

                  United States Court of Appeals
                      For the First Circuit
                                           

No. 96-1117

                      MARY JANE KERR SELGAS,

                       Plaintiff, Appellee,

                                v.

                   AMERICAN AIRLINES, INC., AND
                      WHADZEN CARRASQUILLO,

                     Defendants, Appellants.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Jose Antonio Fuste, U.S. District Judge]                                                                 

                                           

                              Before

                     Torruella, Chief Judge,                                                     
            Coffin and Campbell, Senior Circuit Judges.                                                                

                                           

  Howard  B. Comet  with whom  Andrew  B.  Steinberg and  Vicente J.                                                                              
Antonetti were on brief for appellants.                 
  Judith  Berkan with whom  Rosalinda Pesquera  and Mary  Jo Mendez-                                                                              
Vilella were on brief for appellee.               

                                           

                         January 13, 1997
                                           

     COFFIN, Senior Circuit Judge.  At issue in this case are the                                           

equitable  remedies  awarded to  the  plaintiff,  Mary Jane  Kerr

Selgas ("Kerr Selgas"), in a sex discrimination suit  against her

employer, American  Airlines ("American").   A jury  awarded Kerr

Selgas a lump sum award in that suit that included an unspecified

amount for front pay.  In an earlier appeal,  this court affirmed

the judgment.   See Kerr  Selgas v. American  Airlines, Inc.,  69                                                                      

F.3d  1205  (1st  Cir. 1995)  ("Kerr  I").    The district  court                                                 

subsequently   ordered  Kerr   Selgas  reinstated   by  American.

American   maintains  in   this   appeal  that   front  pay   and

reinstatement are mutually exclusive equitable remedies, and that

the court therefore erred  in allowing both  to Kerr Selgas.   It

further  claims  that  the   district  court  erred  in  ordering

reinstatement  without conducting  a hearing,  without permitting

American  to conduct  additional  discovery,  and in  considering

extra-record evidence submitted  by Kerr Selgas.   We affirm  the

court's  legal judgment that both front pay and reinstatement are

permissible, but we vacate the  district court's order and remand

for a  hearing on whether reinstatement is  an appropriate remedy

here.  

                            BACKGROUND                                                

     The  facts of the underlying suit are discussed in detail in

our opinion in  Kerr I;  accordingly, we relate  here only  those                                

facts relevant to the instant appeal.

     Mary Jane Kerr Selgas was fired by American Airlines in 1992

after 18 years with  the company; she brought suit  under federal

                               -2-

and Puerto Rico law, alleging sex discrimination, harassment, and

violation  of her local law right to  privacy.  At the conclusion

of a  three week  trial, a  jury awarded her  over $1  million in

damages; under Puerto Rico law, this was doubled automatically to

over  $2 million.   A  remittitur and  the rejection  of punitive

damages by this court in Kerr I resulted in a final damages award                                         

of $1.2 million. 

     While Kerr Selgas had requested reinstatement in her initial

complaint, and also in subsequent motions, the district court set

this issue aside  during the course of  the trial and  during the

pendency of the  Kerr I  appeal.   One month  after this  court's                                 

decision  in  Kerr I  on November  13,  1995, the  district court                              

ordered  American to  reinstate Kerr  Selgas.   The court  did so

without holding a full hearing  on this issue, and its order  was

based  on the  evidence  received  at  trial  and  on  additional

materials submitted with motions by Kerr Selgas.  American claims

that  this  reinstatement  order  is improper  for  two  reasons.

First, it argues that reinstatement and front pay are alternative

remedies and that Kerr  Selgas was fully compensated by  the jury

award  including   front  pay.    Second,   if  reinstatement  is

permissible,  it argues that it should not have been ordered here

without  first  giving  American   additional  discovery  and  an

opportunity  to be heard  on the issue,  particularly if evidence

obtained after the trial was to be considered.

                            DISCUSSION                                                

     Our  review of the district court's decision that both front

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pay  and reinstatement could be  awarded together as  part of the

remedies available to  a Title  VII plaintiff is  de novo, as  we                                                                   

review for legal error.  Compagnie de Reassurance d'Ile de France                                                                           

et  al. v. New England Reinsurance Corp.,  et al., 57 F.3d 56, 71                                                           

(1st Cir. 1995)  (review of legal rulings is de  novo).  However,                                                               

in  reviewing  a  district  court's decision  to  actually  award

equitable relief,  we utilize  the abuse of  discretion standard.

