .  because                    plaintiff's  counsel  failed  to move  for  a                    judgment notwithstanding the  verdict in  the                    district  court.     Therefore  we  have   no                                         -41-                    decision of the district court to consider. .                    . .  Appellate review may be obtained only on                    the specific ground stated  in the motion for                    directed verdict. . . .                         A  federal  appellate   court  may   not                    reverse  for insufficiency of the evidence in                    the  absence   of  an  unwaived   motion  for                    directed verdict. . . .                                        . . .                         The authority  to grant  a new trial  is                    confided almost  entirely to the  exercise of                    discretion on  the part of the  trial court .                    . . .                         Where  . . . the district court's ruling                    would  call into play a discretionary matter,                    peculiarly  appropriate  for  that court,  it                    becomes more  important  to bring  the  error                    first  to that  court's attention.   Thus,  a                    motion  for new  trial  must be  made in  the                    first  instance  before   the  trial   court,                    particularly where the weight of the evidence                    is at issue.          Wells, 850 F.2d at 810-11 (citations and quotations omitted).          _____                    See  also Havinga  v.  Crowley Towing  and Transp.                    ___  ____ _______      ___________________________               Co., 24 F.3d 1480, 1483 n.5 (1st Cir. 1994);               ___                    Vel zquez v. Figueroa-G mez,  996 F.2d 425, 426-27                    _________    ______________               (1st Cir.), cert. denied, 114 S. Ct. 553 (1993);                           _____ ______                    Pinkham v. Burgess, 933  F.2d 1066, 1070 (1st Cir.                    _______    _______               1991).                    Appellant clings  to our statement in  Sampson v. Eaton                                                           _______    _____          Corp.,  809  F.2d 156,  161 (1st  Cir.  1987), that  a post-trial          _____          motion  is not always required  to preserve an  issue for appeal.          She  maintains that  we should  review her  appeal because  it is          based  solely on a  contention of law.   The only  strictly legal          question raised by her  appeal on the harassment claim,  however,          is the propriety of the jury instruction.  We have addressed that          matter in Part VI.B and VI.C, supra.                                        _____                                         -42-                    Her alternative argument that  the evidence compelled a          verdict in  her favor  -- although  a contention  "of law" --  is          plainly  based  on  assertions  about the  "sufficiency"  of  the          evidence.  This kind of contention is controlled by Wells.                                                              _____                    Appellant also argues that a substantial policy  reason          mitigates against  a conclusion that  she has failed  to preserve          her          contention for appeal.  She maintains that if this court requires          every party to  file a motion for new trial  as a prerequisite to          appeal,  then even  parties who  prevail on  all of  their claims          except one -- and decide against appealing the minor loss -- must          move for a new trial in anticipation of filing a cross-appeal  if          the  other  party  should  appeal.   Such  post-trial  procedure,          appellant  urges us  to  conclude, would  unnecessarily clog  the          docket.                    Appellant  first raised  this  policy  argument in  her          reply brief, affording  appellees no opportunity to respond.   In          any  event, it  is unconvincing.   At  least  where, as  here, no          satisfactory   explanation  has  been  advanced  for  appellant's          failure to  seek a new trial, we  conclude that it is appropriate          for us  to take account  of the fact  that trial counsel  had the          opportunity to decide,  and may  in fact have  decided, that  the          potential costs of a new trial outweighed the potential benefits.          She  could  have  eased to  some  extent  the burdens  of  such a          decision at the post-trial stage, by moving for new trial only as          an alternative to a  motion for judgment as a matter  of law.  In                                         -43-          any event, it would  plainly be inconsistent with the  letter and          spirit  of Rule 59 to give her a second opportunity to seek a new          trial now when she did  not use the opportunity available to  her          at the time prescribed by Rule 59.                    We have also considered  whether the recent decision in          Lebr n v. National R.R.  Passenger Corp., 115 S. Ct.  961 (1995),          ______    ______________________________          might  salvage Scarfo's right to  complain of this  error at this          time.   We conclude that it does not, for reasons that apply also          to  another claim of error (one advanced by defendant Benson), as          explained in Part IX, infra.                                _____                       VII.  MILLER'S WRONGFUL DISCHARGE CLAIM                       VII.  MILLER'S WRONGFUL DISCHARGE CLAIM                    Miller  argues  that the  court  erred  in refusing  to          instruct  on nonpecuniary  damages.   Cabletron responds  that in          fact  the court did instruct on this subject.  The record reveals          good reason for confusion over this matter.                    During  a  colloquy  with  counsel before  the  closing          arguments, the court stated its intention to instruct the jury on          "enhanced compensatory damages," and not to instruct the jury  on          "nonpecuniary damages."  Miller's  counsel objected at this point          to the  omission of an  instruction on nonpecuniary  damages, and          the court  expressly restated  its intention  not to instruct  on          nonpecuniary damages.                    Miller's counsel, in  reliance on  the court's  ruling,          argued  in  his  closing  that  the jury  should  award  enhanced          compensatory damages.  Miller's counsel did not argue to the jury                                         -44-          that it should award nonpecuniary damages.                    When  the  court instructed  the  jury  just after  the          closing arguments, it instructed on nonpecuniary damages, but did          not instruct the jury on enhanced compensatory damages.  This was          the opposite of the court's previously stated intention.                    After the  court's instruction  in  this way,  Miller's          counsel  objected -- ostensibly, to apprise the court of the fact          that  the  court's  instructions   had  varied  from  its  stated          intention.  Miller's counsel  requested that  "the Court  reverse          those two consistent with what you described this morning."  This          statement  can reasonably  be  interpreted as  a  request for  an          instruction  on  enhanced  compensatory  damages  to  replace the                                                                _______          instruction  on nonpecuniary  damages.  Thus,  Miller's counsel's          statement arguably indicated to the judge that Miller had changed          his position since his original request.                    Following  this colloquy,  the court  re-instructed the          jury  on  the wrongful  discharge claim.    This time,  the court          instructed the jury on enhanced compensatory damages, but did not          withdraw its  earlier instruction on nonpecuniary  damages, or in          any other way mention nonpecuniary damages.  No further objection          was made by Miller's counsel.                    It  is not  clear from  the record  whether  the second          instruction was intended to substitute for the first instruction,                                      __________          or  was intended  as  an  additional  instruction.    The  latter                                    __________          interpretation  is supported by the form of the verdict, in which          the jury  was instructed  to answer special  questions, including                                         -45-          the damages questions referred to below.                    The  jury awarded  Miller  $995,000 in  damages on  the          wrongful discharge claim,  but awarded no "enhanced  compensatory          damages."   See  Jury Verdict,  Questions 4 and  5.   Although no                      ___          question on the verdict form specifically addressed "nonpecuniary          damages,"  Question 4,  which  refers to  damages generally,  may          reasonably  have  been  construed by  the  jury  to include  both          pecuniary and nonpecuniary damages.                    In  these  circumstances,   the  instructions  and  the          verdict  form did not preclude the jury from considering an award          of   nonpecuniary  damages  in   accordance  with   the  original          instruction,  and the jury's award of  $995,000 may have included          such  an award.    Thus,  the  verdict  form  together  with  the          instructions does not conclusively demonstrate that, as plaintiff          Miller  urges,  the  jury was  not  instructed  on  the issue  of          nonpecuniary damages.                    Even  if  we were  to conclude  that  the jury  was not          instructed on nonpecuniary damages, counsel's failure  to object,          after the  "substitute" instruction was given, is  an obstacle in          the  way  of  Miller's  asserting  error  with  respect  to  this          instruction  on appeal.   Moreover,  Miller's  counsel's apparent          reversal of his  position -- although arguably intended merely to          apprise the court of its inconsistency -- weighs against allowing          Miller to assert his original position on appeal.                    In addition  to these  obstacles is another.   Although          plaintiff argues that the availability of nonpecuniary damages in                                         -46-          a  wrongful  discharge  action  is an  open  question,  defendant          Cabletron  argues that  nonpecuniary  damages  are not  available          under New Hampshire state law in a wrongful termination case.                    See Monge v.  Beebe Rubber Co., 316 A.2d 549 (N.H.                    ___ _____     ________________               1974)(noting   that   nonpecuniary   damages  are   not               available  in  contract  actions,  and  holding  in the               context of a wrongful termination claim based on breach               of  contract that  the  plaintiff had  not proved  such               damages).          Since the most that  can be said for Miller is that this issue is          an open question under New Hampshire state law, it is not certain          that the trial court's  charge, in whatever way it  is construed,          was contrary to New Hampshire law.                    In   these  circumstances,   we   conclude   that   the          controversy over  this potentially disputable issue  of state law          has not been properly preserved for decision on this appeal.  The          error, if any, did not result in a miscarriage of justice.                        VIII.  CABLETRON'S AND BENSON'S APPEAL                        VIII.  CABLETRON'S AND BENSON'S APPEAL                         OF MILLER'S WRONGFUL DISCHARGE CLAIM                         OF MILLER'S WRONGFUL DISCHARGE CLAIM                    Appellants  Cabletron  and  Benson  ask  this court  to          vacate that part of the district court's judgment making an award          to  plaintiff  Miller on  his claim  under  state common  law for          wrongful  termination.   Appellants  argue that  we should  do so          either on the ground that New Hampshire would not permit a common          law  claim for  wrongful  discharge or  on  the ground  that  the          district court improvidently exercised supplemental jurisdiction.                    Appellants also ask that we set aside the damages award          and  remand the case for a new trial with appropriate guidance to                                         -47-          the district court on  the scope of damages.  