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Travers v. Flight Services & Systems, Inc.

United States Court of Appeals, First Circuit

December 15, 2015

JOSEPH TRAVERS, Plaintiff, Appellee, Cross-Appellant,
FLIGHT SERVICES & SYSTEMS, INC., Defendant, Appellee, Cross-Appellee.


Jeffrey M. Rosin, with whom Christopher M. Pardo and Constangy, Brooks & Smith LLP were on brief, for appellant, cross-appellee.

Shannon Liss-Riordan, with whom Lichten & Liss-Riordan, P.C., was on brief, for appellee, cross-appellant.

Before Torruella, Lynch, and Barron, Circuit Judges.


A company that provides skycap services to airlines was defending against a class action lawsuit when one of the skycaps that the company had employed brought his own individual suit against the company. The skycap alleged in his suit that the company had fired him for his role in helping to organize the class action. A jury eventually found for the skycap in that unlawful-termination suit. And the company now appeals both from that verdict and from the District Court's award of damages and attorney's fees and costs. Because we find no error in any of the District Court rulings that the company challenges, we affirm them.

At the same time, the skycap who won the retaliatory-termination suit cross-appeals. He contends that the District Court erred by eliminating and not trebling the jury's award of front-pay damages, failing to grant his request to treble the emotional-distress damages award that the District Court had ordered on remittitur, and denying his request for prejudgment interest. We affirm the District Court's decisions not to treble and not to grant prejudgment interest on the emotional-distress damages, but we vacate the District Court's elimination of any front-pay award and remand for further proceedings. In addition, we certify a question to the Massachusetts Supreme Judicial Court regarding the award of prejudgment interest on Travers's back-pay damages.


The defendant in both the class action and the unlawful-termination suit is Flight Services and Systems, Inc. (FSS). This company provides skycap services for JetBlue at Boston's Logan International Airport. The skycaps work on the curb just outside the airport, where they issue boarding passes and check luggage. The skycaps receive low wages and so, like most waiters and waitresses, rely on tips for the bulk of their pay.

The named plaintiff in the class action against FSS is the same plaintiff who brings the retaliatory-termination suit. He is Joseph Travers, a skycap FSS employed to service JetBlue customers at Logan.

The class action -- which Travers helped to organize -- concerns JetBlue's 2008 decision to charge $2 per bag for luggage checked in via skycap and then to have JetBlue, and not the skycaps, keep that $2 fee. The complaint -- captioned "Travers v. JetBlue and FSS" -- contends that the new fee diminished the tip income skycaps received from customers and violated both the Massachusetts wage and tips law and the federal Fair Labor Standards Act (FLSA).

The source of the present dispute is FSS's decision, while that class action was pending, to fire Travers. Travers alleges that FSS did not fire him because -- as FSS contends is the case -- a customer had complained that Travers had solicited a tip from her. Travers's suit alleges, instead, that FSS fired him in retaliation for his role in organizing the skycaps' class action against JetBlue and FSS and that FSS relied on the tip-solicitation complaint as a pretext for that retaliatory firing. Travers's suit further contends that, in consequence, FSS violated both the FLSA and the Massachusetts wage and tips law, as each of those laws prohibits a company from taking adverse action against an employee who seeks to obtain the protection that those laws provide. See 29 U.S.C. § 215(a)(3); Mass. Gen. Laws ch. 149, § 148A.

Before Travers's retaliation suit went to the jury, the District Court granted summary judgment to FSS. But we then reversed. Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 145 (1st Cir. 2013). We held that, on the summary judgment record, "a reasonable jury could return a verdict for Travers without relying on improbable inferences or unsupported speculation." Id.

On remand, the case went to trial, and a jury found FSS liable for retaliatory termination in violation of both the federal and state statutes. The jury rendered its verdict in a single verdict form that did not differentiate between the state and federal claims or apportion the award between them. The jury awarded Travers $90, 000 in back pay, $450, 000 in front pay, and $400, 000 for emotional distress.

