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Dimanche v. MBTA, No. 17-1169 (1st Cir. June 18, 2018)

The First Circuit affirms a $2.6 million judgment for race discrimination against the Massachusetts Bay Transportation Authority, where the jury was presented with direct evidence involving "[t]hree of the MBTA's supervisory staff who either concurred in [plaintiff]'s dismissal or were involved in the investigation of the January 25th altercation, had demonstrated racial animus towards her."

Dimanche v. MBTA, No. 17-1169 (1st Cir. June 18, 2018):

The plaintiff, described in the opinion as a "black woman of Haitian descent," was fired for fighting with a co-worker. This was supposedly a fifth offense in her record, which under the MBTA's rules could lead to termination. The plaintiff contested the infractions, contending that the various disciplinary warnings were motivated by racial animus.

She and another witness testified to a barrage of harassment that plaintiff suffered from inspectors - called "black b***h," told to go "back to her country" - that went unremedied despite her complaints. When she returned from a leave, the plaintiff and others testified that she was repeatedly threatened with termination: "I'll get her black ass," "she's trouble, they don't like her and they're going to fire her," and "[e]verybody know[s] [Dimanche was] on the way out."

Dimanche sued the agency for race discrimination under Massachusetts state law and § 1981. After a four-day trial, a jury awarded her $1.3 million in compensatory damages, and a nearly-equal amount in punitive damages. The judge decided at the end of trial to instruct the jury on a hostile-work-environment theory, as an alternative to race discrimination, a theory that the MBTA challenged only on the merits (and not on the ground of waiver or unfair surprise).

The First Circuit affirms on the merits. It first rejects the challenge to sufficiency of the evidence, holding that the judgment was fully supported by the record:

"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. [One MBTA staff member] was reported to have said that he wanted to 'get her black ass.' And [two others] had a long history of mocking Dimanche's Haitian accent, calling her 'black b[***]h,' 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."

The panel also upholds the punitive damage award, holding that the relevant factors under state law for award of such relief tilted in the plaintiff's favor. They cite "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."

The closest that MBTA got to a reversal was a challenge to a preclusive sanction entered at the pleadings stage. When the defendant originally defaulted, the district court judge provisionally granted its motion to vacate the default. It was on condition, though, that the agency would be limited to defending the case based entirely on the evidence of a "meritorious defense" supplied in its motion.

The First Circuit holds that the sanction was erroneous. The trial judge "failed to provide any factual or legal basis for imposing an evidentiary sanction on the MBTA," and "the sanction on its face was calibrated not to ameliorate any prejudice to Dimanche, but instead to punish the MBTA." The defense team, though, apparently failed to preserve an objection to the sanction in the district court and thus waived that ground. Reviewing the decision for plain error, it found no prejudice to the MBTA: the agency was allowed to put in its entire defense, notwithstanding the sanction, and did not make offers of proof about allegedly excluded evidence.

The agency also complained that it was blindsided by the late introduction of a hostile-work-environment theory, but (again, on plain-error review) the panel holds that defendant did not make a record that it was prejudiced by the jury charge, such as what kinds of testimony or evidence it would have presented in defense.

Finally, the MBTA belatedly argued that section 1981 did not apply to a public-sector employer, based on the intervening decision of Buntin v. City of Boston, 857 F.3d 69 (1st Cir. 2017), so holding. Unfortunately for the defense, it again failed to preserve this ground below and the argument - not going to the subject-matter jurisdiction of the court - could not be raised for the first time on appeal.

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