USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 95-1039

HELEN RUTH ANDRADE,

Plaintiff, Appellant,

v.

JAMESTOWN HOUSING AUTHORITY, ESTATE OF BARRETT GROSS,

ERNEST ANTHONY, EDWARD HOLLAND, LLEWELYN EATON,
PHYLLIS TIEXIERA AND FREDERICK HILLIER,
Defendants, Appellees.

____________________

No. 95-1040

HELEN RUTH ANDRADE,

Plaintiff, Appellee,

v.

JAMESTOWN HOUSING AUTHORITY, ESTATE OF BARRETT GROSS,

ERNEST ANTHONY, EDWARD HOLLAND, LLEWELYN EATON,
PHYLLIS TIEXIERA AND FREDERICK HILLIER,
Defendants, Appellees,

_____________________

SELF-HELP, INC. AND DEBORAH A. JACKSON,

Defendants, Appellants.
____________________

No. 96-1329

HELEN RUTH ANDRADE,

Plaintiff, Appellee,

v.

JAMESTOWN HOUSING AUTHORITY, ESTATE OF BARRETT GROSS,

ERNEST ANTHONY, EDWARD HOLLAND, LLEWELYN EATON,
PHYLLIS TIEXIERA AND FREDERICK HILLIER.
Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Cyr and Stahl, Circuit Judges.
______________

____________________

Ernest Barone for Helen Ruth Andrade.

_____________
Frank E. Reardon
_________________

with whom Hassan & Reardon, P.C.

_______________________

was on br

for Self-Help, Inc. and Deborah Jackson.

James A. Donnelly for Jamestown Housing Authority, et al.
_________________

____________________

May 1, 1996
____________________

STAHL, Circuit Judge.

STAHL, Circuit Judge.
_____________

Ruth Andrade, filed a

federal district

from

employment

Jamestown

Plaintiff-appellant,

five-count complaint in Rhode Island's

court seeking redress

as

Helen

an

administrative

Housing Authority

Andrade

sued Self-Help,

agency

that placed her at

("JHA").

for her

termination

assistant

In addition

Inc. ("Self-Help"),

at

the

to JHA,

the sponsoring

JHA; Deborah Jackson, a Self-Help

employee;

Ernest

Barrett

Anthony,

Tiexiera,

Gross,1

Edward

JHA's

Executive

Holland,

Llewelyn

of

Eaton,

Phyllis

Frederick

Hillier,

Commissioners.

At trial,

Andrade sought to prove violations

of 42

1983

(Count II), 42 U.S.C.

whom

and

and

U.S.C.

all

Director;

were

JHA

1985(3) (Count

III), and state tort (Count IV) and contract (Count V) law.2

At

pursuant to

the

close

Fed. R. Civ.

of evidence,

the

P. 50(a), granted

district

court,

the defendants'

motions for judgment as a matter of law on Counts III, IV and

V, reserved ruling on JHA's Rule 50(a) motion as to Count II,

and submitted

Count II

to the jury.

Gross, and Eaton liable on Count

and punitive

filed

damages to

motions for

The

jury found

JHA,

II and awarded compensatory

Andrade.

attorney's fees,

The

parties subsequently

and the

district court

referred

the

motions to

the

magistrate for

report and

____________________

1.

Barrett

Gross

litigation.

2.

Count

died

before

the

commencement

of

this

His estate has been sued as a party defendant.

I,

charging

violation

of

Title

VII,

was

voluntarily dismissed by Andrade on the first day of trial.

-33

recommendation.

adopted by the

The magistrate's report and recommendation,

court, granted fees to Andrade

plaintiff vis a vis

___ _ ___

Jackson,

JHA, Gross, and Eaton and

Anthony,

Holland,

Tiexiera,

and

as prevailing

to Self-Help,

Hillier

as

prevailing defendants.

Andrade appeals

of

law on

award.

on

Counts IV and

the grant of judgment

V as

well as

the attorney's fees

JHA cross-appeals the denial of the Rule 50(b) motion

Count

II.

Self-Help

attorney's fees award.

and

Jackson

Background
Background
__________

The Relevant Facts

cross-appeal

Finding no error, we affirm.

I.
I.
__

A.

as a matter

the

______________________

Self-Help, a non-profit

Senior Aide

Program ("the

area.

Program, which

Labor

The

through

("NCSC"),

the

seeks to

businesses and

corporation, operates

Program") in the

National

is funded

Council

East Providence

by the

of

municipal agencies as "Senior

the Program, Senior Aides spend a maximum of

goal

of

attaining

Department of

Senior

employ low-income seniors

assignment, receiving on-the-job

the

Citizens

in non-profit

Aides."

Under

two years at an

and/or other training, with

placement in

unsubsidized

positions

thereafter.

During

Executive

the summer

of

1990, Nancy

Newbury, JHA's

Director, contacted Self-Help to inquire about the

-44

possibility of JHA becoming a host

agency under the Program.

Bridget Kelly, Self-Help's Director of the

Program,

and

Newbury

agreed

that

administrative assistant positions

Newbury

After

then posted

the

Kelly determined

JHA

would

create

for Senior Aides

positions,

that

Senior Employment

and

Andrade was

Andrade

two

at JHA.

applied.

eligible for

the

Program, Newbury interviewed Andrade and offered her the job.

Andrade accepted.

At trial, Newbury and Kelly both testified that, at

some point

that she

during the hiring process,

was receiving

workers'

Andrade informed them

compensation benefits

and

stated that she would only want to work at JHA so long as the

wages she

would receive from Self-Help would

existing benefits.

Newbury's

not reduce her

and Kelly's testimony diverged

on how they responded to this information.

Newbury

testified that, with

Kelly and Andrade in

her office, she called Andrade's case manager at the Workers'

Compensation Commission ("the

Commission") on

speakerphone,

and he assured them that Andrade's wages from Self-Help would

not reduce

her

conversation took

Andrade that

benefits.

Kelly,

place and testified that

her review

of

the NCSC

Manual ("NCSC Manual") suggested

be counted

however, denied

in determining

she had informed

Policy and

Procedure

that the benefits would not

her income eligibility

-55

such

under the

Program, but

that Andrade

should contact the

Commission to

see how it would handle her receipt of wages.

