Travers v. Flight Services & Systems, Inc

Case: 14-1745 Document: 00116931768 Page: 1 Date Filed: 12/15/2015 Entry ID: 5961779

United States Court of Appeals For the First Circuit

Nos. 14-1745 14-1756

JOSEPH TRAVERS,

Plaintiff, Appellee, Cross-Appellant,

v.

FLIGHT SERVICES & SYSTEMS, INC.,

Defendant, Appellant, Cross-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Torruella, Lynch, and Barron, Circuit Judges.

Jeffrey M. Rosin, with whom Christopher M. Pardo and Constangy, Brooks & Smith LLP were on brief, for appellant, cross- appellee. Shannon Liss-Riordan, with whom Lichten & Liss-Riordan, P.C., was on brief, for appellee, cross-appellant.

December 15, 2015 Case: 14-1745 Document: 00116931768 Page: 2 Date Filed: 12/15/2015 Entry ID: 5961779

BARRON, Circuit Judge. A company that provides skycap

services to airlines was defending against a class action lawsuit

when one of the skycaps that the company had employed brought his

own individual suit against the company. The skycap alleged in

his suit that the company had fired him for his role in helping to

organize the class action. A jury eventually found for the skycap

in that unlawful-termination suit. And the company now appeals

both from that verdict and from the District Court's award of

damages and attorney's fees and costs. Because we find no error

in any of the District Court rulings that the company challenges,

we affirm them.

At the same time, the skycap who won the retaliatory-

termination suit cross-appeals. He contends that the District

Court erred by eliminating and not trebling the jury's award of

front-pay damages, failing to grant his request to treble the

emotional-distress damages award that the District Court had

ordered on remittitur, and denying his request for prejudgment

interest. We affirm the District Court's decisions not to treble

and not to grant prejudgment interest on the emotional-distress

damages, but we vacate the District Court's elimination of any

front-pay award and remand for further proceedings. In addition,

we certify a question to the Massachusetts Supreme Judicial Court

regarding the award of prejudgment interest on Travers's back-pay

damages.

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I.

The defendant in both the class action and the unlawful-

termination suit is Flight Services and Systems, Inc. (FSS). This

company provides skycap services for JetBlue at Boston's Logan

International Airport. The skycaps work on the curb just outside

the airport, where they issue boarding passes and check luggage.

The skycaps receive low wages and so, like most waiters and

waitresses, rely on tips for the bulk of their pay.

The named plaintiff in the class action against FSS is

the same plaintiff who brings the retaliatory-termination suit.

He is Joseph Travers, a skycap FSS employed to service JetBlue

customers at Logan.

The class action -- which Travers helped to

organize -- concerns JetBlue's 2008 decision to charge $2 per bag

for luggage checked in via skycap and then to have JetBlue, and

not the skycaps, keep that $2 fee. The complaint -- captioned

"Travers v. JetBlue and FSS" -- contends that the new fee

diminished the tip income skycaps received from customers and

violated both the Massachusetts wage and tips law and the federal

Fair Labor Standards Act (FLSA).

The source of the present dispute is FSS's decision,

while that class action was pending, to fire Travers. Travers

alleges that FSS did not fire him because -- as FSS contends is

the case -- a customer had complained that Travers had solicited

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a tip from her. Travers's suit alleges, instead, that FSS fired

him in retaliation for his role in organizing the skycaps' class

action against JetBlue and FSS and that FSS relied on the tip-

solicitation complaint as a pretext for that retaliatory firing.

Travers's suit further contends that, in consequence, FSS violated

both the FLSA and the Massachusetts wage and tips law, as each of

those laws prohibits a company from taking adverse action against

an employee who seeks to obtain the protection that those laws

provide. See 29 U.S.C. § 215(a)(3); Mass. Gen. Laws ch. 149,

§ 148A.

Before Travers's retaliation suit went to the jury, the

District Court granted summary judgment to FSS. But we then

reversed. Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144,

145 (1st Cir. 2013). We held that, on the summary judgment record,

"a reasonable jury could return a verdict for Travers without

relying on improbable inferences or unsupported speculation." Id.

On remand, the case went to trial, and a jury found FSS

liable for retaliatory termination in violation of both the federal

and state statutes. The jury rendered its verdict in a single

verdict form that did not differentiate between the state and

federal claims or apportion the award between them. The jury

awarded Travers $90,000 in back pay, $450,000 in front pay, and

$400,000 for emotional distress.

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Following the verdict, FSS renewed its previous motion

for judgment as a matter of law, see Fed. R. Civ. P. 50(b), and

also moved in the alternative for a new trial or to amend the

judgment. See Fed. R. Civ. P. 59. The District Court ordered

Travers to remit all but $50,000 of the emotional-distress damages

or face a new trial. And the District Court also eliminated the

entire front-pay award as unsupported by the evidence.

Travers then sought, under separate state statutes, to

have the damages award trebled, to receive attorney's fees and

costs, and to receive prejudgment interest. See Mass. Gen. Laws

ch. 149, § 150; id. ch. 231, § 6B. With respect to trebling, the

District Court agreed to treble the back-pay award to $270,000,

but declined to treble the award for emotional distress. The

District Court also did not order the prejudgment interest that

Travers had requested, though the District Court did grant Travers

attorney's fees in the amount of $176,185 and costs of $7,398.45.

FSS and Travers timely filed these appeals.1

1We discuss the federal and state claims separately only insofar as doing so is relevant to our analysis.

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II.

FSS raises five distinct arguments in its appeal, and we

consider each one before turning to Travers's cross-appeal.

A.

FSS's primary argument on appeal is that the District

Court erred in denying FSS's motions for judgment as a matter of

law because "a reasonable jury would not have a legally sufficient

evidentiary basis to find for [Travers]." Fed. R. Civ. P. 50(a)(1).

To win on his retaliation claims at trial, Travers had to show (1)

that he engaged in conduct that the FLSA and Massachusetts wage

and tips law protect when he participated in the class action

against FSS, (2) that FSS subjected Travers to an adverse

employment action when the company fired him, and (3) that FSS

fired him because of his protected conduct. See Claudio-Gotay v.

Becton Dickinson Caribe, Ltd., 375 F.3d 99, 102 (1st Cir. 2004)

(describing elements of a claim under 29 U.S.C. § 215(a)(3)); Smith

v. Winter Place LLC, 851 N.E.2d 417, 421 (Mass. 2006) (interpreting

Mass. Gen. Laws ch. 149, § 148A).

FSS does not dispute that, under both the federal and

the state statutes on which Travers's individual suit rests,

Travers engaged in protected conduct or that FSS subjected him to

an adverse employment action. The dispute concerns only what

caused FSS to fire Travers -- his help in organizing the class

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action or, as the company contends, his solicitation of a tip in

violation of company policy.

To resolve this dispute, we need not decide the precise

standard of causation that a plaintiff must meet to prove unlawful

retaliation under either the state or federal statutes on which

Travers's suit rests. The parties appear to agree, as they did

when this case came before us on summary judgment, that each

statute requires the plaintiff to show "but-for" causation to prove

retaliation. See Travers, 737 F.3d at 147 & n.1.

Thus, our task is straightforward. Because we are

reviewing a renewed motion for judgment as a matter of law

following a jury verdict, we must view the evidence of causation

"in the light most favorable to the verdict" and "affirm unless

the evidence, together with all reasonable inferences in favor of

the verdict, could lead a reasonable person to only one conclusion,

namely, that the moving party was entitled to judgment." Astro-

Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 13 (1st Cir. 2009)

(quotation marks and citations omitted).

FSS argues that it is entitled to judgment as a matter

of law because the trial record provides too little evidence to

support a finding of but-for causation if we exclude -- as FSS

says we must -- one particular piece of testimony that the jury

heard. This testimony came from Travers, and it concerned what

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Travers contends Rob Nichols, a mid-level manager in charge of FSS

operations at Logan, told him.

Travers testified that Nichols told him that FSS's

owners and senior managers told Nichols that the lawsuit "was

costing [the company] a lot of money, and that [Nichols] should

get rid of Travers." Travers went on to testify that Nichols also

advised Travers to drop the lawsuit because, otherwise, Travers

would "probably lose [his] job."

