          United States Court of Appeals
                        For the First Circuit


Nos. 11-1505, 11-1575

                        CARMEN LLERENA DIAZ,

                        Plaintiff, Appellee,

                                 v.

                  JITEN HOTEL MANAGEMENT, INC.,

                        Defendant, Appellant.


          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

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


                               Before

          Boudin, Stahl, and Thompson, Circuit Judges.


     Ryan C. Siden, Siden & Associates, P.C., for appellant.
     Lynn A. Leonard, for appellee.



                          February 7, 2012
            STAHL, Circuit Judge. A jury rendered a verdict in favor

of plaintiff-appellee Carmen Llerena Diaz (Diaz) in this age

discrimination action.      On appeal, defendant-appellant Jiten Hotel

Management, Inc. (Jiten) challenges the district court's jury

instructions and the court's denial of Jiten's motion to certify a

question of state law to the Massachusetts Supreme Judicial Court

(SJC).   We affirm.

                       I.    Facts & Background

            We recite the facts in the light most favorable to the

jury's verdict. See, e.g., Sony BMG Music Entm't v. Tenenbaum, 660

F.3d 487, 491 (1st Cir. 2011).       Diaz began working for the hotel

property located at 69 Boston Street in Dorchester, Massachusetts

in 1985.    During the early years of Diaz's employment, the hotel

was known as the Howard Johnson Hotel and then as the South Bay

Hotel.     In 1997, Jiten purchased the hotel and operated it as a

Holiday Inn Express (HIE).         Jiten employed Diaz as the HIE's

executive housekeeper, meaning that Diaz oversaw the housekeeping

staff in a managerial role.     She worked under Mitesh "Mitch" Patel

(Patel), the general manager of the HIE.

            Though Diaz and Patel seem to have worked well together

for several years, their relationship began to deteriorate in 2003.

According to Diaz, Patel became "mean" and "arrogant."       He began

embarrassing Diaz in front of her co-workers, screaming at her for

seemingly insignificant reasons, and unfairly scrutinizing her


                                   -2-
work.    Diaz attributes the change in Patel's behavior to her age,

claiming that Patel made a variety of ageist comments to her,

including telling her that she looked like an "old pumpkin," an

"old hankie," and "old shoes."           When Diaz changed her hairstyle,

Patel said that the new hairdo made her "look younger."                When she

hired a housekeeper who was in her fifties, Patel said, "You['re]

going to convert this hotel into a nursing home."               In 2004 and

2005, Patel told Diaz that she was "getting old" and asked when she

was going to retire.       Patel apparently made similar comments about

another senior employee, whom Patel referred to as "old man."

            Jiten also stopped giving Diaz annual evaluations and

raises in 2004, despite the fact that it was company policy to

perform an annual evaluation for each employee.               In 2004, Diaz

asked    Patel   whether   she   would   be   receiving   a   raise,    and   he

responded that he would "do it later" or get to it "one of these

days" and that Diaz should not worry.             She never received the

raise.     In 2005, Diaz again inquired as to whether she would

receive a raise for that year. Patel allegedly responded, "Carmen,

you [are] making too much money, be grateful that you have a job."

            Diaz eventually reported Patel's behavior to Jiten's

corporate headquarters.       Jiten's vice president met with Diaz and

Patel but did not take any disciplinary action against Patel.                 A

few days after the meeting, the vice president sent Diaz a flower

arrangement.


                                     -3-
          Though Patel's brother, Chet Patel, apparently replaced

Patel as general manager of the HIE in September 2005,1 Diaz claims

that Patel remained a presence at the hotel.    She also claims that

Patel's behavior had a trickle-down effect, causing other employees

to discriminate against her, even after Patel left.    For example,

a woman who worked in the laundry room of the HIE from 2005 until

October 2006 testified that other employees of the hotel referred

to Diaz as "the old woman" and "an old lady."    In June 2006, Diaz

overheard the HIE sales manager saying that Jiten wanted to fire

Diaz because she was "too old" and that Diaz had requested a raise

but the hotel did not want to give it to her.