In July 1990,

thereafter,

brought

Newbury

charges

investigation of

On April 30,

of

Andrade began work at

resigned

racism

as

Executive

against

its adherence

JHA,

to fair

JHA.

Shortly

Director

and

requesting

an

housing principles.

1991, during hearings before the Jamestown Town

Council, Andrade testified

that Commissioner Eaton had

made

two racially discriminatory remarks in her presence.

Meanwhile,

Andrade a "Report

about her

in

March

1991,

of Earnings" form,

Self-Help wages.

the

Commission

sent

requesting information

Because Andrade did

not return

the form,

the Commission sent another

in April.

On May 1,

1991, when Kelly's successor, Deborah Jackson, went to JHA to

recertify Andrade for her second year of the Program, Andrade

showed

Jackson the Report of Earnings form and asked for her

assistance in filling it out.

Jackson

agreed to look at the

form and took it with her.

While at JHA that day, Jackson

who requested

that Self-Help

transfer Andrade from

having testified against Eaton

1991,

Gross

conversation

sent

Jackson

also met with Gross

the night before.

letter

which requested that

On

memorializing

she "attempt

JHA for

May 2,

their

to transfer

Senior Aid [sic] Helen Andrade from the Authority" and stated

that

"Her testimony

against one

of our

commissioners, Mr.

-66

Eaton, who is ultimately

her superior has made

her presence

here uncomfortable."

On

Earnings

Help's

reported

May

8, 1991,

form, Jackson

Director of

her

having

examined

notified Caroline

Senior

Self-Help

Services, that

earnings

to

the Report

of

Pellegrino, Self-

Andrade had

the

not

Commission.

Pellegrino

called the

Commission and

was informed

that it

could hold Self-Help liable for the wages paid to an employee

who

was

receiving

Pellegrino,

in

workers'

turn,

notified

Executive Director, and

NCSC representative.

Help

compensation

Dennis

Roy,

benefits.

Self-Help's

Roy referred her to Mary

Mulvey

Mulvey, an

informed Pellegrino that

Self-

might also be liable to NCSC for Andrade's wages should

inclusion of her workers' compensation benefits in the income

eligibility

Program.

resolution

assessment

Mulvey

of

the

render

Andrade ineligible

recommended Andrade's

issue.

Roy

for

the

termination pending

agreed

and

problem

had

Jackson

telephone Andrade with the news.

Referring

generally

to

regarding

Andrade's receipt of workers' compensation

asked Andrade to go home for

be phoning

her with

Jackson told Andrade

failure to report

later,

Jackson

more

benefits, Jackson

the day and said that she would

details.

Later that

that she was terminated

her wages

sent Andrade

because of her

to the Commission.

-77

letter

afternoon,

Five

stating that

days

"Your

failure to notify R.I. Workers

of

your entering the Senior

[sic] Compensation Department

Aide Program is

the reason for

the termination."

Having

learned

appeared before Gross

board meeting

her

of Andrade's

termination, Newbury

and the Commissioners at

and petitioned for Andrade's

former position.

Newbury

Hillier responded to her

the next JHA

reinstatement to

testified that

Commissioner

plea by stating that "it would be a

cold day in hell when anybody testifies against us and thinks

they are going to have a job here."

B. Prior Proceedings
_____________________

Andrade's

complaint

charged

JHA,

Gross,

the

Commissioners,

Self-Help, and

Jackson

with

violations

of

Title VII (Count I -- which she later dismissed voluntarily),

42

U.S.C.

1985(3)

discharge,

with

Commissioners

breach

wrongful

and

tortious

intentional infliction of emotional distress, and

interference

violation

(Count III),

contract

Holland,

Hillier,

of 42 U.S.C.

of express

discovery,

(Count

Gross,

Tiexiera

and

with

1983 (Count II); and Self-Help with

and implied

all of

JHA,

Eaton, and

contract

a seven-day jury trial

the evidence,

IV);

the

(Count V).

ensued.

At

defendants sought

After

the close of

judgment as

matter of law under Fed. R. Civ. P. (50)(a) on Counts III and

IV; JHA

brought a Rule 50(a)

Help brought

motion on Count

a Rule 50(a) motion

on Count V.

II, and Self-

The district

-88

court delivered a detailed oral opinion, granting the motions

as to

Counts III, IV, and V, and reserving decision on Count

II until after the jury returned its verdict.

As to Count V, the court concluded that (i) Andrade

had failed to

provide any evidence that

an express contract

for a

definite duration

(ii) the fact that

existed between her

the NCSC Manual and the

Employment Program Personnel Policy ("the

and Self-Help,

Self-Help Senior

Self-Help Policy")

limited Andrade's employment at JHA to two years and provided

for

an annual

definite

recertification

term of

review did

not establish

employment, (iii) Andrade

and Self-Help's

mutual mistake as to whether Andrade's earnings would be paid

to

the

Commission

necessary element

even

assuming

was

Commission.

denied

meeting

to the formation

arguendo
________

suffered no damage

she

prevented

that

in its breach

would

have

the

minds, a

of a contract,

and (iv)

a contract

of

existed,

Andrade

because any earnings

to

the

In ruling on Count IV, the court found that

(i)

no cause of action for wrongful

to

have

been

paid

that

discharge exists under Rhode

Island

law, (ii) Andrade

injury

of sufficient

intentional

magnitude

infliction

physical manifestation

failed to provide

of

to satisfy

emotional

of injury

evidence of any

the element

distress

and failed to

requiring

provide any

expert medical testimony showing a causal connection

Andrade's

symptoms, some

of which

-99

existed well

of

between

before her

termination,

Andrade

an

and

defendants'

actions,

and

(iii)

because

did not have a contract with Self-Help that gave her

expectation of

continued employment,

there could

be no

tortious interference with that contract.

With only Count

II before it, the

jury returned a

verdict for Andrade vis a vis JHA, Gross, and Eaton.

___ _ ___

Hillier

and

granted

Tiexiera

were found

compensatory damages of

and punitive

not

finding

jury

each against Gross

defendants

and Eaton.

the district court returned

unresolved Rule 50 motion on Count

motion,

The

$7,183 against the three

damages of $250

After excusing the jury,

liable.

that Gross's

II.

letter

to the

The court denied the

of

May 2,

1991

and

Commissioner

Hillier's

response

to

Newbury's

request

to

reinstate Andrade were sufficient to permit a reasonable jury

to

find that

Andrade was

terminated because

against Commissioner Eaton at

the court

she testified

a public hearing.

referred the parties' motions

Thereafter,

for attorney's fees

to the magistrate for a report and recommendation.