At trial, the District Court rejected FSS's contention

that Travers's testimony concerning Nichols should be excluded as

hearsay. After the jury returned a verdict for Travers, however,

the District Court revisited this ruling in connection with FSS's

motion for judgment as a matter of law. In doing so, the District

Court changed its mind and concluded that Travers's testimony

concerning Nichols should have been struck. But the District Court

still denied FSS's motion for judgment as a matter of law.2

2Under Federal Rule of Evidence 801(d)(2)(D), testimony about an out-of-court statement by a non-testifying person is not hearsay if "[t]he statement is offered against an opposing party" and "was made by the party's agent or employee on a matter within the scope of that relationship and while it existed." Travers testified on direct examination that his conversation with Nichols occurred in early summer of 2010. But on cross-examination, when FSS's counsel noted that Nichols had been fired by FSS in the spring of 2010 (and so would not have been employed by FSS in the early summer of 2010), Travers apologized for mixing up the dates. Travers clarified that the conversation occurred in the spring of 2010 "right before [Nichols] was terminated." Although Travers's testimony about Nichols was before the jury when it returned its verdict, the District Court later concluded that Nichols's

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FSS now argues that the District Court was right the

second time that it ruled on whether Travers's testimony concerning

Nichols should have been struck as hearsay. And FSS goes on to

argue that, without that testimony, the record does not permit a

reasonable jury to conclude that FSS fired Travers because of his

role in organizing the class action. See Weisgram v. Marley Co.,

528 U.S. 440, 453-54 (2000) (discussing excising certain

inadmissible evidence from the record for purposes of reviewing a

renewed motion for judgment as a matter of law). Instead, FSS

argues, the evidence that remains shows only that FSS fired Travers

because the company believed Travers had solicited a tip from a

customer.3

In support of that contention, FSS notes that Susan

Collier -- the manager who actually fired Travers -- testified

statement to Travers "was made post-employment" and thus Nichols had not been an agent of a party-opponent at the time he made these statements. For that reason, the District Court concluded that the statements should have been excluded as hearsay. 3 FSS notes that, in reversing the District Court's earlier

grant of summary judgment in this case, we relied on the Nichols evidence. There, we explained that a reasonable jury might rely on the Nichols evidence to conclude that "retaliatory animus resided at the apex of the organizational hierarchy" and "spread to other managers," including the manager that decided to fire Travers. Travers, 737 F.3d at 147. But our opinion, even on the summary judgment record, did not contend that the Nichols evidence was necessary, only that it was sufficient. And, of course we are now assessing the denial of the motion for a judgment as a matter of law. Thus, the record before us is different from the one presented on summary judgment. Nothing in our decision here, therefore, is at odds with our prior ruling in this litigation.

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that the company fires a skycap every time a passenger complains

in writing that, in the passenger's opinion, the skycap tried to

solicit a tip. And Collier did also state that "if the passenger

takes the time to stop and make a written complaint, it happened,"

and thus that the written complaint the customer filed against

Travers here -- though the customer never testified at

trial -- supplied a foundation for the company's conclusion that

Travers made the solicitation.

But although a jury could have believed the reason that

FSS gave for firing Travers, a jury was not compelled to do so on

this record. For while the remaining evidence does not reveal a

smoking gun proving retaliation -- or even include direct evidence

of a command from on high to fire Travers to disrupt the class

action suit -- the remaining evidence is sufficient to support an

inference of retaliation. See Speen v. Crown Clothing Corp., 102

F.3d 625, 635 (1st Cir. 1996) ("[A] plaintiff need not . . .

produce 'smoking-gun' evidence . . . . There are many veins of

circumstantial evidence that may be mined . . . ."); Wooster v.

Abdow Corp., 709 N.E.2d 71, 76 (Mass. App. Ct. 1999) (stating that

"smoking gun evidence . . . is not required" and that the

"plaintiff's ultimate burden of persuasion may be

satisfied . . . [by] circumstantial evidence" (quotation marks and

citation omitted)).

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To begin with, a jury could disbelieve Collier's

testimony about the necessary consequences that follow -- as a

matter of FSS policy -- from a customer's submission of a written

complaint about an employee's solicitation of a tip. Collier

herself testified that the determination of whether an employee

did solicit a tip requires the exercise of judgment. As Collier

put it, you have to look at the "facts and circumstances of every

case." And the evidence also indicated that FSS undertakes an

investigation following a customer complaint before determining

whether or not tip solicitation actually occurred.

In addition, testimony from Nabil Agba, a former FSS

skycap supervisor in Boston, indicated that termination was not

automatic upon receipt of a complaint and, indeed, could depend on

factors unrelated to whether tip solicitation had, in fact,

occurred. Agba testified that "there was not a standard process"

for who would get fired and who would not following accusations of

tip solicitation. Instead, Agba testified that the general manager

in Boston would base his recommendation to Collier on "the employee

records and the job performance" of the employee and sometimes

would "just chalk-up the accusation to some type of

miscommunication with the passenger" and not fire the skycap.

Notably, Agba clarified that managers' attitudes toward employees

colored the ultimate decision: "From my experience, if they like

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the person, they try to help them and protect them as much as they

can."

Thus, a jury could have reasonably concluded that a

customer complaint about tip solicitation would not automatically

lead to the dismissal of the employee who allegedly made the

solicitation. Instead, a jury could reasonably have found that

factors unrelated to whether the solicitation occurred could bear

on the disciplinary consequences that would follow. And so long

as the jury was free to conclude that FSS had the discretion to

make a judgment whether to fire despite a complaint -- and to make

that judgment for reasons unrelated to whether the solicitation in

fact occurred -- the jury was also free to consider whether some

reason other than the customer complaint tipped the balance, so to

speak, with regard to the decision to fire Travers.

Of course, the record must still contain enough evidence

to support a jury's conclusion that this other reason was the

company's desire to retaliate for Travers's protected conduct.

But we conclude that the jury did have before it enough evidence

to support a reasonable inference in that regard -- even if we

strike from consideration Travers's testimony that Nichols had

told him about the instruction from higher officials to fire

Travers due to his involvement in the class action. For while the

remaining testimony was not as directly probative on that point as

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was the testimony from Travers about what Nichols had supposedly

said to him, the rest of the evidence was still strong enough.

In particular, the jury heard testimony from other FSS

employees -- in management positions -- that indicated that FSS's

owners and senior managers were very concerned about the skycap

class action. Nabil Agba, the former FSS skycap supervisor,

testified that there was "a lot of talk among FSS managers about

[the underlying] lawsuit" and that he "always heard [from the FSS

Boston general manager that] the corporate [leadership] is not

happy about [the skycaps' class action]." And Agba further

testified that FSS's chief executive officer told the local FSS

Boston manager (who then told Agba) that "we can't afford to lose

cases because [the CEO] doesn't like it."

The jury also heard evidence that reasonably linked

those general concerns within management about the class action to

concerns about Travers's involvement in the class action in

particular. For example, the jury had before it evidence that

Susan Collier, the FSS manager who actually fired Travers, was

aware of senior management's concerns about the skycaps' lawsuit

and that she was responsible for addressing those concerns. Her

own testimony showed that she was the point person on FSS's defense

against the lawsuit and that she spoke with FSS's president about

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the case frequently.4 And Collier agreed that the president was

increasingly frustrated with the expense of litigation -- expenses

that she was responsible for minimizing and justifying.

Moreover, Collier's testimony provided support for

concluding that she knew about Travers's leading role in the

skycaps' class action at the time she made the decision to fire

him. Collier herself testified that she knew when she fired

Travers that Travers was a plaintiff. And while she denied knowing

he was the lead plaintiff, the caption for the case for which she

was the point person was "Travers v. JetBlue and FSS."

Against this background, Travers's testimony about a

conversation that he had with an FSS duty manager at Boston Logan

helps to support a reasonable inference of retaliation. According

to Travers, the duty manager, Eqerem Mero, expressly warned Travers

that his job was in jeopardy because of FSS management's dislike

of Travers's role in the skycaps' class action by saying: "These

guys, they're rich. They're powerful. They're dangerous.

They -- you know, you're going to lose your job over this. You

should get out of the lawsuit." And Travers also testified that

Arbin Cote, an FSS assistant manager at Boston Logan, told him

that he "should stop and get out of the lawsuit."

4 Collier even stated in her deposition that she "always" spoke with the company president about the case, though she quibbled with "always" in her live testimony.

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This testimony from supervisors and managers about how

Travers's role in the class action placed his job in jeopardy is

especially significant given Travers's testimony about a curious

exchange that he had with the Boston manager who recommended that

Collier fire Travers after that manager had been assigned to

investigate the complaint that Travers had solicited a tip.

Travers testified that, during the tip-solicitation investigation,

he asked that manager, Lisa Varotsis, when he could get back to

work and that she replied, "You know why this is happening."

Travers further testified that he then asked that manager if the

investigation was happening because of his role in the skycaps'

class action, and Varotsis replied, "I can't talk about it," and

walked away.

Thus, on Travers's account, when he confronted the

person responsible in the first instance for deciding whether he

had solicited the tip, she seemingly declined to confirm in the

straightforward way one might otherwise expect that the

tip-solicitation complaint was the actual reason for the

investigation into that complaint. And, indicating that she was

barred from doing so, she refused to comment on whether the real

reason for the investigation was his role in the class action.

See Gómez-González v. Rural Opportunities, Inc., 626 F.3d 654,

662-63 (1st Cir. 2010) ("Pretext can be shown by such weaknesses,

implausibilities, inconsistencies, incoherencies, or

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contradictions in the employer's proffered legitimate reasons for

its action that a reasonable factfinder could rationally find them

unworthy of credence and hence infer that the employer did not act

for the asserted non-discriminatory reasons." (quoting Morgan v.

Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997))); City of Salem

v. Mass. Comm'n Against Discrimination, 693 N.E.2d 1026, 1038

(Mass. App. Ct. 1998) (same), overruled on other grounds by

Trustees of Health & Hosps. of Boston, Inc. v. Mass. Comm'n Against

Discrimination, 839 N.E.2d 861 (Mass. App. Ct. 2005).

