Date: 06-21-2018

Case Style:

Case Number: 17-1169

Judge: Lynch

Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)

Plaintiff's Attorney: Christopher J. Trombetta

Defendant's Attorney: Kevin P. Martin, John E. Englander, Joshua Bone, Brian T. Burgess

Description: The Massachusetts Bay
Transportation Authority ("MBTA") appeals from the entry of a jury
verdict awarding over $2.6 million in damages to a black female
former employee who brought suit under 42 U.S.C. § 1981 and Mass.
Gen. Laws ch. 151B, § 4. She alleges, inter alia, that her
supervisors at the MBTA conspired to terminate her employment
because of her race. The jury awarded her over $1.3 million in
compensatory damages on her discrimination claim and $1.3 million
in punitive damages.
The MBTA makes three levels of argument on appeal.
First, the MBTA says that the evidence produced at trial was
insufficient to support either the compensatory or the punitive
damages awards comprising the over $2.6 million verdict. Second,
the MBTA argues that the trial judge committed two types of
reversible error in (a) imposing a draconian sanction as the price
for removing the entry of default, and (b) allowing a hostile work
environment theory not explicitly pled in the complaint to go to
the jury. Third, the MBTA contends that it should be able to take
advantage of Buntin v. City of Boston, 857 F.3d 69 (1st Cir. 2017),
decided while this case was on appeal, to vacate the judgment and
to dismiss this action.
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Like the proverb that a battle can be lost for want of
a nail,1 the MBTA loses its appeal largely for want of its making
appropriate objections and offers of proof before the trial court.
The evidence was more than sufficient to support the compensatory
damages award for wrongful termination and to justify the punitive
damages amount. We do agree that the trial judge committed clear
error in imposing the default sanction order. But, reviewing for
plain error, we do not agree that the MBTA has shown that it was
prejudiced either by the default sanction order or by the hostile
work environment charge. We also find the MBTA's belated Buntin
argument waived. Accordingly, we affirm the entry of judgment.
I.
Background
The plaintiff, Michelle Dimanche, is a black woman of
Haitian descent, who worked as a motor person on the MBTA Green
1 The provenance of this proverb is the following rhyme:
For the want of a nail the shoe was lost,
For the want of a shoe the horse was lost,
For the want of a horse the rider was lost,
For the want of a rider the battle was lost,
For the want of a battle the kingdom was lost,
And all for the want of a horseshoe nail.
Oxford Dictionary of Nursery Rhymes 324 (Ioana & Peter Opie eds.,
1951). The first three lines were published by Benjamin Franklin
in the 1757 edition of Poor Richard's Almanac. He prefaced the
rhyme by saying, "A little neglect may breed great mischief."
Benjamin Franklin, Poor Richard's Almanac 3, 17 (H.M. Caldwell Co.
1900) (1757).
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Line from 2000 until 2013. In 2015, she filed suit in federal
district court, alleging, among other things, wrongful termination
on the basis of her race. We trace the events leading up to this
appeal.2
Dimanche had an unhappy tenure at the MBTA. She
testified that, throughout her employment, she was repeatedly
harassed by her colleagues -- often her supervisors -- because of
her race. Following a disagreement with a co-worker on January
25, 2013, Dimanche was suspended and then her employment was
terminated on March 20, 2013.
A. Dimanche's Suspension and Termination
The event triggering Dimanche's discharge occurred on
the evening of January 25, 2013, at the MBTA Riverside Station
office. During her night shift, Dimanche got into an argument
with a co-worker, Gilberthe Pierre-Millien, who is also a black,
Haitian woman. Both women allege that the other was the aggressor
who yelled, cursed, spat, and continued the altercation from the
office into the lobby area.
2 Because the MBTA raises a sufficiency of the evidence
challenge, we recount the events "in the light most favorable" to
Dimanche as to that claim -- drawing all factual inferences and
resolving all credibility determinations in her favor. See
McMillan v. Mass. Soc'y for the Prevention of Cruelty to Animals,
140 F.3d 288, 299 (1st Cir. 1998) (quoting Morrison v. Carleton
Woolen Mills, Inc., 108 F.3d 429, 436 (1st Cir. 1997)).
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Several MBTA employees witnessed the event. It is
undisputed that Pierre-Millien reported the incident to a
supervisor and also called the transit police. It is also
undisputed that both women were suspended during the pendency of
the investigation into the altercation.
