

                    [NOT FOR PUBLICATION]
                United States Court of Appeals
                    For the First Circuit
                                         

No. 96-1399

                     IRINA PETSCH-SCHMID,

                    Plaintiff - Appellant,

                              v.

    BOSTON EDISON COMPANY, ALISON ALDEN AND JAMES DILLON,

                   Defendants - Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

        [Hon. Richard G. Stearns, U.S. District Judge]                                                                 

                                         

                            Before

                     Stahl, Circuit Judge,                                                     
         Aldrich and Campbell, Senior Circuit Judges.                                                                

                                         

Gretchen  Van  Ness with  whom  Lisa T.  Bacon  was  on  brief for                                                          
appellant.
Keith B.  Muntyan, with whom Robert  P. Morris and Morgan, Brown &amp;                                                                              
Joy, were on brief for appellees.           

                                         

                      February 27, 1997
                                         

          STAHL,  Circuit  Judge.   Plaintiff-appellant Irina                      STAHL,  Circuit  Judge.                                            

Petsch-Schmid seeks  a  new trial  on  her state  claims1  of

disability2 and gender discrimination after a jury returned a

verdict   in  favor  of  defendants-appellees  Boston  Edison

Company, Alison Alden (Petsch-Schmid's supervisor)  and James

Dillon  (Director  of  Labor  Relations  for  Boston  Edison)

(collectively,  "Boston Edison").   In  this appeal,  Petsch-

Schmid attempts to identify reversible  error in a number  of

the district court's actions.   Some of the actions  of which

she now complains were in fact taken at her request.  To none

of her assignations of error did she object below.  Conceding

that  our review is for  "plain error" only,  see Poliquin v.                                                                      

Garden Way Inc., 989  F.2d 527, 531 (1st Cir.  1993), Petsch-                           

Schmid  endeavors to persuade us  that this is  the rare case

warranting  notice of such error.   We decline the invitation

because  we find  that her  contentions fail  to  satisfy the

plain error standard.

1.  Jury Instructions                                 

                                                    

1.  We  note  that,  although  the  district court  dismissed
related federal claims pretrial,  it exercised its discretion
to retain supplemental jurisdiction over the remaining  state
claims.  See Newman v. Burgin, 930 F.2d 955, 963-65 (1st Cir.                                         
1991).

2.  Although  the  relevant Massachusetts  statute  refers to
"handicap"  discrimination, see  Mass.  Gen.  Laws ch.  151B,                                           
  4(16), for  consistency with our other  cases, we generally
refer to "disability" discrimination.

                             -2-                                          2

          For  the  first   time  on  appeal,   Petsch-Schmid

challenges   a   number   of   the   district  court's   jury

instructions.  We have stated  repeatedly that the failure to

object before the jury  retires to the charge or  the verdict

form  constitutes a waiver.  See Scott-Harris v. City of Fall                                                                         

River, Nos. 95-1950/1951/1952/2100, slip  op. at 16 (1st Cir.                 

Jan. 15, 1997); see also Fed. R. Civ. P. 51.   Some circuits,                                    

including  ours, have  recognized the  existence of  a "plain

error"   exception  for  noncompliance   with  Rule   51  for

"correcting  obvious instances  of  injustice  or  misapplied

law."  City of Newport v.  Fact Concerts, Inc., 453 U.S. 247,                                                          

256 (1981); see Morris  v. Travisono, 528 F.2d 856,  859 (1st                                                

Cir. 1976).   The exception, however,  "warrants a new  trial

only  where  the  error  'seriously  affected  the  fairness,

integrity or public reputation of the judicial proceedings.'"

Poulin v. Greer, 18 F.3d 979, 982-83 (1st Cir. 1994) (quoting                           

Lash v. Cutts, 943  F.2d 147, 152 (1st Cir. 1991));  see also                                                                         

Morris, 528 F.2d at  859 (explaining that plain error  should                  

be  noticed  "only in  exceptional  cases  or under  peculiar

circumstances  to prevent  a  clear  miscarriage of  justice"

(internal quotation marks and citation omitted)).