Following the verdict, FSS renewed its previous motion for judgment as a matter of law, see Fed.R.Civ.P. 50(b), and also moved in the alternative for a new trial or to amend the judgment. See Fed.R.Civ.P. 59. The District Court ordered Travers to remit all but $50, 000 of the emotional-distress damages or face a new trial. And the District Court also eliminated the entire front-pay award as unsupported by the evidence.

Travers then sought, under separate state statutes, to have the damages award trebled, to receive attorney's fees and costs, and to receive prejudgment interest. See Mass. Gen. Laws ch. 149, § 150; id. ch. 231, § 6B. With respect to trebling, the District Court agreed to treble the back-pay award to $270, 000, but declined to treble the award for emotional distress. The District Court also did not order the prejudgment interest that Travers had requested, though the District Court did grant Travers attorney's fees in the amount of $176, 185 and costs of $7, 398.45.

FSS and Travers timely filed these appeals.[1]


FSS raises five distinct arguments in its appeal, and we consider each one before turning to Travers's cross-appeal.


FSS's primary argument on appeal is that the District Court erred in denying FSS's motions for judgment as a matter of law because "a reasonable jury would not have a legally sufficient evidentiary basis to find for [Travers]." Fed.R.Civ.P. 50(a)(1). To win on his retaliation claims at trial, Travers had to show (1) that he engaged in conduct that the FLSA and Massachusetts wage and tips law protect when he participated in the class action against FSS, (2) that FSS subjected Travers to an adverse employment action when the company fired him, and (3) that FSS fired him because of his protected conduct. See Claudio-Gotay v. Becton Dickinson Caribe, Ltd., 375 F.3d 99, 102 (1st Cir. 2004) (describing elements of a claim under 29 U.S.C. § 215(a)(3)); Smith v. Winter Place LLC, 851 N.E.2d 417, 421 (Mass. 2006) (interpreting Mass. Gen. Laws ch. 149, § 148A).

FSS does not dispute that, under both the federal and the state statutes on which Travers's individual suit rests, Travers engaged in protected conduct or that FSS subjected him to an adverse employment action. The dispute concerns only what caused FSS to fire Travers -- his help in organizing the class action or, as the company contends, his solicitation of a tip in violation of company policy.

To resolve this dispute, we need not decide the precise standard of causation that a plaintiff must meet to prove unlawful retaliation under either the state or federal statutes on which Travers's suit rests. The parties appear to agree, as they did when this case came before us on summary judgment, that each statute requires the plaintiff to show "but-for" causation to prove retaliation. See Travers, 737 F.3d at 147 & n.1.

Thus, our task is straightforward. Because we are reviewing a renewed motion for judgment as a matter of law following a jury verdict, we must view the evidence of causation "in the light most favorable to the verdict" and "affirm unless the evidence, together with all reasonable inferences in favor of the verdict, could lead a reasonable person to only one conclusion, namely, that the moving party was entitled to judgment." Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 13 (1st Cir. 2009) (quotation marks and citations omitted).

FSS argues that it is entitled to judgment as a matter of law because the trial record provides too little evidence to support a finding of but-for causation if we exclude -- as FSS says we must -- one particular piece of testimony that the jury heard. This testimony came from Travers, and it concerned what Travers contends Rob Nichols, a mid-level manager in charge of FSS operations at Logan, told him.

Travers testified that Nichols told him that FSS's owners and senior managers told Nichols that the lawsuit "was costing [the company] a lot of money, and that [Nichols] should get rid of Travers." Travers went on to testify that Nichols also advised Travers to drop the lawsuit because, otherwise, Travers would "probably lose [his] job."

