Fryer v. A.S.A.P. Fire and Safety Corpo, et al
Filing
OPINION issued by Michael Boudin, Appellate Judge; Bruce M. Selya, Appellate Judge and Timothy Belcher Dyk, Appellate Judge. Published. [10-2047, 11-1021]
Case: 10-2047
Document: 00116258059
Page: 1
Date Filed: 09/09/2011
Entry ID: 5578703
United States Court of Appeals
For the First Circuit
Nos. 10-2047; 11-1021
STEPHEN F. FRYER,
Plaintiff, Appellee,
v.
A.S.A.P. FIRE & SAFETY CORPORATION, INC.;
JOSEPH SHEEDY; BRIAN COTE,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Marianne B. Bowler, U.S. Magistrate Judge]
Before
Boudin, Selya, and Dyk,*
Circuit Judges.
Lester E. Riordan III, for appellant.
Jon Meyer, with whom Nancy Richards-Stower was on brief for
appellee.
September 9, 2011
*
Of the Federal Circuit, sitting by designation.
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DYK, Circuit Judge.
and
its
owners
Joseph
Date Filed: 09/09/2011
Entry ID: 5578703
A.S.A.P. Fire & Safety Corporation
Sheedy
and
Brian
Cote
(collectively
"A.S.A.P."), appeal from a district court judgment. Fryer v.
A.S.A.P. Fire & Safety Corp., No. 1:09-CV-10178 (D. Mass. Jan. 25,
2010) (Final Judgment). The district court awarded damages against
A.S.A.P.
for
violating
the
Uniformed
Services
Employment
and
Reemployment Rights Act, 38 U.S.C. §§ 4311 et seq. (hereinafter
"USERRA"); Massachusetts anti-discrimination law, Mass. Gen. Laws
ch. 151B, § 4(1)(D)(2004); and the Massachusetts Wage Act, Mass.
Gen. Laws ch. 149, § 148 (2004).
Corp.,
No.
Judgment).
A.S.A.P.
1:09-CV-10178
(D.
Fryer v. A.S.A.P. Fire & Safety
Mass.
January
25,
2010)
The court also awarded attorneys' fees.
argues
that
Fryer's
claims
under
chapter
(Final
On appeal,
151B
were
preempted by USERRA; that the jury determination of willfulness was
unsupported; and that the damages and attorneys' fees awards were
excessive.
We affirm.
I.
Fryer was employed by A.S.A.P. as a sprinkler service /
sales representative beginning in January 2006.
In addition to
hourly compensation, Fryer received a ten percent commission on
sales he made to new accounts.
Fryer had previously served in the Marines in both active
duty and the reserves.
National Guard.
In January 2007, he re-enlisted in the
About a month later, Fryer received a letter from
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the National Guard notifying him that he would be deployed to Iraq
in May 2007. Fryer informed A.S.A.P. of his deployment orders, and
he reported for active duty on May 1, 2007.
During his deployment,
Fryer notified A.S.A.P. that he expected to return to the United
States by the end of May 2008 and expected to resume employment
with A.S.A.P. at that time.
USERRA prohibits employers from denying members of the
armed services "reemployment, [or] retention in employment . . . on
the
basis
of
[the
employee's
military
service],"
38
U.S.C.
§4311(a), and it grants members of the armed services a right to
"reemployment" following an absence "necessitated by reason of
[military]
service,"
id.
§
4312(a).
Thus,
A.S.A.P.
had
an
obligation to reinstate Fryer upon his return from deployment. See
20 C.F.R. § 1002.139(a); see also, Clegg v. Ark. Dep't of Corr.,
496 F.3d 922, 930 (8th Cir. 2007) (holding that USERRA is violated
where a member of the armed services is "not reemployed in the
position she would have been in had she not taken military leave or
a position of like seniority, status and pay") (internal quotation
marks omitted).
Where an employer violates USERRA, "[t]he court may,"
among other things, "require the employer to compensate the person
for any loss of wages or benefits suffered by reason of [the]
employer's failure to comply with the provision[]."
§ 4323(d)(1)(B).
38 U.S.C.
Additionally, "[t]he court may require the
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employer to pay the person an amount equal to that [awarded for
loss of wages or benefits] as liquidated damages, if the court
determines
that
the
employer's
willful."
Id. § 4323(d)(1)(C).
failure
to
comply
.
.
.
was
In other words, where the court
finds that the employer's conduct was willful, the damages for loss
of wages or other benefits may be doubled.
Additionally, an
employee who prevails in an action under USERRA may be awarded
"reasonable
attorney
litigation expenses."
fees,
expert
witness
fees,
and
other
38 U.S.C. § 4323(h).
When Fryer arrived home from military duty, he informed
A.S.A.P. that he was available to start work on May 12, 2008.
In
response, A.S.A.P. told Fryer that, during his deployment, another
individual had been hired to fill his position and that there were
no positions currently available at A.S.A.P.
On May 22, 2008,
Fryer sent a letter to A.S.A.P. formally requesting reinstatement
to his pre-service position and informing A.S.A.P. that he intended
to report to work on June 30, 2008.
When Fryer met with A.S.A.P.
on June 30th, he was told that his pre-service position was
unavailable.
Instead, A.S.A.P. offered Fryer a position as a
sprinkler helper.
Although Fryer was offered a three dollar per
hour increase in pay, sprinkler helpers have a much more limited
opportunity to earn commissions.
Commissions had previously been
a substantial portion of Fryer's income.
Additionally, sprinkler
helpers do not have access to a company van or cell phone, both of
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which were made available to Fryer in his pre-service position as
a sprinkler service / sales representative.
