
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1119                                    HERTZL SINAI,                                 Plaintiff, Appellee,                                          v.                              NEW ENGLAND TELEPHONE AND                              TELEGRAPH COMPANY, ET AL.,                               Defendants, Appellants.                                 ____________________          No. 92-1153                                    HERTZL SINAI,                                 Plaintiff-Appellant,                                          v.                              NEW ENGLAND TELEPHONE AND                              TELEGRAPH COMPANY, ET AL.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Walter Jay Skinner, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                              Torruella, Cyr and Oakes,*                                   Circuit Judges.                                   ______________                                _____________________                                        ____________________          *  Of the Second Circuit, sitting by designation.               Amy D. Seifer, with whom John D. Corrigan, was on brief  for               _____________            ________________          defendants.               Gabriel O. Dumont, Jr. for plaintiff.               ______________________                                 ____________________                                   August 24, 1993                                 ____________________                                         -2-                    TORRUELLA,  Circuit  Judge.    After  failing  to  gain                                ______________          employment at NYNEX Information  Resources Co. ("NIRC"), appellee          brought suit for race and national origin discrimination under 42          U.S.C.   1981 and Title  VII of the Civil Rights Act  of 1964, 42          U.S.C.     2000e et seq.  A jury  found for the plaintiff on race                           ______          discrimination, and the district  judge, finding himself bound by          the jury's factual findings, found for  the plaintiff on national          origin discrimination.                      Appellant contends  that the evidence  was insufficient          to  sustain  the judgments,  such that  the  judge erred  when he          refused   to  grant  a   judgment  notwithstanding  the  verdict.          Appellant also  contends that  the district court  instructed the          jury  incorrectly and  issued two erroneous  evidentiary rulings.          Appellee, in response, complains  that the district court refused          to grant an additional award of damages under Title VII.  Finding          this volley of allegations unconvincing, we affirm.                    We use the same standard to review the evidence in this          case that the district judge used when he ruled on the motion for          judgment n.o.v.  Biggins v. Hazen  Paper Co., 935 F.2d 1405, 1409                           _______    ________________          (1st Cir. 1992).  When a jury has delivered a verdict, we examine          the evidence,  including all facts  and inferences, in  the light          most favorable to the verdict.  Id.  We overturn the verdict when                                          ___          the  evidence leads a reasonable person to one conclusion and one          conclusion only:  that the losing party was entitled to win.  Id.                                                                        ___          The evidence, viewed in this light, follows.                    Appellee was born in Israel of parents of Jewish/Hebrew                                         -3-          heritage.  He came to the United States in 1973 after a five-year          stint in the Israeli Air Force and a two-year stint in sales at a          private company.  In the United States he  received a Bachelor of          Science  degree from  Suffolk University  and held  various jobs.          When  his wife,  a  NIRC employee,  told  him that  positions  in          directory  advertising  sales were  available  at NIRC,  appellee          submitted a resume and cover letter.  This was the  first step in          appellee's quest  to win a position  at NIRC, and it  occurred in          the spring of  1984.   NIRC informed appellee  that no  positions          were available at  the time,  but that his  application would  be          added to the waiting list for future openings.                    Appellee filed a new application in the Summer  of 1984          and  followed  up with  a phone  call  to the  hiring supervisor,          Marlene Dumas.  During the conversation, Ms.  Dumas revealed that          applicants needed a college  degree and sales experience to  pass          the  initial screening.  Appellee responded that he had both, and          Ms.  Dumas delved further into appellee's career background.  Ms.          Dumas asked appellee where he came from, or where he received his          sales  experience.   When  appellee responded  Israel, Ms.  Dumas          stated  "Israel doesn't  count."   Ms. Dumas  denies making  this          comment,  but  testified that,  in  any  event, appellee's  sales          experience  in  Israel  was too  far  removed  in  time from  the          application date to satisfy the requirement.   She explained that          sales experience garnered more  than three to five years  earlier          is considered stale.                    Appellee filed  a new application in  late November and                                         -4-          again  followed up with a phone call.   He was told that he would          be  interviewed within  the coming  year.   