USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-1119
HERTZL SINAI,
Plaintiff, Appellee,
v.
NEW ENGLAND TELEPHONE AND
TELEGRAPH COMPANY, ET AL.,
Defendants, Appellants.
____________________
No. 92-1153
HERTZL SINAI,
Plaintiff-Appellant,
v.
NEW ENGLAND TELEPHONE AND
TELEGRAPH COMPANY, ET AL.,
Defendants, Appellees.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. District Judge]
___________________

____________________
Before
Torruella, Cyr and Oakes,*
Circuit Judges.
______________
_____________________
____________________
*

Of the Second Circuit, sitting by designation.

Amy D. Seifer, with whom John D. Corrigan, was on brief

_____________
________________
defendants.
Gabriel O. Dumont, Jr. for plaintiff.
______________________

____________________
August 24, 1993
____________________

for

-2-

TORRUELLA,

Circuit Judge.
______________

employment at NYNEX Information

After

failing

to

gain

Resources Co. ("NIRC"), appellee

brought suit for race and national origin discrimination under 42

U.S.C.
U.S.C.

1981 and Title

2000e et seq.

VII of the Civil Rights Act

A jury

of 1964, 42

found for the plaintiff on race

______
discrimination, and the district

judge, finding himself bound by

the jury's factual findings, found for

the plaintiff on national

origin discrimination.
Appellant contends
to

sustain

refused

the judgments,

to

grant

Appellant also
jury

that the evidence

such that

judgment

contends that

incorrectly and

the

was insufficient

judge erred

notwithstanding

the district court

issued two erroneous

Appellee, in response, complains

the

when he

verdict.

instructed the

evidentiary rulings.

that the district court refused

to grant an additional award of damages under Title VII.

Finding

this volley of allegations unconvincing, we affirm.

We use the same standard to review the evidence in this

case that the district judge used when he ruled on the motion for
judgment n.o.v.

Biggins v. Hazen Paper Co., 935 F.2d 1405, 1409

_______
________________

(1st Cir. 1992).

When a jury has delivered a verdict, we examine

the evidence,

including all facts

most favorable to the verdict.

the

Id.
___

and inferences, in

the light

We overturn the verdict when

evidence leads a reasonable person to one conclusion and one

conclusion only:

that the losing party was entitled to win.

Id.
___

The evidence, viewed in this light, follows.

Appellee was born in Israel of parents of Jewish/Hebrew

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heritage.

He came to the United States in 1973 after a five-year

stint in the Israeli Air Force and a two-year stint in sales at a

private company.
Science
When

In the United States he

degree from

his wife,

directory

Suffolk University
NIRC employee,

advertising

told

sales were

the spring of

were available at

various jobs.

him that

positions

but that his

in

appellee

first step in

at NIRC, and it

NIRC informed appellee

the time,

at NIRC,

This was the

to win a position

1984.

and held

available

submitted a resume and cover letter.

appellee's quest

received a Bachelor of

occurred in

that no

positions

application would

be

added to the waiting list for future openings.

Appellee filed a new application in the Summer
and

followed

Marlene Dumas.

up with

a phone

call

to the

During the conversation, Ms.

applicants needed a college

of 1984

hiring supervisor,

Dumas revealed that

degree and sales experience to

the

initial screening.

Ms.

Dumas delved further into appellee's career background.

pass

Appellee responded that he had both, and

Ms.

Dumas asked appellee where he came from, or where he received his

sales

experience.

stated

When

"Israel doesn't

comment,
experience

but
in

appellee responded
count."

testified that,
Israel

was too

Ms. Dumas
in
far

any

Israel, Ms.

Dumas

denies making

this

event, appellee's

removed

application date to satisfy the requirement.

in

time from

sales

the

She explained that

sales experience garnered more

than three to five years

earlier

is considered stale.
Appellee filed

a new application in

late November and

-4-

again
be

followed up with a phone call.

interviewed within

called for
test.

the coming

a test and interview

During

the

He was told that he would

year.

Indeed, appellee

in March, 1985.

subsequent interview,

was

He passed the

Ms. Dumas

reportedly

asked "Did you say you were from Israel?" and appellee detected a
look

of disgust on her face.

A letter soon followed, informing

appellee that he would not be considered further.