          A.  Prima Facie Case                                          

          Petsch-Schmid first challenges the district court's

description of  the prima  facie elements of  a Massachusetts

disability discrimination  claim under  Mass.  Gen. Laws  ch.

                             -3-                                          3

151B,   4(16).  Citing Garrity v.  United Airlines, Inc., 653                                                                    

N.E.2d 173,  177  (Mass. 1995),  Petsch-Schmid requested  the

court to instruct the  jury that she prove, inter  alia, that                                                                   

Boston  Edison fired  her solely  because of  her disability.                                            

See  also Tate  v. Department  of Mental  Health, 645  N.E.2d                                                            

1159,  1163 (Mass. 1995).  Petsch-Schmid  now claims that her

requested instruction was  wrong in light  of Blare v.  Husky                                                                         

Injection  Molding Sys.,  646 N.E.2d  111, 115  (Mass. 1995),                                   

which  sets   forth  the  prima  facie  elements  of  an  age

discrimination case under ch.  151B without a "solely because                                                       

of" requirement.  See id.                                     

          In response, Boston Edison  contends that Blare  is                                                                     

distinguishable because it concerned  allegations of age, not

disability, discrimination.  Moreover, Boston  Edison argues,

the  Massachusetts Supreme  Judicial Court  reaffirmed Tate's                                                                       

prima  facie elements of  a disability-discrimination case in

Garrity,  issued  months  after  the  Blare  decision.    See                                                                         

Garrity, 653 N.E.2d at 177.  Boston Edison concludes that the                   

district court's reliance -- at Petsch-Schmid's request -- on

the Garrity  formulation cannot  constitute plain error.   We                       

agree.

          Although  Petsch-Schmid's  argument based  on Blare                                                                         

may well be  plausible, it  calls upon this  court, on  plain

error  review, to  differ with  the Supreme  Judicial Court's

formulation   of   a   prima   facie   case   of   disability

                             -4-                                          4

discrimination as set  forth in  Garrity and  Tate; this,  we                                                              

will  not do.3  Given the state of the Massachusetts caselaw,

any misapplication of the law with respect to Petsch-Schmid's

initially  requested but  now-challenged  charge  is  neither

"obvious,"  City of Newport, 453  U.S. at 256,  nor a "clear"                                       

miscarriage  of justice, Morris, 528 F.2d at 859.  Because of                                           

Petsch-Schmid's  jury-charge waiver, the requirement that she

prove that  Boston Edison terminated her  "solely because of"

her disability  is  the law  of  the case.   See  Wells  Real                                                                         

Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803,                                                          

809 (1st Cir.  1988) (explaining that, given Rule  51 waiver,

"the instruction as given becomes the law of the case").4

          B.  Mixed Motive                                      

          In a  related vein,  Petsch-Schmid claims  that the

court erred when it "apparently attempted to explain  the law

governing the  plaintiff's burden of proof  in 'mixed motive'

discrimination cases."    The "mixed-motive  instruction"  to

                                                    

3.  We  note here that, in its February 2, 1996 memorandum of
decision  and order  on  Boston Edison's  motion for  summary
judgment,  the district  court,  cognizant  that  only  state
claims remained, informed the  parties that it would consider
a request to remand  the case to state court.   Neither party
sought remand.

4.  At  oral  argument   before  this  court,   Petsch-Schmid
contended for the first  time that, in fact, the  jury charge
erroneously  reflected  a  "reasonable   accommodation  case"
rather  than   a  case  of  "disparate   treatment  based  on
disability."   We deem waived  such arguments raised  for the
first time at oral  argument.  See Carreiro v.  Rhodes Gill &amp;                                                                         
Co., 68 F.3d 1443, 1449 (1st Cir. 1995).               

                             -5-                                          5

which  Petsch-Schmid  refers  was  embedded  in  the  court's

explanation  of the  requirement that  she prove  that Boston

Edison  terminated her  "solely  because of"  her disability.