Finally, and also supporting Travers's account, Nabil

Agba testified that he overheard the Boston general manager of FSS

saying -- after Travers had been fired -- that "[t]he plan [to

defend against the class action] was to get more [plaintiffs] to

drop out of the case," and, "after a few months, people started

dropping out." Agba also testified that the general manager spoke

with skycaps one by one about the class action and that skycaps

started dropping out of the case just a few months after Travers

was fired.

There are potentially innocent interpretations of each

of the facts related by these witnesses, even assuming their

testimony should be credited. The lower-level managers' warnings

about what would happen to Travers if he stayed involved in the

class action litigation, for example, could be dismissed as

speculative predictions about what might happen rather than solid

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assessments about management's intentions derived from comments

made by higher-ups within FSS. Similarly, Varotsis's comment that

Travers "kn[e]w why this is happening" could have been a reference

to the customer's accusation of tip solicitation and nothing more,

while her statement that she could not talk about the reason for

the investigation might have been unrelated to a direction from

above and not motivated by a desire to cover up an impermissible

purpose. And Agba's statements about management's plan to get the

class action plaintiffs to drop out -- even if true -- do not

expressly allege that that plan involved an effort to fire

employees on trumped-up grounds.

But while the jury did not have to find for Travers on

the basis of this evidence, the jury did find for him. And for

purposes of this appeal, that is decisive. Whatever holes one

might poke in the evidence that favored Travers's version of

events, that evidence considered as a whole was not so deficient

that no reasonable jury could have relied on it in finding for

Travers. Rather, the jury could reasonably have concluded that

the evident concerns within FSS about the class action suit in

general, and Travers's role in that litigation in particular, made

plausible the direct warnings that Travers says that he received

from supervisors and managers that he would be fired for his

involvement. And Travers's testimony about the company

investigator's seemingly odd reluctance to confirm that the

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tip-solicitation complaint was the reason for the

investigation -- reflected in her comment, "I can't talk about

it" -- lends additional credence to that interpretation of the

evidence. So, too, does the FSS manager's testimony about the

plan to get skycaps to drop out of the class action in the wake of

Travers's firing. See Trainor v. HEI Hospitality, LLC, 699 F.3d

19, 29 (1st Cir. 2012) (affirming denial of motion for judgment as

a matter of law in a retaliatory termination case under the Age

Discrimination in Employment Act "[b]ecause the record supports

conflicting versions of the truth, [so] it became the jury's

function -- not the court's -- to choose between these versions");

cf. Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 171 (1st Cir.

1998) ("Statements by supervisors carrying the inference that the

supervisor harbored animus against protected classes of people or

conduct are clearly probative of pretext" and retaliatory

termination "even if that inference is not the only one that could

be drawn from the comment." (emphasis added) (citations omitted)).

In light of this evidence, we need not decide whether

the tip-solicitation complaint was in fact well founded -- a point

that Travers vigorously contests. It is enough to observe that

the jury could decide for itself, and reasonably so, that FSS had

discretion at the time it chose to fire Travers, notwithstanding

the tip-solicitation complaint, and that FSS chose to exercise

that discretion adversely to Travers because of his role in the

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class action and then relied on the tip-solicitation explanation

as a pretextual cover.5 We thus have no basis on this record to

second-guess the District Court's decision that the jury should

not be second-guessed. Accordingly, we affirm the District Court's

decision to deny the motions for judgment as a matter of law.

B.

Even if the evidence sufficiently supports the verdict

without Travers's testimony concerning Nichols, FSS argues, the

District Court still erred by denying the company's motion for a

new trial under Federal Rule of Civil Procedure 59(a)(1)(A). FSS

identifies the error that requires a new trial as the District

Court's decision to admit Travers's testimony that Nichols had

told him about the retaliatory threat from FSS's chief executive

officer. FSS contends that the verdict must be thrown out because

5For this reason, we need not dive deeply into what the evidence shows about how other skycaps who had been accused of tip solicitation were disciplined by FSS in the past. The parties sharply dispute whether Travers was treated just like these other employees. But whatever the record shows about the handful of cases that are the focus of the parties' dispute on that score, the record shows that there was conflicting testimony about whether the company had discretion to fire (or not) an employee who had solicited a tip. One witness testified that the company had such discretion and exercised it based on whether the company "like[d]" the employee. That testimony and the other testimony regarding FSS's discretion, in our view, provides a basis for a jury to conclude that FSS had discretion about whether to fire Travers, even if he had engaged in the same kind of tip solicitation that resulted in the firing of other employees. For that reason, the key issue concerns whether the record reasonably supports a finding that the company exercised this discretion in Travers's case due to his role in the class action.

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Travers's testimony about Nichols was inadmissible hearsay that

was so highly prejudicial that it irrevocably tainted the jury's

verdict, even if the remaining evidence (standing on its own and

thus untainted by what the jury heard about Nichols's conversation

with Travers) could have been enough to sustain the verdict against

a motion for judgment as a matter of law.

But FSS failed to present this argument about prejudice

in the motion for a new trial that FSS filed in the District Court,

as that motion relied on distinct grounds. See Docket Entry No.

152, at 16-21.6 And even if we were to look past FSS's failure to

raise this argument until now, see Sampson v. Eaton Corp., 809

F.2d 156, 161 (1st Cir. 1987) (concluding that an evidentiary

issue, as a "discretionary matter . . . peculiarly appropriate"

for resolution in the district court, is waived when not raised in

a new-trial motion, and declining to review it further on appeal),

we would review this unpreserved claim only for plain error.

6 FSS did argue below that the Nichols testimony was improperly admitted into evidence and was prejudicial, but FSS did so only in connection with its motion for judgment as a matter of law, in which FSS argued that the absence of Travers's testimony about Nichols left a fatal hole in Travers's proof of retaliatory animus. See Docket Entry No. 152, at 12-16. FSS offered no argument below as to why erroneous admission of the Nichols testimony tainted the jury such that a new trial was required even if the evidence remaining was otherwise sufficient to support the verdict. Instead, FSS's argument for a new trial rested on other ways in which FSS contends the jury was exposed to material it should not have been.

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But FSS raised this new-trial argument only by

referencing it in a single sentence in the summary of argument,

and in another lone sentence in the argument section that is

accompanied by a citation to a single case that involved a

preserved evidentiary argument and so did not involve plain-error

review. FSS thus makes no argument on appeal for why we should

conclude the District Court's error here (if indeed there was

error) was clear and obvious, prejudicial, and resulted in a

miscarriage of justice, as we would have to conclude to reverse

under the plain-error standard. See Chestnut v. City of Lowell,

305 F.3d 18, 20 (1st Cir. 2002) (en banc) (per curiam) (applying

plain-error review to unpreserved claim of error in a civil case);

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived.").

True, the District Court did conclude after the trial

that it had erred in allowing the jury to hear the testimony from

Travers about what Nichols told him. But the question on plain-

error review is not whether the District Court was right to find

that its first pass on the hearsay issue was mistaken. The

question is whether the decision to deny the new trial was

obviously wrong -- a standard that would not seem to be met in a

case involving an evidentiary judgment call about the testimony

concerning Nichols that was at least a close one. And even

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assuming the initial evidentiary ruling was plainly wrong, there

still would remain on plain-error review the question whether the

decision to deny a new trial resulted in a miscarriage of justice,

given all of the other testimony that the jury could have relied

on to support Travers's claim of unlawful retaliation.

In the absence of any focused arguments by FSS as to why

the error was obvious or the harm so great as to cause a miscarriage

of justice, we decline to conclude that the company's unpreserved

challenge to the District Court's denial of the motion for a new

trial should succeed. See Wells Real Estate, Inc. v. Greater

Lowell Bd. of Realtors, 850 F.2d 803, 811 (1st Cir. 1988)

("Where . . . the district court's ruling would call into play a

discretionary matter, peculiarly appropriate for that court, it

becomes more important to bring the error first to that court's

attention." (quoting Sampson, 809 F.2d at 161)); see also Zannino,

895 F.2d at 17. We thus affirm the decision to deny the motion

for new trial.

C.

FSS next challenges the jury's award of back pay, which,

after the District Court trebled it, totaled $270,000. See Mass.

Gen. Laws ch. 149, § 150. FSS raises three distinct arguments,

each of which relies on Travers's testimony that he under-reported

his tips to FSS. We reject each argument.

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FSS first argues that we must reduce or eliminate the

award because Travers has unclean hands due to his under-reporting

of tip income to FSS. The District Court rejected this argument,

concluding that "it is troubling that there may have been . . . a

whiff of suspected tax fraud . . . but . . . this was not a tax

case and it is not my job to prosecute people for potential tax

violations." We review this decision to withhold an equitable

defense for abuse of discretion, Murphy v. Timberlane Reg'l Sch.

Dist., 22 F.3d 1186, 1189 (1st Cir. 1994), and we find none here.

"The doctrine of unclean hands only applies when the

claimant's misconduct is directly related to the merits of the

controversy between the parties, that is, when the tawdry acts in

some measure affect the equitable relations between the parties in

respect of something brought before the court for adjudication."

