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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br> <br>No. 98-1757 <br> <br>                         RICHARD KOSTER, <br> <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                   TRANS WORLD AIRLINES, INC., <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>           [Hon. Joseph L. Tauro, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                      Boudin, Circuit Judge, <br> <br>              John R. Gibson, Senior Circuit Judge, <br> <br>                    and Lynch, Circuit Judge. <br> <br>                      _____________________ <br> <br>    Joseph Baumgarten, with whom Proskauer, Rose, LLP, James R. <br>DeGiacomo, Judith K. Wyman and Roche, Carens & DeGiacomo, P.C. were <br>on brief, for appellant. <br>    Michael M. McArdle, with whom Earl D. Munroe and Munroe & <br>McArdle were on brief, for appellee. <br> <br> <br>                       ____________________ <br> <br>                          June 21, 1999 <br>                       ____________________

         JOHN R. GIBSON, Senior Circuit Judge.  Trans World <br>Airlines furloughed forty-seven year old Richard Koster as part of <br>a 1994 work force reduction.  Koster brought suit, invoking <br>diversity jurisdiction, and a jury determined that TWA had engaged <br>in illegal age discrimination under Massachusetts law, and awarded <br>Koster $1,000,000 in damages.  The district court doubled the <br>damages pursuant to a Massachusetts statute and awarded prejudgment <br>interest and attorneys' fees.  TWA argues the district court erred <br>in these latter rulings and (1) by denying its motion for a <br>directed verdict and for judgment as a matter of law; (2) in the <br>admission of evidence; and (3) by refusing a requested supplemental <br>jury instruction.  We affirm the jury's verdict and award of <br>attorneys' fees, but reverse the award of damages and remand the <br>case for further proceedings on the issue of damages. <br>         TWA hired Koster in 1965, and he initially worked at <br>John F. Kennedy Airport in New York.  He was reassigned to Logan <br>Airport in Boston in 1977, and employed in various supervisory <br>positions until his furlough in August 1994.  Koster's last <br>position was Supervisor, Ground Operations.  He was responsible for <br>Logan's garage, mail, air freight, dining, commissary and store <br>areas.  He earned $40,000 per year.  TWA consistently promoted <br>Koster and also asked him to take on special assignments when <br>problems arose.  Koster's performance evaluations consistently <br>described him as an excellent employee. <br>         In response to TWA's financial difficulties over the last <br>decade, TWA has instituted pay cuts, reductions in force, and <br>restructurings. <br>         In August 1994, TWA's senior management asked Gordon <br>Humpherys, the station manager for Logan Airport, to implement a <br>reduction in force.  Humpherys was responsible for TWA's entire <br>station operations at Logan, and Koster reported directly to him.  <br>Specifically, TWA management told Humpherys to reduce six <br>supervisor positions to four. <br>         At trial, Humpherys explained that the reduction in force <br>would require the remaining four supervisors to do the work <br>formerly done by six.  Thus, his "foremost concern" was to retain <br>those supervisors "who would provide the most productivity" and be <br>best able to run the operation with a minimum of supervision and <br>direction.  Humpherys ultimately elected to keep Kathy Hobbs (age <br>44),  Glenn Hutmire (age 56), Henry Sledz (age 49), and Robinanne <br>Stancavage (age 25).  He selected Koster (age 49) and  Robert <br>Spencer (age 48) for furlough. <br>         Under TWA's Policies and Procedures, a management <br>employee selected for furlough remains eligible for recall for a <br>five-year period.  The employee may also elect to take a position <br>equivalent to the last position he or she held before entering <br>management.  Koster was entitled to take a position as a <br>transportation agent, which would have paid $26,000 per year.   He <br>elected, however, to take the furlough, hoping he would be <br>recalled.  Koster unsuccessfully applied for several openings at <br>TWA, but in the spring of 1995, Koster elected early retirement in <br>order to obtain his retirement benefits. <br>         Following his decision to retire, Koster opened up a <br>Minuteman printing franchise.  At the time of trial, Koster had yet <br>to take a salary.  Koster estimated his back-pay damages at <br>$159,175, and total losses for future pay at $120,819.  