The court charged the jury as follows:

               By  "solely," the law  means that an
          employee's  handicap   was  the  deciding
          factor in  her termination and  that were
          she . . .  not handicapped, she would not
          have been fired  even if everything  else
          the employer  says about the  reasons for
          her  termination  are  true.    If Boston                                                               
          Edison's  motives are mixed, in the sense                                                 
          that Ms.  Schmid's disability was  only a
          minor factor in a decision  influenced by
          proper, nondiscriminatory considerations,
          a  decision  that  would have  been  made
          regardless  of  whether  Ms.  Schmid  was
          handicapped, then she will have failed to
          meet her  burden on  this element of  her
          claim. (emphasis added).

          Petsch-Schmid neither initially requested  a mixed-

motive   instruction  with   respect   to   her   disability-

discrimination claim, nor lodged  an objection to this charge

below.    She now  argues  that  the instruction  erroneously

removed from the  jury's purview whether  and to what  extent

her disability  played a motivating role  in her termination,

and  whether Boston Edison would have  made the same decision

without its  consideration of  her disability.   We disagree.

Contrary  to her contention,  the court's  charge, read  as a

whole,  could   be  taken  as  submitting  to  the  jury  the

determination  of   whether  or  not  she   would  have  been

terminated regardless of any consideration of her disability.

                             -6-                                          6

          True,  the  court did  not  place  the burden  upon

Boston Edison to prove  that it would have made  the decision

absent  the  discriminatory motive  (as  in  a typical  mixed

motive case5).   Our  research, however, reveals  no reported

Massachusetts  cases  that  have  applied   the  mixed-motive

framework to a disability discrimination case under ch. 151B.

Further, for the  purposes of this case, the requirement that

the disability be the  sole reason for -- rather than only "a

motivating part"  in --  the termination renders  suspect the

application of the Price Waterhouse balance of burdens.  This                                               

issue  is  potentially  complex  and, had  it  been  properly

preserved  for appeal,  it might  have presented  us with  an

interesting  legal  question.   Having  failed,  however,  to

request a separate mixed-motive instruction on her disability

discrimination  claim,  to  object  to the  jury  charge  and

verdict form, or even to offer developed argumentation of the

point on appeal, Petsch-Schmid cannot prevail under the plain

error standard.6

                                                    

5.  See  Price Waterhouse  v. Hopkins,  490 U.S.  228, 244-45                                                 
(1989)  (plurality opinion); see also, Smith  v. F.W. Morse &amp;                                                                         
Co., 76 F.3d 413, 421 (1st Cir. 1996).               

6.  Petsch-Schmid   further  hints   that,   on  her   gender
discrimination claim,  the court should have  instructed that
Boston Edison  bore the burden of persuasion  with respect to
any  mixed-motive.    We  deem  waived  her  perfunctory  and
unadorned argument  in this  respect.   See United  States v.                                                                      
Zannino, 895  F.2d  1, 17  (1st Cir.  1990).   In any  event,                   
Petsch-Schmid fails to identify any direct evidence of gender
discrimination that  might trigger such an  instruction.  See                                                                         
Smith v. F.W. Morse &amp; Co., 76 F.3d 413, 421  (1st Cir. 1996);                                     

                             -7-                                          7

          C.  Pretext                                 

          Petsch-Schmid   claims   error   in   the   court's

instruction that  she must  have proven  either that  she was

fired because  of her disability, or that  Boston Edison lied

about  her  reasons  for  termination.    She  says  that  by

requiring   proof  that   Boston  Edison   lied,  the   court

effectively  compelled "smoking  gun" evidence;  she contends

that she should  have been  able to rely  upon the  inference

arising  from her proof  that similarly situated non-disabled

employees had  not been terminated.   Petsch-Schmid, however,

overlooks   the  fact  that  by  potentially  permitting  her

recovery upon proof of Boston  Edison's lies, she enjoyed the

benefits of the court's  "pretext-only" instruction.  Compare                                                                         

Blare,  646   N.E.2d  at  117  (entitling   a  discrimination                 

plaintiff to recovery upon establishing pretext) with LeBlanc                                                                         

v. Great Am. Ins. Co., 6 F.3d 836, 843 (1st Cir. 1993) (under                                 

federal  law, permitting,  but  not compelling,  inference of

intentional discrimination  upon proof of pretext).   We find

no error and certainly no plain error.