The nighttime supervisor, Rico Gomes, initiated an
investigation that same evening, and alerted the Director of Light
Rail Operations, William McClellan, of the incident. The next
day, the Deputy Director of Light Rail Operations, Edward Timmons,
took over the investigation. At the time of the altercation,
Dimanche had already received four disciplinary warnings3 and a
five-day suspension imposed by Tamieka Thibodeaux, the Division
Chief of Light Rail Operations. Under the MBTA's policies, a fifth
infraction could lead to termination. Based on Dimanche's
disciplinary history and Gomes's report, Timmons recommended
discharging Dimanche. McClellan concurred in the decision before
passing it up the disciplinary chain of command. Ultimately, the
3 These included warnings for: (1) engaging in an overtime
dispute with a desk inspector, (2) engaging in a verbal
confrontation with a train inspector who reprimanded Dimanche for
bringing a cup of coffee onto the train, (3) failing to accommodate
train passengers, and (4) refusing to divert a streetcar as
requested by the Chief Inspector. As to the second infraction,
Dimanche said that MBTA staff commonly brought beverages onto the
train and were not disciplined for doing so. She also denied fault
as to the other incidents.
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MBTA's then-General Manager, Beverly Scott, decided to suspend
Dimanche for thirty days and then to terminate her employment.
Dimanche alleges and maintains on appeal that all five
disciplinary events leading up to her dismissal were fabricated or
blown out of proportion as part of the MBTA's concerted effort to
discharge her because of her race.
B. MBTA Default
On January 8, 2015, Dimanche filed suit in federal
district court, alleging three counts: (1) racial discrimination
under 42 U.S.C. § 1981; (2) racial discrimination under Mass. Gen.
Laws ch. 151B, § 4; and (3) intentional infliction of emotional
distress. The complaint alleged that the MBTA "subjected Ms.
Dimanche to racial discrimination as a means to humiliate and
ultimately terminate her," and pointed to six co-workers and
supervisors as the perpetrators of the alleged racial harassment.4
The MBTA was properly served on February 20, 2015, but
failed to file a timely answer due to a clerical error. The
district court entered default for Dimanche on June 2, 2015. The
MBTA filed a motion to set aside the default one week later,
arguing that the default was inadvertent, and that the MBTA had a
4 The complaint listed these individuals -- William
McClellan, Stephanie Brade, Sheryl Register, Maxine Bell, Fred
Olson, and Cheryl Anderson -- as co-defendants with the MBTA.
However, the trial only concerned the MBTA's liability.
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meritorious defense. The district court denied the motion without
prejudice. The entirety of that order read:
Motion denied without prejudice to it being
refiled within 30 days from the date of this
order supported by detailed evidentiary
affidavits setting forth the so-called
"meritorious" defense. The MBTA will be
limited to the information set forth therein
at trial.
The MBTA did not object to the order. Instead, on July
31, it refiled the motion to set aside default, attaching thirteen
affidavits and two exhibits.5 Six weeks later, the district court
lifted the default (over Dimanche's objection) and reiterated the
condition for its vacatur. The entirety of this order read:
Motion allowed. The MBTA must understand,
however, that its entire affirmative case is
set forth in the data submitted in support of
this motion.
(emphasis in original).
The MBTA again did not object. On February 10, 2016 --
nearly five months after the district court had issued its order
imposing the sanction –- Dimanche moved to clarify the scope of
the sanction. Specifically, she asked the district court whether
"documents" that were "referenced in the MBTA's affidavits," but
were not attached to the affidavits, should be deemed inadmissible
5 These included, inter alia, affidavits from individuals
who were involved in disciplining Dimanche and from witnesses to
the altercation. The MBTA also attached interview and discipline
slips that demonstrated Dimanche had already been placed on "final
warning" when her altercation with Pierre-Millien took place.
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at trial. The MBTA opposed this motion, arguing that it should
only be limited to the "information set forth in the affidavits at
trial," not to the affidavits and attachments themselves. The
district court denied Dimanche's motion for clarification in a
February 26, 2016 order, stating, "No clarification is necessary."
It also emphasized: "This order is not a ruling that documents not
disclosed in response to the Court's earlier order are some how
[sic] admissible . . . ."