After the <br>furlough, Koster suffered from anxiety  and had trouble sleeping at <br>night.  He suffered from heartburn and had to take antacid pills on <br>a regular basis. <br>         Koster filed suit against TWA alleging age discrimination <br>in violation of the Massachusetts Fair Employment Practices Act, <br>Mass. Gen. Laws ch. 151B, and breach of contract.  The district <br>court dismissed the contract claim at the close of Koster's <br>evidence, and submitted the age claim to the jury.  The jury <br>returned a verdict for Koster, awarding $1,000,000.  The court <br>awarded $155,807.50 in attorneys' fees, prejudgment interest on all <br>but the front-pay portion of the damage award, and an additional <br>$1,000,000 pursuant to Mass. Gen. Laws ch. 151B,  9, finding that <br>TWA acted with knowledge or reason to know that it violated the <br>provisions of Mass. Gen. Laws ch. 151B,  4.  TWA appeals. <br>                                I. <br>         TWA first argues that the district court erred by denying <br>its motion for judgment as a matter of law because Koster failed <br>to:  (1) establish a prima facie case of age discrimination; and <br>(2)show that TWA's articulated non-discriminatory reasons for his <br>furlough were pretextual. <br>         We review de novo the trial court's decision to deny a <br>motion for judgment as a matter of law.  We view the evidence in <br>the light most favorable to Koster, drawing all reasonable <br>inferences in his favor.  See Snchez v. Puerto Rico Oil Co., 37 <br>F.3d 712, 716 (1st Cir. 1994).  We "may reverse the denial of such <br>a motion only if reasonable persons could not have reached the <br>conclusion that the jury embraced."  Id. <br>         In discrimination cases arising under Chapter 151B of the <br>Massachusetts law, courts have traditionally applied the three- <br>stage order of proof articulated in McDonnell Douglas Corporation <br>v. Green, 411 U.S. 792, 802-05 (1973).  See Lehman v. Prudential <br>Ins. Co., 74 F.3d 323, 327-28 (1st Cir. 1996); Blare v. Husky <br>Injection Molding Sys., 646 N.E.2d 111, 114-15 (Mass. 1995).  Under <br>that standard, a plaintiff who was terminated as part of a <br>reduction in force can generally establish a prima face case of <br>discrimination by showing that (1) he was at least forty years old; <br>(2) he met the employer's legitimate job performance expectations; <br>(3) he experienced adverse employment action; and (4) the employer <br>did not treat age neutrally, or that younger persons were retained <br>in the same position.  See LeBlanc v. Great American Ins. Co., 6 <br>F.3d 836, 842 (1st Cir. 1993), cert. denied, 511 U.S. 1018 (1994). <br>         If the employee establishes a prima facie case, there is <br>a presumption that the employer engaged in impermissible age <br>discrimination.  See Kelley v. Airborne Freight Corp., 140 F.3d <br>335, 348 (1st Cir.), cert. denied, 119 S. Ct. 341 (1998).  To rebut <br>this presumption, the employer must articulate a legitimate non- <br>discriminatory reason for the employee's termination.  See id.  <br>This entails only a burden of production; the burden of persuasion <br>of discrimination remains with the employee.  See id.  Once the <br>employer has proffered a legitimate, non-discriminatory reason for <br>its adverse employment decision, the presumption generated by the <br>employee's prima facie case disappears, and the employee then has <br>the burden to prove that the reason advanced by the employer for <br>the adverse employment action constituted a mere pretext for <br>unlawful age discrimination.  See id.  Age discrimination <br>plaintiffs in Massachusetts have a lesser burden than those under <br>federal law.  Massachusetts law requires the employee to show only <br>pretext, whereas under First Circuit ADEA law, the mere showing of <br>pretext does not entitle plaintiff to a verdict.  See Mullin v.  <br>Raytheon Co., 164 F.3d 696, 699 (1st Cir. 1999), pet. for cert. <br>filed, May 5, 1999 (No. 98-1779); Kelley,140 F.3d at 348-49; Blare, <br>646 N.E.2d at 444-45.  Therefore, a plaintiff is entitled to <br>judgment on his claim if he establishes a prima facie case and <br>persuades the trier of fact that the employer's articulated <br>justification is pretextual.  See Kelley, 140 F.3d at 349. <br>                               -A-. <br>         TWA concedes that Koster was in the protected age group <br>and suffered an adverse employment action.  TWA argues, however, <br>that Koster did not establish a prima facie case of age <br>discrimination because he did not prove that he was replaced in his <br>position as Supervisor, Ground Operations, that TWA retained <br>younger employees in the same position, or that TWA's selection <br>process was not age neutral. <br>         TWA failed to preserve its challenge to the sufficiency <br>of Koster's prima facie case.  