After

although she

hearing,

was a

the

magistrate

prevailing plaintiff under

1988, Andrade had succeeded

in only one of her

found

that,

42 U.S.C.

five claims,

had received only $7,183 in compensatory damages and $500

in

punitive damages, and had brought frivolous claims.

Based on

these

a modest

findings,

the

magistrate

attorney's fees award of $2,500.

granted

Andrade

Finding that Counts I, III,

-1010

and IV

Help,

were frivolous,

Jackson, Holland, Hillier,

prevailing defendants

5(k).

the magistrate concluded

Mindful of

magistrate granted

under

that Self-

Anthony, and Tiexiera were

1988 and

42 U.S.C.

2000e-

Andrade's limited financial resources, the

Self-Help and Jackson a $1,000 attorney's

fee for their defense

Holland, Hillier,

of Counts I and III

and Commissioners

Anthony, and Tiexiera a

$1,500 attorney's

fee for their defense of Counts I, III, and IV.

The district

court adopted the magistrate's report and recommendation.

II.
II.
___

Discussion
Discussion
__________

A. Judgment as a Matter of Law

_______________________________

1. Andrade's Appeal
____________________

On appeal, Andrade contends that the district court

erred in granting

and

of her

judgment as a

complaint.

After

matter of law on

reciting the

review, we consider these contentions separately.

Counts IV

standard of

We review

the grant

of a

Rule

50(a) motion

for

judgment as a matter of law de novo, under the same standards

__ ____

as the district

court.

See Coastal Fuels of Puerto Rico,

___ _______________________________

Inc. v. Caribbean Petroleum Corp., No. 95-1460, slip op. at 6

____
_________________________

(1st

Cir. Mar. 12, 1996).

The evidence

reasonably to be drawn therefrom

most

favorable to the non-movant.

and the inferences

are considered in the light

The court, however, must

"not consider the credibility of witnesses, resolve conflicts

-1111

in

testimony,

Wagenmann
_________

or

evaluate

v. Adams,
_____

verdict may

the weight

829 F.2d 196,

be directed

only if

of

the

200 (1st Cir.

the evidence,

evidence."

1987).

viewed from

this perspective, "would not permit a reasonable jury to find

in

favor of

theory."

the

plaintiff[] on

any

Murray v. Ross-Dove Co., 5

______
_____________

permissible claim

or

F.3d 573, 576 (1st Cir.

1993).

a. Contract Claim
__________________

Andrade contends that the evidence she submitted on

Count V

was legally sufficient

to permit a

jury to find

breach of contract, and therefore the district court erred in

granting

Because

Self-Help judgment as a

we agree with the

matter of law

court below that

on Count V.

Andrade did not

prove a prima facie case of breach of contract, we affirm the

court's grant of the Rule 50(a) motion on Count V.

Under Rhode Island law, it is well established that

"a promise

to

render personal

indefinite

term is

services to

terminable at

any time

another for

at the

an

will of

either party and therefore creates no executory obligations."

School Comm. of Providence v. Board of Regents for Educ., 308

__________________________
__________________________

A.2d 788, 790 (R.I. 1973); see also Lamoureux v. Burrillville

___ ____ _________
____________

Racing

Ass'n,

161

A.2d

213,

216

(R.I.

1960);

Booth v.

_____________

_____

National India-Rubber Co.,

___________________________

36

A. 714,

Although she

presented no evidence of

contract for

a fixed

715

(R.I.

1897).

an express employment

period between herself

and Self-Help,

-1212

Andrade

argues

that

certain

provisions in

the

Self-Help

Policy

and the NCSC Manual, both of which were admitted into

evidence, created a triable issue as to whether she and Self-

Help

had an implied contract for a fixed period3 and whether

she could only be terminated for just cause.4

Apparently recognizing

it to be an

issue of first

impression, however, the Rhode Island Supreme Court expressly

avoided

law that

the question of

whether to adopt

employment manuals

enforceable

contract rights,

Sav., 525 A.2d 915, 918 (R.I.

____

hearing

this

jurisdiction,

state

we

are

law

or policies

Roy
___

the emerging case

may

give rise

to

v. Woonsocket Inst. for

______________________

1987), and, as a federal court

issue

reluctant to

under

our

extend

supplemental

Rhode

contract law "beyond its well-marked boundaries."

Island's

Markham v.
_______

Fay, 74 F.3d 1347, 1356 (1st Cir. 1996); cf. A. Johnson & Co.
___
___ ________________

v. Aetna Casualty and Sur. Co., 933

_____________________________

1991) (holding that this

F.2d 66, 73

(1st Cir.

court, sitting in diversity, should

____________________

3.

In

particular,

Andrade

claims

durational limit upon her employment

recertification review by

that

the

two-year

at JHA and the one-year

Self-Help supplied the

durational

term.

4.

Andrade identifies

an "employability plan" that

she and

Newbury devised and Self-Help adopted as an additional source

of

her alleged contract

light

most

detailed

favorable to
Newbury's

employment
was training
Nothing

at JHA.

and

Testimony, viewed

Andrade,

revealed

Andrade's

goals

in the

that the
for

plan

Andrade's

The ultimate goal identified in the plan

Andrade to become a

in the

guaranteed

rights.

plan,

certified housing manager.

however, suggested

that Andrade

was

employment at JHA for a definite term or that she

would only be terminated for cause.

-1313

not

"torture

state

law

into

precipitously to blaze new and

strange

configurations

or

unprecedented jurisprudential

trails"); Mason v. American Emery Wheel Works, 241 F.2d 906,

_____
___________________________

909-10 (1st Cir.)

state law as

(noting that a

it finds it, "not

some day; nor even as it should

diversity court must

as it might

take

conceivably be,

be"), cert. denied, 355 U.S.

_____ ______

815

(1957).

