USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 96-1117

MARY JANE KERR SELGAS,

Plaintiff, Appellee,

v.

AMERICAN AIRLINES, INC., AND

WHADZEN CARRASQUILLO,

Defendants, Appellants.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Coffin and Campbell, Senior Circuit Judges.
_____________________

____________________

Howard B. Comet
________________

with whom

Andrew B. Steinberg and

_____________________

Vicente
_______

Antonetti were on brief for appellants.

_________
Judith Berkan with whom
______________

Rosalinda Pesquera
__________________

Vilella were on brief for appellee.

_______

____________________

and Mary Jo Mend

_____________

January 13, 1997

____________________

COFFIN, Senior Circuit Judge.

____________________

At issue in this case are the

equitable

remedies

awarded to

the

plaintiff,

Mary Jane

Selgas ("Kerr Selgas"), in a sex discrimination suit

employer, American

Airlines ("American").

A jury

Kerr

against her

awarded Kerr

Selgas a lump sum award in that suit that included an unspecified

amount for front pay.

the judgment.

F.3d

1205

American

this court affirmed

See Kerr Selgas v. American Airlines, Inc.,

___ ____________
________________________

(1st

subsequently

In an earlier appeal,

Cir. 1995)

ordered

maintains

("Kerr I").
_______

Kerr

in

Selgas

this

The district

reinstated

appeal

that

by

front

69

court

American.

pay

and

reinstatement are mutually exclusive equitable remedies, and that

the court therefore erred

further

claims

reinstatement

that

the

in allowing both

district

without conducting

court

a hearing,

to Kerr Selgas.

erred

in

It

ordering

without permitting

American

to conduct

additional

extra-record evidence submitted

court's

and in

by Kerr Selgas.

considering

We affirm

the

legal judgment that both front pay and reinstatement are

permissible, but we vacate the

for a

discovery,

district court's order and remand

hearing on whether reinstatement is

an appropriate remedy

here.

BACKGROUND
__________

The

facts of the underlying suit are discussed in detail in

our opinion in

Kerr I;
______

accordingly, we relate

here only

those

facts relevant to the instant appeal.

Mary Jane Kerr Selgas was fired by American Airlines in 1992

after 18 years with

the company; she brought suit

-2-

under federal

and Puerto Rico law, alleging sex discrimination, harassment, and

violation

of a

of her local law right to

three week

trial, a

privacy.

jury awarded her

At the conclusion

over $1

million in

damages; under Puerto Rico law, this was doubled automatically to

over

$2 million.

remittitur and

the rejection

of punitive

damages by this court in Kerr I resulted in a final damages award

______

of $1.2 million.

While Kerr Selgas had requested reinstatement in her initial

complaint, and also in subsequent motions, the district court set

this issue aside

pendency of the

decision

ordered

in

during the course of

Kerr I
______

Kerr I
______

American to

appeal.

based

on the

One month

on November

13,

reinstate Kerr

without holding a full hearing

evidence

the trial and

after this

1995, the

Selgas.

this

order

did so

on this issue, and its order

received

reinstatement

court's

district court

The court

at

trial

and

materials submitted with motions by Kerr Selgas.

that

during the

is improper

on

was

additional

American claims

for

two

reasons.

First, it argues that reinstatement and front pay are alternative

remedies and that Kerr

award

including

front

Selgas was fully compensated by

pay.

Second,

if

the jury

reinstatement

is

permissible,

without

it argues that it should not have been ordered here

first

opportunity

giving

to be heard

American

additional

on the issue,

discovery

and

an

particularly if evidence

obtained after the trial was to be considered.

DISCUSSION
__________

Our

review of the district court's decision that both front

-3-

pay

and reinstatement could be

remedies available to

a Title

review for legal error.

awarded together as

VII plaintiff is

part of the

de novo, as
__ ____

we

Compagnie de Reassurance d'Ile de France

________________________________________

et al. v. New England Reinsurance Corp., et al., 57 F.3d 56, 71

_______
______________________________________

(1st Cir. 1995)

in

reviewing

(review of legal rulings is de

__

district

equitable relief,

Lussier
_______

court's decision

we utilize

v. Runyon,
______

50 F.3d

the abuse of

1103, 1111

to

novo).
____

actually

(1st Cir.