TWA's motions for directed verdict, <br>made at the close of Koster's evidence and at the close of all of <br>the evidence, challenged Koster's failure to prove pretext, not his <br>failure to prove a prima face case.  "Appellate review may be <br>obtained only on the specific grounds stated in the motion for <br>directed verdict."  See Wells Real Estate, Inc. v. Greater Lowell <br>Bd. of Realtors, 850 F.2d 803, 810 (1st Cir.), cert. denied, 488 <br>U.S. 955 (1988). <br>         Moreover, we are persuaded that Koster established a <br>prima facie case of age discrimination.  Mesnick v. General Elec. <br>Co., 950 F.2d 816, 823 (1st Cir. 1991)(burden is "not onerous.").  <br>In an answer to a special interrogatory, the jury found that Koster <br>established a prima facie case of age discrimination.  This finding <br>is well supported by the evidence.  Although no one took over <br>Koster's exact job, his duties were subsumed by other employees, <br>some of whom were younger, one substantially younger, than him.  In <br>a reduction in force, a prima facie case requires only that Koster <br>show that TWA did not treat age neutrally in deciding who to <br>furlough.  See Hidalgo v. Overseas  Condado Ins. Agencies, Inc., <br>120 F.3d 328, 333 (1st Cir. 1997).  Thus, sufficient evidence <br>existed to allow a reasonable jury to find that Koster met his <br>burden of proving a prima facie case of discrimination. <br>                               -B-. <br>         TWA next argues that Koster failed to present sufficient <br>evidence from which a jury could reasonably infer that the reasons <br>for TWA's discharge were a pretext for age discrimination.  TWA <br>argues that Koster failed to show that TWA did not have a <br>legitimate need to reduce its work force at Logan, and furthermore, <br>did not address the fact that three of the four retained <br>supervisors were also in the protected age class. <br>         Koster does not argue, however, that the reduction in <br>force itself was pretextual. Instead, Koster relies on evidence <br>that TWA's stated reasons for selecting him for furlough were <br>false.  In answers to special interrogatories, the jury <br>specifically found that TWA "had not presented credible evidence of <br>a legitimate business purpose for the furloughing of Mr. Koster in <br>August, 1994" and that "Koster has proven that the reason given by <br>[TWA] for his furlough in August 1994 was a pretext for age <br>discrimination."  The jury could reasonably make this finding of <br>pretext from the circumstances surrounding Humpherys's selection <br>process.  Humpherys testified that he selected Koster for furlough <br>because Humpherys "didn't think he had sufficient people skills, <br>[and] his attitude was not sufficiently good for him to be able to <br>manage the operations on a regular basis."  Other witnesses <br>testified, however, that Koster had a very good relationship with <br>employees, and that he was knowledgeable, very professional, and a <br>hard worker.  Hutmire, one of the retained supervisors, testified <br>that Koster was a leader and "a workaholic."  Koster had perfect <br>attendance record in fourteen out of seventeen years.    Koster had <br>been designated acting station manager to fill in for Humpherys on <br>at least two occasions. <br>         In addition, Humpherys testified that in evaluating the <br>supervisors he ranked Koster the "lowest performer."  Humpherys <br>admitted, however, that Koster got the job done and that the <br>performance of his crews was satisfactory.  He ranked Koster even <br>below Spencer who he testified was "constantly late" and "not a <br>strong supervisor." Humpherys ranked twenty-five year old <br>Stancavage as the second best supervisor of the group, even though <br>she had only three months of supervisory experience.  Koster hired <br>Stancavage in 1989 as a customer service agent.  She quit on <br>November 15, 1992, and  returned to TWA in June of 1993 as a part- <br>time customer service agent.  On January 24, 1994, she was promoted <br>to a full-time employee as a customer service agent in charge.  On <br>April 25, 1994, she became a Supervisor, Ground Operations.  There <br>was evidence that Stancavage had a full scholarship at M.I.T. and <br>was working for TWA only until she could return to school.  <br>Humpherys's primary explanation as to why he decided to retain <br>Stancavage over Koster was that she was  "enormously creative" and <br>"very enthusiastic." <br>         After comparing the qualifications of Koster and <br>Stancavage, there is abundant evidence supporting the <br>conclusion that a reasonable employer would have found Koster <br>significantly more qualified than Stancavage, a twenty-five year <br>old employee with three months of supervisory experience.  The jury <br>could also reasonably conclude that Koster fit the selection <br>criteria established by Humpherys and that Stancavage did not.  <br>Koster obviously made a long-term commitment to working for TWA, <br>while evidence suggested that Stancavage planned to work for TWA <br>until she returned to school.  "[A]n employer's asserted strong <br>reliance on subjective feelings about candidates may mask <br>discrimination."  Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1297 <br>(D.C. Cir. 1998)("enthusiasm").  That three of the four retained <br>supervisors were in the protected age class is of little importance <br>because Koster need only show that TWA furloughed him because of <br>his age.  See O'Connor v. Consolidated Coin Caterers Corp., 517 <br>U.S. 308, 312-13 (1996). Moreover, Stancavage is substantially <br>younger than Koster.  See id. at 313.  The jury's disbelief of the  <br>reasons set forth by TWA (particularly if the disbelief is <br>accompanied by a suspicion of mendacity) may, together with the <br>elements of the prima facie case, permit the jury to infer the <br>ultimate fact of intentional discrimination.  See St. Mary's Honor <br>Ctr. v. Hicks, 509 U.S. 502, 511 (1993); Aka, 156 F.3d at 1294 <br>(discrimination can be inferred from evidence that employer <br>selected a significantly less qualified candidate).  Koster <br>established pretext by showing that TWA's proffered explanation is <br>unworthy of credence.  The court did not err in denying TWA's <br>motion for judgment as a matter of law. <br>                               II. <br>         TWA also argues that the district court's admitting a <br>section of the TWA Management Policy and Procedure Manual and  <br>allowing Koster to testify about other employees who had left TWA <br>was reversible error. <br>                               -A.- <br>         Section 10.66.01 of the Manual applied to salaried <br>personnel.  The policy section of the provision stated:  <br>"[s]alaried seniority will determine the order of force reduction <br>and displacements of Salaried employees," and stated that in a <br>reduction in force, employees should be let go in the following <br>order:  contingent employees, probationary employees, regular part- <br>time or full-time employees. <br>           TWA contends that this provision applied only to <br>salaried employees and did not apply to Koster as a management <br>employee, and the district court abused its discretion in allowing <br>the jury to consider this evidence. <br>         We review evidentiary decisions of the trial court for <br>abuse of discretion.  Nieves-Villanueva v. Soto-Rivera, 133 F.3d <br>92, 98 (1st Cir. 1997). <br>         The district court did not abuse its discretion in <br>admitting section 10.66.01 of the manual, or in refusing to give a <br>curative instruction.  Although TWA argues that this provision does <br>not apply to Koster because he was "management" and not "salaried," <br>there was evidence that this provision applied to Koster.  First, <br>Koster's furlough letter from TWA referred Koster to section 10.66 <br>for "a statement of his rights with respect to his seniority."   <br>Second, Koster testified that he thought that the provision applied <br>to all salaried management employees other than contract (union) <br>labor.  He explained that his employee records showed that he was <br>subject to a 14% pay cut in 1986 applicable to "salaried" <br>employees, and he believed the provision applied to him.  Thus, a <br>question of fact existed as to whether the provision applied to <br>Koster, and the court did not abuse its discretion in admitting the <br>provision, or refusing to instruct the jury that the section did <br>not apply to Koster.  See Fed. R. Evid 104(b). <br>                               -B-. <br>         TWA further argues that the district court erred in <br>allowing Koster to testify about TWA's treatment of other  <br>employees and in denying TWA's request for a supplemental jury <br>instruction advising the jury that it could not consider such <br>anecdotal evidence.  TWA contends that the evidence lacked <br>foundation, and that there was no nexus between the other <br>terminations and Koster's termination.  TWA further argues that <br>allowing the evidence contradicted the district court's pre-trial <br>ruling that Koster's "other employee" evidence was not relevant. <br>         In a pre-trial order, the court granted TWA's motion in <br>limine prohibiting Koster from calling six former employees to <br>testify about how TWA furloughed them during other work force <br>reductions.  