Because Andrade has not convinced us that Rhode

Island would so extend

its contract law, we decline to do so

here.

b. Tort Claims
_______________

Andrade also contends that she submitted sufficient

evidence

to permit a jury

infliction

of

emotional

to find the

distress,

discharge, and interference with

torts of intentional

wrongful

and

tortious

contract, and therefore the

district court erred in granting the defendants judgment as a

matter of

law on Count IV.

We consider each

tort claim in

turn.

Rhode Island

intentional

infliction

recognizes

of

cause

emotional

of

action

distress

for

("IIED")

patterned after

(1965).

severe

To prevail on

prove that

conduct,

of the Restatement

(Second) of

Torts

Champlin v. Washington Trust Co., 478 A.2d 985, 988

________
____________________

(R.I. 1984).

must

46

the

defendant, by

intentionally or

emotional

a claim of IIED,

distress.

extreme and

recklessly

Id.
___

-1414

the plaintiff

at

caused the

989.

outrageous

plaintiff

Rhode

Island

requires

that to

be "severe,"

the emotional

evoke some physical manifestation.

547 A.2d 894, 898-99

distress must

Reilly v. United States,

______
_____________

(R.I. 1988); Curtis v. State Dep't for

______
________________

Children, 522 A.2d 203, 208 (R.I. 1987).

________

At

trial, Andrade testified

on direct examination

that as a result of her termination from employment at JHA in

May 1991, she experienced irritated bowels, diarrhea, tension

headaches, and sleeplessness.

the diarrhea and tension

of

1990,

examination,

months

stated, however, that

headaches began in the latter

before

Andrade

Andrade

also

her

termination.

conceded

that

On

prior

part

cross-

to

the

occurrence of

experienced

the events

stomach

alleged in

problems.

the complaint

Specifically,

acknowledged that she had gastric

she had

Andrade

surgery in 1978, 1980, and

1981 for which she continues to take medication.

Andrade relied exclusively on her own

prove her IIED claim.

defendants'

testimony to

The district court, in ruling on the

Rule 50(a) motion, found that Andrade's testimony

--

that she

had

with her

termination and

these

symptoms

particularly

experienced these

--

given

problems, headaches,

was

symptoms

her termination

insufficient

Andrade's

prior

and diarrhea.

to

contemporaneously

was the

prove

history

In directing

cause of

causation,

of

stomach

a verdict

against Andrade

on

the

IIED claim,

the

court

cited

her

-1515

failure to produce expert medical testimony that her symptoms

were in fact caused by the defendants' conduct.

Rhode Island case law is

the

necessity of

expert

silent on the question of

testimony to

prove the

causation

element of IIED.

Section 46 of the Restatement

Torts, on which Rhode Island's IIED claim is

fails

to

provide

introduction

mentioned.

of

any

clues;

expert medical

nowhere

(Second) of

patterned, also

in

46

testimony required

is

the

or even

Despite this silence, however, we find that under

the particular

facts of

this case expert

medical testimony

was indispensable to the proof of causation.

Had the district court allowed the IIED claim to go

to the jury at the close of the evidence, the jury would have

been faced with the daunting

to

which

result of

Andrade's

physical

her termination

surgeries,

Understanding

task of ascertaining the degree

symptoms were

as opposed

chronic

maladies,

the

relationship

or

the

to her prior

other

outside

between Andrade's

proximate

gastric

forces.

physical

symptoms and the competing causal factors without the benefit

of

medical expertise,

jury.5

See Vaughn v.
___ ______

however, was

beyond

Ag Processing, Inc.,
___________________

the ken

of the

459 N.W.2d 627,

636-37 (Iowa 1990) (holding that expert medical testimony was

____________________

5.
that

In so holding, we are not establishing a bright-line rule

expert

testimony

causation prong of IIED.

is

always necessary
There may very well

to

prove

the

be situations

where causation is within the common knowledge and experience

of the layperson; this case, however, is not one of them.

-1616

required to establish

and

physical

causation between

symptoms

"that

peaked

[plaintiff] left his employment");

497

A.2d 1206,

1211

causation in an IIED

testimony"); but
___

(N.H.

1985)

harassment at

three

months

after

Mayer v. Town of Hampton,

_____
_______________

(holding that

claim "will usually be based

see Tanner v.
___ ______

work

proof

of

on expert

Rite Aid of West Virginia,

____________________________

Inc., 461 S.E.2d 149, 160-61 (W. Va. 1995) (holding that jury
____

could properly evaluate

despite

IIED claim without expert

plaintiffs' prior

history

of emotional

testimony

problems).

Because Andrade's own testimony and conclusions regarding the

cause

of

her

insufficient

between her

physical

to allow

a jury

distress and

element of the prima

symptoms,

by

to find

the

themselves,

the requisite

May 8,

were

nexus

1991 termination,

facie case for IIED was

an

not satisfied,

and the district court correctly granted the defendants' Rule

50(a) motion on the IIED claim.

Turning

Andrade's

to

623

A.2d

remaining

tort

claims,

we note

acknowledgment that the Rhode Island Supreme Court

has unequivocally held

wrongful

the

that no

cause of

discharge in Rhode Island.

464,

maintains that

465

(R.I.

action exists

for

Pacheo v. Raytheon Co.,

______
____________

1993).

Nonetheless,

she presented sufficient evidence

to find the nonexistent cause of action.

Andrade

for a jury

In conjunction with

her wrongful

discharge claim, Andrade

alleged violations of

Rhode Island's Fair Housing Practices Act and Fair Employment

-1717

Practices

Act.

Andrade argues

that infusing

discharge claim with references to independent

state laws made

it cognizable.

We disagree.

her wrongful

violations of

Pacheo

made

______

clear

that there is no common law tort of wrongful discharge

in Rhode

Island and that protection

against discharges that

contravene public policy is for the General Assembly, not the

courts.6

623

A.2d

district court's

at 465.

Accordingly, we

grant of the defendants'

affirm

the

Rule 50(a) motion

on the wrongful discharge claim.

Finally,

Andrade

sufficient evidence for a

with contract.

Our

claims

she

presented

jury to find tortious interference

earlier determination that

not present sufficient evidence

contract,

that

Andrade did

of an enforceable employment

however, is dispositive of this claim as well.

Rhode Island, the existence

In

of a contract, not surprisingly,

is an element of the tort of interference with contract.

See
___

Smith Dev. Corp. v. Bilow Enters., Inc., 308

_________________
____________________

(R.I.