Texaco Puerto Rico, Inc. v. Dep't of Consumer Affairs, 60 F.3d

867, 880 (1st Cir. 1995) (quotation marks and citation omitted);

see also N.Y., N.H. & H.R. Co. v. Pierce Coach Lines, 183 N.E.

836, 837 (Mass. 1933) ("[E]quity will not interfere in behalf of

one who is guilty of illegal or inequitable conduct in the matter

with regard to which he seeks its action . . . ."). FSS cites no

evidence, however, indicating that Travers's under-reporting of

tips affected his equitable relationship with FSS in the context

of this retaliation case, and not just his relationship with the

government in the context of a potential tax complication. Cf.

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Atl. Limousine, Inc. v. N.L.R.B., 243 F.3d 711, 715-18 (3d Cir.

2001) (rejecting argument that the National Labor Relations Board

must base its back-pay determination on the tips employees reported

on income tax returns and not the higher amount of tips claimed in

testimony because the harm of discrimination and the harm of tax

avoidance are distinct and can each be remedied in separate

procedures).7 And, even assuming Travers did harm FSS by

under-reporting his tips, FSS does not cite evidence indicating

the magnitude or nature of that harm. Accordingly, we decline to

disturb the District Court's weighing of the equities. We thus

conclude the District Court acted well within its discretion in

rejecting the unclean-hands argument.

FSS next argues that the back-pay damages should be

eliminated under the "after-acquired evidence doctrine," which we

have described as cutting off damages "at the time that the

defendant discovers evidence that would have led it to fire the

plaintiff on legitimate grounds." Johnson v. Spencer Press of

7FSS cites Hubert v. Consolidated Medical Laboratories, 716 N.E.2d 329 (Ill. App. Ct. 1999), for the proposition that the unclean-hands defense should prevent Travers from recovering back pay here. But in Hubert, the plaintiff had engaged in wrongdoing that was the basis for her claim of having engaged in protected conduct for which, in retaliation, her employer allegedly fired her. Id. at 335. The court declined to allow the plaintiff to recover "from the defendants based on circumstances directly arising from her own misconduct." Id. But Travers's participation in the class action, and not his under-reporting of tips to FSS, is the protected conduct for which a jury held FSS retaliated. Thus, his wrongdoing is not the basis for FSS's liability.

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Maine, Inc., 364 F.3d 368, 382 n.14 (1st Cir. 2004) (emphasis

added); see also City of Springfield v. Civil Serv. Comm'n, 14

N.E.3d 241, 249 n.14 (Mass. 2014) (describing the same doctrine in

state law). But FSS's tip-reporting policy stated only that

failure to file a tip-reporting sheet each pay period "may" lead

to termination. There was no evidence in the record that a skycap

had been terminated for failure to report tips, much less any

evidence indicating that Travers's infractions would have led to

termination. We thus conclude that the District Court did not

abuse its discretion in withholding this equitable remedy. See

Murphy, 22 F.3d at 1189 (reviewing withholding of equitable defense

for abuse of discretion); see also McKennon v. Nashville Banner

Pub. Co., 513 U.S. 352, 360 (1995) (after-acquired evidence is an

equitable doctrine).

Finally, FSS argues that the back-pay award of $90,000

is unsupported by the evidence if we credit the amount of tips

Travers reported to FSS -- sometimes just $40 a day -- rather than

the much higher amounts of $200 to $250 a day that he testified to

receiving. But FSS cites no authority for its assertion that a

jury, in making the loss calculation, could not rely on Travers's

testimony about what he had lost and that a jury was required

instead to rely only on what Travers reported in terms of tip

income. Thus, because evidence that the jury was entitled to

credit supported the back-pay award -- as the jury could have found

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that Travers did not report the full extent of his tip income -- we

see no basis for reversal. See Dopp v. Pritzker, 38 F.3d 1239,

1249 (1st Cir. 1994) ("[A] reviewing court will not tinker with

the jury's assessment of money damages [even for economic harms]

as long as it does not fall outside the broad universe of

theoretically possible awards that can be said to be supported by

the evidence."); Beaupre v. Cliff Smith & Associates, 738 N.E.2d

753, 768 (Mass. App. Ct. 2000) (upholding back-pay award as

supported by sufficient evidence where the award was supported by

plaintiff testimony about difference in earnings at old job and

new job and time elapsed since termination); cf. Atl. Limousine,

243 F.3d at 715-17 (concluding that the National Labor Relations

Board is not bound by under-reported tip amount in calculating

lost tip income).

D.

FSS contests the amount of damages ordered for emotional

distress as well. The jury awarded $400,000, but the District

Court then ordered remittitur to $50,000 or a new trial, and

Travers accepted the remittitur and thus the $50,000 amount. FSS

argues, however, that we must knock down this award still lower to

$10,000.

Our review of the award that the District Court chose in

ordering remittitur is highly deferential. In reviewing a district

court's denial of a motion to set aside a verdict as excessive, we

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reverse only for an abuse of discretion. Gasperini v. Ctr. for

Humanities, Inc., 518 U.S. 415, 435 (1996); Browning-Ferris Indus.

of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 279 (1989).

"Translating legal damage into money damages is a matter

'peculiarly within a jury's ken,' especially in cases involving

intangible, non-economic losses," and "[w]e will find an abuse of

discretion only if the jury's verdict exceeds 'any rational

appraisal or estimate of the damages that could be based on the

evidence before the jury.'" Trull v. Volkswagen of Am., Inc., 320

F.3d 1, 9 (1st Cir. 2002) (quoting Smith v. Kmart Corp., 177 F.3d

19, 29–30 (1st Cir. 1999)).

And where, as here, the defendant seeks to prune the

jury award further after "the trial court already has invoked its

discretion in granting a remittitur, the scope of review is even

narrower than usual." Sanchez v. Puerto Rico Oil Co., 37 F.3d

712, 724 (1st Cir. 1994) (original alterations omitted) (quoting

Ruiz v. Gonzalez Caraballo, 929 F.2d 31, 34 (1st Cir. 1991)).

"Once a verdict has been trimmed and reshaped at the hands of the

trial judge, an assault on the remaining amount calls upon the

court of appeals not merely to grade the essay, but to grade the

teacher's grading of the essay." Id. (original alterations

omitted) (quoting Ruiz, 929 F.2d at 34). With that in mind, when

we review an accepted order of remittitur for excessiveness,

"[f]urther relief is not warranted unless the award, as remitted,

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remains 'so extravagant as to shock the appellate conscience.'"

Trainor v. HEI Hospitality, LLC, 699 F.3d 19, 32 (1st Cir. 2012)

(applying this standard of review to both state and federal

claims).

In contending that the evidence did not support even the

reduced emotional-distress damages award, FSS relies on the

Massachusetts standard for emotional-distress awards. See

Stonehill College v. Mass. Comm'n Against Discrimination, 808

N.E.2d 205, 225 (Mass. 2004) (stating that emotional-distress

awards "should be fair and reasonable, and proportionate to the

distress suffered" and identifying relevant factors in fashioning

an award such as "(1) the nature and character of the alleged harm;

(2) the severity of the harm; (3) the length of time the

complainant has suffered and reasonably expects to suffer; and (4)

whether the complainant has attempted to mitigate the harm"). And

in arguing that further remittitur is required under this standard,

FSS relies on Franceschi v. Hospital General San Carlos, Inc., 420

F.3d 1, 5 (1st Cir. 2005).

But Franceschi held only that a district court did not

abuse its discretion when it ordered remittitur of emotional-

distress damages from $200,000 to $10,000 in a garden-variety

commercial dispute. Franceschi says nothing about whether a

district court abuses its discretion in ordering remittitur down

to $50,000, but not less, in a case of this sort.

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Here, there was testimony about the emotional impact on

Travers of FSS's firing him for his efforts to recover in court

for other alleged wrongs of FSS. Specifically, Travers testified

that when he was eventually fired "[i]t hurt a lot" because he

"loved that job," and that he "put in a lot of time" and "prided

[him]self in . . . working there, and for so long, too." He

further testified that, despite his lack of education and low-

income upbringing, this job allowed him to "support [his]

kids" -- and that when he lost the job "it was embarrassing" and

"hard to explain" to people, such as his sick mother.8

Thus, Travers testified that, after the firing, he was

"depressed," "didn't want to take [his] son out" or "do any of the

things [he] usually did," and "didn't want to get up in the morning

some days." He also testified that the stress of trying to pick

up more shifts at other jobs "was a little bit hard[] on [his]

family life," and that it especially led to more fights with his

girlfriend. And, according to Travers's girlfriend, this

8Travers did testify that his mother had Alzheimer's and that he was taking care of her during this time. FSS argues this shows Travers's depression was caused by circumstances independent of his termination. But the testimony does not compel that conclusion. The testimony would support a reasonable jury's conclusion that Travers's depression resulted primarily from being fired. Most of the testimony about the manifestations of his depression concerned the effect losing his job had on him.