The district court reasoned that such testimony was <br>"collateral," and would require the court to examine "the <br>circumstances of each individual firing." <br>         At trial, Koster testified that during previous <br>reductions in force, he knew other employees over age fifty who TWA <br>had released or furloughed or who had retired.  Specifically, <br>Koster testified that he knew over one hundred front-line <br>management employees during his career, and only one retired at age <br>62 or older.  Koster gave examples of TWA employees he had known <br>who were over fifty and who had lost their jobs.   <br>         Koster's testimony did not violate the pre-trial order.  <br>The trial court ruling prohibited Koster from calling collateral <br>witnesses to testify about the circumstances surrounding the <br>furloughs of older supervisors.  The order did not prohibit Koster <br>from testifying about his own observations of what happened to <br>other employees at TWA.  During trial, the court clarified that it <br>would allow Koster to testify about what he perceived regarding the <br>reorganizations. <br>         TWA argues that the anecdotal testimony is not indicative <br>of age discrimination or of pretext and should not have been <br>admitted.  TWA portrays the evidence as irrelevant and highly <br>prejudicial, warranting reversal. <br>         In Goldman v. First National Bank,985 F.2d 1113, 1119-21 <br>(1st Cir. 1993), we held that plaintiff's anecdotal evidence was <br>insufficient to form the basis for a finding of age animus.  In <br>Goldman, the employee had presented the affidavits of eight other <br>employees who stated that they were the oldest employee in their <br>unit and had been performing adequately when their employer <br>dismissed them pursuant to a reduction in force.  Id. at 1119.  We <br>held that "evidence of this sort does little more than corroborate <br>what was undisputed:  that members of the protected class were <br>terminated as part of the reduction in force."  Id. (internal <br>quotations omitted). <br>         Contrary to TWA's argument, Goldman did not hold that <br>anecdotal evidence is not admissible and always prejudicial. <br>Goldman simply held that the anecdotal evidence presented could <br>not, by itself, establish age animus.  Id. at 1119.  Accord <br>Shorette v. Rite Aid Inc., 155 F.3d 8, 16-17 (1st Cir. 1998);  <br>LeBlanc, 6 F.3d at 847.  Indeed, we recently observed that "while <br>proof of a general atmosphere of discrimination is not the <br>equivalent of proof of discrimination . . . it may add color to an <br>employer's decisionmaking process."  Brennan v. GTE Gov't Sys. <br>Corp., 150 F.3d 21, 28 (1st Cir. 1998)(internal quotations <br>omitted).  Here, as in Brennan, Koster's  anecdotal evidence was <br>just a part of his age discrimination picture.  The admissibility <br>of Koster's anecdotal evidence was a judgment call, as was the <br>refusal of the requested instruction.  Exclusion would not have <br>been an abuse of discretion, but neither was admission. <br>                               III. <br>         TWA argues the district court abused its discretion in <br>denying TWA's motion for remittitur or, in the alternative, a new <br>trial on damages.  See Gasperini v. Center for Humanities, Inc., <br>518 U.S. 415, 433 (1996) (abuse of discretion standard).  TWA, <br>however, bears a heavy burden of showing that an award is "grossly <br>excessive, inordinate, shocking to the conscience of the court, or <br>so high that it would be a denial of justice to permit it to <br>stand."  Havinga v. Crowley Towing & Transp. Co., 24 F.3d 1480, <br>1484 (1st Cir. 1994).  We will not disturb an award of damages <br>because it is extremely generous or because we think the damages <br>are considerably less.  See id.  We will only reverse an award if <br>it is so grossly disproportionate to any injury established by the <br>evidence as to be unconscionable as a matter of law.  See id.; <br>Clausen v. Sea-3, Inc., 21 F.3d 1181, 1198 (1st Cir. 1998) <br>(remittitur appropriate only when verdict "so exorbitant"). <br>         TWA does not attack the entire damage award.  TWA first <br>takes issue with the damages for emotional distress.  Koster's  <br>evidence of lost wages (back pay and front pay) amounted to <br>approximately $284,000; thus, TWA argues that the balance of <br>$716,000 represents damages for emotional distress and is <br>excessive.  