1973).

Given

element at trial,

Andrade's

failure

the district court

A.2d 477, 482

to establish

was correct in

this

taking

the interference with contract claim away from the jury.

Andrade

also

argues

that

she

has

presented

sufficient evidence to prove the similar but distinct tort of

____________________

6.

We

express

Island's
Practices

Fair
Act,

no

view

Housing
alleged

on

whether

Practices Act

violations
and

independently

Fair
of

discharge claim, could have been established.

-1818

the

of

Rhode

Employment
wrongful

interference with prospective contractual relations. Andrade,

however,

not only failed

United States v.
______________

(holding

that

failed to assert

to raise this

Palmer,
______

argument not

956 F.2d

raised

this claim in her

3,

argument below, see

___

6 (1st

below

Cir.

is waived),

complaint.

1992)

she

Accordingly,

we refuse to consider this argument.

2. JHA's Cross-Appeal
______________________

JHA argues that Andrade did

not present sufficient

evidence that it acted to deprive Andrade of her civil rights

in

violation

erred

on

of

1983, and

therefore the

district court

in failing to grant its Rule 50(b) post-verdict motion

Count II.

We review

the denial of a post-verdict motion

for judgment as a matter of law de novo, see

__ ____ ___

16 F.3d

473, 477 (1st

Cir. 1994),

Lama v. Borras,
____
______

and we must

sustain the

court's denial of a Rule 50(b) motion "`unless

the evidence,

together

with

favor of

the

verdict,

could

to

one

conclusion,

all reasonable

lead

inferences

in

reasonable

person

namely, that

the moving

party was

judgment,'" id. (quoting

___

PH Group Ltd. v.
______________

only

entitled to

Birch, 985
_____

F.2d

649, 653 (1st Cir. 1993)).

During

its deliberations

on

Count

II, the

jury

asked the court

Commissioners.

how to distinguish

The district

JHA from the

individual

court responded that the action

of a majority of the five Commissioners constituted an action

of

JHA.

JHA argues

therefrom that

-1919

because the

jury only

found

one of the Commissioners liable when it needed to find

three Commissioners liable

in order to find that

the jury could not have found

we find

JHA acted,

JHA liable as it did.

that Andrade provided ample evidence

jury could have concluded that JHA violated

Because

from which the

1983, we affirm

the district court's denial of JHA's Rule 50(b) motion.

Andrade

direct

presented

evidence:

requesting

three

significant

pieces

of

(1) Gross's May 2, 1991, letter to Jackson

Andrade's

transfer

from

JHA

because

of

her

testimony against Commissioner Eaton at a public hearing, (2)

Andrade's

with Gross,

testimony]

tape recording

during which

been

of her

May 1,

1991, conversation

he stated that

"[I]t's [Andrade's

problem

with the

Commissioners, the five Commissioners,

Commissioners.

The

hire and fire me and,

in essence, they hire and fire you, or they hire and transfer

you . . . ," and (3) Commissioner Hillier's refusal

Board

Meeting to

consider

reinstating Andrade

testimony against Commissioner Eaton.

under

1983 a

JHA to have

evidence

that (1)

Gross's views

Board

Meeting

or two

shared

jury could have

majority of

of

due to

needed for

inferred from

the Commissioners

the Commissioners

Commissioner

her

Assuming arguendo that

________

majority of the Commissioners was

acted, the

at a JHA

this

shared

present at

Hillier's

views,7

the

(2)

____________________

7.

Indeed, no

evidence was presented

publicly renounced Hillier's comment.

-2020

that any Commissioner

these

same

Commissioners

had

authorized

their

Executive

Director, Gross, to request Andrade's transfer in retaliation

for her testimony, and (3)

with

Jackson

Gross's May 1, 1991, conversation

as memorialized

in

his May

2,

1991, letter

caused Self-Help to terminate Andrade.

To the extent that JHA is also complaining that the

verdict

is

inconsistent

in

that

it

finds

only

one

Commissioner

that

liable at the same time as it finds JHA liable,

argument is waived because

timely objection

v.

of JHA's failure

to the alleged inconsistency.

to make a

See Bonilla
___ _______

Yamaha Motors Corp., 955 F.2d 150, 155-56 (1st Cir. 1992)
___________________

(holding that a party waives the issue of inconsistency if it

fails to object after the verdict is read and before the jury

is dismissed).

B. Attorney's Fees
___________________

We

review a fee award

abuse of discretion, see

___

15,

only for mistake

Krewson v. City of Quincy,

_______
______________

of law or

74 F.3d

17 (1st Cir. 1996), and accord deference to the district

court's "extremely broad" discretion in this area, Lipsett v.

_______

Blanco,
______

975

F.2d 934,

determination of

involves a series

937

(1st

the extent of a

Cir.

1992).

reasonable fee necessarily

of judgment calls,

an appellate court

far more likely to defer to the trial court

computations than

in many

is

in reviewing fee

other situations."

-2121

"[B]ecause

Lipsett, 975
_______

F.2d at 937.

Here, Andrade as well as

Self-Help and Jackson

challenge the court's fee award.

1. Andrade's Appeal
____________________

Andrade

She argues

challenges the fee award on three grounds.

that the

district court

misapplied the

law and

abused its discretion in (1) setting the hourly rate at $125,

(2)

reducing

awarding

her fee

attorney's

award

fees

for partial

to

Anthony, Hillier, and Tiexiera

Self-Help,

success,

and (3)

Jackson, Holland,

as prevailing defendants.

consider each challenge in turn.

a. Reasonableness of Hourly Rate

_________________________________

We

In his

district court,

for Andrade's

an

hourly

experience,

report and

recommendation, adopted by

the magistrate set a

counsel at $125.

rate

of

$200

a $200/hr.

community

attesting

magistrate,

however,

services,

had received

they

noted

charged

that

a similar

JHA,

$175/hr.