For the third time, the MBTA did not object. Instead,
the MBTA filed its own motion for clarification of the February
26, 2016 order. The MBTA suggested that the order had a
"typographical error" and asked the district court to revise the
order to read, "This is not a ruling that the documents not
disclosed in response to the Court's earlier order are somehow
inadmissible." (emphasis added). The district court denied the
motion. The MBTA did not object, or make any offer of proof, or
seek reconsideration. It chose to proceed to trial.
C. Trial Proceedings and Evidence
The trial lasted four days, beginning on October 17,
2016.6 Dimanche took the stand and also presented three other
6 Before trial, the MBTA filed a motion in limine to
exclude evidence of the harassment Dimanche endured before June
2011 because those allegations formed the basis for (1) a workers'
compensation claim she had filed before the Department of
Industrial Accidents and (2) a prior action she had filed in state
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witnesses: two former co-workers, Virginia Davis and Perry
Spencer, and her treating psychiatrist, Dr. Stephen Dubin. The
MBTA7 presented nine witnesses, including three eyewitnesses to
the altercation: Gilberthe Pierre-Millien (who Dimanche had said
instigated the altercation on January 25, 2013), and James Civil
and John Foster (who witnessed it); and three MBTA staff involved
in disciplining and terminating Dimanche: Tamieka Thibodeaux,
William McClellan, and Edward Timmons.
court (which was dismissed with prejudice). At trial, the district
court judge agreed to exclude the workers' compensation decision
awarding Dimanche temporary incapacity benefits for her emotional
distress, stating, "We're not going to introduce the findings of
the hearing officer." However, the judge never ruled on whether
Dimanche could offer evidence as to the underlying instances of
harassment. Throughout the trial, the judge allowed Dimanche to
testify as to the racial harassment she experienced pre-June 2011,
and the MBTA did not object.
On appeal, the MBTA argues that all of the pre-June 2011
evidence should have been excluded because it is barred by claim
preclusion and by Rule 403 of the Federal Rules of Evidence. We
decline to reach either issue because the MBTA failed to object at
the time of trial. Pretrial motions in limine in situations like
this need to be renewed and pressed at trial in order to be
preserved. See Fed. R. Evid. 103 advisory committee's note to
2000 amendment (emphasizing "the obligation on counsel to clarify
whether an in limine or other evidentiary ruling is definitive
when there is doubt on that point"); Crowe v. Bolduc, 334 F.3d
124, 133 (1st Cir. 2003) ("Our rule as to motions in limine is
that a party must renew at trial its motion to . . . exclude
evidence if there has been an earlier provisional ruling by motion
in limine and a clear invitation to offer evidence at trial.").
7 The MBTA was represented by its own in-house counsel at
trial; it has different counsel on appeal.
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Dimanche and her witnesses testified that throughout
Dimanche's employment with the MBTA, she was subjected to
unrelenting racial harassment by MBTA staff. For instance:
 Dimanche said that John Foster, a white inspector, refused to
let her use the restroom during her shift, commenting that
Dimanche's "black ass always want to go to the bathroom every
two second [sic]." She said Foster called her a "black
bitch," and told her he was "going to pill [her]," which she
interpreted as a threat.
 Dimanche also testified that Joe Napoli, a white inspector,
repeatedly called her "black bitch" to her face and referred
to her as "cuckoo" over the Green Line radio. Those radio
statements were heard by many people. Napoli also blocked
Dimanche from entering a work building, and threatened, "I'll
talk to my colleagues and see what they're going to do."
Dimanche testified that she felt so unsafe that she ended up
filing a police report against Napoli based on this and on
five other instances of harassment by him.
 Virginia Davis, Dimanche's former co-worker, testified that
Green Line officials often mimicked Dimanche's Haitian accent
and "ma[d]e noise[s] like animals at her" over the radio.
Davis also testified that she heard "a lot of inspectors" say
things about Dimanche like, "I'm going to get
that . . . B-I-T-C-H."
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 Perry Spencer, another former co-worker, corroborated
Dimanche's testimony. He stated that Napoli mocked
Dimanche's accent, "telling her that she needed to go back to
her country."
Dimanche testified that she reported these instances to
management, but the harassment continued. According to Dr. Dubin,
Dimanche developed post-traumatic stress disorder as a result of
the hostile work environment and was forced to take a leave of
absence.8 When she returned to work in late 2010, the racial
harassment persisted. Specifically:
 Dimanche testified that Napoli and Foster continued their
behavior. Foster even wrote Dimanche up for an absence that
he had previously excused. Dimanche also testified that
another Green Line supervisor, Fred Olson, refused to process
her complaints. Olson told her that McClellan instructed him
not to speak to Dimanche without a witness present and
explained, "[e]verybody know[s] [Dimanche was] on the way
out."