Koster responds that the $716,000 does not necessarily <br>constitute emotional damages, and the jury could have easily <br>decided that Koster's total losses for front pay far exceeded the <br>$120,819 he testified about. <br>         Koster's testimony, however, as to back pay and future <br>pay was quite specific.  His attorney in closing argument <br>reiterated that his economic damages totaled $283,995.  In the face <br>of such firm evidence of economic damage, we cannot say that the <br>jury could reasonably conclude Koster was damaged above and beyond <br>what he said his damages were.  See Kelley, 140 F.3d at 355-56. <br>         Although determining whether damages for emotional <br>distress are excessive is difficult, such damages are not immune <br>from review.  See LaBonte, 678 N.E.2d at 861-62.  The Massachusetts <br>Supreme Judicial Court held that a $550,000 award for emotional <br>distress was excessive in LaBonte.  In that case, a law firm fired <br>an employee after the employee developed multiple sclerosis.  Id. <br>at 855-56.  There was evidence that the employee was depressed and <br>that "his confidence was shattered" by the termination.  Id. at <br>861.  Although the court acknowledged that the employee suffered <br>from depression and sought counseling, it nevertheless concluded <br>that the $550,000 award for emotional distress was excessive.  Id. <br>at 861-62.  The court reasoned that the damage award was grossly <br>disproportionate to the evidence of injury.  The plaintiff had not <br>been hospitalized and never took medication to combat his <br>depression, and his depression abated after he found a new job.  <br>Id.  The court concluded that his depression, while real and <br>significant, did not rise to the level awarded by the jury.  Id.  <br>The case was remanded to the trial court to determine the amount of <br>remittitur. <br>         Although testimony from a mental health expert is not <br>required to sustain an award for emotional distress, the absence of <br>such evidence is useful in comparing the injury to the award of <br>damages.  For example, in Snchez, a jury awarded $150,000 in <br>emotional distress damages to a plaintiff in an age discrimination <br>case.  37 F.3d at 723.  The district court reduced the award to <br>$37,500, and we affirmed.  Id. at 723, 726.  The plaintiff in <br>Snchez testified about the humiliation he suffered from losing his <br>job and filing for bankruptcy.  We indicated that although <br>emotional damages are warranted even without medical or psychiatric <br>evidence, the lack of such evidence is relevant to the amount of <br>award.  Id. at 724 n.13. <br>         One of the highest emotional distress judgments in <br>Massachusetts was awarded in Westinghouse Electric Supply Corp. v.  <br>Massachusetts Commission Against Discrimination, No. CIV. A. 97- <br>4267E, 1999 WL 140492 (Mass. Dist. Ct. Mar. 5, 1999).  In that <br>case, Westinghouse fired an experienced salesman after he developed <br>Crohn's disease.  Id. at *1-2.  The claimant suffered from severe <br>depression, insomnia, constant diarrhea, and stomach pain, and the <br>Massachusetts Commission awarded him $250,000 for emotional <br>distress.  Id. at *3.  The Massachusetts court affirmed the award, <br>concluding it was "within the realm of other emotional distress <br>awards, and that "the exacerbation of his illness and consequent <br>termination may support a higher award of damages."  Id. at *10-11, <br>n. 16 and 17.  Although the evidence of injury was much more severe <br>in Westinghouse, the claimant received about a half a million <br>dollars less than Koster.  See id. at *10 (humiliation, depression, <br>inability to eat, constant diarrhea and pain).  In Westinghouse, <br>there was no evidence that the claimant found another job as Koster <br>did. <br>         Despite the strict standard of review, courts have <br>ordered  remittiturs in a number of cases.  See, e.g., Fontaine v.  <br>Ebtec Corp., 613 N.E.2d 881, 883-84 & n.3 (Mass. 1993) (emotional <br>distress damages reduced from $80,000 to $25,000); Powers v. H.B. <br>Smith Co., 679 N.E.2d at 252, 254 (Mass. App. Ct. 1997)(damage <br>award (front-pay and emotional distress) reduced from $750,000 to <br>$350,000); Kelley, 140 F.3d at 345 (emotional distress damages <br>reduced from $250,000 to $150,000); United States v. Snchez, 37 <br>F.3d at 723 (emotional distress damages awarded under Puerto Rico <br>statute reduced from $150,000 to $37,500).  Accord Hetzel v.  <br>County of Prince William, 89 F.3d 169, 173 (4th Cir. 1996)(award of <br>$500,000 grossly excessive), cert. denied, 519 U.S. 1028 (1996); <br>see also Brownlie v. Kanzaki Specialty Papers, Inc., 691 N.E.2d <br>953, 955 (Mass. App. Ct. 1998) (emotional distress damages of <br>$50,000). <br>         There is no doubt that Koster suffered emotionally <br>following his furlough.  