Gross,

reasoning that

$200/hr. is not

litigation in

had not

the

provided

the

The

and

the

requested a rate within the $100 to $125 range.

the rate for Andrade's

Andrade

in

his

hourly rate and Self-Help and

magistrate set

rights

citing

civil rights attorneys in

Commissioners requested a $125

Jackson

his

rate he

that

reasonable hourly rate

Andrade's counsel suggested

for

case, and affidavits from two

the

The

attorney at $125/hr.,

a reasonable rate

Providence, Rhode

adequate support

for civil

Island,

for the

area,

higher

-2222

rate, and no reason presented itself why Andrade's attorney's

rate

should

Andrade

be

more

than the

defense

attorneys'

rates.

argues on appeal that in basing her counsel's fee on

the amounts proposed by the defendants, the magistrate failed

to

apply the

rights

prevailing

litigation and

delay-in-payment

community rate

for federal

account for

the contingency

to

civil

and

factors that distinguish her counsel's rate

from that of the defense attorneys.

In

determining

reasonable

hourly

rate,

the

Supreme Court has recommended that courts use "the prevailing

market

rates

point.

Blum
____

in the

v.

Stetson, 465
_______

(defining "prevailing

the community

comparable

relevant

community"

U.S.

886, 895

market rates" as "those

for similar services by

skill,

attorney

may

evidence

of her

experience and

inform

the

customary

rates in the community,

as the

court's

starting

n.11

(1984)

prevailing in

lawyers of reasonably

reputation").

analysis

billing rate

by

and of

the court is not obligated

While an

providing

prevailing

to adopt

that rate.

Moreover,

own knowledge of

the court is entitled to rely upon its

attorney's fees in its surrounding

area in

arriving at a reasonable hourly rate, see Nydam v. Lennerton,

___ _____
_________

948

F.2d 808,

812-13

(1st

Metropolitan Dist. Comm'n,

_________________________

as well

as the defense

Cir.

1991); United States

______________

847 F.2d 12, 19

attorneys' rates,

v.

(1st Cir. 1988),

cf. Liberty Mut.

___ _____________

Ins. Co. v. Continental Casualty Co., 771 F.2d 579, 588 (1st
_________
________________________

-2323

Cir. 1985) (comparing

defendant

plaintiff's counsel's fee estimate

counsel's estimate in

much of jury's damage

to

attempting to ascertain how

verdict was based on fees

that should

not have been allowed).

The magistrate

from

rate.

rate

these principles

in

To the contrary,

for federal

knowledge and

market

in the

present case did

determining

while considering

a reasonable

hourly

he determined the prevailing market

civil rights

experience

not stray

litigation by

of the

the

utilizing his

Providence, Rhode

customary rates

Island,

of Andrade's

counsel,

rights

district

the

defense attorneys,

attorneys.

court,

in

and

two Providence

Accordingly,

we cannot

adopting the

magistrate's

recommendation, misapplied

say

the law or abused

civil

that

the

report

and

its discretion

in setting an hourly rate of $125 for Andrade's counsel.

As for Andrade's

reliance on

for her

the defense

contention that the

attorneys' rates failed

counsel's contingency and

magistrate's

to account

delay-in-payment factors,

the Supreme Court has held that an attorney's contingent risk

is ordinarily

subsumed

(at least

to

some extent)

in

the

"lodestar" calculation, City of Burlington v. Dague, 505 U.S.

__________________
_____

557, 562-63

(1992), which

is determined by

multiplying the

total number of hours reasonably spent by a reasonable hourly

rate, Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (holding

_______
_________

that

the

lodestar

provides

the basis

for

determining

-2424

reasonable fee).

an

attorney's

In

particular, the Dague Court

_____

contingent risk

results

in

found that

part8 from

the

difficulty of establishing the merits

of the claim, and this

difficulty is ordinarily reflected in the lodestar, i.e., "in

____

the

higher

difficulty,

number

or in

of

the

hours

expended

higher hourly

rate of

skilled and experienced enough to do so."

562-63.

Accordingly, for

to

overcome

the

the attorney

Dague, 505 U.S. at

_____

Andrade's argument to survive, she

must establish that the magistrate improperly assessed either

one or both of these two factors.

Upon reviewing the record,

we perceive no such error.

Andrade

determination of

accepted

requested.

cannot

about

the first prong of the

as reasonable

Nor

complain

can

the

211.90 hours

she complain

about

the

magistrate's

lodestar because he

that her

the second

counsel

prong

because we have

already found the magistrate's choice of the

$125/hr. rate to

be reasonable.

difficulty of the

number of

his

1983

claim was fully

billable hours

special

reasonableness

skill

of

find that

the

reflected in

the

recorded by Andrade's

and

the

Because we

experience

hourly rate,

was

counsel and

reflected

Andrade's

in

the

contingency

argument must fail.

____________________

8.

An

attorney's

contingent

legal and factual merits of

562.
"should

The Court, however,

risk also

the claim."

results

from "the

Dague, 505 U.S.

_____

expressly found that

at

this factor

play no part in the calculation of the [fee] award."

Id. at 563.
___

-2525

b. Amount of Award
___________________

In

determining the amount

the magistrate

laid

out in

(1983), the

carefully followed the

Hensley
_______

v.

seminal case

Eckerhart,
_________

of Andrade's fee award,

multi-factor analysis

461 U.S.

on awarding attorney's

424,

429-37

fees under

the Civil Rights Attorney's Fees Awards Act of 1976, codified

at 42 U.S.C.

1988.

The

magistrate began his analysis

by

calculating the

lodestar.

Multiplying 211.90

See
___

hours by

Hensley, 461
_______

U.S. at

$125, the magistrate

433.

reached a

lodestar of $26,487.50.

After

finding

interrelated because

see id. at
___ __

that

factor,

Andrade's

they involved

beginning

id. at 434.
___

one of her five claims

modest amount

of

the

claims

crucial

Noting that Andrade

factors

lodestar upward or

"results

obtained"

prevailed on only

and the jury awarded her only

compensatory

magistrate concluded that Andrade

limited degree of success.

and

were

of facts,

then weighed the

adjustment of the

with

five

a common core

434-36, the magistrate

might lead to an

downward,

that

punitive

a very

damages,

had achieved an

the

extremely

Concluding that three of her five

claims

were

Andrade's

reduced

case"

frivolous,

fees

the

magistrate

and expenses

would have

had she

"conducted a

and elected

to bring

then

found

been significantly

meaningful evaluation

only her

-2626

that

of the

non-frivolous claims.

Based

on these

considerations,

the

magistrate

downwardly

adjusted the lodestar to $2,500.

