USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1597

CHARISSA MCKINNON AND BEATRICE POULIN,

Plaintiffs - Appellees,

v.

KWONG WAH RESTAURANT, ET AL.,

Defendants - Appellants.

____________________

No. 95-1635

CHARISSA MCKINNON AND BEATRICE POULIN,

Plaintiffs - Appellants,

v.

KWONG WAH RESTAURANT, ET AL.,

Defendants - Appellees.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Coffin and Rosenn,* Senior Circuit Judges.

_____________________

_____________________

____________________

Of the Third Circuit, sitting by designation.

Daniel L. Lacasse for Kwong Wah Restaurant, et al.

_________________
Catherine R. Connors, with
_____________________

whom Fall Ferguson

_____________

Atwood, Scribner, Allen, Smith & Lancaster were

_____________________________________________

and Pierce,
_______
on brief

for

Charissa McKinnon and Beatrice Poulin.

____________________

May 1, 1996
____________________

-2-

ROSENN, Circuit Judge.

ROSENN, Circuit Judge.
______________

present several

relating

to

This appeal

procedural issues as well

damages

arising

harassment in violation of

out

of

and cross-appeal

as substantive issues

alleged

acts of

Title VII, 42 U.S.C.

sexual

2000e et seq.
__ ____

Charissa McKinnon and Beatrice Poulin brought suit

in the United

States

against their

District Court

for the

former employer, the Kwong

its

owners,

and several

District of Maine

Wah Chinese Restaurant ("Kwong Wah"),

current

and

former

employees.

The

plaintiffs

working

alleged that

they suffered

as waitresses at Kwong

the Maine Human

Rights Act, 5

sexual harassment

Wah, in violation

M.R.S.A.

while

of Title VII;

4572; and state

tort

law.1

The

defendants,

attorneys'

court

and

entered

awarded

fees to

both

back

default

pay,

compensatory

plaintiffs.

Motion to Lift the Default and

judgment

The

against

the

damages

and

defendants filed

File Late Answer, which the court

denied.

McKinnon and Poulin appeal the district court's damages

awards.

Specifically, they assert

failure to

award punitive

compensatory damages.

damages,

and in

The defendants appeal

of their motion to lift default

____________________

that the court

erred in its

its calculation

of

the court's denial

and file late answer.

Further,

In

their Complaint,

the plaintiffs

alleged the

Count I--sexual harassment in violation of Title

further

violations

of

Title

VII

for

following:

VII; Count II--

discriminating

against

McKinnon for

her pregnancy; Counts III and IV--violations of the

Maine

Rights

Human

Act;

Count

V--Intentional

Infliction

of

Emotional Distress; Count VI--Negligent Retention or Supervision;

Count

VII--Assault

and

Battery; and

Count

VIII--Invasion

of

Privacy.

-3-3-

they assert that the district court lacked jurisdiction over some

of the

named defendants, because

individual

defendants before

Commission

("EEOC").

clarification

by the

plaintiffs failed to

the

We

Equal Employment

affirm,

district

except

court with

we

name the

Opportunity

remand

respect to

for

punitive

damages.

I.
I.

Both

the

Kwong

Wah

plaintiffs commenced employment

Restaurant

Plaintiffs testified

subjected them

verbal

Calais,

Maine

in

that the owners and employees

repeated offensive

and physical.

they subjected

pregnant

to

in

as waitresses at

Plaintiff

sexual

while employed at

Kwong Wah.

1991.

at Kwong Wah

harassment,

McKinnon further

her to additional discrimination

July

both

alleged that

because she was

McKinnon testified that

one of the restaurant owners tried to force her to sign a release

exempting the Kwong Wah from liability

job,

and that

retaliation

the

Kwong Wah

cut

if she was injured on the

back

her working

for her refusal to sign the release.

hours

in

The plaintiffs

alleged that they were constructively discharged in July 1992.

Plaintiffs filed timely charges of

discrimination with

the Maine Human Rights Commission ("MHRC") and the

Employment

Opportunity Commission.

reasonable

discrimination

grounds

had

existed

to

occurred.

conciliation agreement,

The

After

the MHRC

issued a right to sue letter.

-4-4-

federal Equal

MHRC determined

believe

failed

that

unlawful

attempts

authorized suit, and

that

at

the EEOC

Plaintiffs filed

amended

complaint with

pursuant to Fed. R.

the

due date.

defendants moved for

complaint.

minor changes

on July

1994, and an

7, 1994.

Civ. P. 12(a)(1)(A), Kwong Wah's

due on August 18, 1994.

by

a complaint on June 28,

One

Thus,

Answer was

The defendants, however, did not respond

week after

an enlargement

the

answer

of time to

was due,

the

respond to

the

The district court extended the due date to September

28, 1994.