This is in effect a          reiteration  of  the argument  that  the  jury should  have  been          instructed under  New Hampshire statutory law  rather than common          law because,  as  appellants concede,  the  principal  difference          between the two  -- at least in the context of this case -- is in          the scope of the remedies available.                    Alternatively, appellants ask  that this court  certify          the determinative  question  of  state  common  law  to  the  New          Hampshire Supreme Court.                    Appellants contend that  this claim  should never  have          been submitted to  the jury because New  Hampshire's human rights          laws,  see N.H. Rev. Stat.  Ann.   354-A,  provides the exclusive                 ___          remedy  for  a  claim  of  retaliatory  discharge  based  on  sex          discrimination.  Appellee Miller responds that appellants did not          properly  preserve the issue for  appeal and that,  in any event,          the cited statute does not provide an exclusive remedy.                    Appellants acknowledge that they never  objected to the          court's instruction  to the jury on the question of damages.  The          first time appellants gave the trial judge notice of the argument          now  advanced on  appeal was  in a  post-judgment motion  seeking          various  forms of relief, including vacatur of judgment and a new          trial.                    Appellants  contend  that  they  raised  the  issue  of          statutory   exclusion   of  common   law   remedies   for  gender          discrimination  in a  motion for  summary judgment.   Appellants,          however, did  not "squarely and distinctly,"  see Rivera-G mez v.                                                        ___ ____________                                         -48-          de Castro, 843 F.2d 631, 635 (1st Cir. 1988), raise on the merits          _________          in their motion for  summary judgment the issue of  the exclusion          by statute of a common law wrongful termination remedy for gender          discrimination.   Moreover, even if we were to hold that they had          done so, still,  in seeking relief from this court  they face the          obstacle that they failed to move on this ground,  under Rule 50,          for judgment as a matter of law at the close of the evidence.  In          view of  this failure to bring the matter to the attention of the          trial court after the close of the evidence at trial, their claim          of error  on this  ground is  not available  for  review under  a          standard  as  favorable  to  appellants  as  the  harmless  error          standard.    See  Eastern   Mount.  Platform  Tennis  v.  Sherwin                       ___  __________________________________      _______          Williams, 40 F.3d 492, 497 (1st Cir. 1994).          ________                    Even if the damages award for Miller's  state law claim          was based on  a legal premise  that may not  be the way  this New          Hampshire substantive-law  issue is eventually resolved,  at some          future time, it does not follow that the judgment based upon that          legal premise was a  miscarriage of justice.  The  only prejudice          that appellants purport to show was an award of damages for pain,          suffering, and mental  anguish that, they argue,  is precluded by          the   absence  of   nonpecuniary  damages   from   the  statutory          specification of exclusive remedies.  Even were we to accept this          assertion, and  hence conclude  that plaintiffs were  not legally          entitled to  damages for pain, suffering, and mental anguish, the          point remains that the record contains evidence of other elements          of damages -- evidence more compelling than any evidence of pain,                                         -49-          suffering,  and anguish.   Nor  is there  any showing  that pain,          suffering, and  anguish were  emphasized by Miller  in presenting          his claims  to  the jury.    Finally,  there is  some  doubt,  as          explained above, see Part VII, whether the jury could be expected          to  understand the charge  as instructing  that they  could award          damages  for  pain and  suffering.   At  best, the  suggestion of          prejudice is quite speculative.                    For these  reasons, we  do not consider  on the  merits          appellants'  argument  for vacating  that  part  of the  judgment          making an award to  Miller on his claim for  wrongful termination          under state common law.  Nor do  we give further consideration to          certifying  a question to the Supreme Court of New Hampshire when          appellants are procedurally barred from raising on the merits the          very issue on which they seek certification.                    We also do not  consider whether we should vacate  this          part  of the  judgment  on the  ground  that the  district  court          improvidently  exercised  supplemental jurisdiction.   Appellants          did not  brief this  issue on  appeal, see Brown  v. Trustees  of                                                 ___ _____     ____________          Boston  University,  891 F.2d  337,  352 (1st  Cir.  1989), cert.          __________________                                          _____          denied, 496 U.S. 937 (1990), and in any event are  precluded from          ______          raising the issue by  their failure to object to  the instruction          on the wrongful termination claim.               IX.   DEFENDANT BENSON'S APPEAL OF THE TITLE VII CLAIMS               IX.   DEFENDANT BENSON'S APPEAL OF THE TITLE VII CLAIMS                    Appellant Benson  asks this  court to vacate  the Title          VII  liability findings against him  in favor of  both Scarfo and                                         -50-          Miller  and  to determine  that  the district  court  should have          dismissed the Title VII claim against him because, as a matter of          law, an individual cannot be liable under Title VII.                    Benson  squarely  raised this  issue  in  a motion  for          summary  judgment  filed  against  plaintiff  Miller.   Appellant          Benson concedes that he did not seek summary judgment against the          other plaintiff, Scarfo,  on this ground.   He contends,  though,          that  the district  judge's  later  consolidation of  plaintiffs'          cases and express  order that the defendants'  motion for summary          judgment in the Miller case be  transferred to the main case  and          considered re-filed  in that case, rendered  the summary judgment          motion applicable to plaintiff Scarfo.  We decline to accept this          contention.     To  accept  it  would  imply  that  it  would  be          appropriate to enter summary judgment  against a party who  never          had  explicit notice  that  her opponent  had  moved for  summary          judgment   against  her.     Therefore,   we  consider   Benson's          contentions  only as  they apply  to his  appeal of  the judgment          against him for his retaliatory firing of Miller.                    After  the  trial  court  denied  Benson's  motion  for          summary judgment  as to  Miller's claim  of individual  Title VII          liability,  Benson did  not raise  the issue  again in  the trial          court on a Rule 50 motion for judgment as a matter of law.  Thus,          the claim of error by  the trial court in concluding, as  a basis          for   denying  summary   judgment,  that   Miller  may   be  held          individually liable is not available for  review under a standard          as favorable to appellants  as the harmless error standard.   See                                                                        ___                                         -51-          Eastern Mount. Platform Tennis, 40 F.3d at 497.          ______________________________                    The instruction on Benson's individual  liability under          Title VII  may or may not  have been erroneous.   The trial judge          made  clear that  on this  point he  was adopting  the view  of a          district court of  this circuit,  and arguably the  view of  some          circuits, over the plainly  contrary view of other circuits.   As          was true  of the issue of  municipal liability under  42 U.S.C.            1983 in Newport v. Fact Concerts,  Inc., 453 U.S. 247 (1981), the                  _______    ____________________          court's interpretation  of the  "contours of  . .  . [individual]          liability under" Title VII  in this case "hardly could  give rise          to plain judicial error  since those contours are currently  in a          state of evolving definition and uncertainty."  Id. at 256.                                                          ___                    In these circumstances, this ruling of law by the trial          court,  to which no objection  was taken until  after verdict, is          closely analogous to, if not precisely within, the concept of the          law of the case.  See Moore v. Murphy, No. 94-1974, slip op. at 6                            ___ _____    ______          (1st Cir. Feb. 1, 1995).  See also Part III, supra.                                    ___ ____           _____                      X.  STANDARDS OF REVIEW OF DAMAGES AWARDS                      X.  STANDARDS OF REVIEW OF DAMAGES AWARDS                    With respect  to  plaintiffs'  Title  VII  claims,  all          parties  stipulated before  trial that  the jury  would determine          liability and the court would calculate damages, if necessary.                    With  respect to  plaintiff  Miller's  claim under  New          Hampshire state  law for wrongful discharge,  the jury determined          both liability and damages.  Similarly, with respect to plaintiff          Scarfo's  claim under the Equal Pay Act, the jury determined both                                         -52-          liability and damages.                    The district  court, in its calculation  of damages for          the Title VII claims, made certain findings of  fact as the basis          for the awards.  This court sets aside such findings only if they          are "clearly erroneous."  Fed. R. Civ. P. 52(a).                    This court  may, however, modify  an award made  by the          district court when the record is sufficiently developed that the          Court  of  Appeals  can  apply  the  law  to  the  trial  court's          factfindings on the record and calculate the proper award without          resorting to remand.   Cf. Lipsett v.  Blanco, 975 F.2d  934, 943                                 ___ _______     ______          (1st  Cir.  1992)(modifying  an  award  of  fair  and  reasonable          attorneys'  fees when  the trial  court made  a legal  error with          respect to the method of calculation).                    Parts XI-XV  of this Opinion explain  our resolution of          the distinct issues that various defendants raise with respect to          the amounts of the several awards.                XI.   PLAINTIFF SCARFO'S PRINCIPAL CLAIMS FOR DAMAGES                XI.   PLAINTIFF SCARFO'S PRINCIPAL CLAIMS FOR DAMAGES          A.  The Components of Scarfo's Claims          A.  The Components of Scarfo's Claims                    Plaintiff  Scarfo was  awarded  damages on  two of  her          claims:  the Title VII sex discrimination claim and the Equal Pay          Act claim.  We discuss each of these awards in turn.  To  aid the          reader  in understanding the  damages analysis, we  note that the          following  dates  are  relevant  to Plaintiff  Scarfo's  damages.          Plaintiff Scarfo was terminated  on January 10, 1991.   Plaintiff          Scarfo  filed a claim  with the EEOC  on March 6,  1991 and filed                                         -53-          this  civil action with the court below  on October 8, 1991.  The          first of the Orders that, together, constitute the final judgment          in this case was entered on May 10, 1994.               1.  Title VII Claim               1.  Title VII Claim                     The damages  awarded to plaintiff Scarfo  by the trial          court  for her successful Title VII claim consist of three types:          back pay, front pay, and  damages for the value of  stock options          that plaintiff did not receive as a result of the discrimination.                    The  court awarded  plaintiff  Scarfo $1,187,901.07  in          damages for the  Title VII  violation (consisting of  the sum  of          $242,407.07  in back pay, $744,744 in front pay, and $228,750 for          the value of stock, reduced by the jury's award of $28,000  under          the Equal Pay Act).                    