Indeed, appellee  was          called for  a test and interview  in March, 1985.   He passed the          test.   During  the  subsequent interview,  Ms. Dumas  reportedly          asked "Did you say you were from Israel?" and appellee detected a          look  of disgust on her face.   A letter soon followed, informing          appellee that he would not be considered further.                    Undaunted, appellee  reapplied in  the Summer  of 1985,          and  again in  early 1986.   In  mid 1986,  Ms. Dumas  left NIRC.          Appellee filed yet another application to Ms. Dumas's replacement          and again followed up  with a phone call.  In  this conversation,          appellee learned  that NIRC had  adopted a policy  forbidding the          hiring of NIRC-employee  spouses.  As  appellee's wife worked  at          NIRC,  appellee could not  be hired.   Stunned,  appellee pursued          further information  from various  supervisors.  He  learned that          the  alleged  "no-spouse"  policy  was  unwritten  and  informal.          Appellee  was unsatisfied with this news,  as he knew of a couple          that was hired after appellee submitted his several applications.                    During  the  relevant  time  period,  NIRC  made  other          pertinent hiring decisions.   First, NIRC hired several adherents          of the  Jewish faith  for directory advertising  sales positions.          Second,  NIRC  hired several  individuals  who did  not  meet the          stated screening criteria; these  individuals either did not have          a college degree or did not possess sufficient sales experience.                    The above culminated in appellee bringing a two-pronged          discrimination suit.  He  claimed that he suffered discrimination                                         -5-          on the  basis of his Jewish/Hebrew  race and on the  basis of his          national  origin, Israel.   The  race claim  arose under    1981,          which guarantees  that "all persons"  in the  United States  will          have the same  rights as  "white citizens" "to  make and  enforce          contracts."   The national  origin claim  arose under  Title VII,          which  makes  the refusal  to hire  an  applicant because  of his          "race, color, religion,  sex, or national  origin" unlawful.   As          plaintiffs are  entitled to a jury trial in   1981 cases, but not          in Title VII cases, the district judge conducted a jury  trial on          race discrimination before he himself decided the national origin          discrimination claim.                    Appellant  argues that  evidence  of race  and national          origin  discrimination are  not inextricably intertwined  in this          case,  and that appellee failed to adduce any evidence to support          a  finding of  discrimination on  the basis of  his Jewish/Hebrew          race,  as opposed to his Israeli national origin.  Appellant thus          concludes  that  a  rational  jury  could  not  have  found  race          discrimination.                      While  we  agree  with  the  district  court  that  the          evidence  of race discrimination was  thin in this  case, we also          agree with the district court that the jury was entitled to reach          the  result it  did.   Appellee made  out a  prima facie  case of          discrimination as it was  described in McDonnell-Douglas Corp. v.                                                 _______________________          Greene,  411 U.S. 792 (1973).  First,  he established that he was          ______          Jewish/Hebrew, defined as a  protected race by the  Supreme Court          in Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987), and             _____________________    ___________                                         -6-          Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987).  Second,          __________________________    ____          he  applied for  a job  for which  he was  qualified.1   Finally,          appellee  was rejected,  but the  position remained  available to          other candidates  with similar  credentials and even  some others          with apparently fewer credentials.                    In  addition to  establishing the  prima facie  case of          discrimination,   appellee   testified  that   Ms.   Dumas  twice          disparaged appellee's  Israeli  background.   Although  appellant          claims that  these events  do not establish  race discrimination,          the  jury could  find that  Israel is  one of those  countries in          which the  populace is composed  primarily of a  particular race.          As   Justice  Brennan   stated  of   race  and   national  origin          discrimination, often "the two are identical as a factual matter:          one was  born  in the  nation whose  primary stock  is one's  own          ethnic  group."  Saint Francis College, 481 U.S. at 614 (Brennan,                           _____________________          J.,  concurring).   That  Israel is  a  Jewish state,  albeit not          composed exclusively of Jews,  is well established.  Furthermore,          it is undisputed  that appellee is of  Hebrew/Jewish descent, the          stock primarily associated with Israel.  The jury thus could have          determined  that NIRC,  through Ms. Dumas,  discriminated against          appellee on  the basis of  his Hebrew/Jewish race  by disparaging          Israel.                    The  jury also  could have  chosen to  disregard NIRC's                                        ____________________          1   It is undisputed that  appellee earned a college  degree.  As          for his career experience, we are satisfied that he was qualified          because he  passed the initial  screening process and  passed the          required  test.   