Lussier  v. Runyon,  50 F.3d  1103, 1111  (1st Cir.  1995).   Our                            

review is deferential, and we will not normally find an  abuse of

discretion absent strong evidence of a lapse in judgment.  Texaco                                                                           

Puerto Rico v. Department  of Consumer Affairs, 60 F.3d  867, 875                                                        

(1st Cir. 1995).  In Title VII  cases, we must be mindful of  the

statute's  dual purposes of eliminating discrimination and making

its victims whole.  Id.                                  

A.   Equitable Remedies Under Title VII:  Front Pay and
     Reinstatement.

     The  remedial  scheme in  Title VII  is  designed to  make a

plaintiff who has been the victim of discrimination whole through

the use of equitable remedies.  Albemarle Paper Co. v. Moody, 422                                                                      

U.S.   405,  418   (1975).     These   remedies  (which   include

reinstatement, back pay, and  front pay) are accordingly intended

to  compensate a plaintiff for the effects of the discrimination,

both past and future, and to bring the plaintiff  to the position

which s/he would have occupied  but for the illegal act(s).   See                                                                           

Shore v. Federal  Express Corp.,  777 F.2d 1155,  1159 (6th  Cir.                                         

1985).  Under  Title VII, the  first choice is  to reinstate  the

plaintiff at  the original  employer; this accomplishes  the dual

                               -4-

goals  of  providing  full  coverage  for  the  plaintiff  and of

deterring such conduct by employers in the future.  See Scarfo v.                                                                        

Cabletron Systems, Inc., 54 F.3d 931, 954 (1st Cir. 1995).                                   

     Where  reinstatement  is  not  immediately  available  as  a

remedy,  either  due  to  the plaintiff's  condition,  or  due to

conditions at  the employer that preclude  the plaintiff's return

(such  as  hostility  of other  employees,  or  the  need for  an

innocent  employee  to be  "bumped"  in  order  to reinstate  the

plaintiff),  front   pay  is  available  as   an  alternative  to

compensate the plaintiff from the conclusion of trial through the

point at which the plaintiff can either return to the employer or

obtain comparable employment elsewhere.  See id.; see also Powers                                                                           

v. Grinnell Corp., 915  F.2d 34, 42 (1st  Cir. 1990); Wildman  v.                                                                       

Lerner Stores Corp., 771 F.2d 605, 616 (1st Cir. 1985) (front pay                             

may be awarded in ADEA suits where reinstatement is impracticable

or  impossible; circumstances  of  each case  to be  considered);

Dillon v. Coles, 746 F.2d 998, 1006 (3rd  Cir. 1984).  It is this                         

context,  where the overarching  preference is  for reinstatement

and front pay is  an alternative for finite periods  during which

reinstatement is unavailable,1 which  is the key to understanding

the construction of remedial  packages.  In this context,  it can

be  seen  that front  pay  and  reinstatement  are  not  mutually

                                                  

     1    See, e.g.,  Scarfo v. Cabletron Systems,  Inc., 54 F.3d                                                                  
931, 953 (1st Cir.  1995)("Front pay refers to damages  for wages
from  the  date  of  judgment  to  some  specified  date  in  the
future.");  Thompson v.  Sawyer,  678 F.2d  257,  293 (D.C.  Cir.                                         
1982)("[F]ront pay should persist, however, only until the wrongs
for which plaintiffs are owed backpay have been righted.")    

                               -5-

exclusive.    Front  pay  takes  a  plaintiff  to  the  point  of

employability.   Reinstatement  at that  point would,  in effect,

"perfect" the remedy because  the plaintiff would be back  in the

very job she lost unlawfully.

     Trial courts have discretion to fashion the  awards in Title

VII cases so as to fully  compensate a plaintiff in a manner that

suits the specific  facts of the  case; this discretion  includes

the  selection  of  the  elements  which  comprise  the  remedial

recovery.2   Albemarle, 422 U.S.  at 415-16.   Traditionally, the                                

court determines the  whole remedial package  in one fell  swoop.