1995).

discretion absent strong evidence of a lapse in judgment.

Puerto Rico v. Department of Consumer Affairs, 60 F.3d

___________
_______________________________

In Title VII

award

discretion standard.

review is deferential, and we will not normally find an

(1st Cir. 1995).

However,

Our

abuse of

Texaco
______

867, 875

cases, we must be mindful of

the

statute's

dual purposes of eliminating discrimination and making

its victims whole.

A.

Id.
__

Equitable Remedies Under Title VII:

Front Pay and

Reinstatement.

The

remedial

scheme in

Title VII

is

designed to

make a

plaintiff who has been the victim of discrimination whole through

the use of equitable remedies.

U.S.

405,

418

(1975).

reinstatement, back pay, and

to

Albemarle Paper Co. v. Moody, 422

___________________
_____

These

remedies

(which

include

front pay) are accordingly intended

compensate a plaintiff for the effects of the discrimination,

both past and future, and to bring the plaintiff

which s/he would have occupied

Shore v. Federal Express Corp.,

_____
______________________

to the position

but for the illegal act(s).

777 F.2d 1155,

1159 (6th

See
___

Cir.

1985).

Under

plaintiff at

Title VII, the

the original

first choice is

to reinstate

employer; this accomplishes

the

the dual

-4-

goals

of

providing

full

coverage

for

the

plaintiff

deterring such conduct by employers in the future.

and of

See Scarfo v.
___ ______

Cabletron Systems, Inc., 54 F.3d 931, 954 (1st Cir. 1995).

_______________________

Where

reinstatement

is

not

immediately

available

as

remedy,

either

conditions at

(such

as

innocent

due

to

condition,

the employer that preclude

hostility

employee

plaintiff),

the plaintiff's

front

of other

to be

pay

is

in

available

due to

the plaintiff's return

employees,

"bumped"

or

or

the

order

as

need for

to reinstate

an

alternative

an

the

to

compensate the plaintiff from the conclusion of trial through the

point at which the plaintiff can either return to the employer or

obtain comparable employment elsewhere.

v. Grinnell Corp., 915

______________

F.2d 34, 42 (1st

See id.; see also Powers

___ ___ ___ ____ ______

Cir. 1990); Wildman

_______

v.

Lerner Stores Corp., 771 F.2d 605, 616 (1st Cir. 1985) (front pay
___________________

may be awarded in ADEA suits where reinstatement is impracticable

or

impossible; circumstances

of

each case

to be

considered);

Dillon v. Coles, 746 F.2d 998, 1006 (3rd

______
_____

context,

where the overarching

and front pay is

preference is

the construction of remedial

seen

that front

pay

during which

is the key to understanding

packages.

and

It is this

for reinstatement

an alternative for finite periods

reinstatement is unavailable,1 which

be

Cir. 1984).

In this context,

reinstatement

are

not

it can

mutually

____________________

See, e.g.,
___ ____

931, 953 (1st Cir.

from

the

future.");

date

of

Scarfo v. Cabletron Systems, Inc., 54 F.3d

______
________________________
1995)("Front pay refers to damages
judgment

Thompson v.
________

to

Sawyer,
______

some

specified

678 F.2d

257,

for wages

date

in

293 (D.C.

the

Cir.

1982)("[F]ront pay should persist, however, only until the wrongs

for which plaintiffs are owed backpay have been righted.")

-5-

exclusive.

Front

employability.

pay

takes

Reinstatement

"perfect" the remedy because

plaintiff

at that

to

the

point would,

point

of

in effect,

the plaintiff would be back

in the

very job she lost unlawfully.

Trial courts have discretion to fashion the

VII cases so as to fully

compensate a plaintiff in a manner that

suits the specific

facts of the

the

the

selection

recovery.2

of

awards in Title

elements

Albemarle, 422 U.S.

_________

case; this discretion

which

comprise

at 415-16.

the

includes

remedial

Traditionally, the

court determines the

whole remedial package

Hybrid awards combining front

while rare, are not novel.

of

commended

swoop.

pay with other equitable elements,

The Court of Appeals for the District

Columbia in Thompson v. Sawyer, 678

________
______

1982),

in one fell

district

F.2d 257, 268 (D.C. Cir.

court's

award

(although

it

reformulated certain of the elements) which included back pay and

front pay to be paid to

Printing

female bindery workers at the Government

Office through such time as women comprised half of the

litigated positions.