Again, the

September

27,

defendants did

1994,

the

extension; the court denied

defendants moved

the motion.

action subsequent to the denial.

default

against

defendants again

plaintiffs

the

The

defendants

took

no

moved for the

granted the motion the

not file an

next day.

additional

The defendants

October

On

entry of

an

On

took no

clerk of the court entered

on

action.

for

answer.

11,

1994.

October 24,

default judgment;

One month

1994,

The

the

the court

later, November 25,

1994, defendants moved to lift the default judgment.

In

claimed

their motion

that

they had

to lift

the default,

difficulty

in

the defendants

retaining counsel;

that

counsel did not keep them informed of their obligations to file a

timely

answer;

complaint

and

rendered

that

them

their

unable

inability

to

to

respond.

understand

the

In reply,

the

plaintiffs asserted

as

delaying

defendants'

that the defendants hired

tactic.

counsel

The

plaintiffs

contacted defendants

alerting them to their obligation

court

and fired counsel

further

by

alleged that

phone

and letter

to file a timely answer.

The

held a hearing on the issue, and found that the defendants

-5-5-

did not meet their burden of showing good cause to

set aside the

default.

See Fed. R. Civ. P. 55(c) (court may set aside default

___

for good cause).

In

addition,

plaintiffs' Title

the

defendants

VII claims against

named in the suit.

include the named defendants

EEOC.

to

dismiss

the individual

the

defendants

The defendants asserted that the court lacked

jurisdiction to hear the matter because

the MHRC and

moved

The

the plaintiffs failed to

in the charges they had

court denied the

filed with

motion, holding

that

nonjurisdictional.

The

Title VII's charging

requirements were

court found that the

defendants waived their right to

raise the

charging issue by their default.

The district

determine

damages,

and

court held

a hearing

awarded

$13,094.84

without a jury

to

McKinnon,

to

and

$13,189.45 to Poulin, plus

135

weeks of back pay

attorneys' fees.

The award

(adjusted for mitigation)

plaintiff in compensatory

damages.

included

and $2,500 per

The court declined

to award

front pay, punitive damages, or prejudgment interest.

II.
II.

The defendants

denying

answer.

their motion

lift default

We must review the court's

abuse of discretion.

v.

to

claim that the district

and file

late

denial of the motion for an

See The General Contracting & Trading Co.

___ ______________________________________

Interpole, 899 F.2d 109,

__________

aside

judgment

court erred in

112 (1st Cir. 1990) (motions to set

default judgments are left to "the sound discretion of the

district court").

This court may not reverse unless the district

-6-6-

court's decision is clearly wrong.

Id. at 112.
___

Fed. R. Civ. P. 55(c) provides:

(c)
(c)

Setting
Setting

cause shown
entry

Aside
Aside

Default.
Default.

the court

of default and,

default

has

set

aside

it

60(b).2

may set aside

if a

been entered,
in

For

good
an

judgment by
may likewise

accordance

with Rule

The

accounts

in

the

instant

of the events leading up to

plaintiffs

contend

parties

filed their

offer

differing

the default judgment.

amended complaint

in July

1994.

The

They

that the defendants ignored the first due date for their

answer, requested

and were granted

then ignored the second due date.

that

case

the

defendants

request for

ignored

a second

a thirty day

extension, and

The plaintiffs further contend

the court's

rejection

extension; ignored the

of

their

plaintiffs' motion

for default judgment; ignored the entry of default judgment;

and

waited until

the

November 25,

default judgment.

switched

attorneys

administrative

According

on

file a

motion

to the plaintiffs,

several

proceedings

plaintiffs contend

1994 to

occasions

before

the

that the evidence shows

to lift

the defendants

beginning

MHRC.

with

the

Finally,

the

that defendants were

fully aware of all due dates.

the

defendants neglected

legal consequences.

were

In sum, the

the suit

In contrast,

unable to retain suitable

with

plaintiffs argue that

full awareness

of the

the defendants claim that they

counsel, and that

they were not

____________________

Fed. R. Civ. P.

judgment

or

order

60(b) provides, in relevant part, relief from

for

mistake,

excusable neglect.

-7-7-

inadvertence,

surprise,

or

aware

of the due

dates or the

consequences of missing

the due

dates.

At

that

the

an

evidentiary hearing,

defendants did

cause" pursuant

to Fed.

not

the district

demonstrate

R. Civ.

court found

the necessary

P. 55(c).

In

addressing the

defendants' counsel at the hearing, the court asserted:

What

the defendants

actions,

Mr.

have done

in their

Lacasse, speaks

so loudly

that I have difficulty hearing your voice

today in this

proceeding.

has

not been

showing

There

simply

of good

cause

pursuant to Federal Rule 55C to set aside

the entry of default.
reasonable
default.
explanations

excuse
There
as

There has been no

presented

have
to

inability to understand

been
the

for
a

lot

the
of

defendants'

what's going

"good

on

and the fact that they haven't had any --

that they didn't

result

have any funds

and the

of

all

the

affidavits

and

the presentation

court

leaves

testimony

the court

with

and

the

to the

the clear

understanding that the defendants did not

act

reasonably

even

under

these

circumstances.