Hybrid awards combining front  pay with other equitable elements,

while rare, are not novel.  The Court of Appeals for the District

of  Columbia in Thompson v. Sawyer, 678  F.2d 257, 268 (D.C. Cir.                                            

1982),   commended  a   district  court's   award   (although  it

reformulated certain of the elements) which included back pay and

front pay to be paid to  female bindery workers at the Government

Printing  Office through such time as women comprised half of the

litigated positions.  Reinstatement and front pay were explicitly
                                                  

     2    American claims that by  presenting her claim for front
pay to the  jury in the  form of jury  instructions, Kerr  Selgas
"elected" front pay as  a remedy, rather than reinstatement.   It
is  clear that in  a Title  VII case, it  is the court  which has
discretion to fashion relief  comprised of the equitable remedies
it sees as appropriate,  and not the parties which  may determine
which  equitable remedies  are available.   See  James v.  Sears,                                                                           
Roebuck  &amp; Co., 21  F.3d 989, 997  (10th Cir. 1994)  (decision to                        
award  reinstatement  or  front  pay is  at  court's  discretion;
plaintiffs who refused  reinstatement where not impracticable  or
impossible  may not elect front pay simply because they prefer it
as  remedy).   Additionally, Kerr  Selgas' repeated  requests for
reinstatement in her original complaint and in subsequent motions
bely a  claim that  she elected  one  form of  recovery over  the
other.

                               -6-

cobbled  together as part of the relief afforded the plaintiff in

Valdez  v. Church's Fried Chicken,  Inc., 683 F.  Supp. 596 (W.D.                                                  

Tx.  1988),  where reinstatement  to  a  managerial position  was

ordered  as soon as a position became available and front pay was

ordered  to  continue until  the  reinstatement  occurred.   This

court,  while it  has  not previously  addressed this  particular

issue,  has indicated a preference for a flexible approach in the

construction  of remedial awards.   See Lussier, 50  F.3d at 1112                                                         

(remedial tapestry  is made up  of multiple strands  of relief).3

The  district court therefore had the option here of combining an

award of front pay  with reinstatement.  Its only  limitation was

to avoid duplication.  See Scarfo, 54 F.3d at 955 (citing Dopp v.                                                                        

HTP Corp., 947 F.2d 506, 516 (1st Cir. 1991)(duplicative remedies                   

are to  be  avoided)).   Because  courts typically  consider  all

remedies  at the  same time,  duplication most commonly  would be

avoided by denying front  pay when an immediate  reinstatement is

ordered.  

     Although the district  court was not explicit  about what it

was  doing  in this  instance  (allowing American  to  argue that

reinstatement  had been  excluded  as a  prospective remedy),  it

appears to  have bifurcated the traditional  remedies analysis on

the  assumption that, since Kerr  Selgas was unable  to return to

work at  the time of  trial, pay  for some future  time --  i.e.,
                                                  

     3    We  note that  the cases  American has  cited from  our
circuit merely support the  proposition that reinstatement is the
preferred first remedy, and that where this is unavailable, front
pay may  be awarded,  rather than precluding  a remedial  package
which contains both elements. 

                               -7-

front  pay -- was necessary to compensate Kerr Selgas, whether or

not reinstatement would be an appropriate additional remedy.4  It

therefore reserved the reinstatement issue  for later resolution,

and  sent the  compensatory elements  (back pay,  front  pay, and

damages) to the jury for determination.5   By including front pay

in its lump sum award, the jury fully compensated Kerr Selgas for

the discrimination she had suffered from the point of the initial

illegal  act to  the  point  at which  she  would  once again  be

employable at her prior level.  The court then took up post-trial

whether American was required to take her back.  

     Due to the  amorphous nature  of the  jury award  -- it  was

simply a lump sum  with no distinctions made between  the amounts

allocated  to  back  pay, front  pay,  or  damages,  and with  no

statement as to the time  period which the front pay portion  was

intended to cover -- it cannot be stated with any certainty which

dates or figures  the jurors  determined were  applicable to  the

front pay  issue.6  In  other words,  it is not  clear when  they
                                                  

     4    In  its  June  23,   1994  Order,  the  district  court
explicitly  stated  that  the  issue  of  reinstatement  remained
pending resolution by the court.  

     5     We would counsel district  courts in the future  to be
explicit about  the procedures  they are following,  whether they
choose to  reserve an equitable remedy  for future determination,
or conclude that it is inapplicable in a particular instance.  