8 Pre-trial filings contained the following information.
In April 2010, Dimanche filed a workers' compensation claim for
the emotional distress she suffered as a result of Napoli's
harassment. The administrative law judge awarded Dimanche
temporary incapacity benefits. She appealed for double damages.
While the appeal was pending, the MBTA settled the case. Dimanche
also filed a racial discrimination suit in state court based on
the same allegations. That suit was dismissed with prejudice in
June 2011 after Dimanche's counsel filed a motion to withdraw the
matter.
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 Davis and Spencer corroborated Dimanche's testimony that the
MBTA's management was targeting her for termination. Davis
testified that she overheard McClellan tell another MBTA
official, "I'll get her black ass," when referring to
Dimanche. Another inspector, Steve Nardona, also told Davis
to stay away from Dimanche because "she's trouble, they don't
like her and they're going to fire her." Spencer stated that
he was told the same in 2011 or 2012.
As to the altercation on January 25, 2013, Dimanche
testified that Pierre-Millien was the aggressor, and complained
that MBTA officials told Pierre-Millien to lie about the event.
Further, Dimanche testified that each of her previous four
infractions had been fabricated and was part of the management's
concerted effort to terminate her employment.
In turn, the MBTA offered testimony regarding its
disciplinary policy, the details of the altercation, its
investigation, and its decision to terminate Dimanche. McClellan
and Foster, whom Dimanche accused of discrimination, both
testified. At no point, however, did the MBTA ask its witnesses
to address Dimanche's specific allegations of racial harassment.
Nor did it make any offer of proof as to what they would have
testified, if asked.
During the charge conference, the trial judge raised,
for the first time, the notion that he would instruct the jury on
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a hostile work environment theory. The MBTA objected on the
grounds that a hostile work environment could not serve as a standalone
basis for the MBTA's liability. The trial judge initially
agreed. However, he apparently changed his mind because he
instructed the jury that they could find the MBTA liable on either
wrongful termination or hostile work environment grounds; the only
difference was the amount of damages to which Dimanche was
entitled.
The jury returned a general verdict for Dimanche on
October 20, 2016, assessing the MBTA $1,325,462.91 in compensatory
damages and $1,300,000.00 in punitive damages. The MBTA renewed
its prior objection to the charge as to hostile work environment
being a stand-alone basis for liability. It did not, at either
the charge conference or in its post-trial objection, make the
argument, which it makes on appeal, that the theory caught it by
surprise or came too late. Represented by new counsel, the MBTA
also filed various post-trial motions, all of which were denied.
* * *
The MBTA now appeals from the district court's denial of
its motion for judgment as a matter of law, motion for a new trial,
and motion to vacate or reduce the punitive damages award. It
raises three bases for reversal/dismissal: there was insufficient
evidence to support the jury verdict; the district judge committed
reversible error; and the court lacked subject matter
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jurisdiction. We reject all three bases and affirm the entry of
judgment.
II.
The MBTA's Sufficiency of the Evidence Challenge
The MBTA first argues that we must vacate the judgment
because there is insufficient evidence to support the jury's
compensatory and punitive damages awards. The MBTA seeks judgment
as a matter of law, or, in the alternative, a new trial.
We assume the federal standard applies to the MBTA's
sufficiency challenge, absent any suggestion from the parties that
it makes any difference in this case. Accordingly, "our review is
weighted toward preservation of the jury verdict." Rodowicz v.