The defendants

assert

that

the record

does

not

support

the

court's decision: thus, the court abused its discretion.

Although in

1989),

this

standard,

unique

observed

varying from

elastic as

formula

court

Coon v.
____

Grenier, 867
_______

that

F.2d

"good cause"

situation to

situation,

to be devoid of substance."

73 (1st

is

Cir.

mutable

it is

"not so

Id. at 76.
___

No precise

is suggested, for each case necessarily turns on its own

facts.

Nonetheless,

guidelines that appear to

this

court

found

some

general

have universal application and warrant

consideration

by

district

court in

determining

whether

-8-8-

default judgment should

willful;

(2)

adversary, (3)

the nature of

whether

be lifted: (1)

setting

whether a

it

whether the default

aside

would

meritorious defense is

the defendant's explanation

the good faith of the parties;

prejudice

was

the

presented; (4)

for the default;

(5)

(6) the amount of money involved;

and (7) the timing

noted that in

factors

for

of the motion.

Id.
___

reviewing the district

an abuse

of

at 76.

The

court then

court's weighing of

discretion,

judicial discretion

these

has

limitations:

Judicial discretion is necessarily broad-but it

when

is not
a

absolute.

Abuse

occurs

material

factor

weight

is ignored,

when an

improper factor

is relied upon,

or when

all

no improper

significant

proper and

assessed, but the

deserving

factors are

court makes a

serious

mistake in weighing them.

Id.
___

at 78 (quoting Independent Oil & Chemical Workers v. Proctor

__________________________________
_______

&
__

Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988)).
_______________

The record shows that

defendant with the complaint.

the plaintiffs served each named

Further, the record reflects that

at

least

problems

some of

through

proceedings

the defendants

their

aware of

in

the

Additionally,

fired at least

administrative process.

appeal at

participation

before the MHRC.

defendants hired and

were

pending legal

administrative

it appears that the

three attorneys during

the

The defendants' attorney for the instant

one time represented

the defendants before

the MHRC.

In the Commission's correspondence with the attorney, it stated:

Would

you

officials

please
that

-9-9-

inform

Kwong

Wah

will

under

no

circumstances accept further postponement

of this

matter?

I do not wish to appear

harsh towards you.

The history with this

case, however, has been that each time we

approach a critical point . . . they hire
a

new Attorney.

aware that

you

You may or
are the

may not be

third person

have dealings with to date.

Thus,

it appears

that the

defendants were

legal problem, were capable of retaining

aware of

a pending

legal counsel, but were

uncooperative with their counsel and administrative officials.

The firm of Eaton, Peabody, Bradford and Veague entered

an

appearance on behalf of

the extensions of

all the defendants,

and applied for

the defendants' filing deadlines.

The record

contains

several

letters

from

defendants to contact counsel

Eaton,

Peabody

urging

and notifying them of the

the

need to

file an answer with the court by the end of the month.3

Thad

Zmistowski,

testified to his

an

attempts, on

associate with

several occasions,

corporate contact at Kwong Wah by phone.

Canniff, his contact, on

filing an answer.

Eaton,

Peabody,

to reach

the

He finally reached Judy

the day before the second

deadline for

Canniff allegedly informed Zmistowski that the

defendants did not have

the money to retain Eaton,

would proceed on their own.

Peabody, and

Eaton, Peabody filed a second Motion

to Extend the Deadline, and moved the

court to withdraw from its

____________________

The letters

pin down

evidence the attorneys' frustration in

the client.

Apparently, Eaton, Peabody

trying to

was concerned

that Kwong Wah's

suit.

insurance would not

cover a sexual

Thus, the firm requested a $25,000 retainer.

harassment

The firm was

trying to get a commitment from the defendants as to whether they

wished to proceed with Eaton, Peabody as counsel.

-10-10-

representation

defendants'

of

the

second

defendants.

request to

October

5, 1994.

As

respond

until November 25,

extend

The

court

the

time of

previously stated, the

1994, when

denied

filing

the

on

defendants did not

they moved

to

lift the

default judgment.

The

that

the defendants were aware of the pending legal problem, but

hoped that

the

record fully supports the district court's finding

it "would all go

defendants

did not

exhibit

justify the court's lifting

standard set forth

away."

in Coon,
____

Thus, the

the

court found that

good faith

necessary

of the default judgment.

supra, the district

_____

Under the

court did

abuse its discretion in

its denial of the defendants'

lift default judgment.

After hearing

to

not

motion to

the testimony, the

court

was not convinced of the

defendants' explanation of the

or

The court's finding that the defendants

of their good faith.

defaulted willfully

did

not

move

is well supported.

to rectify

the

situation

default

Further, the defendants

in

a timely

manner.