     6    Additionally, an award of front pay, constituting as it
does, an  estimate of what a plaintiff might have earned had s/he
been  reinstated  at  the  conclusion of  trial,  is  necessarily
speculative.  See Loeb v. Textron, Inc., 600 F.2d 1003, 1023 (1st                                                 
Cir. 1979).   However, this speculative  aspect should not  deter
courts from  fashioning awards that accomplish  Title VII's goals
of making a wronged plaintiff whole.  See Barbour v. Mitchell, 48                                                                       
F.3d 1270,  1280  (D.C.  Cir. 1995)  (noting  courts  and  juries

                               -8-

thought  she would  be ready  to  return to  work.   Testimony at

trial, however, put the longest date at 18 months after trial, or

October  1995.7    Furthermore, in  its charge  to the  jury, the

court specifically  limited any  damages to  those caused by  the

defendants'  wrongful conduct.8    Reinstatement was  ordered  in

December 1995.  The  front pay and reinstatement awards thus seem

most reasonably to cover separate and  distinct periods of time.9

Because  there is no  duplication, the two  equitable remedies of

front pay and reinstatement  could be used in concert  to achieve
                                                  

routinely engage in some  speculation based on factual record  in
other situations such as personal  injury cases when valuing lost
earning capacity).  

     7    American's expert testified that Kerr Selgas was fit to
return to work  immediately after the  conclusion of trial;  Kerr
Selgas' expert, on  the other  hand, testified that  it would  be
eight to  18 months before she  would be able to  return to work.
The  testimony  concerning  her  income  loss included  estimates
presented by her expert  as to the losses she  would sustain were
she  to return to work  immediately, six months  after trial, and
one year after trial.  

     8    In  its instructions to the jury, the court stated that
the jury could award damages only for injuries that the plaintiff
proved were  caused by the defendants'  alleged wrongful conduct.
The court then instructed the jury to consider as elements of any
damages  award  back pay,  compensatory  damages  for any  future
pecuniary  losses, and  damages  for  emotional pain,  suffering,
inconvenience and  mental anguish.  It  specifically required the
jury  to consider  two factors  relating to  damages for  loss of
future earnings:  reduction of the  award by any amount that  the
plaintiff  would  have expended  in  making  those earnings;  and
secondly, reduction of the award by considering the interest that
the plaintiff could earn on the amount of the award if she made a
relatively risk-free investment.  

     9    Taken  at its  outside  possible limit,  the award  for
front pay would  seem to have extended from the  date of judgment
(4/13/94) through October  1995.    Reinstatement was ordered  by
the district court on  December 13, 1995.  Accordingly,  there is
no overlap between the time period covered by the front pay award
and that covered by the reinstatement order.

                               -9-

Title  VII's  goal of  fully  compensating the  plaintiff.   This

brings  us to  American's  second point  on  appeal: whether  the

process used to reach the reinstatement decision was proper.  

B.   Admission of Evidence and Lack of Hearing on Restitution.

     American  contends that  the trial  court erred  in ordering

reinstatement  because it  impermissibly considered  evidence not

adduced  at  trial,  and   because  American  was  not  permitted

additional discovery or a hearing on the reinstatement issue.  

     In  considering   the  plaintiff's  post-trial   motion  for

reinstatement, the court had before it both the evidence received

at  trial, and  additional  evidence submitted  by the  plaintiff

purporting to  demonstrate that some  of the  issues which  might

have  earlier precluded  reinstatement  (including  hostility  of

other employees and the plaintiff's  own inability to work)  were

no  longer bars to her  return.10  The  district court explicitly

relied  upon some  of  this evidence  in  its order,  citing  the

information in a  newspaper article relating to the  departure of

certain   individuals    from   American,   and    her   treating

psychologist's statement that  Kerr Selgas was  fit to return  to

work.    However,  the  court  also  noted  that  defendants  had
                                                  

     10   Specifically, the plaintiff produced news  reports that
one of the chief offenders in her experience at American, Whadzen
Carrasquillo,  had  left  the  company.    She  also  produced  a
statement by her treating psychologist, Carlos Velasquez, stating
he   believed  she  was  fit  to  return  to  work  at  American.
Velasquez' affidavit,  however, speaks  only in the  most general
terms: it states that on the basis of unspecified tests conducted
at unspecified dates,  Kerr Selgas "is  currently[...]functioning
adequately"  and that he therefore  believes she is  "now able to
return  and to carry out her duties as Account Sales Executive at
American Airlines." 