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depressed mood persisted for "a couple of months, three, four,

five months."9

As a result of this testimony, Franceschi provides no

basis for finding error in this case. Nor does the other case on

which FSS places great weight, DeRoche v. Massachusetts Commission

Against Discrimination, 848 N.E.2d 1197, 1203 (Mass. 2006). There,

the Supreme Judicial Court found the evidence to be insufficient

to support a $50,000 award for emotional distress. But the Supreme

Judicial Court explained in DeRoche that the plaintiff in that

case had not introduced evidence linking his emotional distress to

the retaliatory act and that "[t]here was no testimony . . . the

plaintiff was compelled to curtail his life activities in any way

due to stress from the . . . retaliatory action." Id. Here, by

contrast, Travers did testify that his emotional distress stemmed

from the retaliatory firing. Travers and his girlfriend also

testified about the impact his emotional distress had on his family

and daily activities, including his relationship with his

girlfriend and his child and his ability to get out of bed.

9 Travers's girlfriend also testified that Travers's termination "impact[ed] him very dramatically": he used to "like[] to do things with [his family]," but after his termination "everything change[d]." He "didn't enjoy nothing with [the family] anymore" and became "nasty" such that she had to "shut the door and leave him alone." And, the girlfriend testified, Travers went from always playing with his son after work to not wanting to even get out of bed.

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In sum, FSS cites no precedent that leads us to conclude

that the District Court abused its discretion by knocking the award

down only as far as it did, and not still further. And while the

evidence of emotional distress was not particularly strong in this

case,10 it was not so lacking that the reduced award of $50,000

shocks the appellate conscience. See Trainor, 699 F.3d at 32.

Accordingly, we affirm the emotional-distress damages award set

forth in the order of remittitur and accepted by Travers.

E.

The last of FSS's challenges concerns the District Court

order that granted Travers $176,185 in attorney's fees and

$7,398.45 in costs. See Mass. Gen. Laws ch. 149, § 150. FSS

argues for a fee reduction because Travers's attorney allegedly

engaged in misconduct during the trial.

FSS rightly observes that "[i]t is well settled in this

circuit that the district court has the duty and responsibility to

supervise the conduct of attorneys who appear before it, and

10 FSS supports its argument for further remittitur by noting that Travers presented no expert testimony regarding his emotional distress. But "expert testimony . . . is useful but not essential to support an award of emotional distress damages." Boston Pub. Health Comm'n v. Mass. Comm'n Against Discrimination, 854 N.E.2d 111, 117 (Mass. App. Ct. 2006); see also Molloy v. Blanchard, 115 F.3d 86, 93 (1st Cir. 1997) (concluding, for federal claim, that expert testimony on emotional distress is not required where lay testimony is "within the common knowledge and experience of the layperson"). And here the lack of expert testimony does not lead us to conclude the District Court abused its discretion in declining to order further remittitur.

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that . . . [d]enial of attorneys' fees may be a proper sanction"

for attorney misconduct. Culebras Enters. Corp. v. Rivera-Rios,

846 F.2d 94, 97 (1st Cir. 1988); see also Wong v. Luu, 34 N.E.3d

35, 45 (Mass. 2015) (holding that "[t]he inherent powers necessary

to preserve the court's authority to accomplish justice include

the power to sanction an attorney" for misconduct by assessing

fees). But we review "the district court's [attorney conduct]

supervisory rulings under an 'abuse of discretion' standard" when

determining whether fees should be offset for attorney misconduct,

Culebras Enters. Corp., 846 F.2d at 97; see also Wong, 34 N.E.3d

at 46, and we conclude that, under this deferential standard, the

District Court did not abuse its discretion in concluding that

there was no attorney misconduct that required a reduction of the

attorney's fees award.

The first of the three alleged examples of attorney

misconduct that FSS identifies as a basis for reducing the award

on appeal concerns the closing arguments by Travers's counsel.

FSS contends she inappropriately argued that the jury should draw

a negative inference from FSS's failure to locate or subpoena the

woman who complained that Travers solicited a tip from her. But

the District Court characterized these statements as typical over-

zealousness -- not bad-faith acts. And we can see no reason to

conclude that the District Court abused its discretion in so

finding.

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FSS also points to Travers's testimony about Nichols in

seeking to reduce the award. FSS contends that Travers's counsel

knew the testimony was inadmissible but sought to admit it anyway.

But the District Court disagreed, and we do not think the District

Court abused its discretion in so deciding. In fact, the District

Court itself appeared to view the evidentiary issue as close, as

it initially declined to strike the testimony before then reaching

the opposite conclusion after trial.

Finally, FSS points to one aspect of Travers's counsel's

line of questioning of Nabil Agba, the former FSS skycap

supervisor. Travers's counsel asked Agba whether he had ever heard

that Lisa Varotsis, the general manager in Boston, was considering

giving Travers his job back. FSS argues that Travers's counsel

was thus suggesting to the jury that FSS had made a settlement

offer, even though Federal Rule of Evidence 408(a) restricts the

admission of settlement offers. But while the District Court

struck certain parts of the testimony Agba provided in response to

this line of questioning, the District Court also ruled that Rule

408(a) was beside the point. The District Court found that there

was no evidence that Varotsis ever sent or saw a settlement offer,

and thus no ground for concluding that the counsel was seeking to

do an end run around the rule by asking the questions she did.

FSS points to nothing that shows the District Court abused its

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discretion in so finding and thus to nothing that shows counsel

did engage in misconduct in seeking to admit the testimony.

For these reasons, we affirm the District Court's

decision not to reduce or eliminate the attorney's fee award for

alleged attorney misconduct.11

III.

We now turn to Travers's cross-appeal. Travers presents

three challenges to the District Court's handling of the case. He

argues that the District Court erred first in entirely eliminating

and not trebling front-pay damages, next in failing to treble the

$50,000 emotional-distress award, and finally in denying

prejudgment interest. But before taking up each contention, we

note that FSS argues that we may not review any of them. And that

is because FSS contends that Travers accepted the District Court's

offer of remittitur in order to avoid a new trial.

In making this threshold argument, FSS points to the

Supreme Court's opinion in Donovan v. Penn Shipping Co., Inc., 429

U.S. 648, 649 (1977), which held that "a plaintiff cannot appeal

the propriety of a remittitur order to which he has agreed." But

11 FSS also argues the fees and costs award should be reduced to zero because Travers under-reported his tips to FSS during his employment. But we agree with the District Court, which concluded that "[w]hile Travers may have created future complications for himself with the Internal Revenue Service . . . , there is no authority that I am aware of (and none is cited) that would punish the lawyer for the tax defalcations of her client in a case that had nothing to do with tax issues . . . ."

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as we will explain in the course of addressing Travers's

challenges, each one may be resolved either independently of, or

notwithstanding the application of, the Donovan rule.

A.

Travers argues first that the District Court abused its

discretion when it ruled that the jury's $450,000 front-pay award

was "based wholly on speculation" and thus must be rejected in its

entirety. Before addressing the merits of that contention, though,

we must address FSS's argument that Travers's acceptance of

remittitur stands in the way.

The reason that FSS is wrong on this point is simple.

Remittitur must be accepted in order to be effective. See Mejias-

Quiros v. Maxxam Prop. Corp., 108 F.3d 425, 429 (1st Cir. 1997)

(remanding "for a new trial on medical costs unless Mejías accepts

a remittitur"). But the record reveals that Travers never accepted

the elimination of the front-pay award and that the District Court

then separately rejected the front-pay award as a matter of law

because it was too speculative.

Specifically, in addressing FSS's motion for a new

trial, the District Court did rule that it would grant the motion

if the "plaintiff reject[s] a remittitur of damages." The District

Court then listed, alongside a reduction in emotional-distress

damages, the complete elimination of front-pay damages. Travers

responded by accepting remittitur. But in doing so, Travers

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clearly accepted the reduction of the emotional-distress damages

but characterized the elimination of front pay as a partial

judgment as a matter of law that Travers expressly neither accepted

nor rejected. See Docket Entry No. 174. Then, in the course of

denying FSS's motion for reconsideration, the District Court

announced that it stood by "its decision to eliminate the

front[-]pay award of $450,000 altogether and to order a remittitur

of the $400,000 award of emotional-distress damages to $50,000

(which plaintiff has accepted)." Docket Entry No. 184 at n.1.

The District Court thus apparently acknowledged that Travers had

accepted remittitur as to the emotional-distress damages alone and

that the court was entering a separate judgment rejecting the

front-pay award as a matter of law.

Against this background, we construe the District

Court's elimination of front-pay damages as a partial judgment as

a matter of law under Federal Rule of Civil Procedure 50. See de

Jesus v. Banco Popular de Puerto Rico, 918 F.2d 232, 235 (1st Cir.

1990) ("If the court believed that the jury's verdict was

unsupported by the evidence, it could have granted judgment

notwithstanding the verdict to defendant. If it believed that the

verdict was supportable, but that the jury's award of damages was

grossly excessive, it could have fixed a remittitur amount."); see

also Hill v. Marshall, 962 F.2d 1209, 1217 (6th Cir. 1992). And

we review a grant of judgment as a matter of law de novo and affirm

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only if, taking the evidence in the light most favorable to the

non-moving party, no reasonable jury would conclude that there

could be a front-pay award in this case. See Irvine v. Murad Skin

Research Labs., Inc., 194 F.3d 313, 316 (1st Cir. 1999) (discussing

the Rule 50 standard).