Litigants must

act punctually and not

casually or indifferently

if a judicial system is to function effectively.

uphold

the

discretion.

district

We

conclude

patience and concern

abuse

court's

decision

that the

for the rights of

its discretion in

absent

district

This court must

an

court

abuse

exhibited

the parties and did

denying the defendants'

of

not

motion to lift

default judgment.

III.
III.

The

defendants next

assert

-11-11-

that the

district

court

lacked

jurisdiction

over

the

Title

VII

claim

against

all

defendants except the Kwong Wah Restaurant because the plaintiffs

failed

to

name the

before

the

EEOC.4

individual

The

defendants

district

court's

in the

proceedings

finding

that

the

charging requirement of Title VII is nonjurisdictional is subject

to plenary

review.

See
___

In re Extradition of Howard,
____________________________

996 F.2d

1320, 1327 (1st Cir. 1993).

There are

meet,

court.

pursuant to

several requirements

Title VII,

See 42 U.S.C.
___

prior to

2000e-5.

that a

plaintiff must

filing suit

in federal

For example, a plaintiff must

file a timely

EEOC charge against the

receive notice of a right to sue.

generally

court if

Id.
___

discriminatory party, and

In addition, a plaintiff

may not maintain a suit against a defendant in federal

that

proceedings

defendant was

and

offered

voluntary compliance.

not

an

named in

opportunity

42 U.S.C.

the

for

administrative

conciliation

or

2000e-5(f) ("civil action may

be brought against the respondent named in the charge").

In

the instant

Kwong Wah Restaurant

EEOC.

The

Title

VII charges

case,

in the

named only

the

MHRC and

the

must dismiss

the

defendants (not

the

complaint before the

defendants contend

against

the plaintiffs

that the court

all individual
__________

Kwong Wah Restaurant) because the plaintiffs failed to name these

defendants in the administrative complaint.

____________________

The plaintiffs filed their Complaint in federal court against:

the

Kwong Wah

(co-owner
Lam

Restaurant (a

Maine corporation);

Sarah Elgendi

of Kwong Wah); Danny Chan (co-owner of Kwong Wah); Joe

(supervisor);

Karen

Landry

(head

waitress);

Karen

Wong

(Manager); Ming Chen (cook); and Shun Cheung (cook).

-12-12-

In

Supp.

1063

Curran v.
______

(D. Maine

Portland Super. Sch. Committee,

_______________________________

1977), the

district

court held

435 F.

that an

employer may not

before

the

EEOC.

administrative

has

be named in a civil suit

Id.
___

at

1073.

charging requirement

notification

of

the

pending

requirement furthers the goal

VII.

The

Id. at 1074.
___

unless it was charged

court

noted that

ensures that

proceedings,

the defendant

and

The Curran opinion noted, however,

______

[S]everal exceptions have been recognized

as sufficient to confer jurisdiction over
defendants in a civil action who were not
in

the

exceptions
"substantial

EEOC

are:

charges.
(1)

identity"

if

These
there

between

was
the

respondent

named in the EEOC charges and

defendants

in the

civil action;

(2) if

the named respondent acted as the "agent"

of the defendant sought to be included in
the

civil

that

the

of voluntary compliance with Title

charging requirement is not absolute:

named

the

action,

at

least

when

the

that the

latter

defendant

participated

had

in

the

proceedings; and (3)

an

"indispensable

Civ. P.

19 in

notice

of

and

conciliation

if the defendant is
party" under

order to accord

Fed. R.
complete

relief to the parties.

Id. at
___

1074; see also Glus v. G.C. Murphy Co., 562 F.2d 880, 888
___ ____ ____
_______________

(3d Cir. 1977) (in determining if a plaintiff may proceed against

parties not named before EEOC, the court should

consider whether

the

unnamed party at

plaintiff could ascertain the

the time of

the EEOC

party are similar to

filing; whether the

the plaintiff

interests of

interests of named party; the

the unnamed party; and whether the

to

role of the

that its

prejudice to

unnamed party has represented

relationship

-13-13-

unnamed

with the

plaintiff is

through the named party.)

In

right

to raise

instant

See
___

determining

Fed.

the charging

case found that

R. Civ.

federal

defendants

the requirement

If

or compliance

court, it is

the

issue, the

P. 12(H)(3)

lacking jurisdiction).

conciliation

whether

(court

waived their

district court

in the

was nonjurisdictional.

shall dismiss

action if

the charging requirement is merely

procedure

prior to

subject to waiver,

filing suit

in

estoppel and equitable

tolling.

See Zipes v. Trans World Airlines, Inc., 455

___ _____
__________________________

U.S. 385,

392 (1982).

In Zipes, the Supreme Court held that the timely filing

_____
_____________

of an EEOC charge is not jurisdictional.