The  term back pay  refers to lost  wages commencing on          the date two years before the plaintiff's filing with the EEOC to          the date of judgment.  Front pay refers to damages for wages from          the date of judgment to some specified date in the future.                    The back pay and front pay damages awarded by the trial          court are to  some extent  overlapping and must  be modified  for          reasons explained in Part XI.C below.               2.  The Equal Pay Act Claim               2.  The Equal Pay Act Claim                    The jury  awarded plaintiff  Scarfo $28,000  in damages          for  defendant Cabletron's violation of  the Equal Pay  Act.  The          trial court instructed the jury that                     Under the  Equal Pay Act,  Ms. Scarfo's award                    of unpaid wages is limited to a period of two                                         -54-                    years   prior  to  filing  this  lawsuit  and                    extending  until  her termination  unless she                    proves by  a  preponderance of  the  evidence                    that the violation was  willful.  If you find                    that  Cabletron  acted  willfully,  then  Ms.                    Scarfo may  recover unpaid wages for a period                    of  three years prior  to filing this lawsuit                    and extending until her termination.          Cf. 29 U.S.C.   155.          ___                    We  have  no need  to  decide,  and thus  refrain  from          deciding,  whether  this  instruction  on the  law  was  accurate          because neither party  objected to the  instruction at trial  and          neither has raised the issue before this court.                    The special verdict form  does not indicate whether the          jury found that  the defendant's  violation was  willful.   Thus,          assuming,  as  we  must,  that  the  jury  followed  the  court's          instructions,  the jury's  award represents  the damages  for the          time span from October 8 of either 1988 or  1989 up to January 10          of 1991, when plaintiff Scarfo was terminated.                    Neither  plaintiff  Scarfo   nor  defendant   Cabletron          challenges the jury's award  under the Equal Pay Act  of $28,000.          There is a  lack of  clarity in the  briefs and record,  however,          about  whether this recovery is  in addition to  the recovery for          violation  of Title VII.   We discuss this  issue in Parts XI.A.3          and XI.E below.               3.   Combining to a Nonduplicative Total               3.   Combining to a Nonduplicative Total                    The award under Title VII is to some extent duplicative          of the award under the Equal Pay Act.                    Apparently  to avoid  a duplicate  recovery, the  trial                                         -55-          court  subtracted the jury's award  of $28,000 for  the Equal Pay          Act  violation  committed by  Cabletron  from  the court's  total          calculation of $1,215,901.07  (consisting of $242,407.07 in  back          pay, $744,744 in front  pay, and $228,750 for the  value of stock          options) in  damages  for the  Title VII  violation committed  by          Cabletron and  Benson, resulting in what the court determined was          the total Title  VII award  of $1,187,901.07  against Benson  and          Cabletron.                    Thus, under the  final judgment entered in  the case by          the  court  below,  defendants  Cabletron and  Benson  were  held          jointly and severally liable for  $1,187,901.07 for the Title VII          violation and Cabletron was held liable for an additional $28,000          for the Equal  Pay Act  violation.  Since  Benson was not  liable          under the Equal  Pay Act,  there is a  problem about  subtracting          $28,000  from  the  award  against Benson  to  avoid  duplicative          recovery.  We address this problem in Part XI.E below, along with          the need for other modifications.                    Defendants  Cabletron and  Benson raise  arguments with          respect to all three components of  Scarfo's Title VII award.  We          discuss each component in turn.          B.   Awards to Scarfo for Back Pay          B.   Awards to Scarfo for Back Pay                    As stated above, the court awarded Scarfo  back pay for          the  Title  VII  claim  in  the  amount  of  $242,407.07  (before          reduction by $28,000 for the Equal Pay Act award).                    Title VII  permits an  award of back  pay starting  two                                         -56-          years before the date of the filing of plaintiff's complaint with          the EEOC  (two years before March  6, 1991) up until  the date of          judgment.   42  U.S.C.    2000-5(g).   Thus, plaintiff  Scarfo is          entitled to back pay  from March 6, 1989  to May 10, 1994.   From          March 6, 1989  to the date of her termination,  January 10, 1991,          the damages represent the  amount that she was underpaid  because          of discrimination on the basis of her sex.  From January 10, 1991          to May 10,  1994, damages  represent the amount  she should  have          been paid,  if she had  not been terminated  on the basis  of her          sex.                    The court  performed  a detailed  set  of  calculations          based  on   evidence  admitted   at  trial  and   awarded  Scarfo          $242,407.07 in back pay  (before reduction to avoid duplication).          See Addendum to Court's Order of May 9, 1994.  These calculations          ___          separate  the time  period for  back pay  into the  relevant sub-          periods  and use the salary  rate of an  arguably equivalent male          employee  (as a proxy for what plaintiff Scarfo would have earned          in the  absence of discrimination)  to calculate the  damages for          each day  of each sub-period.  Although  defendants raise several          arguments with  respect to these calculations,  we determine that          the  court's findings of fact are not "clearly erroneous" and the          method  of performing  the  calculations was  in accordance  with          applicable law.                    In  particular,  the  defendants  criticize  the  trial          court's use of the salaries of two other Cabletron employees, Mr.          O'Connor  and Mr. Jacob,  in the calculations.   Defendants argue                                         -57-          that the trial court erred in comparing plaintiff Scarfo to these          two   employees  because   these   two   employees  had   greater          responsibilities at  Cabletron.  This argument  fails because the          trial court  reasonably could have determined  that Scarfo either          had  a similar level of  responsibility or would  have been given          similar responsibilities but for discrimination.                    The  court calculated  damages  up until  May 4,  1994,          only, instead of May 10, 1994.  No party, however, has raised any          issue on appeal regarding this  period of approximately one week,          and  we do  not disturb  the trial  court's calculations  in this          respect.          C.  Scarfo's Front Pay Award          C.  Scarfo's Front Pay Award                    The court awarded Scarfo  $744,744 as front pay.   In a          Title  VII case, the court has discretion to award front pay from          the date of judgment  forward when reinstatement is impracticable          or impossible.                    See Goss v.  Exxon Office Sys. Co.,  747 F.2d 885,                    ___ ____     _____________________               890 (3d  Cir. 1984)("The award of  future lost earnings               in Title VII cases is an alternative to the traditional               equitable remedy of reinstatement.");                    Cf. Wildman  v. Lerner  Stores, 771 F.2d  605 (1st                    ___ _______     ______________               Cir. 1985)(court has same discretion to award front pay               under the Age Discrimination in Employment Act).          This court will disturb  a trial court's front pay award  only if          we conclude that the  trial court abused its discretion,  or that          findings  of  fact  on which  the  award  was  based are  clearly          erroneous.                    The  trial  court, in  its Order  of  May 10,  made the                                         -58-          finding  that  plaintiff  Scarfo  did  not  have  "the  option of          returning  to  her  former  position at  Cabletron."    Defendant          Cabletron  does not  challenge  this finding,  nor is  it clearly          erroneous.                    The  court  also  found  that plaintiff  Scarfo  "is  a          displaced  worker  and  will   be  unable  to  find  professional          employment in the future."    Although defendants  challenge this          determination,  the  record shows  that  the  court heard  expert          testimony on the  likelihood that plaintiff Scarfo  would be able          to find an  equivalent job with the  same earning potential.   In          light of the evidence that  she had only a ten percent  chance of          returning to full employment at an equivalent salary, the court's          finding  that   Scarfo  will  be  unable   to  find  professional          employment in the future is not clearly erroneous.                    Defendants  also argue  that  the  "court imported  the          erroneous  concept of displaced worker into the case."  The court          did  not explain the meaning  of "displaced worker,"  nor has our          attention been  called to  any published  opinion that  uses this          terminology in the Title  VII context.  In any  event, regardless          of  the  terminology used,  plaintiff  Scarfo's  ability to  find          similar  employment in the future  is relevant both  to the trial          court's decision to  award front  pay and to  the calculation  of          such an award.  The  trial court did not abuse its  discretion in          awarding front pay to the plaintiff.                    In calculating  Scarfo's  front pay  award,  the  court          adopted  the   calculations   of  plaintiff's   expert   witness.                                         -59-          Defendants do not dispute that these calculations were admissible          and  were  adequately  explained   by  the  expert's  report  and          testimony; rather, they now question merely the weight  the court          gave to this  evidence by  pointing out concessions  made by  the          expert during the cross-examination.  The defendants' contentions          fail  because  the choice  by the  court,  as factfinder  for the          purpose of calculating damages,  to give probative weight  to the          expert's calculations was not clearly erroneous.                    In another respect, however, we conclude that the court          erred  in adopting  and  using  the  expert's calculations  as  a          measure of front pay.  The expert's calculation of damages in the          amount of  $973,494, which the  court adopted for  Scarfo's front          pay award,  was for a period  commencing on January 1,  1991.  As          stated above, "front pay"  usually refers to an award  for future          salary payments starting  on the  date of the  judgment, in  this          case, May  10, 1994.  Since  the court, in addition  to its front          pay award, also awarded back pay for the time period up until the          date of the  verdict on  May 4, 1994,  plaintiff Scarfo  obtained          duplicate damages for  the period from January 1, 1991  to May 4,          1994.                    "[T]he law  abhors duplicative recoveries.   That is to          say,  a plaintiff  who  is injured  by  reason of  a  defendant's          behavior is,  for the most part, entitled to be made whole -- not          to be enriched."  Dopp v. HTP Corp., 947 F.2d 506, 516 (1st  Cir.                            ____    _________          1991).  The court adopted the expert's calculations for the front          pay award  and performed  its own calculations  to determine  the                                         -60-          back pay award.   Thus, the amounts of the front pay and back pay          awards  representing the period from  January 1, 1991  to May 10,          1994  are different  because  the expert  and the  court employed          different  methods to  calculate damages.   To  avoid duplicative          recovery, plaintiff Scarfo's combined  total of Title VII damages          should be reduced either by the amount the court  awarded as back          pay for the  period from January 1, 1991  to May 10, 1994,  or by          the amount the court ordered as front pay for that same period.                    