Reinstatement and front pay were explicitly

____________________

2
pay to the

American claims that by

jury in the

"elected" front pay as

is

clear that in

form of jury

instructions, Kerr

Selgas

a remedy, rather than reinstatement.

a Title

discretion to fashion relief

it sees as appropriate,

presenting her claim for front

VII case, it

is the court

It

which has

comprised of the equitable remedies

and not the parties which

may determine

which

equitable remedies

Roebuck & Co., 21

______________
award

F.3d 989, 997

reinstatement

or

plaintiffs who refused

impossible
as

remedy).

are available.

front

See
___

James v.
_____

(10th Cir. 1994)

pay is

at

court's

Sears,
______

(decision to

discretion;

reinstatement where not impracticable

or

may not elect front pay simply because they prefer it

Additionally, Kerr

Selgas' repeated

requests for

reinstatement in her original complaint and in subsequent motions

bely a

claim that

she elected

one

form of

recovery over

the

other.

-6-

cobbled

together as part of the relief afforded the plaintiff in

Valdez
______

Tx.

v. Church's Fried Chicken, Inc., 683 F.

_____________________________

1988),

where reinstatement

to

Supp. 596 (W.D.

managerial position

was

ordered

as soon as a position became available and front pay was

ordered

to

continue until

reinstatement

issue,

has indicated a preference for a flexible approach in the

of remedial awards.

(remedial tapestry

is made up

addressed this

This

while it

The

not previously

occurred.

court,

construction

has

the

particular

See Lussier, 50
___ _______

F.3d at 1112

of multiple strands

of relief).3

district court therefore had the option here of combining an

award of front pay

with reinstatement.

to avoid duplication.

Its only

limitation was

See Scarfo, 54 F.3d at 955 (citing Dopp v.

___ ______
____

HTP Corp., 947 F.2d 506, 516 (1st Cir. 1991)(duplicative remedies
_________

are to

be

avoided)).

Because

courts typically

consider

all

remedies

at the

same time,

avoided by denying front

duplication most commonly

pay when an immediate

would be

reinstatement is

ordered.

Although the district

was

doing

in this

reinstatement

appears to

the

court was not explicit

instance

had been

(allowing American

excluded

as a

the time of

trial, pay

to

argue that

prospective remedy),

have bifurcated the traditional

assumption that, since Kerr

work at

about what it

it

remedies analysis on

Selgas was unable

to return to

for some future

time --

i.e.,

American has

cited from

____________________

We

note that

the cases

circuit merely support the

our

proposition that reinstatement is the

preferred first remedy, and that where this is unavailable, front

pay may

be awarded,

rather than precluding

which contains both elements.

a remedial

package

-7-

front

pay -- was necessary to compensate Kerr Selgas, whether or

not reinstatement would be an appropriate additional remedy.4

therefore reserved the reinstatement issue

and

sent the

compensatory elements

for later resolution,

(back pay,

damages) to the jury for determination.5

It

front

pay, and

By including front pay

in its lump sum award, the jury fully compensated Kerr Selgas for

the discrimination she had suffered from the point of the initial

illegal

act to

the

point

at which

employable at her prior level.

she

would

once again

be

The court then took up post-trial

whether American was required to take her back.

Due to the

amorphous nature

simply a lump sum

allocated

to

of the

jury award

with no distinctions made between

back

pay, front

statement as to the time

pay,

or

damages,

-- it

was

the amounts

and with

period which the front pay portion

no

was

intended to cover -- it cannot be stated with any certainty which

dates or figures

front pay

the jurors

issue.6

In

determined were

other words,

applicable to

the

clear when

they

district

court

it is not

____________________

4
explicitly

In

its
stated

June
that

23,
the

1994
issue

Order,
of

the

reinstatement

remained

pending resolution by the court.

We would counsel district

courts in the future

to be

explicit about
choose to

the procedures

they are following,

reserve an equitable remedy

whether they

for future determination,

or conclude that it is inapplicable in a particular instance.