_________________

reasoned

that the

filing requirement

Id. at
___

392.

The Court

is listed

in

a separate

section of Title VII than the section that grants jurisdiction to

the

district courts.

charging requirement.

This

It has held,

5(f)(1) is nonjurisdictional.

676 F.2d 9, 10

complaint within

court has not

ruled directly on the

however, that Section 2000e-

See Rice v. New England College,

___ ____
____________________

(1st Cir. 1982) (requirement that

90 days of

nonjurisdictional).

receipt of

plaintiff file

right to sue

letter is

The charging requirement is found in Section

2000e-5(f)(1).

defendant

against

Although

a plaintiff

must

name

in the proceedings before the EEOC in order to proceed

that defendant in

charging requirement

the

generally

federal court

under Title

is subject to exceptions.

charging requirement is

waiver, estoppel and equitable

We conclude that

nonjurisdictional, thus

tolling.

-14-14-

VII, this

subject to

See Zipes, 455

___ _____

U.S. at

392; see
___

1985)

also Greenwood
____ _________

(Title

VII

v. Ross, 778
____

conditions

precedent,

requirement, are nonjurisdictional);

709 F.2d 1122, 1125

F.2d 448,

450 (8th

including

Cir.

charging

Liberles v. County of Cook,

________
______________

(7th Cir. 1983) (same); Jackson

_______

v. Seaboard
________

Coast Line R. Co., 678 F.2d 992, 1010 (11th Cir. 1982) (same).
_________________

To

avoid

affirmative defenses

waiver,

defendant

assert

all

See Fed. R.
___

Civ. P. 8(a);

see also Knapp Shoes v. Sylvania Shoe Mfg. Corp.,

___ ____ ____________
________________________

15 F.3d 1222,

1226 (1st

waived.").

in the answer.

must

Cir. 1994) ("Affirmative

The

defendants in the

defenses not so

instant case,

pleaded are

through their

default, waived their right to raise the issue that they were not

named in the complaint to the Commission.5

We perceive no

error

in

the

district court's

denial

of the

defendants'

motion to

dismiss on jurisdictional grounds.

IV.
IV.

The

plaintiffs appeal

$2500 in compensatory damages.

override a

the district

court's grant

In general, this court

damage determination unless the

of

will not

award is unsupported

by the evidence, grossly excessive, or shocking to the conscious.

See Brown v. Freedman Baking Co., 810 F.2d 6, 11 (1st Cir. 1987);
___ _____
___________________

see also Hall v. Ochs, 817 F.2d 920, 927 (1st Cir. 1987).
___ ____ ____
____

In the

____________________

In addition, the

plaintiffs' Complaint before the

Commission

alleged "At all relevant times, Defendants Kwong Wah, Danny Chan,
Sarah

Elgendi,

employers, and

Joe

Lam,

Karen

the plaintiffs

Wah

and

Karen

employees, covered by

Landry

were

and within

the meaning

of

judgment against
must be

taken as

Title VII.

"When

a defendant,
true."

See
___

a court

enters

all allegations in

default

the complaint

Brockton Savings Bank v.

______________________

Peat,
_____

Marwick, Mitchell & Co., 771 F.2d 5, 13 (1st Cir. 1985).

_______________________

-15-15-

instant

case, the plaintiffs assert that the court below did not

use the correct

Questions of

law

legal standard in its

are subject

to

determination of damages.

plenary review.

See
___

In re
______

Extradition of Howard, 996 F.2d at 1327.

_____________________

The

damages provisions of

the Civil Rights

Act of

compensatory damages

violation

damages

1991, provide for

1981a, part of

the availability

of

to victims of intentional discrimination in

of Title VII.

include

42 U.S.C.

Pursuant to

"future

pecuniary

suffering, inconvenience, mental

the statute, compensatory

losses,

anguish, loss

life, and other non-pecuniarylosses."

emotional

pain,

of enjoyment

See 42 U.S.C.
___

of

1981(b)(3).

Prior to Congress's enactment of Section 1981a, victims

of intentional

entitled

gender

or

religious

to equitable relief under

discrimination,

however,

punitive damages under 42

are

U.S.C.

discrimination

Title VII.

entitled

1981.

to

were

only

Victims of race

compensatory

Section

and

1981a ensures

that

victims

basis

of intentional

employment

discrimination

on the

of gender or religion are entitled to compensatory, and in

certain

egregious cases,

40(I), 102d Cong., 1st

continues

to be

punitive damages.

See H.R.
___

Sess. at 64-65 (1991).

the sole

remedy available

Rep. No.

Equitable relief

under Title

VII in

disparate impact cases.

At the conclusion of the testimony in the instant case,

the court

suffered

offensive

asserted that it

emotionally as

was "persuaded" that

result of

persistent and

sexual harassment at Kwong Wah.