Koster had worked for TWA for over twenty- <br>five years and was devoted to his job.  His seniority status at TWA <br>allowed him job and vacation flexibility, and he found his work <br>extremely gratifying.  After the furlough, Koster had trouble <br>sleeping and was anxious.  A vacation to Hawaii "did not go well."  <br>He took antacid pills on a regular basis.  His new job requires him <br>to work more, and he earns less.  His family life has suffered.  <br>His wife has had to return to work, and he is not able to <br>participate as fully in the activities of his four children.  <br>Following LaBonte, however, we believe the award is grossly <br>disproportionate to the evidence of emotional distress.  There was <br>no evidence that Koster ever sought medical treatment or suffered <br>any long-term depression or incapacitation.  Koster was able to <br>open up a business of his own and anticipates taking a salary <br>within two years.  Although we acknowledge that the furlough of <br>Koster was particularly painful because of his devotion to TWA, we <br>also recognize that he could have remained with TWA, albeit in a <br>different job with a reduced salary. <br>         Accordingly, we conclude that the evidence of injury was <br>grossly disproportionate to the award for emotional distress, and <br>is excessive as a matter of law.  We recognize that we have the <br>option of selecting a reduced damages figure ourselves based on the <br>evidence adduced at trial, or remanding the case to the district <br>court for a determination of damages.  See, e.g., Anthony v. GMD <br>Airline Services, Inc., 17 F.3d 490, 495 (1st Cir. 1994);   <br>Marchant v. Dayton Tire & Rubber Co., 836 F.2d 695, 704 (1st Cir. <br>1988). <br>         Although we recognize the esoteric nature of damages for <br>emotional distress, in view of the fact that the district court <br>denied TWA's motion for a remittitur, we think the best course is <br>to follow the "maximum recovery rule" authorized by this circuit.  <br>See id.  Under that rule, we condition our ruling that a new trial <br>on damages is appropriate on Koster's declining to remit our <br>determination of Koster's damages.  After our careful review of the <br>record and thoughtful consideration of other cases, we believe the <br>evidence of emotional distress would support a maximum recovery of <br>emotional damages of $250,000.  We believe that amount represents <br>the highest amount of damages for emotional distress for which <br>there is adequate evidentiary support.  We thus grant a new trial <br>on the issue of emotional damages only, and condition our order on <br>Koster's declining to remit $466,000 of the total amount awarded by <br>the jury. <br>                               IV. <br>         TWA argues the trial court erred in awarding  Koster  <br>double damages.  TWA contends that Chapter 151b requires the court <br>to make a specific finding to warrant the imposition of double <br>damages.  TWA speculates that the district court "may have <br>construed" the double damages provision as mandatory, not <br>discretionary. <br>         Following the jury's verdict, the district court simply <br>stated:  "Okay.  The issue now is whether I am going to double the <br>award.  And I am.  So, I will make ... a finding that I think it is <br>appropriate to double the jury award.  And I will do it."  The <br>court's May 18, 1998, order tracked the statutory language of Mass. <br>Gen. Laws ch. 151B,  9.  TWA states that Brownlie, 691 N.E.2d at <br>962, requires the district court to make specific findings that the <br>employer knew that the discriminatory act violated the age <br>discrimination law.  Although the court's findings in Brownlie were <br>much more specific than the court here, we are convinced that the <br>specificity was gratuitous and not required by the statute. <br>         Neither the statute nor the relevant case law requires <br>that the district court do anything more than enter a finding that <br>the employer acted with knowledge or reason to know that it <br>violated the anti-discrimination statute.  See Brownlie, 691 N.E.2d <br>at 962.  See also Kelley, 140 F.3d at 345 (multiplying damages by <br>2.25).  The statute simply requires a finding that the employer <br>satisfied the knowledge element of the statute. <br>         Although the district court did not provide a detailed <br>analysis supporting its finding, the judge affirmatively found that <br>it was appropriate to double the damage award.  This statement is <br>easily translated into a finding, supported by the record, that TWA <br>acted with knowledge or reason to know.  