Mass. Mut. Life Ins. Co., 279 F.3d 36, 41 (1st Cir. 2002). "[W]e
must affirm unless the evidence was so strongly and overwhelmingly
inconsistent with the verdicts that no reasonable jury could have
returned them." Id. at 41-42 (alteration in original) (internal
quotation marks omitted) (quoting Walton v. Nalco Chem. Co., 272
F.3d 13, 23 (1st Cir. 2001)). "[V]iew[ing] the evidence 'in the
light most favorable to [Dimanche, and] drawing all reasonable
inferences in [her] favor,'" McMillan, 140 F.3d at 299 (quoting
Morrison, 108 F.3d at 436), we conclude the verdict must stand.9
9 We acknowledge the difference between the standards
governing a motion for judgment as a matter of law and a motion
for a new trial. See Jennings v. Jones, 587 F.3d 430, 438-39 (1st
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A. Liability for Wrongful Termination
Although the trial judge charged the jury with two
theories of discrimination, and the jury rendered a general verdict
as to compensatory damages, the award amount –- $1,325,462.91 –-
exactly matches the stipulated damages for Dimanche's wrongful
termination claim. The judge also made clear to the jurors that
if they based their verdict only on a finding of a hostile work
environment, Dimanche would not be entitled to receive front pay,
back pay, or retirement pay, but rather would be limited to
emotional harm. We thus consider whether there was sufficient
evidence for the jury to reasonably conclude that the MBTA
terminated Dimanche because of her race. See Gillespie v. Sears,
Roebuck & Co., 386 F.3d 21, 29-30 (1st Cir. 2004) (noting an
exception to the general rule that "a new trial is usually
warranted if evidence is insufficient with respect to any one of
multiple claims covered by a general verdict" when the court "could
be reasonably sure that the jury in fact relied upon a theory with
adequate evidentiary support" (internal quotation marks omitted)).
The parties agree that the standard is the same for Dimanche's
wrongful termination claim under both 42 U.S.C. § 1981 and Mass.
Cir. 2009). We nevertheless apply the standard set forth above
because, in reviewing the denial of a motion for a new trial, to
the extent it is predicated on a challenge to the sufficiency of
the evidence, the inquiries merge.
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Gen. Laws ch. 151B, § 4. See Prescott v. Higgins, 538 F.3d 32, 40
(1st Cir. 2008).
Here, assuming the jury credited Dimanche's testimony
and the testimony of her witnesses, there is ample, direct evidence
of racial discrimination. Three of the MBTA's supervisory staff
who either concurred in Dimanche's dismissal or were involved in
the investigation of the January 25th altercation, had
demonstrated racial animus towards her. McClellan was reported to
have said that he wanted to "get her black ass." And Foster and
Napoli had a long history of mocking Dimanche's Haitian accent,
calling her "black bitch," threatening her, and attempting to
retaliate against her for making complaints. Coupled with
Dimanche's testimony that each of her four previous disciplinary
infractions was fabricated, a reasonable jury could have concluded
that the MBTA improperly terminated her employment because of her
race. See Cariglia v. Hertz Equip. Rental Corp., 363 F.3d 77, 83
(1st Cir. 2004) (holding that under certain circumstances,
"corporate liability can attach if neutral decisionmakers, when
deciding to terminate an employee, rely on information that is
inaccurate, misleading, or incomplete because of another
employee's discriminatory animus").
We are reasonably sure, for the reasons stated earlier,
that the jury did not rely on the hostile work environment
assertion to enter the compensatory damages award. However, to
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cover all bases, we conclude that the evidence was more than
adequate to support damages on the hostile work environment theory
as well. We agree with and quote the trial judge: "there's
extensive evidence here, if [the jurors] believe it, of a hostile
work environment . . . ."
B. Punitive Damages Award
The MBTA also did not object to the use of a general
verdict as to punitive damages, with no specifications as to
whether the damages were awarded under § 1981 or under Mass. Gen.
Laws ch. 151B, § 4. We assume the state law standard for punitive
damages governs here, absent any indication by the parties that
applying the federal standard would make any difference. "We
consider first whether the [MBTA] was on notice of the harassment
and failed to take steps to investigate and remedy the situation;
and, second, whether that failure was outrageous or egregious."
Gyulakian v. Lexus of Watertown, Inc., 56 N.E.3d 785, 794 (Mass.
2016). The Supreme Judicial Court of Massachusetts has fashioned
a list of factors to determine "whether the defendant's conduct
was so outrageous or egregious that punitive damages . . . are
warranted." Haddad v. Wal-Mart Stores, Inc., 914 N.E.2d 59, 75
(Mass. 2009). These include:
(1) whether there was a conscious or
purposeful effort to demean or diminish the
class of which the plaintiff is a part (or the
plaintiff because he or she is a member of the
class);
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(2) whether the defendant was aware that the
discriminatory conduct would likely cause
serious harm, or recklessly disregarded the
likelihood that serious harm would arise;
(3) the actual harm to the plaintiff;
(4) the defendant's conduct after learning
that the initial conduct would likely cause
harm; [and]
(5) the duration of the wrongful conduct and
any concealment of that conduct by defendant.
Id.