-16-16-

the plaintiffs

extremely

Thus, the court found

appropriate an award to the plaintiffs of compensatory damages.

With respect to

demonstrate

that

an

emotional distress,

ordinarily

suffered the alleged harm.

then

the

defendant

must "take

Maine,

Inc.,

See
___

534 A.2d

person

If the plaintiff meets

extraordinarily sensitive or

A.2d 369 (Me. 1989).

sensitive

a plaintiff

the

not."

victim

See
___

as

could

must

have

this burden,

he finds

Theriault v. Swan,
_________
____

her,

588

also Gammon v. Osteopathic Hospital of

____ ______
_______________________

369

(Me. 1989).

The court

may find,

____________

however, that some of

"injury."

the plaintiffs' damages stem from

See Lovely v.
___ ______

1995).6

The burden

the plaintiffs.

to

Allstate Ins. Co, 658 A.2d 1091

________________

is on the

relationship between the

Id. at
___

a prior

defendant to establish

(D. Me

a causal

prior injury and the damages claimed by

1092.

If the court finds

it impossible

apportion the damages, then the defendants are liable for the

entire amount.

Id.
___

The testimony

plaintiffs

sources

were

during

suffering

independent

Plaintiff McKinnon

in the

from

instant case revealed

from

their

separated from

emotional

employment

her

her employment at the restaurant,

that both

distress caused

at

Kwong

boyfriend (now

by

Wah.

husband)

after discovery of her

____________________

Lovely addressed a claim for compensatory damages arising from

______

physical

injuries.

The accident at issue in the case aggravated

a pre-existing injury
insurance company

to the plaintiff's

The

defendant

asserted that it should not be responsible for

medical

bills and

loss

elbow.

The court

found that it

establish a

elbow.

of income

causal relationship

resulting
was the

from the

defendant's burden to

between the earlier

the damages claimed by the plaintiff.

-17-17-

injured

injury and

unplanned pregnancy.

sexually

Plaintiff Poulin testified

abused by her stepfather

old until she was age seventeen.

Kwong Wah at

court

the age of

found it

suffering caused

was five years

She commenced employment at the

twenty.

difficult to

from when she

to having been

In

weighing the evidence

distinguish between

by the defendants' behavior,

caused by prior independent sources.

the

the emotional

and the suffering

The court reasoned:

Because the causal connection between the

harassment
trauma

is

similarly
Court

and

Plaintiffs'

complicated by
causing

finds

compensatory

an

such
award

damages for

emotional

other factors
suffering,
of

$2500

the
in

each Plaintiff

appropriate.

Although the district court encountered some difficulty

in distinguishing

between the

plaintiffs' trauma caused

by the

defendants'

harassment and

nonetheless found

each plaintiff.

that arising

$2500 to be

from other

an appropriate sum

We conclude

that despite

causes, it

to compensate

the difficulty,

the

trial court was able to determine the damages attributable to the

harassment caused by

the defendants.

opportunity to see

and hear

into account their

demeanor as

their

ages, nature of

damages amount.

amounts

it

contrary, it

for

under

The trial

the plaintiffs, and

well as other

awarded

and,

the

no doubt

took

factors, such

employment, and earnings,

Apparently, the court

court had

as

in setting the

carefully considered the

without substantial

reasons

to

the

would be particularly inappropriate and injudicious

an appellate court to

these circumstances.

set aside the

trial court's judgment

See Freedman Baking Co., 810 F.2d at

___ ___________________

-18-

-18-

11.

We

see no

error in

the district

court's $2500

award of

compensatory damages to each of the plaintiffs.

V.
V.

The plaintiffs

erred in its failure

assert

legal

that the

standard

also

the district

to award punitive damages.

district court

in

contend that

refusing to

relied heavily on

award

punitive

court

The plaintiffs

an incorrect

damages.

The

court's legal interpretations are subject to plenary review.

See
___

In re Extradition of Howard, 996 F.2d at 1327.

___________________________

The plaintiffs rely for their claim to punitive damages

on the amendment

1981a.

to Section

The damage provisions

706(g) of

Title VII,

of this amendment

42 U.S.C.

provide that a

court may award punitive damages to a prevailing party in a Title

VII action if the defendant "engaged in a discriminatory practice

. . with malice or with reckless indifference to the federally

protected

rights of an aggrieved

1981a(b)(1).

damages

actual

in

The amendatory

cases

of

See
___

42 U.S.C.

provision permits courts

intentional

injury or loss in

individual."

to award

discrimination resulting

the same circumstances

in

as such awards

are permitted

under 42

U.S.C.

1981 for

race discrimination.

See H.R. No. 40(1), 102d Cong., 1st Sess. at 74 (1991).

