USCA1 Opinion

[NOT FOR PUBLICATION]

United States Court of Appeals
For the First Circuit
____________________

No. 96-1399

IRINA PETSCH-SCHMID,

Plaintiff - Appellant,

v.

BOSTON EDISON COMPANY, ALISON ALDEN AND JAMES DILLON,

Defendants - Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

___________________

____________________

Before

Stahl, Circuit Judge,

_____________
Aldrich and Campbell, Senior Circuit Judges.
_____________________

____________________

Gretchen Van Ness with

___________________

whom

Lisa T. Bacon
______________

was

on

brief

appellant.

Keith B. Muntyan, with whom Robert P. Morris and Morgan, Brow

_________________
_________________
____________
Joy, were on brief for appellees.
___

____________________

February 27, 1997

____________________

STAHL,
STAHL,

Circuit Judge.
Circuit Judge.
______________

Plaintiff-appellant Irina

Petsch-Schmid seeks

new trial

on

her state

claims1

of

disability2 and gender discrimination after a jury returned a

verdict

in

favor

of

defendants-appellees

Boston

Company, Alison Alden (Petsch-Schmid's supervisor)

Dillon

(Director

(collectively,

of

Labor

Relations

"Boston Edison").

In

Schmid attempts to identify reversible

the district court's actions.

for

Edison)

this appeal,

Petsch-

error in a number

Some of the actions

of her assignations of error did she object below.

our review is for

Garden Way Inc., 989

_______________

Schmid

"plain error" only,

F.2d 527, 531 (1st Cir.

endeavors to persuade us

and James

Boston

she now complains were in fact taken at her request.

that

Edison

that this is

of

of which

To none

Conceding

see Poliquin v.
___ ________

1993), Petsch-

the rare case

warranting

because

notice of such error.

we find

that her

We decline the invitation

contentions fail

to

satisfy the

plain error standard.

1. Jury Instructions
_____________________

____________________

1.

We

note

that,

although

the

related federal claims pretrial,

district court

dismissed

it exercised its discretion

to retain supplemental jurisdiction over the remaining

claims.

state

See Newman v. Burgin, 930 F.2d 955, 963-65 (1st Cir.

___ ______
______

1991).

2.

Although

"handicap"
4(16), for

the

relevant Massachusetts

discrimination, see
___

Mass.

consistency with our other

refer to "disability" discrimination.

statute

Gen.

refers to

Laws ch.

151B,

cases, we generally

-22

For

challenges

instructions.

the

first

number

of

We have stated

object before the jury

form

time

the

on

appeal,

district

Petsch-Schmid

court's

repeatedly that the failure to

retires to the charge or

constitutes a waiver.

jury

the verdict

See Scott-Harris v. City of Fall

___ ____________
____________

River, Nos. 95-1950/1951/1952/2100, slip

_____

op. at 16 (1st Cir.

Jan. 15, 1997); see also Fed. R. Civ. P. 51.

___ ____

including

error"

ours, have

exception

"correcting

law."

recognized the

for

City of Newport v.
_______________

256 (1981); see Morris

___ ______

Cir. 1976).

only

where

of

error

with

injustice

a "plain

Rule

or

51

for

misapplied

Fact Concerts, Inc., 453 U.S. 247,

___________________

v. Travisono, 528 F.2d 856,

_________

The exception, however,

the

existence of

noncompliance

obvious instances

Some circuits,

'seriously

859 (1st

"warrants a new

affected

the

trial

fairness,

integrity or public reputation of the judicial proceedings.'"

Poulin v. Greer, 18 F.3d 979, 982-83 (1st Cir. 1994) (quoting

______
_____

Lash v. Cutts, 943

____
_____

Morris, 528 F.2d at

______

F.2d 147, 152 (1st Cir. 1991));

859 (explaining that plain error

see also
___ ____

should

be

noticed

"only in

circumstances

exceptional

to prevent

clear

cases

or under

peculiar

miscarriage of

justice"

(internal quotation marks and citation omitted)).