On appeal, Andrade argues that the $2,500 fee award

compensated her

far

too few

attorney for a meager twenty

to litigate

a federal

complaint to jury verdict.

hours of work,

civil rights

suit from

Accordingly, she claims that this

ninety-one percent reduction of the lodestar, from $26,487.50

to

$2,500, was a misapplication

discretion.

of Hensley and
_______

an abuse of

We disagree.

Hensley makes clear that where multiple claims

_______

interrelated

success,

and

awarding

plaintiff

her

ordinarily be excessive.

the

has

achieved

only

entire

lodestar

amount

Id. at

436.

Hensley,

are

limited

would

therefore,

___

counsels that, while

for

making these

_______

"[t]here is no precise

determinations," a

identify specific hours

court "may

In

court

reasonable

438-40

award

only

that

amount

Hensley is that a
_______

of

fees

in relation to the results obtained.

(counselling

district

significance of the overall

in

the limited success."

short, the test that emerged from

should

relation

litigation").

to

the

attempt to

that should be eliminated, or it may

simply reduce the award to account for

Id.
___

rule or formula

hours

courts

to

that

is

Id. at 435,
___

"focus

on

the

relief obtained by the plaintiff

reasonably

expended

on

the

-2727

Although we may not have chosen

of

with

to reduce the size

Andrade's fee award so appreciably, we need not interfere

"seem[]

fee award

plausible,

litigation."

if

the

given

district court's

what

has

determinations

transpired

in

Metropolitan Dist. Comm'n, 847 F.2d at 18.

_________________________

the

In

the

present

correct

case,

factors

the

magistrate

and arrived

supportable range.

at

See generally
___ _________

carefully

a result

only nominal damages of one dollar,

954-56

(1st Cir.

recovered only

(affirming

limited

success).

relation

to the

a 75%

fees where

justifiably considered

865 F.2d 887,

determining

results

U.S.

Lewis v. Kendrick, 944 F.2d 949,

_____
________

reduction

In

within a

"the only reasonable fee

(denying all

v. Brown,
_____

the

1983 plaintiff obtains

$1,000 and submitted a request

fee award); Zook

____

1989)

1991)

barely

Farrar v. Hobby, 506

______
_____

103, 115 (1992) (holding that when a

is usually no fee at all");

weighed

in

plaintiff

for a $50,000

895-96 (7th

attorney's fees

reasonable

Andrade obtained,

fee

Cir.

for

in

the

magistrate

Andrade's success in only

one out of

five claims as

well as

the frivolity of

claims, see Part II.B.1.c. infra.

___
_____

take into account the

fee request.

(1st Cir.

five

He was equally entitled to

relative size of the damage

award and

See Foley v. City of Lowell, 948 F.2d 10, 19-20

___ _____
______________

1991).

three factors

three of her

Considering

and mindful

knowledge of the

the combined weight

of the district

litigation and its

-2828

of these

court's intimate

nuances, we cannot

say

that the

court's adoption

of the magistrate's

reduction of

the lodestar was an abuse of discretion.

c. Award of Fees to Prevailing Defendants

__________________________________________

Under

fees

to

1988, a district court may award attorney's

prevailing

plaintiff's action

defendant

upon

finding

"was frivolous, unreasonable,

that

or without

foundation, even though not brought in subjective bad faith."

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978).

__________________________
____

For a

claim

to be

"frivolous"

under

frivolous when originally raised in the

1988, it

must

district court.

be

See
___

id. at 421-22;
___

Santos,
______

38

Casa Marie Hogar Geriatrico, Inc.

_________________________________

F.3d

615,

619-20 (1st

Cir.

v. Rivera_______

1994).

Andrade

challenges the magistrate's award of attorney's fees to Self-

Help,

Jackson,

Holland,

arguing that her

were

colorable and

Anthony,

Hillier,

and

1985(3) claim and common law

therefore

the district

Tiexiera,

tort claims

court erred

in

granting attorney's fees to the prevailing defendants.

Noting

complaint that her

otherwise

that

failed

discharge was

class-based

Griffin v. Breckenridge,
_______
____________

element of

Andrade

invidiously

to

based on

allege

"some racial

discriminatory

403 U.S. 88, 102

in

her

or

animus,"

(1971), a crucial

1985(3), and Andrade conceded that the claim was

"facially defective," the magistrate concluded that Andrade's

1985(3) claim was frivolous when

also found

the tort claims of

brought.

Count IV to be

The magistrate

frivolous for

-2929

essentially the same reasons

the Rule

that the district court granted

50(a) motion on Count

IV.

We

consider each count

separately in assessing the magistrate's frivolity findings.

elements:

cause

(1)

of

two or

deprive, either

under

more persons

equal protection of

in furtherance of the

property

right

has

must conspire,

four

(2) to

person or class

the laws or of

equal

and immunities under the laws, (3) one or more of

the conspirators must have done

plaintiff

1985(3)

directly or indirectly, any

of persons of the

privileges

action

object of the conspiracy, and

must have suffered

or a

deprivation of

or privilege

or caused to be done an

as

either an injury

a result

act

(4) the

to person or

constitutionally protected

of

the conspiracy.

See
___

Griffin, 403 U.S. at 102; Romero-Barcelo v. Hernandez-Agosto,

_______
______________
________________

75

F.3d

23, 34

(1st

Cir. 1996).

The Supreme

Court has

construed

the second element to

some racial

or

discriminatory

require that "there must be

perhaps otherwise

animus

behind

class-based,

the

invidiously

conspirators'

action."

Griffin, 403 U.S. at 102.

_______

As to racial animus,

Andrade's complaint is devoid

of any allegations that the Commissioners together with Gross

conspired

behalf

to terminate

of

because she

African-Americans,

exhibited racial bias.

that could

her

be viewed

that

had testified,

Commissioner

Nor did Andrade present

as supporting

-3030

on

Eaton

any evidence

a racial animus

claim.

Andrade argues that she "does not have to be a

member of the

black race

1985(3)"

to

maintain

therefore

her claim

accurate

statement of

F.2d

259, 260

conspiracy to

under

the

an

was not

action

frivolous.

the law, see

___

(1st Cir.

under

While that

Cutting v.
_______

1984) (finding

deprive minorities of equal

and

is an

Muzzey, 724
______

that members

of a

rights are liable

1985(3) to persons who are injured in furtherance of

object of the conspiracy, whether they be Caucasian or a

member of

the minority group), it does not address Andrade's

failure to allege such a racial animus in her complaint or to

present any such evidence at trial.