Those factors are amply met here. Dimanche's evidence,
if believed, establishes numerous instances of notice to the MBTA
of racially-based and racially-demeaning comments made to
Dimanche, a failure to investigate her complaints to management,
a failure to discipline the offenders or to remedy the situation,
and a concerted effort to isolate her and to cause the termination
of her employment.10 Nor do we see any reason to remit the punitive
damages award, especially because the ratio of punitive damages to
compensatory damages was less than 1:1.
10 The MBTA also makes a convoluted argument that the
evidence is insufficient to support the jury verdict because much
of Dr. Dubin's testimony should have been excluded. Specifically,
the MBTA takes issue with Dr. Dubin's statements as to "alleged
incidents of harassment that Plaintiff herself never identified,"
and his "vouch[ing] for Plaintiff's credibility." We decline to
rule on the admissibility of Dr. Dubin's testimony as the argument
was not squarely raised in the MBTA's appellate briefing. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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III.
The District Court's Alleged Trial Errors
The MBTA next urges this court to vacate the jury verdict
because it says that the trial judge committed two fundamental
errors by (1) imposing a draconian punitive sanction for the MBTA's
inadvertent default, and (2) adding a hostile work environment
charge on the last day of trial.
Ordinarily our review is for abuse of discretion, but
not when the issues are unpreserved. See Chestnut v. City of
Lowell, 305 F.3d 18, 20 (1st Cir. 2002). Here, the parties twice
sought clarification of, and the MBTA did not object to, the
district court's conditions for lifting the default. The MBTA
also failed to object at trial that the belated addition of the
hostile work environment charge was unfairly prejudicial.
Accordingly, we review both only for plain error. Id.
The plain error standard has four prongs: "(1) an error
was committed; (2) the error was 'plain' (i.e. obvious and clear
under current law); (3) the error was prejudicial (i.e. affected
substantial rights); and (4) review is needed to prevent a
miscarriage of justice." Smith v. Kmart Corp., 177 F.3d 19, 26
(1st Cir. 1999). This circuit has long expressed "marked
reluctance to find plain error in civil cases." Acevedo-Garcia v.
Monroig, 351 F.3d 547, 570 (1st Cir. 2003). While the district
court's default sanction order was in error, the MBTA cannot
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demonstrate prejudice. We also find that the MBTA failed to meet
prongs three and four of the plain error test as to the addition
of the hostile work environment claim.
A. Default Sanction Order
This circuit has never addressed whether district courts
can impose evidentiary sanctions on a defaulting party as a
condition for removal of default. However, we have long cautioned
that entry of default judgment is a "drastic" measure that should
only be employed in "extreme situation[s]." Stewart v. Astrue,
552 F.3d 26, 28 (1st Cir. 2009) (quoting Affanato v. Merrill Bros.,
547 F.2d 138, 140 (1st Cir. 1977)). It may have been reasonable
for the district court to make the MBTA file short affidavits,
going to the point that it had a meritorious defense, before
lifting its default. See Indigo Am., Inc. v. Big Impressions,
LLC, 597 F.3d 1, 4 (1st Cir. 2010). We do not decide that here.
However, it was entirely unreasonable for the district court to
restrict the MBTA's proof at trial to what was said in those
affidavits. Indeed, we have found no case approving of such a
sanction.
We recognize that some of our sister circuits have held
that "a reasonable condition" may be imposed "in order to avoid
undue prejudice to the opposing party." Powerserve Int’l, Inc. v.
Lavi, 239 F.3d 508, 515 (2d Cir. 2001) (citing 10A Wright & Miller,
Federal Practice and Procedure, § 2699, at 169 (3d ed. 1998), and
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case law across four circuits). But in those cases, the plaintiff
was actually prejudiced by the delay -- as found by the district
court or the court of appeals -- and the proposed curative measure
was that the defendant had to post a bond equal to all or part of
the default judgment amount. See, e.g., id. at 514-15; see also
Krause v. Featherston, 376 F.2d 832, 834 (1st Cir. 1967) (finding
that "[t]he condition imposed by the district court for setting
aside the default [was] not unreasonable, under the circumstances"
where the court ordered the defendant to post a $500 bond);
10A Wright & Miller, Federal Practice and Procedure, § 2700, at
170-71, 170 n.4 (4th ed. 2018) (collecting cases). These financial
penalties in no way limited the defendants' ability to fully
litigate the case and to defend themselves at trial.