          Perhaps most importantly for purposes of this appeal, in

April 2006, Diaz wrote to Chet Patel requesting an evaluation and

a raise for 2006, as well as an explanation as to why she had not

received evaluations or raises in 2004 and 2005.     Chet Patel did

not respond to the letter, and Diaz did not receive an annual

evaluation or a raise in 2006.   At trial, Chet Patel admitted that

Jiten's failure to provide evaluations for Diaz in 2004, 2005, and

2006 was contrary to company policy.   As for the fact that Diaz had



     1
       Chet Patel testified at trial that he took over as general
manager in September 2005 and that Mitch Patel had left the hotel
prior to that date to work at a Courtyard Marriott that Jiten also
managed. Confusing the issue as to who was in charge at the HIE in
2006, Mitch Patel's testimony at trial was that he was transferred
to the Courtyard Marriott in July 2006, though he also stated that
he was not involved in evaluating employees for raises at the HIE
in 2006.

                                 -4-
not received raises during those same years, Jiten's vice president

testified     that     the   company   had    been   experiencing    financial

difficulties and that Diaz's salary had maxed out after twenty-one

years.      However, Diaz introduced evidence that all of the other

members of the management team, who were younger than she was,

received an evaluation and a raise at some point between 2004 and

2006.       She also introduced evidence that six members of the

management team specifically received raises in 2006.

             Jiten terminated Diaz in August 2006.             After filing a

complaint with the Equal Employment Opportunity Commission and the

Massachusetts        Commission   Against     Discrimination    (MCAD),   Diaz

brought the instant age discrimination action against Jiten in

federal court. She included claims under the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. §§ 621-624, and the Massachusetts

anti-discrimination statute, Mass. Gen. Laws ch. 151B, § 4 (Chapter

151B),      alleging    a    hostile   work    environment     and   disparate

treatment.2     The case proceeded to trial.

             At the district court's request, the parties briefed the

question of whether the court should issue a mixed-motive jury

instruction (described at more length below) with respect to Diaz's

disparate treatment claims under the ADEA and Chapter 151B.               The


        2
       Diaz also brought claims against Jiten for intentional
infliction of emotional distress (IIED), wrongful termination, and
defamation. Diaz voluntarily dismissed her defamation and wrongful
termination claims, and the district court granted summary judgment
for Jiten on the IIED claim, a decision that Diaz did not appeal.

                                       -5-
court ultimately issued a mixed-motive instruction on the Chapter

151B disparate treatment claim but not on the ADEA claim.           Jiten

requested an instruction on Chapter 151B's statute of limitations,

which the district court did not issue.

          In April 2011, the jury rendered a verdict in favor of

Diaz only on her state law discrimination claim and awarded her

$7,650.00 in compensatory damages.3      Jiten filed a motion to alter

or set aside the judgment and/or to certify to the SJC the question

of whether the mixed-motive instruction was proper under state law.

The district court denied Jiten's motion.      This appeal followed.

                            II. Discussion

          Jiten   argues    that   the   district   court   erred     by:

(1) issuing the mixed-motive instruction; (2) refusing to certify

the mixed-motive question to the SJC; and (3) failing to issue the

Chapter 151B statute of limitations instruction. Before turning to

those claims, we pause for a moment to note that neither Jiten's

opening brief nor its reply brief addresses what standard of review

applies in this case, in violation of Federal Rule of Appellate

Procedure 28(a)(9)(B).     In any event, Jiten's appeal fails on the

merits.




     3
      The verdict form did not require the jury to specify whether
they were finding for Diaz with regard to her state law disparate
treatment claim, her state law hostile work environment claim, or
both.

                                   -6-
A.   The mixed-motive instruction

            1.   The instruction

            We review Jiten's preserved challenge to the district

court's mixed-motive jury instruction de novo, though we will

reverse only if we find that the court committed an error that was

"prejudicial based on a review of the record as a whole."          Sony BMG

Music Entm't, 660 F.3d at 503 (quoting Mass. Eye & Ear Infirmary v.

QLT Phototherapeutics, Inc., 552 F.3d 47, 72 (1st Cir. 2009)).

            To put Jiten's challenge to the district court's mixed-

motive instruction in context, we begin with a brief overview of

the current status of the mixed-motive framework under state and

federal law.     A "mixed-motive" case is one in which "an employee

alleges that [s]he suffered an adverse employment action because of

both permissible and impermissible considerations."           Gross v. FBL

Fin. Servs., Inc., 129 S. Ct. 2343, 2347 (2009).          Once a plaintiff

in   a   mixed-motive   case   establishes   that   her   membership   in   a

protected class was a motivating factor for an employment action,

the burden shifts to the employer to prove by a preponderance of

the evidence that it would have made the same decision regardless

of the impermissible consideration.          See Desert Palace, Inc. v.

Costa, 539 U.S. 90 (2003); Price Waterhouse v. Hopkins, 490 U.S.