Furthermore,  appellee presented  evidence that          less well qualified candidates were hired over him.                                         -7-          evidence.     NIRC   attempts   to  defuse   the  allegation   of          discrimination  by pointing  out  that several  adherents of  the          Jewish faith were hired for directory advertising positions.  The          jury could have  determined, however, that the other Jewish hires          did not rebut appellee's contention of race  discrimination.  The          relevant issue in a discrimination claim is whether the defendant          discriminates against the  plaintiff on an  improper basis.   The          fact  that the  defendant hired  other  members of  the protected          class  is evidence  that the  jury can  consider in  reaching the          ultimate issue, but  is not dispositive in itself.  The jury must          weigh all of the evidence.  In this case, the jury could conclude          that  appellant discriminated  against appellee  on the  basis of          race in spite of the other Jewish hires.                    The  fact that  NIRC  advanced  different  reasons  for          refusing  to hire appellant at different times could have led the          jury simply to disbelieve NIRC.   NIRC first alleged that no jobs          were available and that appellee's resume was unclear.  NIRC then          alleged that appellee  was not as qualified  as other candidates.          Finally NIRC  announced that it had adopted  a "no-spouse" policy          barring appellee's  employment.   This policy was  unwritten and,          according to Ms. Dumas,  not communicated to her until  May 1986,          even though it was adopted in late  1984 or early 1985.  The jury          easily   could   have   determined  that   these   reasons   were          unsatisfactory, not true, or a pretext to cover up racial animus.          Indeed,  appellee presented evidence  that applicants  with fewer          credentials than  appellee were hired  -- directly  contradicting                                         -8-          one of NIRC's rationales.                    We  conclude  that  the  evidence  is  not  so  heavily          weighted  in appellant's favor to justify  setting aside the jury          verdict.   The jury was entitled to find that appellee's race led          to his failure to gain employment at NIRC.  The evidence does not          lead inescapably to the opposite conclusion.                    Appellant  complains that the district court improperly          allowed  the jury  to  mingle race  discrimination with  national          origin.    During  its  deliberations,  the  jury  presented  the          following questions to the  district judge:  "Does discrimination          because of race  carry the same weight  as discrimination because          of national  origin?  Or  are they to  be considered the  same in          this case?"   The judge  responded by emphasizing  that the  case          only confronted the jury with  the issue of race  discrimination.          The judge added that "you can also consider, however, whether any          comments or any evidence about national origin may bear, may have          a  significance  to  you  in  determining  whether  there  was  a          discrimination on the basis of race."                      We find no error in this instruction.  We already noted          with  approval the  comments  made by  Justice  Brennan in  Saint                                                                      _____          Francis College,  and believe  that the exchange  discussed above          _______________          reflects those  comments.   To repeat,  race and national  origin          discrimination may present identical factual issues when a victim          is "born  in a  nation whose  primary stock  is one's own  ethnic          group."  The judge properly responded to the jury's question:  in          certain  circumstances,  including  the  present  case,  national                                         -9-          origin  and race discrimination may  overlap.  The  judge did not          tell the  jury that national origin  discrimination was identical          to  race  discrimination,  however.    He  instructed  them  that          national origin discrimination could be used, together with other          evidence,   to   arrive   at   a   conclusion   vis-a-vis    race          discrimination.                    We come  now to two evidentiary  rulings that appellant          claims  were erroneous.    We  review  them  only  for  abuse  of          discretion.  Losacco v. F.D. Rich Construction Co., 992 F.2d 382,                       _______    __________________________          385 (1st Cir.  1993); Willhauck v. Halpin, 935 F.2d 689, 717 (1st                                _________    ______          Cir. 1991).                    Appellant first contends that the district court  judge          improperly  allowed  certain   testimony  by  appellee's   expert          psychologist.  According to the  doctor, Mr. Sinai was  extremely          depressed, but  his prognosis was good if appellee was vindicated          by the court  in his  discrimination claim.   In anticipation  of          this testimony,  appellant raised  an objection, arguing  that it          only served to encourage  a verdict on improper grounds,  and was          therefore unduly prejudicial.                    The trial  transcript shows  that  the judge  carefully          considered the  objection.  He  found the doctor's  prognosis for          Mr. Sinai's depression to  be such an important piece of evidence          that it  would have been unfair to exclude it.  