For  two  reasons  we   choose  the  latter  method  of          determining the measure of the duplication that must be  avoided.          First,  unlike  the court's  calculations  for  that period,  the          expert's calculations  include social security  contributions and          fringe benefits.  Therefore, the amount derived from the expert's          calculations is a larger amount than the amount calculated by the          court for that period.  Thus, it is more consistent with our goal          of modification only as  needed to avoid duplicative  recovery to          decrease  the  total award  by the  smaller  amount, that  is the          amount  the  court  calculated  for back  pay  for  that  period.          Second,  since  the expert's  calculations  were  computed on  an          annual  basis and  the court's  calculations were  computed on  a          daily basis, using the  back pay measure calculated by  the court          for the period from January 10, 1991 to May 10, 1994 makes for an          easier and more precise calculation of the duplication.                    As stated above,  the trial court calculated  plaintiff          Scarfo's Title VII damages to be $1,215,901.07 (before adjustment          for  the Equal Pay Act  award) consisting of  $242,407.07 in back                                         -61-          pay, $744,744 in  front pay, and $228,750 for  the value of stock          options.   The portion of the court's back pay award attributable          to the period for January 1, 1991 to May 10, 1994 is $224,013.12.          Thus, to avoid  duplication, we reduce the court's calculation of          Title VII damages by  $224,013.12, resulting in a back  pay award          of $18,393.95  ($242,407.07 less $224,013.12), and a total sum of          Title VII  damages (before  adjustment with respect  to Cabletron          for  the  Equal Pay  Act  award)  of  $991,887.95, consisting  of          $18,393.95  for the period up  to January 10,  1991, $744,744 for          the period  commencing January  10,  1991, and  $228,750 for  the          value of stock options.  Both defendants Cabletron and Benson are          jointly and severally liable  for this amount.  This  amount does          not include the adjustment (discussed below in Part XI.E) for the          jury's Equal Pay Act award against Cabletron only.          D.   Scarfo's Damage Award for Stock Options          D.   Scarfo's Damage Award for Stock Options                    The court  awarded damages to plaintiff  Scarfo for the          value  of stock  options she would  have received if  she had not          been discriminated against on the basis  of sex.  The court found          that Scarfo would have been given options to purchase 2500 shares          of stock at a purchase price of $15.50.  The court found that the          value  of the stock was $107.00 per  share around the time of the          trial  and  awarded Scarfo  $228,750  in  damages ($107.00  minus          $15.50 times 2,500).                    Defendants raise only one argument with respect to this          damages award;  they say  that Scarfo is  barred from  recovering                                         -62-          these damages on the  basis of res  judicata.  Before filing  the          civil  action in federal court,  Scarfo filed an  action with the          New Hampshire Department of Labor.  In that action, the plaintiff          sought  to  recover compensation  under  N.H. Rev.  Stat.  Ann.            275:51.                    See N.H. Rev. Stat. Ann.   275:51 (authorizing the                    ___               Commissioner of the  New Hampshire Department of  Labor               to hold  hearings to enforce the  provisions of certain               New Hampshire labor laws).          The  Department  of  Labor  determined, inter  alia,  that  stock                                                  _____  ____          options were  not "compensation"  and thus not  recoverable under          N.H. Rev. Stat. Ann.   275:51.                    In  her amended  complaint  to the  trial court  below,          Scarfo sought to recover lost wages and stock options on a breach          of contract theory.   The district judge dismissed the  breach of          contract claim on the basis of res judicata because it stated the          same cause of action the  plaintiff had already adjudicated under          N.H. Rev. Stat. Ann.   275:51.                    Defendants assert that because the plaintiff was barred          from recovering  damages  for stock  options  under a  breach  of          contract theory,  the plaintiff should be  barred from recovering          damages for stock  options under a  Title VII sex  discrimination          theory.  This argument lacks merit.  Under defendants' reasoning,          the  plaintiff would be barred  from recovering any  type of lost          compensation (including  wages) under Title VII,  because she had          adjudicated a breach of  contract claim for lost wages  and other          compensation in  the Department of  Labor proceedings.   But  res          judicata bars causes  of action, not types of damages recoverable                                         -63-          under  some  other  claim  not  subject  to  adjudication  in the          tribunal rendering the judgment.                    See In Re Alfred P., 126 N.H. 628, 629 (1985)("The                    ___ _______________               doctrine of res judicata  precludes the litigation in a               later  case of matters  actually litigated, and matters               that could  have been  litigated, in an  earlier action               between  the  same  parties   for  the  same  cause  of               action.").          Plaintiff's Title VII cause  of action is  not the same cause  of          action as  her breach of  contract action; it  requires different          elements  to be proved.  These different elements were not tried,          and could not have been tried, in the New Hampshire Department of          Labor  hearings.  Thus, plaintiff Scarfo's Title VII claim is not          barred by res judicata.                    Since  the defendants  raise  no  other arguments  with          respect to the  trial court's award of $228,750 for  the value of          stock options not received by plaintiff Scarfo, we do not disturb          the trial court's award.          E.   Avoiding Duplication of the Equal Pay Act Award          E.   Avoiding Duplication of the Equal Pay Act Award                    As   described  above,   the  trial   court  originally          calculated  Title  VII  damages   to  be  $1,215,901.07.    Then,          recognizing  the need  to avoid  duplicative recovery,  the court          subtracted $28,000 for the Equal Pay  Act claim.  Thus, under the          final  judgment  entered  by  the  court  (as  gleaned  from  the          collection of Orders referred to in Part II, supra) Cabletron was                                                       _____          held liable  for $1,187,901.07  for the  Title VII  violation and          $28,000 for the Equal Pay Act violation.                    Defendants argue  that the  court erred  in subtracting                                         -64-          the Equal  Pay  Act award  from  the back  pay  component of  the          court's Title  VII award.  We  agree that the method  used by the          trial court to avoid duplicate recoveries was at  best confusing,          if not erroneous, for two reasons.  First, the back pay component          of the Title VII damages award and the jury's Equal Pay Act award          represent  damages  for different  time  periods.   Second,  only          defendant Cabletron  (and not  defendant Benson) is  liable under          the  Equal Pay  Act.   Thus,  we  make the  following  additional          adjustment.                    In Part XI.C above, our modification of the total Title          VII damages resulted in a calculation of Title VII damages in the          amount of $991,887.95.   The remaining question before us  is how          appropriately to modify this  award to avoid duplicative recovery          by plaintiff Scarfo.                    The  portion   of  our   modified  Title   VII  damages          calculation representing damages from March 6, 1989 to January 1,          1991 is  $18,393.95.  The  jury's Equal Pay Act  award of $28,000          represents damages for the  same injury, namely discrimination in          pay on the  basis of sex, for a period  commencing either October          8, 1988 or October 8, 1989 and extending to January 10, 1991, the          date  of her termination.   Thus, regardless of  whether the jury          found willfulness, these time periods overlap to some extent.                    We consider separately the two cases (the two different          periods, and as a result the two different methods of calculation          to avoid an overlap).                    If  the jury found wilfulness, the EPA award of $28,000                                         -65-          represents the period from  October 8, 1988 to January  10, 1991.          This time period is  longer than, and includes entirely  the time          period  of March 6,  1989 to January  1, 1991,  for which damages          were  calculated  at   $18,393.95.    Thus,  if  the  jury  found          wilfulness, the appropriate way  to avoid duplicative recovery is          to  reduce the  Equal  Pay  Act  award  by  $18,393.95,  so  that          Cabletron is liable to  plaintiff Scarfo for $991,887.95  for the          Title VII violation and an additional $9,606.05 for the Equal Pay          Act violation.                    If  the jury did not find wilfulness, the Equal Pay Act          award  of $28,000 represents the  period from October  8, 1989 to          January 10,  1991.  This is  a shorter time period  than the time          period from March 6, 1989 to January 1, 1991 for  which the judge          awarded $18,393.95.  If we could determine that  the jury did not          find wilfulness,  the more accurate  adjustment we could  make to          avoid duplicative recovery would  be to reduce the Equal  Pay Act          award  by  $12,367.55,   the  amount  of  the  Title   VII  award          representing damages from October 8, 1989 to January 1, 1991.                    Since  we  cannot  determine  whether  the  jury  found          wilfulness,  we   conclude  that  it  is   appropriate  in  these          circumstances  to  accept  the  reduction  of  $18,393.95  as  an          appropriate adjustment to avoid overlap (instead of the reduction          of $12,367.55).  If, in fact, the jury's award was not based on a          finding of wilfulness and accordingly  the appropriate adjustment          is a reduction  of $12,367.55,  then the  prejudice to  plaintiff          Scarfo is quite small (i.e., $6,026.40) in comparison either with                                         -66-          her  total  recovery or  with  the cost  to  her, as  well  as to          opposing parties and the public,  of a remand for a new  trial on          the sole issue of whether Cabletron's Equal Pay Act violation was          wilful.   Having failed to request an explicit jury finding as to          wilfulness,  Scarfo  is  in  no  position  to  complain  of  this          resolution of the issue.                    Thus,  after  the  reduction  of  $18,393.95  to  avoid          overlap, Cabletron is liable  to plaintiff Scarfo for $991,887.95          for the Title VII  violation and an additional $9,606.05  for the          Equal Pay Act violation.                    Since the Equal  Pay Act claim was  not brought against          defendant Benson,  Benson is liable  only for Title  VII damages.          In  accordance with the explanation  above, Benson is jointly and          severally  liable  to  Scarfo  for  Title  VII  damage  totalling          $991,887.95  consisting  of  $18,393.95  for  the  period  before          January 10, 1991; $744,744 for the period after January 10, 1991;          and $228,750 in stock options.                    We  emphasize that these  adjusted calculations are not          intended to alter the usual terminology and relevant time periods          for  damages under Title VII.   As explained  above, a successful          plaintiff  (one who  has  proved liability  under  Title VII)  is          entitled to back  pay for a Title  VII violation starting on  the          date two years before the plaintiff's EEOC  filing and continuing          until the date of judgment.  