Under both state and federal law, front-pay awards, like

all damages awards, "may not be determined by speculation or guess,

must be causally related to the defendant's wrongdoing, and . . .

should not . . . ma[k]e [the plaintiff] more than whole." Conway

v. Electro Switch Corp., 523 N.E.2d 255, 257 (Mass. 1988)

(citations omitted); see also Powers v. Grinnell Corp., 915 F.2d

34, 43 (1st Cir. 1990) (front-pay award should not be "too

speculative"). Still, some level of uncertainty regarding the

future is inevitable and so "[m]ere uncertainty" does not bar

front-pay damages. Conway, 523 N.E.2d at 257; see also Trainor v.

HEI Hospitality, LLC, 699 F.3d 19, 31 (1st Cir. 2012) (observing

that "crafting a front pay award necessarily entails some degree

of [permissible] speculation"). Finally, front-pay damages, as an

award for future damages, "must be reduced to present value" to

account for the difference in the value of money in the future and

the value of money today. Conway, 523 N.E.2d at 257 n.3; see also

Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 961 (1st Cir. 1995)

(noting that "in calculating damages for front pay, [an expert]

correctly chose to discount the amounts representing the

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plaintiffs' future wages at an appropriate interest rate in order

to determine the present value of the future stream of income to

which each plaintiff would have been entitled").

Travers defends the $450,000 jury award by multiplying

twenty years of future employment12 by $25,000 in lost tips per

year13 and then subtracting $50,000 to discount those lost future

12Travers arrives at this twenty-year figure apparently on the basis of his testimony that, if he had not been fired, he planned on staying "[a]nother 20 years. You know, skycaps work for 20, 30, 40 years at the curb. I don't see me leaving. It was a good job," and on the testimony of other skycaps who testified they had been skycaps for years, including one who testified that he had been a skycap for twenty-nine years by the time of trial. 13 Travers bases this number on his testimony that he took a

new skycap job, after being fired by FSS. He testified that that job resulted in about $100 less in tips per shift and two fewer shifts per week, for a loss of at least $500 per week over a fifty- week work year. And the District Court accepted that Travers had estimated in his testimony that he would lose about $25,000 per year as a result of being fired. We note that Travers also testified that he was able to somewhat increase his hours and hourly wage at yet another job after being fired by FSS. The increase in hours, however, was only temporary, and at the time of trial Travers testified that he was working within the same range of hours per week (18 to 20) on this other job as he was before being fired (15 to 20), with a modest increase in his hourly rate (from $17 to $20.75). In defending against Travers's cross-appeal on the front-pay issue, FSS does not argue that Travers's slightly increased earnings from this other job undermine the estimation of $25,000 in losses per year or contribute to the speculative nature of the original front- pay award. And, in any event, we note that a calculation using Travers's highest estimation of his hours per week at this job before being fired (20) and his lowest estimation of his hours per week at the same job after FSS fired him (18), even after accounting for the increase in hourly wages, shows only a modest impact of $1,675 on his yearly earnings, assuming a fifty-week work year. Given that Travers's loss estimation of $25,000 per year was based on the lower end of the tips per day that Travers estimated earning and did not include his $2.63 hourly wage, we

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earnings to present value. We agree with the District Court that

awarding the full projected loss for the full twenty-year term

Travers asserted he wanted to work would go beyond acceptable

uncertainty and constitute unsupported speculation.

The Supreme Judicial Court has upheld larger awards of

front pay over similarly long time horizons, but it has done so in

cases involving considerably more detail about the likelihood of

future earnings than was established here. See, e.g., Haddad v.

Wal-Mart Stores, Inc., 914 N.E.2d 59, 69-72 (Mass. 2009) (upholding

$733,307 award for nineteen years of front pay, where expert

testified about wage difference between old and new jobs,

difficulty finding a new job with a similar salary to the old job,

likely tenure at employer based on excellent work reviews,

remaining time until retirement, and present-value discount

calculations); see also Kelley v. Airborne Freight Corp., 140 F.3d

335, 355-56 (1st Cir. 1998) (upholding under Massachusetts law a

$1 million, fourteen-year front-pay award, a "hotly contested

issue at trial," based on plaintiff's assertion he would work until

sixty-five, the six-year proximity to his being fully vested in

pension plan, and expert evidence from both sides regarding

difficulty finding a better job). In fact, Travers does not

conclude that (at least absent any argument to the contrary) whatever impact Travers's increased earnings at his second job had does not affect our analysis here.

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identify a single Massachusetts case that supports upholding a

$450,000 award over a twenty-year time horizon based only on the

plaintiff's testimony that he desired to work another twenty years,

that others in that position at the company had similarly long

tenures, and his testimony about current lost income. Travers

cites Weber v. Community Teamwork, Inc., 752 N.E.2d 700 (Mass.

2001), as an example of the Supreme Judicial Court upholding a

large front-pay award based on a fifteen-year period of assumed

continued employment. But there, the court expressly reserved

judgment on the sufficiency of the evidence underlying that award.

Id. at 718. Accordingly, we agree with the District Court that

the $450,000 front-pay award was too speculative to stand.14

But the District Court did not merely reject a $450,000

front-pay award. The District Court ordered the complete

elimination of front-pay damages, notwithstanding the evidence of

the losses Travers testified that he would sustain going forward

and notwithstanding his testimony that he had intended to stay in

14Travers cites both federal and state cases for the general standard of how speculative a jury award may be before being struck as a matter of law under both federal and state law. But he relies primarily on Massachusetts cases -- while citing some non- Massachusetts state cases as persuasive authority -- in arguing that the application of that standard in this case should have resulted in leaving the jury's front-pay award unchanged. Accordingly, we have considered only Massachusetts law in concluding that the District Court was warranted in rejecting as a matter of law the full amount of the front-pay award in this case.

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his job at FSS had he not been fired. That evidence, however, was

sufficient to permit a reasonable jury to award some front-pay

damages greater than zero. See Handrahan v. Red Roof Inns, Inc.,

680 N.E.2d 568, 577 (Mass. App. Ct. 1997) (finding excessive a

$487,800 front-pay award over thirty years based on self-reported

intention of employee but remanding for recomputation, not

elimination, of front pay); see also Trainor, 699 F.3d at 31

(affirming front-pay award, at least partially under federal law,

based on estimation of loss and plaintiff's testimony that he would

continue to work for three years). Accordingly, we vacate the

District Court's order eliminating the jury's front-pay award and

remand for the District Court to consider the issue anew.

B.

Travers next contends that the District Court erred in

not trebling the remitted emotional-distress damages award of

$50,000 on the basis of a Massachusetts statute.15 See Mass. Gen.

Laws ch. 149, § 150. That statute provides that an employee, like

Travers, may bring a suit "for any damages incurred, and for any

15The damages Travers seeks to treble under state law are based on both federal and state claims and the damages were not apportioned between them. But "[w]hen federal and state claims overlap, the plaintiff may choose to be awarded damages based on state law if that law offers a more generous outcome than federal law," Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 146 (1st Cir. 2009). FSS makes no argument challenging Travers's right to seek trebling under state law notwithstanding that the damages rely partially on a federal claim.

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lost wages and other benefits" and that, if the plaintiff prevails,

the plaintiff "shall be awarded treble damages, as liquidated

damages, for any lost wages and other benefits." Id. Travers

contends that this statute applies to the emotional-distress

damages because, although he acknowledges that they are not "lost

wages," damages compensating for emotional distress are an "other

benefit[]" of employment.

We need not decide whether, as FSS contends, that -- in

consequence of Donovan -- Travers's acceptance of remittitur

precludes him from seeking the trebling of these damages. And

that is because we find no basis for concluding that, under

Massachusetts General Laws ch. 149, § 150, payment of damages for

emotional distress is a "benefit[]" of employment.

Travers cites no case law or legislative history

indicating that the Massachusetts legislature had in mind the

counterintuitive meaning that he assigns on appeal to the word

"benefit[]," and we have found none. Travers cites cases that

interpret other Massachusetts statutes that make emotional-

distress damages subject to trebling. But those statutes all

permit trebling for "damages" -- a broadly encompassing term that

rather clearly includes emotional-distress damages -- rather than

limited categories of damages that do not generally include

emotional-distress damages plus "other benefits." See, e.g.,

Mass. Gen. Laws ch. 93A, § 9(3A). In fact, the contrast between

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the use of the word "damages" in those statutes and "benefit[]" in

this one highlights the problem with Travers's proposed reading of

this statute.

Thus we, like the District Court, do not believe the

Massachusetts state courts would conclude that emotional-distress

damages are subject to trebling under ch. 149, § 150.16

C.

Finally, relying on a Massachusetts statute, Travers

seeks prejudgment interest on the $90,000, pre-trebling portion of

the back-pay award and on the award of emotional-distress damages.