The trial court here failed to provide any factual or
legal basis for imposing an evidentiary sanction on the MBTA. Its
order was only two sentences long, and the court twice declined to
explain or justify the scope of the sanction. In fact, the
sanction on its face was calibrated not to ameliorate any prejudice
to Dimanche, but instead to punish the MBTA. Even Dimanche's own
papers do not argue that excusing the MBTA's default would be
unfair. The trial judge also failed to cite any case law
justifying the order. This is unsurprising. The only precedent
on point expressly rejects the imposition of such a sanction. See
Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 53-54 (E.D.N.Y. 2008)
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(rejecting non-defaulting party's proposal to impose an identical
sanction).
Further, the punitive aspect of the order was plainly
excessive under any measure. Dimanche's complaint did not inform
the MBTA of who her witnesses would be at trial or the specific
proof she would offer. The MBTA could not have been reasonably
expected to guess. As such, the error here is "obvious and clear."
Smith, 177 F.3d at 26.
Because plain error review requires more than just an
error by the district judge, however, we decline to vacate the
jury verdict. The MBTA has not shown that it was prejudiced by
the imposition of the sanction. It failed to make any offers of
proof at trial as to what it would have presented as evidence
absent the sanction. The prejudice prong of the plain error
standard requires "a stringent demonstration of causation,"
Acevedo-Garcia, 351 F.3d at 571; the MBTA must prove that it was
"obvious" that the limitation "affect[ed] the final outcome" of
the trial, id. (quoting Chestnut, 305 F.3d at 571). The causal
link must be "manifest on the face of the record." Id.
The MBTA cannot make such a showing. The transcript
reveals that the default sanction order played out in two ways at
trial. Often, the trial judge did not enforce the sanction and
allowed the MBTA's witnesses to testify beyond the scope of their
affidavits. In the dozen or so times when the trial judge did
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limit testimony, the MBTA failed to protest or provide an offer of
proof as to the excluded testimony. Without such offers of proof,
it is nearly impossible for this court to find that the sanction
resulted in prejudice "manifest on the face of the record." Id.
The MBTA argues on appeal that, but for the sanction, it
would have presented a targeted defense to Dimanche's allegations
that McClellan and Foster -- two of the supervisors who were
involved in her dismissal -- subjected her to racist comments.
But the MBTA cannot point to an offer of proof as to what testimony
its witnesses would have provided to undermine Dimanche's story.
The MBTA could have easily sought to question McClellan and Foster
(both called as witnesses at trial) about their alleged conduct,
and asked the judge to modify the sanction order, but it chose not
to. This omission is glaring, as the MBTA repeatedly went beyond
the bounds of the sanction when soliciting witness testimony on
other topics (without getting the court's prior consent).
And while the lack of an effective objection at trial
and proffer is fatal, it is noteworthy that even on appeal, with
the benefit of hindsight, the MBTA cannot point to any instances
where it was prevented from introducing evidence that would have
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affected the outcome of the trial.11 Accordingly, we find no
reversible error.
B. Hostile Work Environment Charge
The MBTA, ignoring in its appellate briefing the issue
of the appropriate standard of review for this claim, also argues
that it was unfairly prejudiced "when the District Court allowed
[Dimanche] to add a hostile work environment theory on the last
day of trial," and alleges that the theory was first raised at the
charge conference. But nowhere does the MBTA's appellate brief
say that it objected at trial on the basis that the theory was
raised at the last minute or argue that it did not waive any such
objection.
Once again, then, our standard of review is for plain
error. We bypass the question of whether the trial judge erred in
submitting this theory to the jury (and our own conclusion that it
could not have been the basis for the compensatory damages award),
11 The MBTA did reference several instances of when the
trial judge enforced the sanction. However, none of the excluded
testimony countered McClellan's or Foster's alleged harassment.
The best example the MBTA can point to is that McClellan was
prevented from answering whether he "consider[ed] the plaintiff's
past history of making any complaints against [him] or against
anyone else when [he] made the decision to concur [in her
dismissal]." But even if the MBTA had made an offer of proof of
McClellan's answer, it is highly unlikely that this would have
affected the outcome of the trial in light of the record as a
whole.
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and find that the MBTA has not satisfied either the third or fourth
prongs of the plain error standard.