A court, in its discretion, may also          award front pay for a Title VII violation starting on the date of          judgment and continuing to some specified date in the future.                                         -67-                          XII.   PLAINTIFF MILLER'S DAMAGES                          XII.   PLAINTIFF MILLER'S DAMAGES                    The jury  found defendants Cabletron and  Benson liable          to plaintiff  Miller under  Title VII for  retaliatory discharge.          The  court  awarded  plaintiff  Miller $190,651.85  in  back  pay          representing lost compensation from the date of  his discharge to          the date of judgment.  The court awarded Miller $995,000 in front          pay purportedly  representing lost compensation from  the date of          judgment forward.  The court also awarded Miller $206,060 for the          value of stock  options that he  did not receive  because of  his          discharge.    These  three  calculations total  $1,391,711.85  in          damages for the Title VII violation.                    The defendants  raise no arguments with  respect to the          court's back pay award  of $190,651.85.  We discuss, in turn, the          defendants  arguments with respect  to the front  pay damages and          the damages for the value of the stock options.          A.   Miller's Damages for Front Pay          A.   Miller's Damages for Front Pay                    Defendants argue that the court's method of calculating          damages  for front  pay was  an abuse  of discretion.   The  jury          awarded   plaintiff  Miller  $995,000  in  damages  for  Miller's          wrongful  discharge claim  under  New Hampshire  state law.   The          court, for a reason not stated, assumed that this sum represented          damages  for front pay only.   Thus, the  court incorporated this          sum  of  $995,000  into the  court's  calculations  of  Title VII          damages as the damages for front pay.                    As  stated above, we review a court's decision to award                                         -68-          front  pay damages  under the  abuse-of-discretion standard.   We          conclude that  the defendants are  correct in asserting  that the          court's decision to use  the jury's figure of $995,000  for front          pay damages was an  abuse of discretion because the  jury's award          may have included some back pay, some amount for the value of the          stock options, and some amount as damages for pain and suffering.          Plaintiff  Miller, in  a post-trial  motion and  in his  brief as          appellee, agrees that the court erred in this respect.                    The  jury was  instructed  that if  it found  Cabletron          liable   on  the state  law wrongful  termination claim,  it must          consider two types of damages:                    First, you must determine the amount of wages                    and  fringe  benefits  he  would  have earned                    through  employment with  defendant Cabletron                    . . . if  he had  not been discharged  on May                    30th,  1990,  to  the date  of  your verdict.                    Second,  you must  determine  the  amount  of                    future   wages   and   fringe   benefits   he                    reasonably   would   have   earned   in   his                    employment with Cabletron if  he had not been                    discharged.          This instruction clearly  permits the jury to award both back-pay          damages  and front-pay damages.  The verdict form did not require          the jury to report the  two separately.  The $995,000 awarded  by          the  jury is reasonably interpreted as an award for both back pay          and  front  pay.   As  explained  above,  the  $995,000 may  have          included,  also, damages for pain and suffering.  Thus, the court          erred  in  using  the jury's  award  on  the  state law  wrongful          termination claim as the measure of front pay damages under Title          VII.                    At  trial, plaintiff  Miller's  expert  testified  that                                         -69-          $211,000  was  the  appropriate   award  for  front-pay  damages.          Plaintiff Miller  has asked  this court,  in correcting  for this          error, to reduce the award for front-pay damages from $995,000 to          $211,000, the  amount  calculated by  plaintiff Miller's  expert.          Defendants  Cabletron and  Benson  argue that  this court  should          vacate the entire  award for  front pay because  the trial  court          abused its discretion  in deciding  to make any  award for  front          pay.                    The court  below found that Miller  did make reasonable          efforts to  procure employment, but that the  courier business he          began in  1991 has not  yet made a  profit.  We  will not disturb          this finding of fact because the defendants have not shown it  to          be clearly erroneous.  From this finding, we infer that the court          also  found that  it was  impracticable for  Miller to  return to          Cabletron and that Miller  had made reasonable efforts to  find a          job with the  same earning capacity.  Miller is  thus entitled to          damages for front pay.  The court's determination that Miller was          entitled to an award of front pay was not an abuse of discretion,          and we will not disturb that determination.                    Plaintiff's proposal  to this  court that the  award be          reduced from $995,000  to $211,000  -- if the  proposal had  been          made  to and  accepted  by the  trial  court --  has  evidentiary          support in the testimony of plaintiff's expert.                    This court has authority to modify a damages award when          all the necessary factfindings have been made in the court below.          Cf.  Lipsett, 975  F.2d at  943 (modifying an  award of  fair and          ___  _______                                         -70-          reasonable attorneys'  fees when  the  trial court  made a  legal          error with respect to  the method of calculation).   Reducing the          award to  $211,000, however, as plaintiff  Miller requests, would          require this court to evaluate the credibility of the plaintiff's          expert and  to make a new finding of  fact, not made in the trial          court, that Miller is  entitled to $211,000 in damages  for front          pay.                    Since  we do not have the authority to make findings of          fact  in order  to modify the  award in  the manner  requested by          plaintiff, we vacate the front pay award.                    We  remand this  case  to the  district  court for  the          limited  purpose of  determining  an appropriate  amount for  the          front pay award.   The district court, on  remand, may allow  the          interested parties a reasonable time period within  which to file          with the district court  a stipulation resolving this issue  (for          example, a stipulation  such as Miller's  proposal to this  court          that his award for front pay be reduced to  $211,000 and judgment          be  entered accordingly).   If  no such  agreement is  filed, the          trial court is to determine the amount of the award to Miller for          front pay.  The trial court may find it appropriate to act on the          present record of evidence  and adopt the plaintiff's calculation          of $211,000 for  front pay.  It  may instead calculate front  pay          damages from the date of judgment (May 10, 1994) forward in  some          other  manner supported by the present record of evidence.  Also,          the court, in  its discretion  and for cause  shown, may  receive          additional evidence bearing upon this issue.                                         -71-          B.   Miller's Damages Award for Stock Options          B.   Miller's Damages Award for Stock Options                    During his employment, plaintiff  Miller was told that,          over a specific period of  time, he would be given stock  options          that  would allow  him to  purchase 10,000 shares  of stock  at a          purchase price of  $3.97 per  share.  During  his employment,  he          received  options to purchase only 2,000 shares.  During the time          period from the date of  his termination (April 20, 1990)  to the          date of judgment (May 10, 1994) Miller alleges that he would have          received options to  purchase 5,000 shares.   Miller also alleges          that within a month of the date of judgment, his right to options          with respect  to the  remaining 3,000  shares would  have vested.          Thus,  Miller's counsel  argued  to the  trial court  that Miller          should have been  awarded damages  for the value  of options  for          8,000 shares of stock.                    The court awarded plaintiff  Miller $206,060 in damages          for the  value of  2,000  shares of  stock.   The  court did  not          explain how  it determined the  number 2,000 to be  the number of          shares of stock.                    Defendants-appellants, in their brief on appeal, do not          dispute the facts, as alleged  by plaintiff Miller, regarding the          options  for  10,000 shares.    In  an effort  to  point out  all          potential errors made by  the district court in support  of their          argument that this court should vacate both awards entirely, they          argue that the trial  court erred in deciding to award Miller the          value  of 2,000 stock options.  Defendants suggest that the trial                    _____          court mistakenly  thought that Miller had  already received stock                                                             ________                                         -72-          options for 8,000  of the 10,000 shares, when,  in fact, this was          the amount he had not received because of his termination.                            ___ ________                    The  brief of  appellee  Miller agrees  that the  court          erred, and suggests (adopting defendants' reasoning in part) that          the  court  should  have  awarded $824,240,  the  value  of stock          options for 8,000 shares.                    The implications  of defendants' argument on appeal are          troubling.  They  have requested,  in the event  that this  court          does not  reverse the  liability determination on  Miller's Title          VII claim,  that this  court  set aside  Miller's entire  damages          award  and remand.   If the remand  were limited to  trial of the          issue of damages for the value of stock, however, the trial court          might award either the value of 5,000 shares of stock (the amount          vesting  before  the date  of judgment),  or  the value  of 8,000          shares of stock.   In  either case, the  probable consequence  of          retrying only this issue would be an additional liability, beyond          that  already awarded by the  trial court, of  either $309,090 or          $618,180 in favor of plaintiff Miller.                    Miller's  brief as  appellee  requests that  this court                                                                 ____          award  damages for the value  of stock options  for 8,000 shares.          Defendants  respond that we should not  grant this request (which          would increase the total  damages award) because plaintiff Miller          did  not appeal the award of damages in his cross-appeal; rather,          plaintiff Miller  raised this argument only in its appellee brief          responding to the defendants' appeal.                    We  refrain from  modifying the  judgment to  award the                                         -73-          value of 8,000 stock options because to do so would require  this          court  to  make  new findings  of  fact.   We  also  refrain from          remanding this issue to  the trial court for the  limited purpose          of determining an appropriate  award for the value of  lost stock          options because neither party has requested  that we do so.  Both          parties have  requested that  this court  take  actions that  are          beyond this  court's authority.   Since neither  party's position          has merit, we simply  affirm the trial court's award  of $206,060          for the value of stock options for 2,000 shares of stock.                             XIII.  PREJUDGMENT INTEREST                             XIII.  PREJUDGMENT INTEREST          A.  The Arguments of the Parties          A.  The Arguments of the Parties                    There is some confusion  both in the record and  in the          parties' briefs  about  whether  the  court  awarded  prejudgment          interest  on  any  part  of Scarfo's  damages  award  and whether          prejudgment interest,  if awarded,  was appropriate.   