That law provides: "In any action in which a verdict is

rendered . . . for pecuniary damages for personal injuries to the

plaintiff or for consequential damages . . . there shall be added

by the clerk of court to the amount of damages interest thereon at

the rate of twelve per cent per annum from the date of commencement

of the action even though such interest brings the amount of the

16 Travers also argues that the District Court erred by refusing to treble the front-pay award. But we decline to reach this question of state law. The District Court eliminated the front-pay award entirely and has not yet had an opportunity to grant or reject on the merits a motion to treble front pay. Should a remitted front-pay award result on remand, we leave it to the parties to address and the District Court to decide whether front pay qualifies for trebling under the Massachusetts statute as "any lost wages and other benefits." See Mass. Gen. Laws ch. 149, § 150.

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verdict or finding beyond the maximum liability imposed by law."

Mass. Gen. Laws ch. 231, § 6B (emphasis added).17

As a threshold matter, FSS argues, in perfunctory

fashion, that Travers may not raise this issue to us because he

accepted remittitur. But we conclude that Donovan is no obstacle

to our review of Travers's claim for prejudgment interest on the

back-pay award and we also conclude that Travers's claim for

prejudgment interest on the emotional-distress damages award fails

for reasons independent of the Donovan bar. For reasons we will

give below, the disposition of Travers's claim for prejudgment

interest on the back-pay award depends on the resolution of a close

question of Massachusetts law, and so we certify that question to

the Massachusetts Supreme Judicial Court. Finally, we conclude

that the claim for prejudgment interest on the emotional-distress

17FSS does not argue that this statute has no application to the Massachusetts wage and tips law by virtue of that law being an employment law. And we note that, in any event, the Massachusetts Court of Appeals has applied this statute to claims of unlawful employment retaliation under Massachusetts' statutory employment law. See Salvi v. Suffolk Cty. Sheriff's Dep't, 855 N.E.2d 777, 788 (Mass. App. Ct. 2006); see also Blockel v. J.C. Penney Co., 337 F.3d 17, 29 & n.4 (1st Cir. 2003) (same). Finally, "[s]tate law customarily governs prejudgment interest determinations on state law claims." Blockel, 337 F.3d at 29. Although Travers seeks prejudgment interest here under state law on an unapportioned award made under both a federal and state claim, we have explained before that "[w]hen federal and state claims overlap, the plaintiff may choose to be awarded damages based on state law if that law offers a more generous outcome than federal law." Tobin, 553 F.3d at 146. FSS makes no argument that Travers may not seek prejudgment interest under state law due to the underlying federal claim.

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damages was not properly presented in Travers's motion for

prejudgment interest below.

The record reveals that Travers, in accepting

remittitur, did not waive his claim for prejudgment interest on

the back-pay award.18 When Travers asked the District Court below

to award prejudgment interest, Mass. Gen. Laws ch. 231, § 6B, the

District Court concluded that it "d[id] not need to decide" that

issue because it did not yet know whether Travers would accept

remittitur or instead opt for a new trial. Travers then accepted

remittitur, but he did not expressly waive his claim for

prejudgment interest in so accepting. Indeed, the category of

damages for which Travers seeks prejudgment interest -- back

pay -- was not even reduced in the order of remittitur or a new

trial.

Moreover, after Travers accepted remittitur and the

question of prejudgment interest on the new award became relevant,

Travers renewed his request for prejudgment interest. The District

Court then denied the request on the merits and with no mention of

18Travers waived any claim to prejudgment interest on front pay. In his first motion for prejudgment interest, he expressly stated that he "does not seek prejudgment interest on his award of front pay," and, perhaps to explain his decision, he cited Salvi v. Suffolk County Sheriff's Department, 855 N.E.2d 777, 788 (Mass. App. Ct. 2006) ("We conclude that prejudgment interest may not be added to an award of damages for lost future earnings and benefits." (original alterations omitted) (quoting Conway, 523 N.E.2d at 390-91)).

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the claim to prejudgment interest having been waived by Travers's

earlier acceptance of remittitur as to a different category of

damages. Given this record, we decline to conclude that FSS's

bare invocation of Donovan suffices to provide a ground for

preventing Travers from seeking prejudgment interest on the back-

pay award. See Zannino, 895 F.2d at 17 ("[I]ssues adverted to in

a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.").

Turning to the prejudgment-interest statute itself,

Travers argues that its plain text makes prejudgment interest

mandatory because of the word "shall" and that the District Court

therefore had to award prejudgment interest on the back-pay award.

FSS, in reply, notes that Massachusetts revised the trebling

provision applicable to the back-pay award, Mass. Gen. Laws ch.

149, § 150 (§ 150), in 2008 to make trebling mandatory rather than

discretionary and to characterize treble damages under § 150 as

"liquidated damages." FSS argues that, through this revision, the

Massachusetts legislature necessarily expressed its intent that

these treble damages compensate for the loss due to delay that

prejudgment interest otherwise would provide for and thus

(presumably) that the Massachusetts mandatory treble-damages

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statute displace the Massachusetts mandatory prejudgment-interest

statute in cases like this one.19

Thus, we must decide whether the present treble-damages

statute partially repealed the prejudgment-interest statute as to

cases in which a party has been awarded treble damages under the

former and is eligible for prejudgment interest under the latter.

Rather than resolve this question ourselves, however, we certify

the question to the Massachusetts Supreme Judicial Court (SJC)

pursuant to Mass. S.J.C. Rule 1:03, as the question is

determinative of Travers's demand for prejudgment interest on his

back-pay award, and, for the reasons that follow, the "course [the]

state court[] would take is [not] reasonably clear" here, given

the absence of controlling precedent and the "close and difficult

legal issues" involved. Easthampton Sav. Bank v. City of

Springfield, 736 F.3d 46, 51 (1st Cir. 2013).

The key issue is whether the 2008 amendment was intended

to signal, through the transformation of § 150 from a discretionary

19 FSS contends that prejudgment interest under Mass. Gen. Laws ch. 231, § 6B may not be awarded on a base amount whenever treble damages under § 150 are awarded on that amount. FSS thus makes no argument that, to the extent back-pay damages were awarded pursuant to the federal claim, our decision in Linn v. Andover Newton Theological School, 874 F.2d 1 (1st Cir. 1989), bars the recovery of prejudgment interest on the back-pay award. See id. at 7-8 (barring prejudgment interest where liquidated damages on back-pay award arose from federal claim and prejudgment interest on back-pay award arose from state claim). We consequently treat any argument based on Linn as waived. See Zannino, 895 F.2d at 17.

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to a mandatory trebling regime and the inclusion of the words "as

liquidated damages," that treble damages serve a compensatory

purpose rather than a purely punitive one. If so, then it would

seem improper to award prejudgment interest on top of the damages

awarded under § 150 in light of the substantial precedent that

indicates that compensatory treble damages cover the value of

prejudgment interest. See, e.g., Brooklyn Sav. Bank v. O'Neil,

324 U.S. 697, 707, 715 (1945) (stating that liquidated damages

under the FLSA "constitute[] compensation for the retention of a

workman's pay [as a result of "the delay in payment of sums due

under the Act"] which might result in damages too obscure and

difficult of proof for estimate other than by liquidated damages"

and therefore duplicate the value of prejudgment interest);

Matamoros v. Starbucks Corp., 699 F.3d 129, 140 (1st Cir. 2012)

(stating that, within the context of the FLSA, "liquidated damages

[awarded under § 150] are not punitive damages"); Powers v.

Grinnell Corp., 915 F.2d 34, 41 (1st Cir. 1990) ("[A]n award of

liquidated damages 'usually will be far greater than would be

necessary to compensate for delay -- far greater, that is, than an

award of prejudgment interest.'" (citation omitted)); Feygina v.

Hallmark Health System, Inc., No. MICV2011–03449, 2013 WL 3776929,

at *6-8 (Mass. Super. July 12, 2013) (collecting cases and noting

that § 150 "compensate[s] . . . for all direct and consequential

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damages," including "all harm caused by [the] employer's unlawful

delay in paying all wages owed to [the employee]").

A reason to conclude that the 2008 amendment changed the

nature of treble damages from punitive to compensatory is that the

Massachusetts legislature may have intended such a transformation

to help avoid a constitutional concern raised by making trebling

mandatory rather than discretionary. This interpretation draws

support from Massachusetts precedent that indicates that, to

comport with the federal guarantee of due process, punitive treble

damages may be awarded only if there is a finding of heightened

culpability on the part of the defendant. See, e.g., Wiedmann v.

The Bradford Group, Inc., 831 N.E.2d 304, 313 (Mass. 2005),

superseded by statute on other grounds, Mass. Gen. Laws ch. 149,

§ 150 ("[T]reble damages are punitive in nature, allowed only where

authorized by statute, and appropriate where conduct is

outrageous, because of the defendant's evil motive or his reckless

indifference to the rights of others." (quotation marks and

citation omitted)); Goodrow v. Lane Bryant, Inc., 732 N.E.2d 289

(Mass. 2000) ("To [award punitive damages] absent evidence of

heightened culpability would very likely constitute an 'arbitrary

or irrational deprivation[] of property,' and thus would be

constitutionally impermissible." (citation omitted)). And such a

reading of the purpose of the 2008 amendment also would help

explain the addition of the words "as liquidated damages." That

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addition would then serve as an indication that the legislature

intended for the treble damages to be compensatory rather than

punitive.