A. Prima Facie Case

____________________

Petsch-Schmid first challenges the district court's

description of

the prima

disability discrimination

facie elements of

claim under

-33

Mass.

a Massachusetts

Gen. Laws

ch.

151B,

4(16).

N.E.2d 173,

Citing Garrity v.
_______

177

(Mass. 1995),

court to instruct the

Boston

See
___

1159,

Edison fired

also Tate
____ ____

United Airlines, Inc., 653

_____________________

Petsch-Schmid requested

jury that she prove, inter

_____

her solely
______

because of

requested instruction was

Petsch-Schmid

her disability.

646 N.E.2d

which

prima

forth

the

facie

N.E.2d

now claims that her

wrong in light

Injection Molding Sys.,

_______________________

sets

alia, that
____

v. Department of Mental Health, 645

_____________________________

1163 (Mass. 1995).

the

of Blare v.
_____

111, 115

elements

Husky
_____

(Mass. 1995),

of

an

age

discrimination case under ch.

of" requirement.

151B without a "solely because

_______

See id.
___ ___

In response, Boston Edison

distinguishable because it concerned

disability, discrimination.

the

Massachusetts Supreme

prima

facie elements of

Garrity,
_______

issued

months

contends that Blare

_____

is

allegations of age, not

Moreover, Boston

Judicial Court

Edison argues,

reaffirmed Tate's
____

a disability-discrimination case in

after

Garrity, 653 N.E.2d at 177.

_______

the

Blare
_____

decision.

See
___

Boston Edison concludes that the

district court's reliance -- at Petsch-Schmid's request -- on

the Garrity
_______

agree.

formulation cannot

constitute plain error.

We

Although

may well be

error

plausible, it

review, to

formulation

Petsch-Schmid's

of

calls upon this

differ with

prima

argument based

the Supreme

facie

-44

case

on Blare
_____

court, on

plain

Judicial Court's

of

disability

discrimination as set

will

not do.3

forth in

Garrity and
_______

Tate; this,
____

we

Given the state of the Massachusetts caselaw,

any misapplication of the law with respect to Petsch-Schmid's

initially

requested but

"obvious,"

now-challenged

City of Newport, 453

_______________

miscarriage

U.S. at 256,

is

Because of

jury-charge waiver, the requirement that she

Boston Edison terminated her

her disability

neither

nor a "clear"

of justice, Morris, 528 F.2d at 859.

______

Petsch-Schmid's

prove that

charge

is

the law

of

the case.

"solely because of"

See
___

Wells Real
___________

Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803,

____________
______________________________

809 (1st Cir.

1988) (explaining that, given Rule

51 waiver,

"the instruction as given becomes the law of the case").4

B.

Mixed Motive

________________

In a

related vein,

Petsch-Schmid claims

that the

court erred when it "apparently attempted to explain

governing the

plaintiff's burden of proof

discrimination cases."

the law

in 'mixed motive'

The "mixed-motive

instruction"

to

____________________

3.

We

note here that, in its February 2, 1996 memorandum of

decision

and order

judgment,

on

Boston Edison's

the district

court,

claims remained, informed the

a request to remand

motion for

cognizant

that

summary

only

state

parties that it would consider

the case to state court.

Neither party

sought remand.

4.

At

oral

argument

before

contended for the first

erroneously
rather

than

disability."

reflected
a

case

court,

Petsch-Schmid

time that, in fact, the

a

"reasonable

of

"disparate

We deem waived

first time at oral

this

argument.

jury charge

accommodation
treatment

such arguments raised

See Carreiro v.
___ ________

case"

based

on

for the

Rhodes Gill &

_____________

Co., 68 F.3d 1443, 1449 (1st Cir. 1995).

___

-55

which

Petsch-Schmid

explanation

Edison

of the

refers

was

embedded

requirement that

terminated her

"solely

in

she prove

because of"

the

that Boston

her disability.

The court charged the jury as follows:

By

"solely," the law

court's

means that an

employee's

handicap

was

the

deciding

factor in

her termination and

she . . .

not handicapped, she would not

have been fired

the employer
her

that were

even if everything

says about the

termination

are

else

reasons for

true.