Additionally, an award of front pay, constituting as it

does, an
been

estimate of what a plaintiff might have earned had s/he

reinstated

at

the

conclusion of

trial,

is

necessarily

speculative.

See Loeb v. Textron, Inc., 600 F.2d 1003, 1023 (1st

___ ____
_____________

Cir. 1979).

However, this speculative

courts from

fashioning awards that accomplish

of making a wronged plaintiff whole.

F.3d 1270,

aspect should not

1280

(D.C.

Cir. 1995)

-8-

deter

Title VII's goals

See Barbour v. Mitchell, 48

___ _______
________
(noting

courts

and

juries

thought

she would

be ready

to

return to

work.

Testimony at

trial, however, put the longest date at 18 months after trial, or

October

1995.7

Furthermore, in

court specifically

defendants'

limited any

wrongful conduct.8

December 1995.

The

its charge

damages to

there is no

jury, the

those caused by

Reinstatement was

ordered

the

in

front pay and reinstatement awards thus seem

most reasonably to cover separate and

Because

to the

distinct periods of time.9

duplication, the two

front pay and reinstatement

equitable remedies of

could be used in concert

to achieve

____________________

routinely engage in some

speculation based on factual record

other situations such as personal

in

injury cases when valuing lost

earning capacity).

American's expert testified that Kerr Selgas was fit to

return to work

immediately after the

conclusion of trial;

Kerr

Selgas' expert, on
eight to
The

the other

18 months before she

testimony

concerning

presented by her expert

she

hand, testified that

to return to work

her

would be able to
income

it would

return to work.

loss included

as to the losses she

be

estimates

would sustain were

immediately, six months

after trial, and

one year after trial.

In

its instructions to the jury, the court stated that

the jury could award damages only for injuries that the plaintiff
proved were

caused by the defendants'

alleged wrongful conduct.

The court then instructed the jury to consider as elements of any

damages
pecuniary

award

back pay,

losses, and

compensatory

damages

for

inconvenience and

mental anguish.

jury

two factors

to consider

reduction of the

plaintiff

have expended

for any

emotional pain,
It

future

suffering,

specifically required the

relating to

future earnings:
would

damages

damages for

loss of

award by any amount that

in

making

those earnings;

the

and

secondly, reduction of the award by considering the interest that

the plaintiff could earn on the amount of the award if she made a
relatively risk-free investment.

Taken

front pay would

at its

outside

possible limit,

seem to have extended from the

(4/13/94) through October

the district court on

1995.

the award

date of judgment

Reinstatement was ordered

December 13, 1995.

for

Accordingly,

by

there is

no overlap between the time period covered by the front pay award
and that covered by the reinstatement order.

-9-

Title

VII's

brings

us to

goal of

fully

American's

compensating the

second point

on

plaintiff.

This

appeal: whether

the

process used to reach the reinstatement decision was proper.

B.

Admission of Evidence and Lack of Hearing on Restitution.

American

reinstatement

contends that

because it

the trial

court erred

impermissibly considered

in ordering

evidence not

adduced

at

trial,

and

because

American

was

not

permitted

additional discovery or a hearing on the reinstatement issue.

In

considering

the

plaintiff's

post-trial

motion

for

reinstatement, the court had before it both the evidence received

at

trial, and

purporting to

have

additional

evidence submitted

demonstrate that some

earlier precluded

reinstatement

other employees and the plaintiff's

no

longer bars to her

relied

upon some

information in a

certain

of

of the

return.10

(including

The

hostility

in

its order,

American,

and

Kerr Selgas was

work.

also

court

of

were

district court explicitly

psychologist's statement that

the

might

own inability to work)

this evidence

from

plaintiff

issues which

newspaper article relating to the

individuals

However,

by the

noted

that

citing

the

departure of

her

treating

fit to return

to

defendants

had

____________________

10

Specifically, the plaintiff produced news

reports that

one of the chief offenders in her experience at American, Whadzen

Carrasquillo,

had

left

the

company.

She

also

produced

statement by her treating psychologist, Carlos Velasquez, stating

he

believed

she

was

Velasquez' affidavit,

fit

to

return

however, speaks

to

work

only in the

at

American.

most general

terms: it states that on the basis of unspecified tests conducted

at unspecified dates,
adequately"
return

Kerr Selgas "is

and that he therefore

currently[...]functioning

believes she is

"now able to

and to carry out her duties as Account Sales Executive at

American Airlines."