Defendants          argue  that the  court awarded  prejudgment interest  on Scarfo's          Title  VII  award, and  that this  was  error.   Plaintiff Scarfo          argues that the trial court refused to award prejudgment interest          on Scarfo's Title VII award.                    We  conclude from a review of the record that the trial          court  denied prejudgment interest on every  element of the award          to plaintiff Scarfo.   In  answer to  Question 6  of the  verdict          form, the  jury  answered "NO,"  finding  against Scarfo  on  her          prejudgment  interest claim.  By its Order  of July 20, 1994, the          court stated as to all of  Scarfo's claims, "Prejudgment interest          is disallowed."                                         -74-                    With respect to the  judgment for plaintiff Miller, the          defendants have not raised  on appeal any objection to  the trial          court's  award  of prejudgment  interest  on  Miller's state  law          wrongful  termination  claim at  the rate  of  10% per  annum, as          mandated  by N.H. Rev.  Stat. Ann.    524:1-b and    336:1.  With          respect  to Miller's  Title  VII award,  however,  there is  some          confusion  in  the  parties'  briefs about  whether  the  parties          understood  that the  court awarded  prejudgment interest  on any          part of the award.   The parties' briefs assume  that prejudgment          interest was awarded  on the entire Title  VII award.   From this          premise, the parties  dispute whether it was  appropriate for the          court  to award prejudgment interest  on the front  pay award and          the  portion of the back  pay award representing  damages for the          period from the date Miller's complaint was filed  to the date of          judgment.                    We  conclude from a review of the record that the trial          court allowed  prejudgment interest  on Miller's state  law claim          for wrongful  termination, but not on any aspect of his Title VII          claim.  In its answer to Question 6 of the verdict form, the jury          answered  "NO," thus  finding  against Miller  on  his claim  for          prejudgment interest.   But  in his Order  of July 19,  1994, the          trial  judge "abrogate[d]" that finding  insofar as it applied to          the state law claim for  wrongful termination and awarded  Miller          prejudgment  interest from the date of filing of the complaint to          the date of the verdict.                    Since, contrary  to the contentions of  the parties, we                                         -75-          have  concluded that  the trial court  did not  award prejudgment          interest on  plaintiff Scarfo's and plaintiff  Miller's Title VII          awards, the  only question remaining  is whether the  trial court          erred  by  denying prejudgment  interest  on all  aspects  of the          plaintiffs' Title VII awards.                    A   trial  court   has  discretion  whether   to  award          prejudgment interest on a successful Title VII claim.                    See Earnhardt v.  Puerto Rico, 744 F.2d 1,  3 (1st                    ___ _________     ___________               Cir. 1984)(in a Title VII case the question of "whether               [prejudgment  interest   is]  necessary  to   make  the               plaintiff   whole  is  within  the  discretion  of  the               district court").          In view of the discretion allowed the  trial court as to interest          on a Title  VII award, we conclude, in  the circumstances of this          case,  that the  trial  court did  not  abuse its  discretion  in          declining to award prejudgment interest  on the Title VII  award.          Thus,  as stated  below in  the Conclusion,  we affirm  the trial          court's  decision  not  to  award prejudgment  interest  on  both          plaintiffs' Title VII claims.          B.   Front Pay Awards          B.   Front Pay Awards                    For an  additional reason, we affirm  the trial court's          denial of  prejudgment interest on  the front  pay components  of          both  plaintiffs'   Title  VII  damages  awards.     Interest  is          ordinarily awarded  to  compensate for  the  lost use  of  funds.          Since  the  front  pay awards  represent  damages  for  wages the          plaintiffs would have received  in the future, after the  date of          judgment, the plaintiffs had  not lost use of these  funds before                                         -76-          the judgment was ordered.                    Cf.  Conway v.  Electro Switch  Corp., 523  N.E.2d                    ___  ______     _____________________               255,  258-59 (Mass.  1988)(prejudgment interest  is not               available under Massachusetts  law for awards of  front               pay   for   violations   of   a   Massachusetts   anti-               discrimination statute).          Moreover,  the plaintiffs'  experts,  in calculating  damages for          front pay,  correctly chose to discount  the amounts representing          the plaintiffs' future wages  at an appropriate interest  rate in          order  to determine  the present  value of  the future  stream of          income to which each plaintiff would have been entitled.                    Thus, as stated in the Conclusion below, we affirm  the          trial court's  denial of  prejudgment interest  on the  front pay          components of plaintiffs' Title VII awards.          C.   Awards for the Value of Stock Options          C.   Awards for the Value of Stock Options                    In  this   case,  defendants  argue   that  prejudgment          interest should not be awarded on the value of the stock options,          since the amount of damages  was based on the price of  the stock          on or near the date of  judgment.  If the plaintiffs had received          the stock options  at the time due and had  not transferred them,          the plaintiffs would have  been in possession of shares  of stock          having the value equal to the  purchase price plus the amount  of          damages.   Thus, the damages awards for the stock options already          represent the present  value of the stock options  at the date of          judgment.  We conclude  that an award of prejudgment  interest is          not  necessary   to  compensate  the  plaintiffs.     Although  a          reasonable argument may  be made that prejudgment interest  is an                                         -77-          appropriate remedy for the loss of dividends that would have been          paid to plaintiffs if  they had been in  possession of the  stock          during  the period  to which  they were  entitled to  it, neither          party has argued  this proposition.   Since both plaintiffs  have          conceded either  explicitly (in Miller's case)  or implicitly (in          Scarfo's case, to the extent she argues that prejudgment interest          was not even awarded)  that prejudgment interest on the  value of          the  stock options is not appropriate, we refrain from addressing          the  argument  that  prejudgment   interest  may  be  awarded  as          compensation for lost dividends.                    Thus, defendants and plaintiffs agree  that prejudgment          interest  was inappropriate on the damages  for stock options and          we affirm the trial court's denial of prejudgment interest on the          stock options components of plaintiffs' Title VII awards.                       XIV.   MILLER'S CHOICE OF DAMAGES AWARDS                       XIV.   MILLER'S CHOICE OF DAMAGES AWARDS                    The  orders   of  the  district  court   that  we  have          determined to  be the functional  equivalent of a  final judgment          are  silent,  and thus  perhaps  ambiguous, with  respect  to the          effect of the  overlap between the judgment  for plaintiff Miller          on  the jury  finding  of  damages  in  the  state  law  wrongful          termination claim and  the judgment for  plaintiff Miller in  the          court's findings of  damages in  the Title VII  claim.   Separate          awards  were made  for these  two claims,  but nothing  is stated          explicitly about whether and to what extent, and with what effect          on collectibility,  the elements  of harm for  which damages  are                                         -78-          awarded under the two claims overlap.                    None  of  the  parties   brought  this  matter  to  the          attention of the trial court.  Each party may have been reluctant          to  do so for fear  the ambiguity would  then be resolved against          it.   Having chosen  instead to argue  their respective positions          only  on appeal, however, no party  is in a favorable position to          seek an award  of costs of appeal.   We award no costs  of appeal          and cross-appeal  from the  judgment of the  district court  with          respect to Miller's claims.                    To    eliminate   any   uncertainty,   we   state   our          determination  of   the  meaning   of  the  judgment,   with  the          modifications we order.                    Plaintiff Miller  prevailed on  two claims:   his state          law  claim  for wrongful  discharge  against  Cabletron (and  not          Benson) and his federal Title VII claim for retaliatory discharge          against Cabletron and Benson.                    Plaintiff Miller was awarded $995,000  with prejudgment          interest at  a rate of 10% per annum  from the date of the filing          of the  complaint to the date of the verdict (May 4, 1994) on his          New Hampshire  state law  claim for wrongful  termination against          Cabletron.                    After modification  by this court, plaintiff  Miller is          entitled  to three  types  of damages  for  his Title  VII  claim          against  Cabletron and Benson.  First, Miller is entitled to back          pay in the amount  of $190,651.85 (without prejudgment interest).          Second,  Miller is  entitled to  damages  for front  pay (without                                         -79-          prejudgment  interest).  As stated in Part XII.A supra, the trial                                                           _____          court  will determine,  after proceedings  on remand,  whether to          award $211,000 or some  different amount as the front  pay award.          Third,  Miller  is  entitled  to  damages   (without  prejudgment          interest) for  the value of lost  stock options in the  amount of          $206,060.                    Since defendant Benson is liable on the Title VII claim          (and not the state  law claim), Cabletron and Benson  are jointly          and  severally liable  for  the total  amount  of the  Title  VII          damages only.                    Although  defendant Cabletron was  found liable on both          the state law  and federal  law claims, plaintiff  Miller is  not          entitled to collect on both claims.                    See Freeman  v. Package Mach. Co.,  865 F.2d 1331,                    ___ _______     _________________               1345  (1st Cir. 1988)("[P]laintiff  is entitled to only               one full recovery, no matter how many legal grounds may               support  the verdict  ...  but there  is  no basis  for               allowing  the  losing  party   to  pick  which  of  the               overlapped awards it prefers to pay.  In collecting the               fruits  of  his  victory,  [plaintiff]  was  concededly               entitled  to  only a  single slice  of  pie --  but the               choice of the slice was his.").          In this case,  plaintiff Miller may choose the larger  of the two          damages awards.                    If the total Title VII damages award is larger than the          award  on  Miller's  state  law  claim  for  wrongful  discharge,          defendants  Cabletron and  Benson will  be jointly  and severally          liable for the total of the Title VII damages.                    If the damages award  on the state law  claim ($995,000          plus prejudgment interest at the per annum rate of 10%) is larger                                         -80-          than the total Title VII award (which, we note, will  be the case          if  the parties  stipulate to  $211,000 as  the front  pay award,          resulting  in a  total  Title VII  award  equal to  $607,711.65),          defendants  Cabletron and  Benson will  be jointly  and severally          liable  for the  Title VII  damages award  and Cabletron  will be          separately liable  for the amount  of the award on  the state law          claim that is in excess of the Title VII award.                                 