The evidence of <br>Humpherys's explanation for selecting Koster for furlough was not <br>credible. TWA's vice president of employee relations, Thibaudeau, <br>testified about TWA's policy prohibiting age discrimination, and <br>about how the policy was communicated to all managers.  This <br>evidence supports the finding that TWA acted with knowledge of its <br>violation of Massachusetts law. <br>         TWA also suggests that the district court "may" have <br>thought double damages were mandatory.  TWA refers us to the <br>multiple damage provision of the consumer protection law, which <br>courts have recognized requires more than a "knowing violation," <br>despite the statutory language which suggests a less rigorous <br>standard.  See Cambridge Plating Co. v. NAPCO, Inc., 85 F.3d 752, <br>770 (1st Cir. 1996).  First, it is obvious from the court's finding <br>that it only considered the doubling mandatory if TWA's conduct met <br>the standard of knowledge required by the statute.  Fontaine <br>instructs that double damages are mandatory if the knowledge <br>standard of the statute is met, and that triple damages are <br>discretionary.  See 613 N.E.2d at 322 ("a certain recovery of at <br>least double damages"). Although the language of the provision in <br>the consumer protection statute is similar, none of the cases under <br>the age discrimination statute suggest that the knowledge <br>requirement is higher than that suggested by the statute.  See, <br>e.g., Brownlie, 691 N.E.2d at 962;  cf. Cambridge Plating, 85 F.3d <br>at 770-771.  The court did not err in awarding double damages. <br>                                V. <br>         TWA argues that the attorneys' fee award of $155,807.50 <br>is excessive.  Our review of the attorneys' fee award is governed <br>by Massachusetts Law.  Krewson v. City of Quincy, 74 F.3d 15, 17 <br>(1st Cir. 1996). <br>         The amount of a reasonable attorneys' fee, awarded on the <br>basis of statutory authority, is largely discretionary.  See <br>Fontaine, 613 N.E.2d at 890. <br>         TWA argues that the fee should be vacated because the <br>court abused its discretion in awarding Koster his full attorneys' <br>fees.  TWA contends that the case did not warrant the participation <br>of three attorneys, and the court should have reduced the award to <br>take into account that Koster lost on his breach of contract claim. <br>         The district court, however, determined that the fees <br>were reasonable.  The judge stated: <br>                      Very frankly, I find the hours reasonable, <br>           the amount of time spent.  The fact that <br>           there were three lawyers on one side and <br>           two on the other side, I don't find <br>           disproportionate.  It is probably fair, <br>           especially that you, Mr. DeGiacomo, are <br>           one of the most experienced and highly <br>           regarded trial lawyers in the city.  You <br>           could almost argue that it takes three <br>           against one, that three against one makes <br>           it fair. <br> <br>         TWA does not challenge the billing rate of the attorneys <br>nor does it suggest that the time was duplicative.  It simply <br>argues that "this was not a case warranting the investment of three <br>attorneys." <br>         We find no abuse of discretion in allowing recovery for <br>the time spent by three attorneys.  TWA does not suggest the time <br>spent by three attorneys was duplicative, just that it was <br>unnecessary.  After consideration, the district court rejected this <br>argument.  Counsel's time spent pursuing unsuccessful claims, <br>however, is generally non-compensable "unless it can be shown that <br>the [unsuccessful and successful] claims were interconnected."  <br>Krewson, 74 F.3d at 19.  "Interconnection" can be found when the <br>"claims include[] a common core of facts or were based on related <br>legal theories."  Lipsett v. Blanco, 975 F.2d 934, 940 (1st Cir. <br>1992) (quotations omitted).  Although it may be true that Koster's <br>breach of contract and discrimination claims arose out of the same <br>cluster of facts, we need not decide this question because it is <br>the fee target's burden to show a basis for segregability.  See id. <br>at 941.  TWA did not meet this burden either before the district <br>court or this court. <br>         We affirm the judgment of the district court except for <br>the award of damages.  We order a new trial on the issue of <br>emotional damages only if Koster decides not to remit $932,000 <br>(plus any interest accrued).</pre>

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