He concluded that          the testimony gave  the jury  a way to  limit damages for  future          emotional distress, in the  event that it rendered a  verdict for          Mr. Sinai.  Furthermore, the  judge felt that appellant's counsel                                         -10-          could undo any prejudice  by arguing in summation that  the trial          process  was not  a  therapeutic process  for  the jury  to  cure          Mr. Sinai's  ailments regardless  of fault.   Finally,  the judge          vowed  to  intervene if  the  witness entered  into  any improper          testimony.  In short, the district judge realized that he faced a          close  issue,  weighed the  alternatives,  and  reached the  most          satisfactory conclusion.   Under  these circumstances, we  cannot          find an abuse of discretion in the district court's ruling.                    Appellant's  next claim  of evidentiary  error concerns          appellee's deteriorating relationship with  his wife, and her own          discrimination  and  harassment  claims.    Again,  the  disputed          testimony  came from  appellee's  psychologist, this  time during          redirect examination.  The  doctor stated that "[s]he experienced          what she believed was harassment by [appellant] because  of . . .          her husband's  decision to  file charges against  [appellant] for          job discrimination  against himself."   According to  the doctor,          this  harassment   formed  the  basis  of   the  Sinai's  marital          difficulties, and, in turn, Mr. Sinai's depression.  It   appears          that  Mrs.  Sinai  filed  a  claim  against  appellant  with  the          Massachusetts  Commission Against  Discrimination and  received a          favorable ruling, which fact came out in the doctor's testimony.                    During  the   previous  cross-examination,  appellant's          counsel  used the  doctor's testimony  to imply  that appellant's          depression  stemmed from  preexisting  marital difficulties,  not          from  difficulties related  to appellant's  discrimination claim.          By  opening  the   door  to  the  issue  of   appellee's  marital                                         -11-          relationship, appellant exposed itself to rebuttal testimony such          as  that  offered.   Appellant  cannot  now complain  about  that          testimony.  See McDonald v. Federal Laboratories, Inc.,  724 F.2d                      ___ ________    __________________________          243,  248 (1st  Cir. 1984)  (we will  not reverse  an evidentiary          ruling  "where the party  claiming error invited  or elicited the          alleged error").                      Furthermore,  the  district  judge   found  appellant's          objection to  this testimony  untimely and  therefore unavailing.          Indeed,   the   witness,   knowing   that   his   testimony   was          controversial,  paused  before  proceeding  and asked  the  judge          whether   to  continue.    The  judge  noted  that  he  heard  no          objections, and therefore told  the doctor to proceed.   While an          objection was raised immediately after this ruling, it was not an          abuse of discretion to conclude to reject it.                    We come now to  appellee's contention that the district          court erred in not granting a separate recovery for the Title VII          claim.  Appellee claims that the jury award, $95,000, is legal in          character; Title VII, on the other hand, is equitable and carries          with  it  equitable  remedies.    Appellee  believes  that  he is          entitled to both kinds of remedies; essentially, he contends that          he is entitled  to the $95,000 plus money for  front pay, the pay          that he  would  have  received had  the  district  court  ordered          appellant to hire him.                      We cannot accept this argument.  The purpose of damages          under Title VII is to make the plaintiff  whole.  Albemarle Paper                                                            _______________          Co. v.  Moody, 442 U.S. 405 (1975).  The district court is vested          ___     _____                                         -12-          with a broad range of equitable powers to carry out this mandate.          See 42 U.S.C.    2000e-5(g) (listing "reinstatement  or hiring of          ___          employees, with or without back pay  . . . or any other equitable          relief as the court deems appropriate" as available relief).                      Contrary  to  appellee's  protestations,  the  district          judge did  not allow the    1981 verdict  to limit  his equitable          powers under Title VII improperly.  He simply found that the jury          already gave appellee  all that he was entitled to  receive.  Cf.                                                                        ___          Wildman v. Lerner Stores Corp., 771 F.2d 605, 616 (1st Cir. 1985)          _______    ___________________          (in Age Discrimination in Employment Act suit, the district court          has discretion on whether award of front  pay is necessary).  The          jury was presented in  the   1981 claim with  evidence concerning          back pay, front  pay, and emotional  distress, and instructed  to          determine  the appropriate level of damages for them.  These are,          essentially,  the  damages  authorized  under  Title  VII.    The          district court  properly concluded that any  further relief would          have been improper.                    Affirmed.                    ________                                         -13-