XV.  ATTORNEYS' FEES                                 XV.  ATTORNEYS' FEES                    The status  of each plaintiff as a  prevailing party is          not challenged on appeal.   Appellants do challenge, however, the          size of each award of attorneys'  fees on the ground that it does          not account for plaintiff's failure to win at trial on all claims          originally made.                    Plaintiff  Scarfo   prevailed  on  her   claim  against          Cabletron  and  Benson for  sex discrimination  and on  her claim          against  Cabletron under the Equal Pay  Act.  She did not prevail          on her  claim of sexual  harassment against Benson  or Cabletron.          Her  claim  for  intentional  infliction  of  emotional  distress          against Cabletron was dismissed,  and she lost on the  same claim          against Benson  at trial.   Her claim  of breach of  contract was          dismissed  on the ground of  res judicata.   The defamation claim          was not pressed at trial, apparently because it was settled.                    Miller prevailed against  Cabletron and  Benson on  his          Title VII claim for  retaliatory discharge, and against Cabletron          on  his state-law wrongful  termination claim.   Although he lost                                         -81-          none of his claims that went to the jury (except for  prejudgment          interest), Miller's  claims for abuse of  process and intentional          infliction of emotional distress were apparently dismissed before          or  during trial, although on the record before us we cannot tell          under what circumstances or on what terms they were dismissed.                    Following trial,  the court received briefs  and held a          hearing  to determine attorneys' fees.  The court awarded fees to          Scarfo in the  amounts of  $225,300.13 for services  of the  firm          that handled the bulk of her case and $18,955 for the services of          a firm that  handled a small part of the case.  The court awarded          fees to Miller in the amount of $117,510.97.                    Appellants  assert  that  the  trial  court  improperly          awarded Miller fees related to claims on which he did not prevail          at trial -- apparently, the dismissed  claims of abuse of process          and intentional infliction of emotional distress.  Yet appellants          have failed  to provide this  court with  a record from  which we          could  determine   whether  the   award  included  the   cost  of          prosecuting these claims.                    It  is  clear from  the  trial  court's order  awarding          attorneys' fees to Miller that the court had before it a detailed          bill for Miller's attorneys' services.  Appellants have  not made          that  bill,  or any  other  information sufficient  to  support a          reasoned decision  by this  court, a part  of the  record.   This          court therefore has no basis for determining whether there is any          truth to appellants'  assertion that the  fee award against  them          included  the cost of litigating  claims on which  Miller did not                                         -82-          prevail at trial.   In these circumstances,  we do not reach  the          question whether  the trial  court abused  its discretion  in its          award  of fees for the simple reason that  we have no basis for a          reasoned decision.                    When an appellant fails to provide a record of evidence          material to the  point the  appellant wishes to  raise, and  thus          leaves the appellate court  with an insufficient basis to  make a          reasoned  decision,  the  court  in  its  discretion  may  either          consider the merits of the case insofar as the record permits, or          may dismiss the  appeal if the absence  of a full  record thwarts          intelligent and reasoned review.  See Moore, slip op. at 4.                                            ___ _____                    Appellants  assert  that  the  district  court  did not          reduce the  award  to  Scarfo to  account  for  her  unsuccessful          claims.  The support  for this assertion consists primarily  of a          listing  of  the  claims on  which  plaintiffs  did  not prevail.          Appellants cite a statement of the  trial court in a related case          in  which the court acknowledged that the Title VII and state-law          claims involved different defenses  and varying remedies, as well          as  novel issues  of  state law.    Appellants also  assert  that          plaintiffs  "failed to  establish  entitlement to  the fees"  and          "wholly  failed to explain many of the general entries which were          made."                    At the  hearing, the  trial court heard  testimony from          Scarfo's lead  counsel regarding Scarfo's counsel  fees.  Counsel          testified that the proffered  itemized bill did not  include work          relating to the defamation  claim, or work solely related  to the                                         -83-          harassment  claim  or the  emotional  distress claim.    She also          testified that the fees for which her client sought reimbursement          were  $75,000  less than  the total  fees  charged.   Counsel was          subjected  to  fairly   detailed  cross-examination,   especially          regarding the  fees attributable to the  sexual harassment claim;          cross-examination on  that topic  focused especially on  fees for          research undertaken on February 2 and February 5, 1993.                    The court found that on these two dates, February 2 and          5, 1993, research was undertaken on issues on which plaintiff did          not prevail, but  that "the  issues are interwoven."   The  court          stated that it  was reducing  the charges allowed  for those  two          days by 50% to $427.50.                    An award of  fees under Title VII is reviewed primarily          under an  abuse  of discretion  standard, and  the trial  court's          range of  discretion is particularly broad.  See Phetosomphone v.                                                       ___ _____________          Allison Reed  Group, Inc., 984 F.2d  4, 6 (1st Cir.  1993).  That          _________________________          range extends to determining the portion of bills for services to          be awarded to parties who have  won on only some of their claims,          as long as the trial court considers the relevant factors:                    Where, as here, plaintiffs have won a federal                    claim for which  attorneys' fees are  allowed                    to a  prevailing party, the  question becomes                    whether the claims on  which they lost in the                    same  suit were  unrelated to  the successful                    ones (in  which event no fees  may be awarded                    for  work  on  the  unsuccessful  claims), or                    whether, instead, the losing  claims included                    "a common  core of facts," or  were "based on                    related legal theories," linking them  to the                    successful  claim.  In  the latter event, the                    award may include compensation for legal work                    performed on the unsuccessful claims.                                         -84-          Garrity  v. Sununu,  752 F.2d  727, 734  (1st Cir.  1984) (citing          _______     ______          Hensley v. Eckerhart, 461  U.S. 424 (1983)).  Where  the district          _______    _________          court  gives consideration  to  these factors,  we  defer to  its          judgment absent an abuse of discretion.                    See id. at 735;                    ___ ___                    see also Lipsett v. Blanco, 975 F.2d 934, 940 (1st                    ___ ____ _______    ______               Cir. 1992)  (the fee  in a case  involving interrelated               claims  is  an  "equitable  judgment entrusted  to  the               discretion of the factfinder,  to be made on  the basis               of all the circumstances of the  litigation") (citation               omitted).                    The  district  court  should   not  only  exercise  its          discretion but also do so demonstrably.  It is important                    for  the district court  to provide a concise                    but clear explanation of  its reasons for the                    fee award.   When an  adjustment is requested                    on  the basis  of either  the exceptional  or                    limited  nature of the relief obtained by the                    _______________                    plaintiff,  the  district  court should  make                                _________________________________                    clear that it has considered the relationship                    _____________________________________________                    between the amount of the fee awarded and the                    _____________________________________________                    results obtained.                    ________________          Hensley v. Eckerhart, 461 U.S. 424,  437 (1983) (emphasis added).          _______    _________          See also  Weinberger v.  Great Northern Nekoosa  Corp., 925  F.2d          ___ ____  __________     _____________________________          518, 527 (1st Cir.  1991) (court must make concrete  findings and          explain its reasoning).  The district court's explanation of  the          bases for  its conclusions  is essential to  meaningful appellate          review.  Grendel's  Den, Inc. v. Larkin,  749 F.2d 945,  950 (1st                   ____________________    ______          Cir. 1984).                    It is not  clear exactly  what the legal  basis is  for          appellants' request  for a  remand.    That is,  it is  not clear          whether appellants are contending that the district court did not          conduct the analysis required by Hensley in cases of interrelated                                           _______                                         -85-          claims, or,  instead are contending that the  court conducted the          analysis, but came  to the  wrong conclusion.   We consider,  and          reject, both possibilities.                    Appellants  overstate their case  when they assert that          the court  "made no reduction  for counsel  fees as a  result" of          unsuccessful claims.  The  district court specifically found that          on two  dates (February 2 and 5, 1993) research was undertaken on          issues  on which plaintiffs did not prevail, but that "the issues          are  interwoven";  the court  stated  that  it was  reducing  the          charges allowed for those two days by 50%.                    Although  we interpret the  statement that  "the issues          are interwoven"  as having been  intended to  invoke the  Hensley                                                                    _______          analysis, it is, to  be sure, not a sufficient explanation of the          basis of  the  court's award  of fees  in a  case of  purportedly          interrelated  claims.   It  falls  short  of  the  "thorough  and          detailed opinion reviewing the imbrication between the successful          and  unsuccessful claims" that  was before the  court in Lipsett,                                                                   _______          975 F.2d at 941.  In the present case, the district court did not          -- as far as we can tell  on the record before us -- "make  clear          that it considered the relationship between the amount of the fee          awarded and the  result obtained."  See Hensley, 461 U.S. at 437.                                              ___ _______          The  court's order  does not  reflect a  Hensley analysis  of the                                                   _______          relationship among the claims; in fact, it does not indicate what          issues  the court  has  determined to  be  interrelated, or  even          whether they are issues of fact or law.                    Nevertheless,  our review  of  the record  leads us  to                                         -86-          conclude   that  Scarfo's   claims  of   sexual  harassment   and          intentional  infliction of  emotional distress  shared sufficient          common  issues of fact with her successful claims under Title VII          and the Equal Pay Act to justify the award made in this case.  