-10-

presented testimony at trial

________

that Kerr Selgas was fit

to return

to work in March 1994.11

The adversarial system's search for truth and the assessment

of

remedies are

ideas

and

predicated upon

information.

Lussier, 50
_______

fundamental principle of this

consider extra-record evidence

facts.

case

Id. at
___

1114.

that parties

While

might

evidentiary

and

adversarial

system

an open

consent to a court's

F.3d at

exchange of

1113.

It

system that a fact finder

is a

may not

concerning disputed

adjudicative

we have suggested in

at least one

possibly waive

procedural guarantees

with

and fair

regard

to

deprivation of

embodied in

the managed

extra-record evidence,

consideration of it,

the

see id. at 1115,

___ ___

or

the

evidence

supporting such

a voluntary

and knowing

waiver would

need to be significant and unequivocal.

Such is not the

opposition to

case here.

Kerr Selgas'

American repeatedly

reinstatement, and

stated its

more importantly

repeatedly requested a hearing and discovery on the reinstatement

issue.12

Kerr Selgas

herself requested

jury trial
____

on the

____________________

11

Kerr

district court
relying

on

Selgas

suggested

could

the new

have

at

reached

oral
its

evidence; however,

argument

that

determination
this

the

without

is belied

by the

language of the district court's order.

12
in

American

opposed Kerr Selgas' motion for reinstatement

a 12-page opposition filed on December 23, 1994, citing among

other reasons, the need for an evidentiary hearing and additional

discovery
the

due to

the lack of

evidence submitted

sufficient information

at trial

or the later

which to determine whether Kerr Selgas

to work.
Request

In its July 27, 1995

for Reinstatement

in either

submissions with

was in fact fit to return

Opposition to Plaintiff's Renewed

and Related

Benefits, American

also

opposed
1995

Kerr Selgas' reinstatement.

Opposition to

Plaintiff's

Again, in

Request

its December 8,

for Reinstatement

and

-11-

reinstatement

reinstatement.

intention

issue

in

her

Therefore,

on either

party's

July 10,

there

part to

is

1995

motion

requesting

no

indication

of

any

waive

a hearing

on

the

reinstatement issue.

Where the

district court

based its determination

at least

partially

on information not properly

evidence admitted at trial,

before it in

the form of

and where the remedy to

be accorded

the plaintiff is as significant as reinstatement, we are hesitant

to

applaud

anything

procedures which

heard

on

together

than

strict

issues.

may

Accordingly,

properly

with front

pay

be

awarded

as long

as

between the two awards, in this case we

have

been

appropriate.

held

to

opinion

determine

Therefore,

reinstatement order and

this

adherence

accord each party the opportunity

key

reinstatement

less

to

vacate

those

to be fairly

while

we

hold

that

in

Title VII

case

there is

no

duplication

believe a hearing should

whether

remand for

determine

reinstated by American.13

we

to

the

reinstatement

district

court's

proceedings consistent

whether

Kerr

Selgas

was

should

with

be

____________________

Related Benefits,

American raised its objection to reinstatement

being ordered without an

evidentiary hearing and the opportunity

for further discovery.

13
issue.

We anticipate
See Uno
___ ___

a limited

v. City of Holyoke,
_______________

hearing on

the reinstatement

72 F.3d 973, 992

(1st Cir.

1995) (on

remand, lower court may conduct hearing without having

new trial

and permit parties

with

additional facts).

to supplement the

As Kerr Selgas has been compensated for

the time from the initial act to the point of

further

monetary

existing record

damages are

not

damages question is no longer open.

-12-

available

her employability,
to

her, and

the

CONCLUSION
__________

Courts may properly combine

pay

and reinstatement

providing

full

in

the equitable remedies of front

order to

compensation

to

meet

the

discrimination, as long as there is no

duplication

between

the

awards.

victims

be

provided

on

contested

goal

of

of

illegal

economic or chronological

However,

inherent in the adversarial system demand

hearings

Title VII's

the

protections

that full and complete

issues

equitable remedies.

Vacated and remanded. No costs to either party.

________________________________________________

affecting

these

-13-