228 (1989).

            Price Waterhouse, which established the mixed-motive

burden-shifting analysis, was a Title VII case.           The Supreme Court


                                    -7-
recently held, in Gross, that the mixed-motive framework does not

extend to ADEA cases, because "[u]nlike Title VII, the ADEA's text

does not provide that a plaintiff may establish discrimination by

showing that age was simply a motivating factor."                  129 S. Ct. at

2349.   Thus, Diaz was not entitled to (and did not receive) a

mixed-motive     instruction   with    regard    to    her    ADEA     disparate

treatment claim.     Rather, under federal law, she was required to

"prove, by a preponderance of the evidence, that age was the

'but-for' cause of the challenged adverse employment action."                  Id.

at 2352.

           Under    Massachusetts      law,    however,      the    mixed-motive

analysis survives in age discrimination cases, at least for the

time being.    In construing Chapter 151B, the Massachusetts SJC has

sometimes looked to federal case law for guidance, see Wynn & Wynn,

P.C. v. Mass. Comm'n Against Discrimination, 729 N.E.2d 1068, 1080

n.29 (Mass. 2000), overruled on other grounds by Stonehill Coll. v.

Mass. Comm'n Against Discrimination, 808 N.E.2d 205 (Mass. 2004),

but the SJC "frequently do[es] not follow the reasoning of Federal

appellate decisions applying Title VII," Cuddyer v. Stop & Shop

Supermarket Co., 750 N.E.2d 928, 939 (Mass. 2001).             In Wynn & Wynn,

the SJC did choose to adopt Price Waterhouse's burden-shifting

analysis and apply it to all actions under Chapter 151B "in which

the   plaintiff,   armed   with   some      strong    (direct)      evidence    of

discriminatory     bias,   demonstrates       that    at   least     one   factor


                                      -8-
motivating the employer's decision is illegitimate." 729 N.E.2d at

1078.   Though Wynn & Wynn was a gender discrimination case, Jiten

does not argue that the SJC limited the applicability of the mixed-

motive framework to gender discrimination cases. Indeed, the broad

language of the Wynn & Wynn opinion does not seem to support such

an argument.   See id. at 1079-81.

           After the Supreme Court decided Gross, the SJC reexamined

the validity of the mixed-motive framework under state law in

Haddad v. Wal-Mart Stores, Inc., 914 N.E.2d 59 (Mass. 2009).

Although the SJC recognized that the mixed-motive analysis had

"generated considerable controversy and criticism and resulted in

splits in the United States Courts of Appeals," id. at 77 n.27, the

SJC nonetheless affirmed the lower court's issuance of a mixed-

motive instruction, id. at 76-78. The SJC said the following about

the status of the mixed-motive analysis under state law post-Gross:

           In Gross v. FBL Fin. Servs., Inc., . . .
           citing ongoing difficulties in applying the
           mixed motive analysis in any context, and the
           absence of a mixed motive requirement in the
           Federal statute on age discrimination in
           employment, the United States Supreme Court
           determined that a mixed motive analysis is not
           permitted in age discrimination cases. We do
           not consider today whether we will retain a
           mixed motive analysis under Massachusetts law.

Id. at 77 n.27.   Though Haddad was a gender discrimination case,

the opinion did not distinguish between state law gender and age

discrimination cases, nor did it suggest that the reasoning in

Gross might apply to state law age discrimination cases.    Rather,

                                -9-
as we read the opinion, the SJC implicitly affirmed the ongoing

validity of the mixed-motive framework in all Chapter 151B cases,

though it left open the possibility that Massachusetts might not

retain that framework indefinitely.        See id.

          Because the SJC said, in Wynn & Wynn, that it would

"follow the guidance of the United States Supreme Court with

respect to the allocation of burdens of proof in mixed-motive

cases," 729 N.E.2d at 1080, Jiten's brief argues that "it is

reasonable to conclude that the SJC would reject a mixed-motive

analysis in the context of age discrimination."                But the SJC

clearly did not reject the mixed-motive analysis in Haddad, and

Wynn & Wynn thus remained good law at the time that the district

court instructed the jury in this case.