___

Although

of intentional

demonstrate

compensatory damages are available to victims

discrimination under Title VII,

that the

defendant

acted with

-19-19-

a plaintiff must

malice or

reckless

indifference

Id.7
___

before

he or

she

can

receive punitive

damages.

The legislative history of the Section notes:

Plaintiff

must

discrimination,
injury
recover

or

loss

first prove
then

must prove

arising

compensatory

intentional
actual

therefrom

to

damages, and must

_________

meet
an
even
higher
standard
_________________________________________
(establishing that the employer acted
_________________________________________
with malice or
reckless or
callous
_________________________________________
indifference to their rights) to recover
_________________________________________
punitive damages.
_________________

H.R. Rep. No. 40(I), 102d Cong., 1st Sess. at 72 (1991) (emphasis

added).

Because

plaintiffs' claims

arise

out

of

federal

statute

designed to

damages

control.

federal or state

needs

protect

"The

federal rights,

rule

sources, is

of

damages,

a federal rule

whenever a federal right is impaired."

federal rules

whether drawn

of

from

responsive to

the

Sullivan v. Little
________
______

Hunting Park, 396 U.S. 229, 240 (1969).

____________

After hearing

district court

found that

the

demonstrating

the testimony

declined to

award punitive

plaintiffs had

that

the

in the instant

not

defendants

damages.

sustained their

had

acted

case, the

The

burden

of

maliciously

or

recklessly or callously indifferent to plaintiffs' rights.

finding, the court explained:

____________________

court

In so

The

court's analysis

action.
action when

In Maine,

is the

same for

punitive damages

are

the defendant acts with malice.

Prawer & Co.,

_____________

829 F.

Supp. 439,

453 (D.

the state

available in

Me. 1993);

-20-20-

is

no

question that

Defendants'

repeated sexual harassment was offensive.

In fact,

in

many cases,

this

a tort

See F.D.I.C. v. S.
___ ________
__

Tuttle v. Raymond, 494 A.2d 1353, 1361 (Me. 1985).

______
_______

There

causes of

behavior

might be strong evidence of malice or, at

see also
________

least,

reckless

Plaintiffs'
however,

indifference

rights.

the

In

Court

to

this

case,

believes that,

the

behavior of at

least some Defendants was

influenced

language,

by

educational

that

and

With

this

the

other

barriers.

consideration
evidence

cultural,

in

and

all

mind,

Defendants

of

the Court

were

not

concludes

acting

with

either malice or reckless indifference to

Plaintiffs' rights.

No award of punitive

damages is therefore appropriate.

There

the trial judge

was no jury in the instant case, and, of course,

obviously gave no

erroneous instructions.

The

plaintiffs, however, contend that the court nonetheless committed

error as

a matter of

award punitive

the

law because it

based its decision

damages on an erroneous legal

ethnic background [of most

not to

predicate -- "that

of the defendants]

is an excuse

negating

malice or

Moreover, the

reckless indifference under

plaintiffs argue

that even

Section 1981a."

if the judge's

legal

predicate were correct, there is no evidence whatsoever of record

that

cease

the defendants suffered from any ignorance of their duty to

their

offensive

background.

As

standard

review

of

to

acts

this

is

as

alleged

clearly

result

of

deficiency

erroneous.

Cambridgeport Air Systems, Inc., 26 F.3d

_________________________________

their

of

ethnic

record,

See
___

1187, 1188

Reich
_____

the

v.

(1st Cir.

1994).

That the defendants' acts "were patently offensive" and

repeated,

as

the

plaintiffs

argue,

-21-21-

may

provide

cause

for

compensatory damages but do not necessarily mandate a finding

punitive

matter

punitive

the

damages.

of right

Unlike

to an

injured party

damages,

which are

once liability

is found,

damages are awarded or rejected in a particular case at

discretion of the

judge.

compensatory

of

See
___

fact-finder, in

this instance

Lee v. Southern Home Sites Corp.,

___
_________________________

(5th cir. 1970).

the trial

429 F.2d 290, 294

There is no vested right to punitive damages on

the part of the plaintiff and

where allowed, they are awarded as

a matter of

public policy

defendant or

to deter

to punish outrageous

similar conduct

in the

conduct by

future.

the

key

feature of punitive damages is that "they are never awarded as of

right no matter how egregious the defendant's conduct."

Smith v.
_____

Wade, 461 U.S. 30, 52 (permitting jury to assess punitive damages

____

in

action under

motivated

by

evil

1983 when defendant's conduct

intent

or

involves

is shown to be

reckless

or

callous

indifference to the federally protected rights of others).

Punitive damages

are assessed

example and warning to others.

the

law

limits.

and are

Lee, 439
___

as an

They are therefore not favored in

allowed only

F.2d at

as punishment or

with

294;

caution and

within normal

Aladdin Manufacturing Co. v.