                               -10-

presented testimony at trial  that Kerr Selgas was fit  to return                                      

to work in March 1994.11  

     The adversarial system's search for truth and the assessment

of  remedies are  predicated upon  an open  and fair  exchange of

ideas  and  information.   Lussier, 50  F.3d at  1113.   It  is a                                            

fundamental principle of this  system that a fact finder  may not

consider extra-record evidence  concerning disputed  adjudicative

facts.   Id. at  1114.  While  we have suggested in  at least one                      

case  that parties  might  possibly waive  a  deprivation of  the

evidentiary  and  procedural guarantees  embodied in  the managed

adversarial  system  with  regard  to  extra-record evidence,  or

consent to a court's  consideration of it,  see id. at 1115,  the                                                             

evidence  supporting such  a voluntary  and knowing  waiver would

need to be significant and unequivocal.

     Such is not the  case here.  American repeatedly  stated its

opposition to  Kerr Selgas'  reinstatement, and  more importantly

repeatedly requested a hearing and discovery on the reinstatement

issue.12    Kerr Selgas  herself requested  a  jury trial  on the                                                             
                                                  

     11   Kerr  Selgas  suggested  at   oral  argument  that  the
district court  could  have  reached  its  determination  without
relying  on  the new  evidence; however,  this  is belied  by the
language of the district court's order.

     12   American  opposed Kerr Selgas' motion for reinstatement
in  a 12-page opposition filed on December 23, 1994, citing among
other reasons, the need for an evidentiary hearing and additional
discovery  due to  the lack of  sufficient information  in either
the  evidence submitted  at trial  or the later  submissions with
which to determine whether Kerr Selgas  was in fact fit to return
to work.  In its July 27, 1995  Opposition to Plaintiff's Renewed
Request  for Reinstatement  and Related  Benefits, American  also
opposed  Kerr Selgas' reinstatement.   Again, in  its December 8,
1995  Opposition to  Plaintiff's  Request  for Reinstatement  and

                               -11-

reinstatement  issue  in  her  July 10,  1995  motion  requesting

reinstatement.    Therefore,  there   is  no  indication  of  any

intention  on either  party's  part to  waive  a hearing  on  the

reinstatement issue.  

     Where the  district court  based its determination  at least

partially  on information not properly  before it in  the form of

evidence admitted at trial,  and where the remedy to  be accorded

the plaintiff is as significant as reinstatement, we are hesitant

to  applaud   anything  less  than  strict   adherence  to  those

procedures which  accord each party the opportunity  to be fairly

heard  on   key  issues.     Accordingly,  while  we   hold  that

reinstatement  may  properly  be  awarded  in  a  Title VII  case

together  with front  pay  as long  as  there is  no  duplication

between the two awards, in this case we  believe a hearing should

have   been  held   to   determine   whether  reinstatement   was

appropriate.     Therefore,  we   vacate  the   district  court's

reinstatement order and  remand for  proceedings consistent  with

this  opinion   to  determine  whether  Kerr   Selgas  should  be

reinstated by American.13 

                                                  

Related Benefits,  American raised its objection to reinstatement
being ordered without an  evidentiary hearing and the opportunity
for further discovery.  

     13   We anticipate  a limited  hearing on  the reinstatement
issue.  See Uno  v. City of Holyoke,  72 F.3d 973, 992  (1st Cir.                                             
1995) (on  remand, lower court may conduct hearing without having
new trial  and permit parties  to supplement the  existing record
with  additional facts).  As Kerr Selgas has been compensated for
the time from the initial act to the point of  her employability,
further  monetary  damages are  not  available  to  her, and  the
damages question is no longer open.

                               -12-

                            CONCLUSION                                                

     Courts may properly combine  the equitable remedies of front

pay  and reinstatement  in  order to  meet  Title VII's  goal  of

providing  full   compensation   to  the   victims   of   illegal

discrimination, as long as there is no  economic or chronological

duplication   between  the  awards.    However,  the  protections

inherent in the adversarial system demand  that full and complete

hearings  be   provided  on  contested  issues   affecting  these

equitable remedies. 

Vacated and remanded.  No costs to either party.                                                          

                               -13-