In          any event, we conclude that appellants should not now be heard on          their request  for remand because they did not adequately present          this issue  to the trial court  or in the briefs  filed with this          court.                    The trial court's  order, it is true,  does not address          the nature of legal work performed by Scarfo's counsel beyond the          research billed for February 2 and February 5, 1993.  But we will          not  ourselves consider,  or  remand to  the  district court  for          consideration  of,  a blanket  request  not  specific enough  for          reasoned  evaluation of the  merits of  the request.   Appellants          have failed to meet  their burden of production before  the trial          court and their  burden of adequate  briefing before this  court.          This  failure deprives both courts  of an opportunity  to make an          intelligent and reasoned decision regarding the  segregability of          fees  awarded for  any work  related to  losing claims  that took          place on days other than February 2 and 5, 1993.                    Parties must fulfill certain obligations of specificity          of grounds of  claim or defense  if the district  court is to  be          able to make a reasoned decision  as to a proper fee award.   The          fee-seeker, for example, must provide  a "particularized account"          of his or her claim for fees.  Weinberger, 925 F.2d at 527.  When                                         __________          a fee-seeker has not won on all counts but properly documents her                                         -87-          claim  for fees  and plausibly  asserts that  the time  cannot be          allocated between successful and  unsuccessful counts, it becomes          the fee-target's burden to  show a basis for segregability.   See                                                                        ___          Lipsett, 975 F.2d at 941.  Appellants failed to meet this burden.          _______                    There was  evidence before  the district court,  in the          form of testimony by  Scarfo's counsel, that the requested  award          already  reflected  a $75,000  deduction  from  overall costs  to          account  for  time spent  solely  on  the  sexual harassment  and          infliction  of emotional  distress claims;  the remainder  of her          firm's work  on these claims, she testified,  was closely related          to the claims on which her client  prevailed.  She also testified          that  the award  did  not include  any  expenses related  to  the          defamation  claim.    That  testimony  constituted  a  "plausible          assertion" that counsel had already segregated fees to the extent          practicable.   The credibility of that testimony is for the trial          court, not this court, to determine.                    The defendant  was free to challenge  this assertion by          pointing  specifically to  segregable  aspects of  the bill  that          formed  the  basis  for  the  award.    The  defendants'   cross-          examination of  Scarfo's counsel  regarding  expenses billed  for          February 2 and February  5 apparently convinced the judge  that a          50% reduction in the  fees for those days was  warranted, despite          his  conclusion  that  they  pertained  to  "interwoven"  issues.          Perhaps  a  further  reduction in  fees  would  have  followed if          defendants had  presented an adequate basis  for subjecting other          billed  hours to judicial scrutiny.  But defendants did not point                                         -88-          to any other purportedly segregable entries in the bill submitted          by  Scarfo,   either  during  cross-examination  or   in  written          submissions contained in the record before us.                    Appellants did not  even assert in the trial court that          the award improperly included fees attributable to the defamation          or breach of contract claims.                    Plaintiffs' contentions  at trial and before this court          regarding the segregability of other claims, moreover, are merely          statements of conclusions.  The  written submissions to the trial          court contained in the record before us merely stated conclusions          that the  losing claims "have  separate and distinct  elements of          proof requiring different testimony and documentary evidence"  or          have   a  "distinct   and  separate   nature"  and   are  "easily          segregated."  Appellants' argument  of segregability on appeal is          even less specific than  the arguments advanced before the  trial          court.                      In  these circumstances, in which we do not even know          what arguments the  appellants would make on  remand because they          have failed to make those arguments to the trial court  or to us,          we  conclude that it would be improper to give appellants another          bite at the apple.                    Appellants  argue  to  us that  plaintiffs  "failed  to          establish entitlement to the fees" and "wholly  failed to explain          many of the general entries which were made."  Even if we were to          construe  these  assertions  as  arguments  independent   of  the          arguments  regarding segregability of fees, they are no more than                                         -89-          statements of the conclusion appellants ask us to reach.  They do          not constitute adequate  explanation of a basis  for reasoning to          this  conclusion from  evidence  of record.    We cannot  sustain          contentions           of this kind.  See Brown v. Trustees of Boston Univ., 891 F.2d at                         ___ _____    ________________________          352.                    For  the  same  reason, we  cannot  sustain appellants'          argument that the award of expert fees was improper.                                   XVI.  CONCLUSION                                   XVI.  CONCLUSION                    We affirm  the  trial court's  judgment for  plaintiffs          Scarfo and Miller in  all respects other  than the amount of  the          damages  award, which we modify, as stated below, for the reasons          stated in Parts X-XIV of this Opinion.                    With respect  to plaintiff Miller, on  remand the trial          court  may  allow  the  parties  a  reasonable  time  to  file  a          stipulation  with respect to the  award to Miller  for front pay.          Absent a stipulation resolving this  issue, the district court on          remand may, in its discretion, resolve it consistently with  this          Opinion,  either on the present record or by allowing the parties          to present additional evidence.                    The district court  is directed, on remand, to enter an          Amended Final Judgment as follows:                         (a)  judgment  for  plaintiff Scarfo  on                    her claim under Title VII of the Civil Rights                    Act for sex discrimination against defendants                                         -90-                    Cabletron   and   Benson  for   the   sum  of                    $991,887.95 (consisting of $18,393.95 in back                    pay, $744,744 in front pay,  and $228,750 for                    the   value   of   stock   options)   without                    prejudgment interest;                         (b)  judgment  for  defendant Levine  on                    Scarfo's    Title    VII   claim    for   sex                    discrimination against him;                         (c)  judgment for  defendants Cabletron,                    Benson,  and  Levine  on  plaintiff  Scarfo's                    claim under Title VII of the Civil Rights Act                    for sexual  harassment based on  a hostile or                    abusive environment;                         (d)  as an  addition  to the  amount  in                    paragraph (a), judgment for  plaintiff Scarfo                    against Cabletron (but  not against  Benson),                    on  her claim under the Equal Pay Act, in the                    sum   of   $9,606.05   (being  $28,000   less                    $18,393.95  because of overlap with the award                    in   paragraph   (a)),  without   prejudgment                    interest;                         (e)  judgment for  defendants Benson and                    Levine  on  plaintiff  Scarfo's   claims  for                    intentional   or   reckless   infliction   of                    emotional distress;                         (f)  plaintiff    Scarfo's   claim    of                                         -91-                    intentional   or   reckless   infliction   of                    emotional    distress    against    defendant                    Cabletron is dismissed;                         (g)  plaintiff   Scarfo's   claims   for                    breach   of   contract  and   defamation  are                    dismissed;                         (h)  judgment   for   plaintiff   Miller                    against defendants Cabletron  and Benson,  on                    his  claim  for   retaliatory  discharge   in                    violation  of Title  VII,  for [a  sum to  be                    determined  upon remand]  without prejudgment                    interest consisting of                         (i) $190,651.85 in back pay;                         (ii)  [a  sum  to  be   determined  upon                    remand] for front pay; and                           (iii)  $206,060 for  the value  of stock                    options;                         (i)  judgment   for   plaintiff   Miller                    against defendant Cabletron (but  not against                    Benson)  on  his  claim  under  New Hampshire                    state  law for  wrongful termination,  in the                    sum  of $995,000 with prejudgment interest at                    a rate  of 10% per annum  under New Hampshire                    state law from the  date of filing, April 14,                    1992,  to the  date  of the  verdict, May  4,                    1994;                                         -92-                         (j)  plaintiff Miller's  claims of abuse                    of  process  and   intentional  or   reckless                    infliction  of   emotional  distress  against                    Benson, Levine, and Cabletron are dismissed;                         (k)  all  claims   by  plaintiff  Miller                    against defendant Levine are dismissed;                         (l)  it   is    further   ordered   that                    plaintiff  Miller  will  not  be  allowed  to                    collect  more  than  the larger  of  the  two                    awards in his favor against  Cabletron as set                    forth in paragraphs (h) and (i).                         (m)  judgment   for   plaintiff   Scarfo                    against defendants Cabletron and  Benson, for                    attorneys'  fees  and  disbursements, in  the                    amount   of    $244,255.13   (consisting   of                    $225,300.13  incurred for services of one and                    $19,955 incurred for services of the other of                    two firms that represented her);                         (n)  judgment   for   plaintiff   Miller                    against defendants Cabletron and  Benson, for                    attorneys'  fees  and  disbursements, in  the                    amount of $117,510.97;                          (o)  the awards in paragraphs  (a), (d),                    (h),  (i),  (m),  and  (n)  will  bear  post-                    judgment  interest commencing on May 10, 1994                    at the federal post-judgment interest rate of                                         -93-                    5.02% per  annum (the rate applicable  on the                    date of entry of the original final judgment,                    May 10, 1994);                         (p)  costs are awarded to plaintiffs.                    This   case  is   remanded   for  further   proceedings          consistent with the Opinion of this court and for the entry of an          Amended Final Judgment accordingly.                    As  to the judgment for Scarfo, costs of the appeal are          awarded to appellee Scarfo.  As  to costs of the cross-appeal  by          Scarfo, costs of the  appeal are awarded to cross-appellees.   As          to  the appeal and cross-appeal from the judgment of the district          court on Miller's  claims, all parties will bear their respective          costs of appeal.                    It is so ORDERED.                                         -94-