__________________________

Mantle Lamp Co., 116 F.2d 708, 717 (1st Cir. 1941).
_______________

The

allowance

of

such

damages

inherently involves an evaluation

nature
wisdom

of the
of

punishment,
deterrent.
such

conduct in
some

and

form
the

of the

question, the
of

pecuniary

advisability of

Therefore, "the infliction of

damages, and the amount thereof are

of necessity within the discretion of the

trier of the fact."

-22-22-

Lee, 439 F.2d at 294 (citations omitted).

___

In Rowlett
_______

v. Anheuser-Busch, Inc., 832

____________________

Cir.

1987), this court dealt at

of a

jury award of

F.2d 194 (1st

length with the appropriateness

punitive damages.

Writing for this

court,

Judge Torruella held that even in a jurisdiction which authorizes

punitive

damages

wrongdoing,

this

in

cases

does

not

requiring

mean

appropriate in every such case.

of

the fact

damages

are

has the

that

to

of

punitive

intentional

damages

are

Rather, "in each case the trier

discretion to

necessary,

proof

punish

determine whether

[the

defendant]

punitive

for

his

outrageous conduct and deter him and others like him from similar

conduct

court

in the future."

Id. at
___

205 (citations omitted).

therefore reduced the punitive

The

damages award in a Section

1983 case by 90 percent.

Id. at 207.
___

In Hern ndez-Tirado
________________

v. Artau,
_____

1989), this court vacated entirely the

punitive damages in

analyzed

"reckless

district court's award of

1983 case.

in

Court made clear that a jury

Section

or

1983

callous

rights of others," as

evil motive or intent."

holding,

(1st Cir.

The court

carefully

the Supreme Court's decision in Smith v. Wade, 461 U.S.

_____
____

30, where the

damages

a Section

874 F.2d 866

cases

when

indifference to

the

"may" award punitive

defendant

has

shown

federally protected

well as when his conduct is

"motivated by

This court observed, however, that in so

the Supreme Court did not say that the fact-finder must

award punitive damages

in every

does involve an intentional

____

tort.

single Section

1983 case

The court concluded

that

that the

-23-23-

defendants'

calling

for

provided by

intentional misconduct

punishment

and

did

deterrence

the compensatory award.

It

not rise

over

and

to the

above

therefore vacated

level

that

the

award of punitive damages observing that "neither the common law,

nor the Supreme Court in Smith,

_____

allows a jury to assess punitive

damages in

every single instance

tort; rather,

they require

because of a person's

indifference' to

where it finds

conduct that is

'outrageous' either

'evil motive' or because of

the rights

of others."

an intentional

his 'reckless

Hern ndez-Tirado, 874

________________

F.2d at 869.

In sum,

award punitive

the law

does not

damages in every

involves an intentional tort.

defendant

acted

with malice

plaintiff's rights.

case under

fact-finder to

Section 1981a

The plaintiff must show

or

reckless

that

that the

indifference to

the

We believe, however, that heavy reliance on

cultural and educational factors

case.

Ignorance of the

under

Section 1981a

defendants.

require the

to

is inappropriate in the instant

law or of local custom is

the alleged

offensive

not a defense

conduct of

the

defendant's cultural background is not irrelevant in

evaluating the

appropriateness of punitive damages.

circumstances,

impact

background will

on his consciousness of wrongdoing.

however, the

punitive

defendant's

district court's

damages

background of

was

the

the defendants,

likely

ethnic,

and this is

-24-24-

have

an

In the instant case,

only explicit reason

cultural,

In certain

for denying

and

educational

not the

dispositive

factor.

The court did not point to any evidence in the record to

support its assumption

that the defendants were

reckless indifference to the plaintiffs' rights.

not acting with

In

the context

of this case and on this record, primary reliance on cultural and

educational

background

is

tenuous

and

appears

unsupported.

Although the court also

considered "all the other evidence,"

is

record what

not clear

from the

"other evidence"

it

the court

considered.

Accordingly, we

further

clarification

and

will remand to the

explanation

as

district court for

to

what

evidence

supported its decision to deny the plaintiffs punitive damages.

VI.
VI.

In sum,

denied the

answer.

to

we conclude

defendants'

that the district

motion to

lift

default and

file

late

Through their default, the defendants waived their right

challenge the plaintiffs' Title

the plaintiffs

the EEOC

court properly

failed to

or the

MHRC.

VII claim on

name the individual

Thus, the order

the basis that

defendants before

of the

district court

denying the defendants' motions is affirmed.

We also conclude that the

its

discretion in arriving at a

for each plaintiff and

district court did not abuse

$2500 compensatory damage award

this judgment is affirmed.

On

the issue

of punitive damages, the matter is remanded to the district court

for clarification and explanation, within thirty days, as to what

evidence

the

court

relied

upon

in

declining

to

award

the

plaintiffs punitive damages.

This court will retain jurisdiction

-25-25-

of the case pending the district court's clarification.

-26-26-