2.  "Stipulation Error"                                   

          One  week  before  trial, Boston  Edison  moved  in

limine to  limit the  presentation of evidence  pertaining to

Petsch-Schmid's  medical condition.   Boston Edison based the

motion, in  part, on the  district court's pretrial  grant of

                                                    

id. at 431 (Bownes, J., concurring).               

                             -8-                                          8

summary judgment  in its favor on  Petsch-Schmid's claim that

it failed  reasonably  to accommodate  her alleged  disabling

condition.   See Mass. Gen. Laws  ch. 151B,   4(16).   In its                            

motion,  Boston  Edison  offered  to stipulate,  in  lieu  of

medical evidence, that (1) Petsch-Schmid in fact has multiple

sclerosis,  and  (2)  Petsch-Schmid  first  asserted  to  her

supervisor  in May 1991 that she had multiple sclerosis.  The

parties never prepared a written stipulation to this effect.

          After  opening  arguments, Petsch-Schmid's  counsel

attempted to read what  he believed to be the  stipulation to

the   jury.    Boston  Edison's  counsel  objected,  however,

agreeing  only that  "the  company acknowledges  that it  now

knows that, in fact, Ms. Schmid had multiple sclerosis on May

13, 1991.  It did not know  it on that date."  The court then

told the jury:

          [T]he  parties  agree  .  .  .  that  Ms.
          Schmid,   indeed,   was  suffering   from
          multiple sclerosis.  There is, as you may
          gather from the interchange, a dispute as
          to whether an when the company learned of
          this fact.   But  that she did  have that
          condition  on  May  13, 1991,  is  not in
          dispute.

Petsch-Schmid lodged no objection to the ultimate formulation

of the stipulation.

          Petsch-Schmid  now  claims  that there  was  "plain

error   in  the   key  stipulation"   which  undermined   her

credibility at  trial and unfairly burdened  her with proving

the  date  by  which  Boston Edison  knew  of  her  disabling

                             -9-                                          9

condition.  She also contends that  the court's related order

limiting evidence of her  diagnosis and treatment impeded her

ability to  counter-balance Boston Edison's  theory that  she

used her illness "as an excuse" once her job was  in jeopardy

for performance-related reasons.  We are unpersuaded.

          Petsch-Schmid's failure to object  in any manner to

the  stipulation as  presented to  the jury  both  robbed the

district court of any on-the-spot corrections, and raises the

specter  that Petsch-Schmid  did not,  at the  time, consider

detrimental  the stipulation  as  entered.7   Further,  there

exists a  logical  disconnection  between  the  exclusion  of

evidence regarding  her condition,  and the disputed  date by

which Boston  Edison knew of her illness.  The court did not,

in  any way,  prevent Petsch-Schmid  from producing  evidence

(which she did) to  establish that Boston Edison knew  of her

condition in May 1991.8  Nor did Petsch-Schmid claim surprise

                                                    

7.  See  Anderson v. Cryovac,  Inc., 862  F.2d 910,  919 (1st                                               
Cir.  1988)  ("If   a  slip  has   been  made,  the   parties
detrimentally affected must act expeditiously to cure it, not
lie in  wait and ask for another  trial when matters turn out
not to their liking").

8.  We note that Petsch-Schmid  cites Ward v. Westvaco Corp.,                                                                        
859  F. Supp. 608, 614  (D. Mass. 1994),  for the proposition
that,  as long as the employer has some notice of disability,
it need  not  know the  specific  details of  the  condition.
Here,  Petsch-Schmid's  supervisor,  Alden,   testified  that
Petsch-Schmid told  her in May 1991 that she was "handicapped
. . . [and] needed  reasonable accommodation."  Thus, Petsch-
Schmid  elicited from Boston  Edison pertinent testimony that
it  had some notice of an asserted disability on the disputed
date.   Under her  own cited authority,  therefore, it  seems
that  Petsch-Schmid  has  even  less reason  to  complain  of

                             -10-                                          10

or prejudice  in this respect at  trial.  In sum,  we find no

reversible error.

          For  the foregoing  reasons,  the judgment  of  the

district court is affirmed.  Costs to appellees.                              affirmed.  Costs to appellees.                                                           

                                                    

prejudice from the asserted stipulation error.

                             -11-                                          11
