
USCA1 Opinion

	




          June 3, 1994          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1038                                            GERALDINE FOX, ET AL.,                                Plaintiffs, Appellees,                                          v.                              SOUTHEAST TRANSPORT INC.,                             A/K/A BILL MATT ENTERPRISES,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [[Hon. Mark L. Wolf, U.S. District Judge]                                            ___________________                                 ___________________                                        Before                              Torruella, Selya and Cyr,                                   Circuit Judges.                                   ______________                                 ___________________               Steven J. Marullo on brief for appellant.               _________________               Gary H. Goldberg on brief for appellees.               ________________                                  __________________                                  __________________                 Per Curiam.   Appellant Southeast Transport  Corporation                 __________            appeals  a judgment by  the United States  District Court for            the District  of Massachusetts in  the amount of  $15,000 for            appellee  Geraldine  Fox and  in  the amount  of  $20,000 for            appellee  Melinda St.  John, and  the award  to appellees  of            reasonable attorneys' fees.  We summarily affirm.                                          I                 Fox  and  St.  John  were hired  by  appellant  as truck            drivers in June 1988.  They were both terminated on August 11            of the same year.   In 1989, appellees brought  suit alleging            that appellant had discriminated against each "based upon her            sex in the terms and conditions of her employment by creating            a  hostile,  offensive  and   abusive  work  environment  and            terminating her employment" in violation of 42 U.S.C.   2000e            and Mass. Gen. L. ch. 151B.   In July 1991, the court entered            a  default judgment  against defendant,  pursuant to  Fed. R.            Civ. P.  55(a).   The  court  then conducted  an  evidentiary            hearing  to determine  the  amount  to  be  awarded  to  each            appellee in damages.  Fed. R. Civ. P. 55(b)(2).                   Plaintiffs  sought  damages  for  emotional  distress on            their  Mass. Gen.  L. ch.  151B claim.   They  also requested            reasonable attorneys' fees.   Each of the appellees testified            at the hearing, as did two witnesses for the  defendant.  The            court detailed  its findings and conclusions  in a memorandum            and order dated December 9, 1993.                                           -2-                 On appeal, appellant  asserts two assignments of  error.            First,  appellant claims that  certain testimony  received by            the court at the evidentiary  hearing should have been barred            as hearsay, pursuant to the Federal Rules of Evidence,  which            appellant contends apply to hearings pursuant to Fed. R. Civ.            P.  55(b).    Second,   appellant  contends  that  there  was            insufficient  evidence  presented  to sustain  the  award  of            damages to each appellee.                                          II                 Once   the  default   judgment   had  entered,   it  was            established, as alleged in  the complaint, that the appellant            had discriminated  against the  appellees both by  creating a            hostile work environment and  by terminating their employment            because they were women.   See Riehle v. Margolies,  279 U.S.                                       ___ ______    _________            218, 225 (1929).  Therefore, the only issue to be  decided at            the  Rule 55(b)(2) hearing was the amount of damages to which            appellees were  entitled as  a result of  appellant's illegal            conduct.   See Jones v.  Winnepesaukee Realty, 990  F.2d 1, 4                       ___ _____     ____________________            (1st Cir. 1993).    In its memorandum  and order, the  court,            as  required, stated  its findings  of fact  and conclusions.            See Brown v.  Kenron Aluminum  & Glass Corp.,  477 F.2d  526,            ___ _____     _____________________________            530-31 (8th  Cir. 1973); Foxtrap, Inc. v.  Foxtrap, Inc., 671                                     ____________      ____________            F.2d 636,  638 n.1 (D.C.  Cir. 1982).   The court  found that            appellees were credible witnesses.   It also concluded, based            in part on  its assessment of credibility, that the appellees                                         -3-            had  suffered "significant  emotional  distress"  because  of            specific illegal  conduct  by the  appellant and,  therefore,            were entitled to  damages under Mass. Gen. L. ch.  151B.  See                                                                      ___            Buckley  Nursing Home,  Inc. v. Massachusetts  Comm'n Against            ___________________________     _____________________________            Discrimination, 20 Mass. App. Ct.  172, 182, 478 N.E.2d 1292,            ______________            1299  (an award of emotional distress  damages under ch. 151B            can  be sustained by finding  of discrimination alone even in            the absence of physical injury  or psychiatric consultation),            review denied, 395 Mass. 1103, 482 N.E.2d 328 (1985).              ______ ______                 Having  read  the  whole  of  the  record,  we  find  no            reversible  error   in  any   of  the  factual   findings  or            conclusions of  the district  court.   See Cumpiano  v. Banco                                                   ___ ________     _____            Santander  Puerto Rico, 902 F.2d 148, 152 (1st Cir. 1990) (an            ______________________            appellate  court "ought  not  to upset  findings  of fact  or            conclusions  drawn  therefrom unless,  on  the  whole of  the            record, [the  appellate  judges] form  a  strong,  unyielding            belief that a mistake has been made").  Furthermore, in light            of the  court's findings and given that damages for emotional            distress  are  "not easily  computed  and, therefore,  .  . .            extremely fact-sensitive," we find  no abuse of discretion in            the court's assessment of  damages in this case.   Jones, 990                                                               _____            F.2d  at 5  (upholding an award  for emotional  damages based            mainly   on  defendant's  statement   of  damages  and  sworn            testimony).                                         -4-                 Finally, we  find no evidence, and  appellant has called            our attention to  none, which would indicate that  the court,            in  its  factual  findings  and  conclusions,  explicitly  or            implicitly relied  on any  of  the statements  alleged to  be            hearsay.   Therefore, even if we were to assume arguendo both                                                            ________            that  the Federal  Rules of  Evidence apply  to a  hearing to            determine  damages  and  that  the  testimony  challenged  by            appellant  was  inadmissible   hearsay,  any  error  in   the            admission which  may have occurred was harmless.  See Vincent                                                              ___ _______            v.  Louis  Marx  & Co.,  874  F.2d  36,  41 (1st  Cir.  1989)                _________________            (admission of evidence harmless  when appellate court can say            "with  fair assurance  .  .  .  that  the  judgment  was  not            substantially swayed by the error") (citations omitted).                 Affirmed.  See 1st Cir. Loc. R. 27.1.                 ________   ___                                         -5-