Consistent with that conclusion, in Matamoros v.

Starbucks Corp., we did characterize the amended version of § 150

as providing for liquidated damages that were compensatory rather

than punitive in concluding that the new mandatory trebling

statute -- which provides for the award of treble damages without

a finding of heightened culpability -- did not raise due process

concerns. See 699 F.3d 129, 140 (1st Cir. 2012) ("Because an award

of treble damages pursuant to the current version of [§ 150] is

neither an award of punitive damages nor fairly analogous to such

an award, [defendant's] due process concerns are misplaced.").

And we note that the only Massachusetts precedent that addresses

this specific question -- whether the treble-damages statute, as

amended, displaced the mandatory prejudgment-interest statute --

directly follows this course of reasoning. See Feygina, 2013 WL

3776929, at *6-8.

But were we to construe § 150 in this way, we would be,

in effect, countenancing an implied repeal of the prejudgment-

interest statute. The bar to finding an implied repeal of a

preexisting statute, however, is high. Under Massachusetts law,

"[a] statute is not to be deemed to repeal or supersede a prior

statute in whole or in part in the absence of express words to

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that effect or of clear implication." Com. v. Harris, 825 N.E.2d

58, 67 (Mass. 2005) (alteration in original) (quoting Com. v.

Hayes, 362 N.E.2d 905, 909 (Mass. 1977)). That is because "it is

by no means clear that, as between two successive acts whose

literal interpretations clash, the earlier must yield to the

latter. Indeed, the later statute is often intended to defer to

the earlier." Hayes, 362 N.E.2d at 909 (alteration in original)

(citation omitted). Where the Massachusetts courts "encounter

legislative silence on how . . . two statutes should relate to

each other," therefore, they seek to give effect to both "to the

greatest extent possible." Harris, 825 N.E.2d at 67.

Yet here the "express words" of § 150, as amended, do

not make any reference to the prejudgment-interest statute or to

its repeal. Nor is there any legislative history that provides

meaningful guidance on this question. And while we did

characterize the treble damages available under the present

version of § 150 as compensatory in addressing the federal due

process claim presented in Matamoros, see Matamoros, 699 F.3d at

140, a recent Massachusetts Court of Appeals case -- which post-

dates Matamoros -- describes these treble damages as punitive and

thus in terms that arguably would raise no double recovery concern.

See Weber v. Coast to Coast Medical, Inc., 985 N.E.2d 1212, 1216

n.7 (Mass. App. Ct. 2013) (stating in the context of § 150 that

"an award of treble damages, whether in an exercise of discretion

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or mandatorily, is nevertheless punitive"); see also Blake v. CRNC

Operating LLC, No. 15–ADMS–10011, 2015 WL 5783645, at *1 n.4.

To be sure, in Brooklyn Savings Bank v. O'Neil, 324 U.S.

697 (1945), the Supreme Court considered the propriety of ordering

prejudgment interest on a back-pay award where the applicable

federal statute contained a liquidated-damages provision that

required the doubling of that award. And the Court concluded that

the liquidated damages were intended to compensate for the obscure

costs that arise from the delay in sums due under the federal act

and thus did include the value of prejudgment interest. See

Brooklyn Sav. Bank, 324 U.S. at 714-15. For that reason, the Court

held that awarding prejudgment interest in that case was improper.

See id.

But Brooklyn was not interpreting -- as we must -- the

potential conflict between a statute mandating treble damages and

a statute mandating prejudgment interest. Indeed, Brooklyn does

not seem to have involved a prejudgment-interest statute at all.20

20If prejudgment interest were to have been available in Brooklyn, such interest would only have been awarded as a result of a traditional common-law remedial doctrine making prejudgment interest available for compensatory damages under claims arising out of federal law where prejudgment interest would be consonant with "an appraisal of the congressional purpose in imposing [the obligation]" and where there was no expression of "an unequivocal congressional purpose that the obligation shall not bear interest." Rodgers v. United States, 332 U.S. 371, 373-74 (1947) (characterizing Brooklyn as a case involving this common-law remedial doctrine and making no mention of a prejudgment-interest statute).

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Thus, unlike in Brooklyn, we are faced with a question of state

law and two mandatory state statutes -- one for liquidating damages

and another for awarding prejudgment interest -- neither of which

purport to make an exception for the other.

In sum, a state legislature drafting a liquidated-

damages provision on a clean slate might well intend to compensate

for the loss due to delay in recovery of a judgment and thereby

displace an implied common-law remedy of prejudgment interest.

See id. It is less clear to us, however, that the Massachusetts

legislature did so intend in amending this treble-damages statute,

which was altered in the shadow of an otherwise applicable

mandatory prejudgment-interest statute. Cf. Hutka v. Sisters of

Providence in Wash., 102 P.3d 947, 960 n.52 (Alaska 2004) (noting

Alaska does not follow Brooklyn under state law). And that is

particularly so given that existing law at the time of the 2008

amendment permitted the application of both treble damages and

prejudgment interest to a damages award. See DeSantis v. Com.

Energy Sys., 864 N.E.2d 1211, 1219-22 (Mass. App. Ct. 2007)

(affirming award of treble damages under § 150 and award of

prejudgment interest on award of back-pay damages prior to the

2008 amendment). Indeed, under an implied-repeal view, the 2008

amendment would have the odd effect of reducing the amount of

damages awarded in the cases where the defendant's conduct is most

egregious.

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Thus, due to the lack of clarity of the statute and the

absence of controlling precedent, as well as the potentially far-

reaching impact that the resolution of this question would have,

Easthampton Sav. Bank, 736 F.3d at 52-53, we conclude that

certification to the SJC is appropriate to determine whether

Travers may be awarded prejudgment interest on his award of back-

pay damages, in conjunction with his award of liquidated damages

on the back-pay damages. For these reasons, we certify the

following question to the SJC pursuant to its Rule 1:03:

Did Mass. Gen. Laws ch. 149, § 150 impliedly repeal Mass. Gen. Laws ch. 231, § 6B as to cases in which a party was awarded liquidated damages under § 150 and is eligible for prejudgment interest under § 6B, such that the award of prejudgment interest is precluded?

We would further welcome the advice of the SJC on any other

relevant aspect of Massachusetts law that it believes would aid in

resolution of this dispute.

As noted above, Travers also argues that he should

receive prejudgment interest on the $50,000 emotional-distress

award, but this claim fails, notwithstanding our view of how the

SJC would apply the prejudgment-interest statute. And that is

because of Travers's failure to raise this issue below.

Travers asked for prejudgment interest on both the

back-pay and emotional-distress awards in his first motion, Docket

Entry No. 135, at 2, which the District Court did not decide on

the merits. In his renewed motion for prejudgment interest,

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however, Travers asked only for prejudgment interest on the back-

pay award. See Docket Entry No. 195, at 13. It was this renewed

motion that the District Court denied and that we are asked to

review on appeal. Under these circumstances, we think Travers

came close to voluntarily waiving his right to prejudgment interest

on the emotional-distress award. But even treating his failure as

forfeiture, we conclude that the District Court did not plainly

err.

Assuming it would be clear and obvious error affecting

Travers's substantial rights not to award prejudgment interest

under the Massachusetts prejudgment-interest statute, Travers has

not met his burden of showing that the error resulted in a

miscarriage of justice. Travers agreed to remit all but $50,000

of the emotional-distress damages award, and it is unclear if, in

doing so, he was also electing to accept that remitted award as

inclusive of the prejudgment interest that he had requested earlier

on that award. That Travers intended such an all-inclusive

election is made somewhat more likely by the fact that Travers did

not ask for prejudgment interest on the emotional-distress award

in his renewed motion, after accepting remittitur, whereas he had

asked for such prejudgment interest earlier. And Travers makes no

argument to us on appeal for why affirming the denial of

prejudgment interest on the emotional-distress award would result

in a miscarriage of justice in his case. As "it is rare indeed

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for a panel to find plain error in a civil case," Chestnut, 305

F.3d at 20, we conclude, for these reasons, that this case is not

that rare case.

IV.

For these reasons, we AFFIRM the District Court's denial

of FSS's motions for judgment as a matter of law, the District

Court's denial of FSS's motion for a new trial, the District

Court's denial of FSS's motion to further reduce the jury's award

of back pay, the District Court's remittitur order on

emotional-distress damages, and the District Court's award of

attorney's fees and costs to Travers. We also AFFIRM the District

Court's decision not to treble the remitted award of

emotional-distress damages as well as its decision not to grant

prejudgment interest on the emotional-distress damages. But we

VACATE the District Court's order eliminating front-pay damages

and we REMAND for further proceedings consistent with this opinion.

The Clerk of this court is directed to forward to the

SJC, under the official seal of this court, a copy of the certified

question and our opinion in this case, along with copies of the

briefs and appendix filed by the parties. We retain jurisdiction

over this one issue pending the SJC's response.

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