Undaunted, appellee
and

again in

early 1986.

reapplied in
In

mid 1986,

the Summer
Ms. Dumas

of 1985,

left NIRC.

Appellee filed yet another application to Ms. Dumas's replacement

and again followed up
appellee learned

with a phone call.

that NIRC had

hiring of NIRC-employee
NIRC,

appellee could not

further information
the

alleged

spouses.

"no-spouse"

policy

this conversation,

adopted a policy
As

be hired.

from various

In

appellee's wife worked

Stunned,

supervisors.
was

forbidding the

unwritten

at

appellee pursued
He

learned that
and

informal.

Appellee

was unsatisfied with this news,

as he knew of a couple

that was hired after appellee submitted his several applications.

During

the

relevant

pertinent hiring decisions.

of the

Jewish faith

Second,

NIRC

time

period,

NIRC

made

other

First, NIRC hired several adherents

for directory advertising

hired several

individuals

stated screening criteria; these

sales positions.

who did

not

meet the

individuals either did not have

a college degree or did not possess sufficient sales experience.

The above culminated in appellee bringing a two-pronged

discrimination suit.

He

claimed that he suffered discrimination

-5-

on the

basis of his Jewish/Hebrew

national

origin, Israel.

which guarantees
have the same

The

rights as

which

the refusal

"race, color, religion,

in the

origin claim
to hire

an

basis of his

arose under

"white citizens" "to

The national

plaintiffs are

race claim

that "all persons"

contracts."
makes

race and on the

United States
make and

arose under

entitled to a jury trial in

will

enforce

Title VII,

applicant because

sex, or national

1981,

of his

origin" unlawful.

As

1981 cases, but not

in Title VII cases, the district judge conducted a jury

trial on

race discrimination before he himself decided the national origin

discrimination claim.
Appellant
origin
case,
a

argues that

discrimination are

evidence

of race

and national

not inextricably intertwined

in this

and that appellee failed to adduce any evidence to support

finding of

race,

discrimination on

the basis of

his Jewish/Hebrew

as opposed to his Israeli national origin.

concludes

that

rational

we

agree

jury

could

not

Appellant thus

have

found

race

discrimination.
While
evidence

with

the

of race discrimination was

district

court

thin in this

that

the

case, we also

agree with the district court that the jury was entitled to reach
the

result it

did.

Appellee made

discrimination as it was
Greene,
______

out a

prima facie

case of

described in McDonnell-Douglas Corp. v.

_______________________

411 U.S. 792 (1973).

Jewish/Hebrew, defined as a

First,

he established that he was

protected race by the

Supreme Court

in Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987), and

_____________________
___________
-6-

Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987).

__________________________
____
he

applied for

appellee

a job

for which

was rejected,

other candidates

he was

but the

with similar

Second,

qualified.1

Finally,

position remained

available to

credentials and even

some others

with apparently fewer credentials.

In

addition to

discrimination,

appellee

disparaged appellee's
claims that
the

As

testified

Israeli

these events

jury could

which the

establishing the

find that

Justice

Brennan

that

Israel is

stated

Ms.

background.

do not establish

populace is composed

prima facie
Dumas

Although

one of those

race

twice

appellant

race discrimination,

primarily of a
of

case of

and

countries in

particular race.
national

origin

discrimination, often "the two are identical as a factual matter:

one was

born

ethnic

group."

J.,

in the

nation whose

primary stock

That

Israel is

composed exclusively of Jews,

it is undisputed

Jewish state,

is well established.

that appellee is of

that NIRC,

Furthermore,

The jury thus could have

through Ms. Dumas,

the basis of

albeit not

Hebrew/Jewish descent, the

stock primarily associated with Israel.

appellee on

own

Saint Francis College, 481 U.S. at 614 (Brennan,

_____________________

concurring).

determined

is one's

discriminated against

his Hebrew/Jewish race

by disparaging

Israel.
The

jury also

could have

chosen to

disregard NIRC's

____________________

1
It is undisputed that appellee earned a college degree. As
for his career experience, we are satisfied that he was qualified
because he passed the initial screening process and passed the
required test.
Furthermore, appellee presented evidence that

less well qualified candidates were hired over him.

-7-

evidence.