          Furthermore,     Jiten   reads   too   much   into    the    SJC's

statement in Wynn & Wynn.     While the SJC did choose to adopt the

Price Waterhouse mixed-motive burden-shifting analysis, that did

not mean that the SJC was somehow bound by the Supreme Court's

later decision in Gross.    The SJC has made clear that it routinely

does not follow federal law in interpreting Chapter 151B.             That is

true for a number of reasons, including "the existence of material

differences between [the Massachusetts] statutory scheme and the

Federal scheme" and "the legislative directive that G.L. c. 151B is

to be applied liberally."    Cuddyer, 750 N.E.2d at 939; see also id.

at 939-40 (citing cases in which the SJC has construed Chapter 151B


                                   -10-
differently than the federal courts have construed Title VII).

Hence, in Haddad, the SJC did not adopt Gross's reasoning, instead

leaving for another day the question of "whether we will retain a

mixed motive analysis under Massachusetts law."              914 N.E.2d at 77

n.27.

            Finally, we note that, from a statutory perspective, it

makes sense that the mixed-motive framework might apply to state

age discrimination claims but not to federal age discrimination

claims.    There is just one Massachusetts statute that outlaws both

age and gender discrimination (Chapter 151B), whereas two separate

statutes outlaw age and gender discrimination in the federal

context (the ADEA and Title VII).          The Supreme Court's conclusion

in Gross that the mixed-motive framework did not extend to ADEA

claims was premised on the fact that "Title VII is materially

different [from the ADEA] with respect to the relevant burden of

persuasion."    Gross, 129 S. Ct. at 2348.          That is not the case in

the state context.

            Thus, for purposes of Diaz's state law age discrimination

claim, Wynn & Wynn controlled at the time the district court

instructed the jury, and we find no error in the court's decision

to issue the mixed-motive instruction.             See, e.g., Phoung Luc v.

Wyndham Mgmt. Corp., 496 F.3d 85, 88 (1st Cir. 2007) (a federal

court     applying   state   law   "will     not    create    new   rules   or

significantly expand existing rules").


                                   -11-
           2.   Certification to the SJC

           Jiten separately challenges the mixed-motive instruction

by arguing that the district court should have certified the

question to the SJC, an argument that Jiten made below as part of

a motion to alter or set aside the judgment.         See Fed. R. Civ. P.

59(e), 60(b).         Our standard of review here is for abuse of

discretion.     See Negrón-Almeda v. Santiago, 528 F.3d 15, 25 (1st

Cir. 2008) (abuse of discretion review applies to the denial of a

motion to alter or amend the judgment); Muñiz v. Rovira-Martinó,

453 F.3d 10, 12 (1st Cir. 2006) (same for a motion to set aside the

judgment); U.S. Steel v. M. DeMatteo Const. Co., 315 F.3d 43, 53

(1st Cir. 2002) (same for the district court's decision not to

certify a question of law to the SJC).

           A federal court may, in its discretion, certify to the

SJC a question of Massachusetts law that is "determinative of the

cause then pending in the certifying court" and as to which "it

appears to the certifying court there is no controlling precedent

in the decisions of [the SJC]."       Mass. S.J.C.R. 1:03; see also In

re Hundley, 603 F.3d 95, 98 (1st Cir. 2010).             For the reasons

discussed above, this was not an instance in which there was no

controlling precedent.      In Wynn & Wynn, the SJC established that

the mixed-motive framework applies in Chapter 151B cases, and in

Haddad,   the   SJC    implicitly   affirmed   the   framework's   ongoing




                                    -12-
validity under Massachusetts law. The district court did not abuse

its discretion in declining to certify the question to the SJC.

B.   The statute of limitations instruction

           Finally, Jiten argues that the district court improperly

failed to instruct the jury on the 300-day statute of limitations

under Chapter 151B.    See Mass. Gen. Laws ch. 151B, § 5.     Diaz

argues that Jiten did not adequately object to the court's failure

to provide the instruction at trial and that we should therefore

review for plain error.4    See, e.g., Sony BMG Music Entm't, 660

F.3d at 503.   Because we find that the standard of review does not


     4
       Jiten proposed a jury instruction on the Chapter 151B
statute of limitations in writing before trial. Immediately after
the close of the evidence, the district court held a jury charge
conference, during which Jiten did not mention the statute of
limitations instruction. Several days later, the district court
instructed the jury. During a sidebar conference that followed the
instructions, Jiten stated, "there's been no instruction on the
statute of limitations."     The court asked Jiten why such an
instruction was necessary, and Jiten replied that Diaz had not
"made any claim" that a discriminatory act occurred specifically
within the 300-day period before she filed with the MCAD in August
2006. The district court responded that it was undisputed that
Diaz was denied a raise in 2006 -- a potentially discriminatory act
that fell within the statute of limitations -- and declined to give
the instruction.    Jiten then said nothing, dropping the issue
without objecting on the record or attempting to explain why the
instruction was in fact necessary (despite the court's clear
directive during the jury charge conference that any objections to
the court's instructions had be "specific").       We have serious
doubts as to whether Jiten's request constituted an objection
"stating distinctly the matter objected to and the grounds for the
objection," as required by Federal Rule of Civil Procedure
51(c)(1).   See, e.g., Linn v. Andover Newton Theological Sch.,
Inc., 874 F.2d 1, 5 (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.") (emphasis in original).