If Boston
_________

Edison's motives are mixed, in the sense

___________________________
that Ms.

Schmid's disability was

minor factor in a decision

only a

influenced by

proper, nondiscriminatory considerations,

a

decision

regardless

that
of

would have

whether

Ms.

been

made

Schmid

was

handicapped, then she will have failed to

meet her

burden on

this element of

her

claim. (emphasis added).

Petsch-Schmid neither initially requested

motive

instruction

with

respect

discrimination claim, nor lodged

below.

She now

removed from the

argues

that

to

her

a mixed-

disability-

an objection to this charge

the instruction

jury's purview whether

erroneously

and to what

extent

her disability

and

played a motivating role

whether Boston Edison would have

without its

Contrary

whole,

consideration of

to her contention,

could

determination

be

of

taken

whether

in her termination,

made the same decision

her disability.

the court's

as

submitting

or

not

she

We disagree.

charge, read

to

the

would

jury

have

as a

the

been

terminated regardless of any consideration of her disability.

-66

True,

the

court did

Boston Edison to prove

absent

the

not

Massachusetts

Our

cases

the burden

that it would have made

discriminatory motive

motive case5).

place

(as

in

the decision

a typical

research, however, reveals

that

have

applied

upon

the

mixed

no reported

mixed-motive

framework to a disability discrimination case under ch. 151B.

Further, for the

purposes of this case, the requirement that

the disability be the

motivating part"

in --

sole reason for -- rather than only "a

the termination renders

suspect the

application of the Price Waterhouse balance of burdens.

________________

issue

is

potentially

complex

and, had

it

been

This

properly

preserved

for appeal,

interesting

legal

it might

question.

have presented

Having

failed,

us with

an

however,

to

request a separate mixed-motive instruction on her disability

discrimination

claim,

to

object

to the

jury

charge

and

verdict form, or even to offer developed argumentation of the

point on appeal, Petsch-Schmid cannot prevail under the plain

error standard.6

____________________

5.

See
___

(1989)

Price Waterhouse
________________

v. Hopkins,
_______

490 U.S.

(plurality opinion); see also, Smith

___ ____ _____

228, 244-45

v. F.W. Morse &

____________

Co., 76 F.3d 413, 421 (1st Cir. 1996).

___

6.

Petsch-Schmid

further

discrimination claim,
Boston Edison
any

hints

that,

on

her

gender

the court should have

instructed that

bore the burden of persuasion

with respect to

mixed-motive.

We

deem

waived

her

perfunctory

and

unadorned argument

in this

Zannino, 895
_______

1, 17

F.2d

respect.
(1st Cir.

See United States v.

___ ______________
1990).

In any

event,

Petsch-Schmid fails to identify any direct evidence of gender

discrimination that

might trigger such an

instruction.

Smith v. F.W. Morse & Co., 76 F.3d 413, 421

_____
________________

See
___

(1st Cir. 1996);

-77

C. Pretext
___________

Petsch-Schmid

claims

error

in

the

court's

instruction that

fired because

about

her

requiring

proof

for

termination.

that

Boston

compelled "smoking

that she should

have been

from her proof

employees had

overlooks

have proven

of her disability, or that

reasons

effectively

arising

she must

fact

that

benefits of the court's

646

N.E.2d

lied,

that

the

by

court

she contends

upon the

inference

that similarly situated non-disabled

recovery upon proof of Boston

Blare,
_____

says

gun" evidence;

able to rely

she was

Boston Edison lied

She

Edison

not been terminated.

the

either that

at

by

Petsch-Schmid, however,

potentially

permitting

Edison's lies, she enjoyed the

"pretext-only" instruction.

117

her

(entitling

Compare
_______

discrimination

plaintiff to recovery upon establishing pretext) with LeBlanc

____ _______

v. Great Am. Ins. Co., 6 F.3d 836, 843 (1st Cir. 1993) (under
__________________

federal

law, permitting,

but

intentional discrimination

not compelling,

inference of

upon proof of pretext).

We find

no error and certainly no plain error.