NIRC

allegation

of

adherents of

the

Jewish faith were hired for directory advertising positions.

The

discrimination

attempts

by pointing

jury could have

to
out

defuse

the

that several

determined, however, that the other Jewish hires

did not rebut appellee's contention of race

discrimination.

The

relevant issue in a discrimination claim is whether the defendant

discriminates against the
fact
class

that the

defendant hired

is evidence

that the

ultimate issue, but

other

jury can

improper basis.

The

members of

the protected

consider in

reaching the

is not dispositive in itself.

weigh all of the evidence.

that

plaintiff on an

The jury must

In this case, the jury could conclude

appellant discriminated

against appellee

on the

basis of

race in spite of the other Jewish hires.

The
refusing

fact that

NIRC

advanced

different

reasons

for

to hire appellant at different times could have led the

jury simply to disbelieve NIRC.

NIRC first alleged that no jobs

were available and that appellee's resume was unclear.

alleged that appellee
Finally NIRC

NIRC then

was not as qualified

as other candidates.

announced that it had adopted

a "no-spouse" policy

barring appellee's

employment.

according to Ms. Dumas,

This policy was

unwritten and,

not communicated to her until

May 1986,

even though it was adopted in late

1984 or early 1985.

easily

that

could

have

determined

these

The jury

reasons

were

unsatisfactory, not true, or a pretext to cover up racial animus.

Indeed,

appellee presented evidence

credentials than

that applicants

appellee were hired

-- directly

with fewer

contradicting

-8-

one of NIRC's rationales.

We
weighted

conclude

that

the

evidence

in appellant's favor to justify

verdict.

is

not

so

heavily

setting aside the jury

The jury was entitled to find that appellee's race led

to his failure to gain employment at NIRC.

The evidence does not

lead inescapably to the opposite conclusion.

Appellant
allowed

the jury

origin.

During

complains that the district court improperly

to

mingle race

its

deliberations,

following questions to the

because of race
of national

discrimination with

district judge:

carry the same weight

origin?

Or

the

are they to

jury

national

presented

the

"Does discrimination

as discrimination because
be considered the

same in

this case?"

The judge

responded by emphasizing

only confronted the jury with

that the

the issue of race

case

discrimination.

The judge added that "you can also consider, however, whether any

comments or any evidence about national origin may bear, may have
a

significance

to

you

in

determining

whether

there

was

discrimination on the basis of race."

We find no error in this instruction.
with

approval the

Francis College,
_______________
reflects those

comments

made by

and believe
comments.

We already noted

Justice

Brennan in

that the exchange

To repeat,

Saint
_____

discussed above

race and national

origin

discrimination may present identical factual issues when a victim

is "born

in a

nation whose

primary stock

is one's own

ethnic

group."

The judge properly responded to the jury's question:

certain

circumstances,

including

the

present

case,

in

national

-9-

origin

and race discrimination may

tell the

jury that national origin

to

discrimination,

race

however.

overlap.

The

judge did not

discrimination was identical

He

instructed

them

that

national origin discrimination could be used, together with other

evidence,

to

arrive

at

conclusion

vis-a-vis

race

discrimination.
We come
claims

now to two evidentiary

were erroneous.

discretion.

We

review

rulings that appellant

them

only

for

abuse

of

Losacco v. F.D. Rich Construction Co., 992 F.2d 382,

_______
__________________________

385 (1st Cir.

1993); Willhauck v. Halpin, 935 F.2d 689, 717 (1st

_________
______

Cir. 1991).
Appellant first contends that the district court
improperly

allowed

psychologist.

testimony

According to the

depressed, but
by the court

certain

by

appellee's

doctor, Mr. Sinai was

judge

expert

extremely

his prognosis was good if appellee was vindicated

in his

this testimony,

discrimination claim.

appellant raised

only served to encourage

In anticipation

of

an objection, arguing

that it

a verdict on improper grounds,

and was

therefore unduly prejudicial.

The trial
considered the

transcript shows

objection.