                                -13-
alter the outcome, we will assume for the sake of argument that

Jiten properly preserved the objection and review the claim de

novo.     Id.     We need not address whether the district court

committed an error under Massachusetts law by failing to instruct

the jury on the applicable statute of limitations.             Even assuming

that the court erred by omitting the instruction, Jiten has not

convinced us that the error was "prejudicial based on a review of

the record as a whole."         Id. (quoting Mass. Eye & Ear Infirmary,

552 F.3d at 72).

           Under Massachusetts law, where a plaintiff alleges a

pattern of discriminatory conduct, as Diaz did here, the continuing

violation doctrine applies.          Pelletier v. Town of Somerset, 939

N.E.2d 717, 731 (Mass. 2010).         "That doctrine permits a person to

seek damages for alleged discrimination occurring outside the usual

statute of limitations period if the alleged events are part of an

ongoing   pattern     of    discrimination,   and    there    is    a    discrete

violation within the statute of limitations period to anchor the

earlier claims."      Id.   Diaz filed with the MCAD on August 7, 2006.

Thus, in order to recover for discriminatory acts that occurred

outside of      the   statute   of   limitations    period,   she       needed   to

demonstrate that: (1) at least one discriminatory act occurred no

more than 300 days before August 7, 2006 (that is to say, on or

after October 11, 2005); (2) the alleged timely act or acts had a

substantial relationship to the alleged untimely act or acts; and


                                      -14-
(3) any discriminatory acts that occurred outside of the statute of

limitations period did not trigger Diaz's awareness and duty to

assert her rights.    See, e.g., Windross v. Barton Protective

Servs., Inc., 586 F.3d 98, 103 (1st Cir. 2009).5

          Jiten only raises the first prong of the continuing

violation test on appeal, arguing that the jury "did not find at

least one discriminatory act that took place after October 11,

2005" and thus that the district court's failure to provide the

instruction was prejudicial.   Jiten premises its argument on an

assumption that "[t]he only reasonable reading of the jury's

[$7,650.00] verdict is that it awarded Ms. Diaz seven percent (7%)

raises for the years 2004 and 2005, when Mitch Patel was her

supervisor," and thus that "the last discriminatory act accepted by

the jury was the denial of Ms. Diaz's raise in April of 2005, six

months too distant in time to support a claim of continuing

violation."

          However, the verdict form did not require the jury to

specify how it was allocating damages between Diaz's disparate

treatment claim and her hostile work environment claim, nor did it

ask the jury to differentiate between damages related to lost wages

and those related to emotional distress.   Jiten's claims are thus


     5
       Even if Diaz failed to make that showing, she could still
use events that occurred prior to October 11, 2005 as background
evidence of a hostile work environment, though she could not
recover damages for those time-barred events.     Pelletier, 939
N.E.2d at 731 n.33.

                               -15-
purely speculative and draw "too many conclusions from the jury's

verdict."     Crowley v. L.L. Bean, Inc., 303 F.3d 387, 396 (1st Cir.

2002).      Furthermore, as the district court noted in rejecting the

proposed instruction, Jiten admitted that Diaz was denied a raise

in May 2006, which the jury reasonably could have concluded was a

discriminatory act and which fell well within the 300-day statutory

period.     See Pelletier, 939 N.E.2d at 731.

             Thus, even if the district court erred by omitting the

statute of limitations instruction, that error was not prejudicial,

and reversal is not warranted.     Sony BMG Music Entm't, 660 F.3d at

503.6

                             III. Conclusion

             For the foregoing reasons, we affirm and award costs to

Diaz.




        6
       Jiten also raised this statute of limitations argument as
part of its motion to alter or set aside the judgment. See Fed. R.
Civ. P. 59(e), 60(b).     Because there was no prejudicial error
requiring reversal, the district court did not abuse its discretion
by denying Jiten's motion.    See Negrón-Almeda, 528 F.3d at 25;
Muñiz, 453 F.3d at 12.

                                  -16-