2. "Stipulation Error"
_______________________

One

limine to

limit the

Petsch-Schmid's

motion, in

week

before

trial, Boston

Edison

presentation of evidence

medical condition.

part, on the

id. at 431 (Bownes, J., concurring).

___

-88

in

pertaining to

Boston Edison based the

district court's pretrial

____________________

moved

grant of

summary judgment

it failed

reasonably

condition.

motion,

in its favor on

to accommodate

See Mass. Gen. Laws

___

Boston

Petsch-Schmid's claim that

Edison

offered

her alleged

ch. 151B,

4(16).

to stipulate,

in

disabling

In its

lieu

of

medical evidence, that (1) Petsch-Schmid in fact has multiple

sclerosis,

and

(2)

Petsch-Schmid

first

asserted

to

her

supervisor

in May 1991 that she had multiple sclerosis.

The

parties never prepared a written stipulation to this effect.

After

opening

attempted to read what

the

jury.

agreeing

Boston

only that

arguments, Petsch-Schmid's

he believed to be the

Edison's

"the

counsel

counsel

stipulation to

objected,

company acknowledges

however,

that it

now

knows that, in fact, Ms. Schmid had multiple sclerosis on May

13, 1991.

It did not know

it on that date."

The court then

told the jury:

[T]he

parties

Schmid,

agree

indeed,

was

multiple sclerosis.

that

suffering

Ms.
from

There is, as you may

gather from the interchange, a dispute as

to whether an when the company learned of
this fact.
condition

But
on

May

that she did

13, 1991,

have that
is

not in

dispute.

Petsch-Schmid lodged no objection to the ultimate formulation

of the stipulation.

Petsch-Schmid

error

in

the

credibility at

the

date

by

key

now

claims

stipulation"

that there

which

undermined

trial and unfairly burdened

which

Boston Edison

-99

knew

was

"plain

her

her with proving

of

her

disabling

condition.

She also contends that

limiting evidence of her

ability to

the court's related order

diagnosis and treatment impeded her

counter-balance Boston Edison's

theory that

used her illness "as an excuse" once her job was

for performance-related reasons.

stipulation as

presented to

in jeopardy

We are unpersuaded.

Petsch-Schmid's failure to object

the

she

in any manner to

the jury

both

robbed the

district court of any on-the-spot corrections, and raises the

specter

that Petsch-Schmid

detrimental

exists a

the stipulation

logical

evidence regarding

which Boston

did not,

as

disconnection

her condition,

at the

entered.7

between

time, consider

Further,

the

exclusion

and the disputed

Edison knew of her illness.

there

of

date by

The court did not,

in

any way,

prevent Petsch-Schmid

(which she did) to

from producing

evidence

establish that Boston Edison knew

condition in May 1991.8

of her

Nor did Petsch-Schmid claim surprise

____________________

7.

See
___

Cir.

Anderson v. Cryovac, Inc., 862

________
______________

1988)

("If

slip

has

been

F.2d 910,
made,

919 (1st

the

parties

detrimentally affected must act expeditiously to cure it, not

lie in

wait and ask for another

trial when matters turn out

not to their liking").

8.

We note that Petsch-Schmid

859

F. Supp. 608, 614

that,

(D. Mass. 1994),

for the proposition

as long as the employer has some notice of disability,

it need
Here,

cites Ward v. Westvaco Corp.,

____
______________

not

know the

Petsch-Schmid's

specific

details of

supervisor,

the

Alden,

condition.

testified

that

Petsch-Schmid told

her in May 1991 that she was "handicapped

. . . [and] needed

reasonable accommodation."

Schmid
it

elicited from Boston

Thus, Petsch-

Edison pertinent testimony that

had some notice of an asserted disability on the disputed

date.

Under her

that

Petsch-Schmid

own cited authority,

has

even

therefore, it

less reason

to

seems

complain

of

-1010

or prejudice

in this respect at

trial.

In sum,

we find no

reversible error.

For

the foregoing

district court is affirmed.

affirmed.
________

reasons,

the judgment

Costs to appellees.
Costs to appellees.
__________________

of

the

____________________

prejudice from the asserted stipulation error.

-1111