As to prejudice, the MBTA argues on appeal that if it
had had notice of a "standalone" hostile work environment claim,
it would have changed its trial strategy in three ways. First,
the MBTA asserts it would have sought to exclude evidence of the
alleged harassment from before June 2011. But the MBTA already
had incentive (and failed) to do so. The same is true as to
evidence the MBTA says it could have introduced regarding "the
general nature of MBTA's workplace." Second, the MBTA says it
would have "gathered evidence and presented witnesses to rebut
[Dimanche's] allegations of harassment." But, as noted above, the
MBTA never made an offer of proof as to what this evidence might
be. Third, the MBTA contends it would have asked for a limiting
jury instruction about "the irrelevance of the pre-June 2011
evidence to the hostile work environment theory." It is far from
clear such evidence would have been irrelevant. And the MBTA knew
that the district court would instruct the jury on a hostile work
environment theory, but it did not ask at the charge conference,
or at any point thereafter, for a limiting instruction. The MBTA
has not shown prejudice.
Our earlier discussion also requires a finding of no
miscarriage of justice.
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IV.
The Buntin Issue
Finally, the MBTA asks us to relieve it of the jury
verdict on the basis of our decision in Buntin, 857 F.3d 69. We
decline to do so, finding that the MBTA has waived the issue.
This court decided Buntin on May 15, 2017, after the
jury rendered its verdict on this matter, and after the MBTA filed
its initial brief on appeal. Buntin resolved an issue of first
impression in this circuit, but not in other circuits, and held
that "a plaintiff may not bring claims for damages under 42 U.S.C.
§ 1981 against state actors, including defendants sued in their
official capacities as government officials." Id. at 70. Dimanche
briefed the effect of Buntin on appeal, as did the MBTA in its
reply brief.
We outline the bases that lead us to reject the MBTA's
argument.
(1) The only basis for federal jurisdiction asserted in
Dimanche's complaint was under 42 U.S.C. § 1981;
(2) The question of whether a § 1981 cause of action could be
brought against a state agency was an open question in this
circuit long before and during the trial;
(3) When the complaint was filed on January 8, 2015 in this
action, eight circuit courts had ruled that § 1981 did not
extend to private rights of action against state actors;
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(4) The argument was readily available to counsel for the MBTA,
should it have wished to argue the MBTA was a state agency and
that there was no jurisdiction;
(5) The MBTA, nonetheless, never moved in the district court to
dismiss the § 1981 claim for failure to state a claim against
it; it also did not argue for dismissal on the grounds that it
is a state agency for the purposes of § 1981;
(6) Nor did the MBTA ever suggest to the district court that it
lacked subject matter jurisdiction to hear the case; and
(7) Dimanche has also raised pendent state law discrimination
claims in addition to her § 1981 claim, and the jury verdict
in her favor was a general verdict.
The MBTA argues that Buntin requires us to vacate the
jury verdict and to dismiss the case for lack of subject matter
jurisdiction. Specifically, the MBTA says that Buntin held the
reach of § 1981 was a question of subject matter jurisdiction,
which it was free to raise at any time. We disagree. Buntin held
that no cause of action existed under § 1981 against the City of
Boston because it is a state actor. Id. There, we affirmed the
district court's remand of the remaining state law claims to state
court after the court dismissed the § 1981 claim -- the only
federal claim -- in that case. Id. at 70, 76. Buntin is unhelpful
to the MBTA because it merely holds that a district court can
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dismiss the case even where pendent state claims are also asserted;
it does not require dismissal.
The MBTA does not attempt to excuse its failure to even
raise the issue of whether § 1981 extended to the MBTA until its
reply brief on appeal. And in that reply brief, the MBTA, at most,
refers to DSC Communications Corp. v. Next Level Communications,
107 F.3d 322 (5th Cir. 1997), in a footnote, in an attempt to
persuade us. But that case is of no help to the MBTA. Unlike the
court in DSC, we would not be perpetuating "incorrect law," id. at
326 n.2, by holding the MBTA to its waiver, given the state law
basis for the jury's verdict. This is not an instance where
defendants could not have raised the issue before appeal.
In our view, the argument that § 1981 does not provide
a cause of action against state actors for damages was easily
available to the MBTA, if indeed the MBTA is a state actor, from
even before the date the complaint was filed through its initial
brief on appeal, well before Buntin was decided. The MBTA must
live, as to the jury verdict, with the consequences of its own
mistakes. To hold otherwise would cause severe prejudice to
plaintiff.

Outcome: We affirm the entry of judgment against the MBTA.

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