Without a charge of

to

allege discriminatory

Barcelo, 75 F.2d at 34.

_______

have

alleged

the

criteria

class-based animus.

defining

that

the

the

class were

v. Brooks, 519
______

1975)).

Andrade's complaint

presented at

See
___

Romero_______

defendants conspired

her "'membership in a class

(quoting Harrison
________

Neither

needed

In particular, Andrade would had to

facts showing

against her because of

racial animus, Andrade

trial, however,

and that

invidious.'"

F.2d 1358, 1359

nor the

Id.
___

(1st Cir.

evidence she

identifies any class

of which

she was a member, let

defining the class.

alone describes the invidious criteria

Accordingly, we find that the magistrate

was correct in finding that the

when first brought.

-3131

1985(3) claim was frivolous

Although

motion

we are

mindful

that the

granting of

for a directed verdict is not tantamount to a finding

that a claim was frivolous

under

1988, see Christiansburg,

___ ______________

434 U.S. at 421-22 (cautioning district courts to resist "the

understandable temptation to engage

concluding

that,

prevail, his

action must

foundation"), we

finding

because

a plaintiff

not

ultimately

have been unreasonable

or without

nevertheless

of frivolity

so far

did

affirm the

district

as the wrongful

interference with contract claims

reasons that we affirmed

in post hoc reasoning by

court's

discharge and

are concerned for the same

the grant of the Rule

50(a) motion

on these claims.9

Because

we find

that the

district court

did not

abuse

its

majority

the

discretion in

finding

that

of Count IV were frivolous

Count III

and

the

when brought, we affirm

district court's grant of an award of attorney's fees to

Self-Help, Jackson, Holland, Anthony, Hillier, and Tiexiera.

2. Self-Help's and Jackson's Cross-Appeal

__________________________________________

In

that the

their cross-appeal, Self-Help and Jackson argue

magistrate erred in reducing

their attorney's fees

____________________

9.
that

Although we disagree
the

nevertheless

IIED

claim

conclude

with the
was

district court's

frivolous

that the

when

fact that

finding

brought,

only two

we

of the

three claims were frivolous, rather than all three, would not
have materially altered the district court's determination of
the fee.

-3232

award

without allowing

supplemental discovery

on Andrade's

actual financial condition.

Once

it

has

prevailing defendant,

that

amount

condition.

after

calculated

the

lodestar

the district court may

considering

See Charves
___ _______

the

for

deny or reduce

plaintiff's

v. Western Union Tel. Co.,

______________________

financial

711 F.2d

462, 465 (1st

Cir. 1983).

while an award of attorney's

This court

has recognized

fees to a prevailing

must

not subject

the plaintiff

must

fulfill the deterrent purpose of

that

defendant

to financial ruin,

it also

1988 and 42 U.S.C.

2000e-5(k) in discouraging plaintiffs from bringing frivolous

claims.

Id.
___

Having

calculated

lodestar in defending Counts

Self-Help's

I and IV to be

magistrate drastically reduced this amount

of his

assessment of

Andrade's impecunity.

and

$40,810.90, the

to $1,000 because

In determining

that Andrade had limited financial resources, the

considered

her

workers'

approximately $95/week,

compensation

Jackson's

magistrate

benefits

of

her subsidized housing, and her car.

The

magistrate, however,

also considered

that Andrade

was

awarded a judgment of $7,183 in compensatory damages and $500

in punitive damages.

Self-Help

attorney's

mistakenly

fees

and

award,

Jackson

claiming

applied the law in

challenge

that

the

the

modest

magistrate

failing to allow for separate

-3333

discovery

regarding

particular,

Andrade's

financial

condition.

In

they claim that in addition to the three sources

of financial resources that

the magistrate cited, the record

also revealed that Andrade was formerly a partner in two real

estate

ventures.

Andrade testified

that she

"thinks" her

partnership in West Associates, a real estate brokerage firm,

"was a loss" and that she lost about $50,000 as

Erban Andrade

this testimony

all

of

financial

Associates.

Jackson argue that

reveals that the magistrate

Andrade's

financial

condition and

supplemental

Self-Help and

discovery

resources

did not consider

in

therefore he should

to

ascertain

a partner in

determining her

have permitted

Andrade's

actual

financial condition.

Self-Help's and

proposition

462.

sole support

comes from our decision in

However,

upheld the

Jackson's

this

Charves, 711 F.2d at

_______

Charves is distinguishable.
_______

district

for

court's authorization

In Charves,
_______

of

we

supplemental

discovery because of its finding that the plaintiff was not a

credible witness (the court characterized her testimony about

her financial

condition as "evasive and

its suspicion that the plaintiff

contradictory") and

had attempted "to place her

assets beyond

the reach of anyone lawfully

to the same."

Id. at
___

465.

entitled to look

We can discern neither

justifications in the present case.

of these

-3434

From

appellate

the

vantage

point

of

record, Andrade's testimony

partnership in West

to be evasive.

it was well

to credit

cold

that she "thinks" her

Associates "was a loss"

Moreover,

court's discretion

reviewing

does not appear

within the

district

Andrade's testimony about

her

financial

condition

and

therefore

deny

Self-Help's

and

Jackson's request for supplemental discovery, finding that it

had

all

of the

information

condition before

case

to allow

heeding

it.

attorney's

fees

litigation."10

Andrade's financial

Accordingly, we decline to remand this

discovery

the Supreme

regarding

of Andrade's

Court's warning

should

not

financial condition,

that "[a]

result

in

request for

second

major

Hensley, 461 U.S. at 437.

_______

III.
III.
____

Conclusion
Conclusion
__________

For

the

reasons

stated

above,

we

affirm
______

the

district court's grant of Rule 50(a) motions on Counts IV and

V as well

II.

as its denial of JHA's Rule

50(b) motion on Count

We also affirm the district court's grant of the various

______

attorney's fees awards.

No costs.
________

____________________

10.

We

the

district court erred in entering

fees and

find Self-Help's and

costs prior to

Jackson's final

the entry of

without merit.

-3535

argument that

an award of attorney's
final judgment to

be