At trial, the District Court rejected FSS's contention that Travers's testimony concerning Nichols should be excluded as hearsay. After the jury returned a verdict for Travers, however, the District Court revisited this ruling in connection with FSS's motion for judgment as a matter of law. In doing so, the District Court changed its mind and concluded that Travers's testimony concerning Nichols should have been struck. But the District Court still denied FSS's motion for judgment as a matter of law.[2]

FSS now argues that the District Court was right the second time that it ruled on whether Travers's testimony concerning Nichols should have been struck as hearsay. And FSS goes on to argue that, without that testimony, the record does not permit a reasonable jury to conclude that FSS fired Travers because of his role in organizing the class action. See Weisgram v. Marley Co., 528 U.S. 440, 453-54 (2000) (discussing excising certain inadmissible evidence from the record for purposes of reviewing a renewed motion for judgment as a matter of law). Instead, FSS argues, the evidence that remains shows only that FSS fired Travers because the company believed Travers had solicited a tip from a customer.[3]

In support of that contention, FSS notes that Susan Collier -- the manager who actually fired Travers -- testified that the company fires a skycap every time a passenger complains in writing that, in the passenger's opinion, the skycap tried to solicit a tip. And Collier did also state that "if the passenger takes the time to stop and make a written complaint, it happened, " and thus that the written complaint the customer filed against Travers here -- though the customer never testified at trial -- supplied a foundation for the company's conclusion that Travers made the solicitation.

But although a jury could have believed the reason that FSS gave for firing Travers, a jury was not compelled to do so on this record. For while the remaining evidence does not reveal a smoking gun proving retaliation -- or even include direct evidence of a command from on high to fire Travers to disrupt the class action suit -- the remaining evidence is sufficient to support an inference of retaliation. See Speen v. Crown Clothing Corp., 102 F.3d 625, 635 (1st Cir. 1996) ("[A] plaintiff need not . . . produce 'smoking-gun' evidence . . . . There are many veins of circumstantial evidence that may be mined . . . ."); Wooster v. Abdow Corp., 709 N.E.2d 71, 76 (Mass. App. Ct. 1999) (stating that "smoking gun evidence . . . is not required" and that the "plaintiff's ultimate burden of persuasion may be satisfied . . . [by] circumstantial evidence" (quotation marks and citation omitted)).

To begin with, a jury could disbelieve Collier's testimony about the necessary consequences that follow -- as a matter of FSS policy -- from a customer's submission of a written complaint about an employee's solicitation of a tip. Collier herself testified that the determination of whether an employee did solicit a tip requires the exercise of judgment. As Collier put it, you have to look at the "facts and circumstances of every case." And the evidence also indicated that FSS undertakes an investigation following a customer complaint before determining whether or not tip solicitation actually occurred.

In addition, testimony from Nabil Agba, a former FSS skycap supervisor in Boston, indicated that termination was not automatic upon receipt of a complaint and, indeed, could depend on factors unrelated to whether tip solicitation had, in fact, occurred. Agba testified that "there was not a standard process" for who would get fired and who would not following accusations of tip solicitation. Instead, Agba testified that the general manager in Boston would base his recommendation to Collier on "the employee records and the job performance" of the employee and sometimes would "just chalk-up the accusation to some type of miscommunication with the passenger" and not fire the skycap. Notably, Agba clarified that managers' attitudes toward employees colored the ultimate decision: "From my experience, if they like the person, they try to help them and protect them as much as they can."

Thus, a jury could have reasonably concluded that a customer complaint about tip solicitation would not automatically lead to the dismissal of the employee who allegedly made the solicitation. Instead, a jury could reasonably have found that factors unrelated to whether the solicitation occurred could bear on the disciplinary consequences that would follow. And so long as the jury was free to conclude that FSS had the discretion to make a judgment whether to fire despite a complaint -- and to make that judgment for reasons unrelated to whether the solicitation in fact occurred -- the jury was also free to consider whether some reason other than the customer complaint tipped the balance, so to speak, with regard to the decision to fire Travers.

Of course, the record must still contain enough evidence to support a jury's conclusion that this other reason was the company's desire to retaliate for Travers's protected conduct. But we conclude that the jury did have before it enough evidence to support a reasonable inference in that regard -- even if we strike from consideration Travers's testimony that Nichols had told him about the instruction from higher officials to fire Travers due to his involvement in the class action. For while the remaining testimony was not as directly probative on ...

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