Mr. Sinai's depression to

that it

He

that

the judge

found the doctor's

the jury

emotional distress, in the

Mr. Sinai.

prognosis for

be such an important piece of evidence

would have been unfair to exclude it.

the testimony gave

carefully

Furthermore, the

a way to

He concluded that

limit damages for

event that it rendered a

future

verdict for

judge felt that appellant's counsel

-10-

could undo any prejudice

process

was not

Mr. Sinai's
vowed

to

therapeutic process

ailments regardless
intervene if

testimony.
close

by arguing in summation that

the

for

the trial

the jury

of fault.

to

Finally,

witness entered

into

cure

the judge

any improper

In short, the district judge realized that he faced a

issue,

weighed the

alternatives,

satisfactory conclusion.

Under

and

reached the

these circumstances, we

most

cannot

find an abuse of discretion in the district court's ruling.

Appellant's

next claim

of evidentiary

error concerns

appellee's deteriorating relationship with

his wife, and her own

discrimination

Again,

testimony

and

harassment

came from

claims.

appellee's

redirect examination.

The

the

psychologist, this

disputed

time during

doctor stated that "[s]he experienced

what she believed was harassment by [appellant] because

her husband's

decision to

job discrimination
this

harassment

file charges against

against himself."
formed

the

basis

[appellant] for

According to
of

the

Mrs.

Sinai

Massachusetts

filed

claim

Commission Against

against

the doctor,

Sinai's

difficulties, and, in turn, Mr. Sinai's depression.

that

of . . .

It

appellant

Discrimination and

marital

appears
with

the

received a

favorable ruling, which fact came out in the doctor's testimony.

During
counsel

used the

the

previous

cross-examination,

doctor's testimony

to imply

appellant's

that appellant's

depression
from
By

stemmed from

preexisting

difficulties related
opening

the

door

marital difficulties,

to appellant's

to

the

issue

not

discrimination claim.

of

appellee's

marital

-11-

relationship, appellant exposed itself to rebuttal testimony such

as

that

offered.

testimony.
243,

cannot

now complain

about

See McDonald v. Federal Laboratories, Inc.,

___ ________
__________________________

248 (1st

ruling

Appellant

Cir. 1984)

"where the party

(we will

not reverse

claiming error invited

that

724 F.2d

an evidentiary

or elicited the

alleged error").
Furthermore,
objection to
Indeed,

the

controversial,
whether

to

the

district

this testimony
witness,
paused
continue.

untimely and

knowing
before
The

objections, and therefore told

judge

that

proceeding
judge

found

appellant's

therefore unavailing.
his

testimony

and asked

noted

that

he

the doctor to proceed.

the

was

judge

heard

no

While an

objection was raised immediately after this ruling, it was not an

abuse of discretion to conclude to reject it.
We come now to

appellee's contention that the district

court erred in not granting a separate recovery for the Title VII
claim.

Appellee claims that the jury award, $95,000, is legal in

character; Title VII, on the other hand, is equitable and carries

with

it

equitable

remedies.

Appellee

believes

that

he is

entitled to both kinds of remedies; essentially, he contends that

he is entitled

to the $95,000 plus money for

that he

have

would

received had

the

front pay, the pay

district

court

ordered

appellant to hire him.

We cannot accept this argument.
under Title VII is to make the plaintiff
Co. v.
___

Moody, 442 U.S. 405 (1975).

_____

The purpose of damages

whole.

Albemarle Paper
_______________

The district court is vested

-12-

with a broad range of equitable powers to carry out this mandate.

See 42 U.S.C.
___

2000e-5(g) (listing "reinstatement

employees, with or without back pay

or hiring of

. . . or any other equitable

relief as the court deems appropriate" as available relief).

Contrary
judge did

to

not allow the

appellee's

protestations,

1981 verdict

powers under Title VII improperly.

to limit

the

district

his equitable

He simply found that the jury

already gave appellee

all that he was entitled to

receive.

Cf.
___

Wildman v. Lerner Stores Corp., 771 F.2d 605, 616 (1st Cir. 1985)
_______
___________________

(in Age Discrimination in Employment Act suit, the district court

has discretion on whether award of front
jury was presented in
back pay, front
determine

the

pay is necessary).

1981 claim with

pay, and emotional

evidence concerning

distress, and instructed

the appropriate level of damages for them.

essentially,
district court

the

damages

authorized

under

properly concluded that any

have been improper.

Affirmed.
________

-13-

The

Title

to

These are,
VII.

The

further relief would