Fryer accepted the
position but repeatedly voiced his desire to return to his preservice position.
Fryer continued in service with A.S.A.P. as a
sprinkler helper until he was terminated on October 22, 2008,
allegedly
on
grounds
of
absenteeism
during
the
period
of
reemployment.
Following his termination, Fryer sued A.S.A.P. alleging,
among other things, violations of USERRA, 38 U.S.C. §§ 4311 et
seq.; Massachusetts anti-discrimination law, Mass. Gen. Laws ch.
151B, § 4(1)(D)(2004); and the Massachusetts Wage Act, Mass. Gen.
Laws ch. 149, § 148 (2004).
Fryer alleged that A.S.A.P. violated
USERRA and state anti-discrimination law by (1) failing to reemploy
him in his pre-service position, (2) discriminating and retaliating
against him because of his military service, and (3) terminating
him because of his military service. Fryer presented evidence that
he had trouble finding work following his termination from A.S.A.P.
and
that
he
treatment.
suffered
emotional
Additionally,
distress
Fryer
sought
as
a
result
recovery
of
of
his
sales
commissions1 and overtime wages under the Massachusetts Wage Act.
1
Fryer sought recovery of unpaid sales commissions in
the amount of $610 earned prior to deployment (i.e., pre-deployment
commissions) and $4,650 earned during reemployment. Fryer alleges
that, during the reemployment period, he brought in $46,500 worth
of new business, which entitled him to a 10% commission on the sale
from a new account.
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By the consent of the parties, a magistrate judge presided over the
jury trial.
See 28 U.S.C. § 636(c).
$42,234 in back pay under USERRA.
$105,000
in
front
pay
(i.e.,
The jury awarded Fryer
The jury also awarded Fryer
future
wages)
and
$289,000
in
emotional distress damages under Massachusetts anti-discrimination
law, as well as $5,260 as compensation for earned commissions2 and
$4,240 for lost overtime under the Massachusetts Wage Act.
Because the jury found that A.S.A.P. had acted willfully,
the district court doubled the back-pay award under USERRA.
Additionally,
the
award
for
commissions
earned
during
the
reemployment period was trebled pursuant to the Massachusetts Wage
Act, Mass. Gen. Law ch. 149, § 150,3 and the award for lost
overtime was trebled pursuant to Massachusetts anti-discrimination
law, Mass. Gen. Law ch. 151, § 1B,4 resulting in a total award of
$14,560 for earned commissions and $12,720 for lost overtime.
Following the jury verdict, the district court entered
final judgment in the amount of $505,748 plus prejudgment interest
of $33,532.99.
Post-judgment interest was awarded at the rate of
2
Of the $5,260 awarded as compensation for earned
commissions, $610 was awarded for commissions earned prior to
Fryer's deployment and $4,560 was awarded for commissions earned
during the reemployment period.
3
Section 150 states that the prevailing employee "shall
be awarded treble damages, as liquidated damages, for any lost
wages or other benefits." Mass. Gen. Law ch. 149, § 150.
4
Section 1B similarly states that the prevailing
employee "shall be awarded treble damages, as liquidated damages,
for lost overtime compensation." Mass Gen. Law ch. 151, § 1B.
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0.41 percent. The court later awarded Fryer attorneys' fees in the
amount of $199,204.28 plus post-judgment interest at the rate of
0.31 percent.
A.S.A.P.
timely
appealed,
pursuant to 28 U.S.C. § 1291.
and
we
have
jurisdiction
On appeal, A.S.A.P. challenges the
denial of its new trial motion, the denial of its request for
remittitur, and the award of attorneys' fees. We review the denial
of
a
motion
for new
trial
or
a
remittitur for an
abuse of
discretion. Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1,
13-14 (1st Cir. 2009).
We review fee awards "only for mistake of
law or abuse of discretion."
Lipsett v. Blanco, 975 F.2d 934, 937
(1st Cir. 1992).
II.
While A.S.A.P. does not challenge the district court's
determination that it violated USERRA, A.S.A.P. argues that Fryer's
claims under state anti-discrimination law are barred because they
are preempted by USERRA.
Specifically, A.S.A.P. contends that the
state law claims are preempted because the same conduct serves as
the basis for both the federal liquidated damages and the state
compensatory damages awards, thereby creating a duplicative award,
which A.S.A.P. argues is contrary to the purpose of USERRA.
Fryer
argues that there is no preemption of state law because USERRA
specifically preserves state claims, providing:
Nothing in this chapter shall supersede,
nullify or diminish any Federal or State
law . . . that establishes a right or benefit
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that is more beneficial to, or is in addition
to, a right or benefit provided for such
person [by USERRA].
38 U.S.C. § 4302.
As a threshold matter, Fryer argues that we should not
address the merits of the preemption question because A.S.A.P. did
not raise the issue of preemption below and has accordingly waived
the argument.
A.S.A.P. "acknowledges that its counsel did not
formally raise preemption in the trial court as an affirmative
defense," but contends that USERRA is jurisdictional in nature and
that preemption is therefore a non-waivable defense.
Whether the defense of preemption is jurisdictional or
waivable is a question of law we review de novo.
Wolf v. Reliance
Standard Life Ins. Co., 71 F.3d 444, 446-47 (1st Cir. 1995).
The
Supreme Court has recognized that the defense of preemption can be
jurisdictional, and therefore non-waivable, if success on the
preemption defense would dictate the choice of forum and thereby
deprive the reviewing court of subject matter jurisdiction.
See
Int'l Longshoremen's Assoc. v. Davis, 476 U.S. 380, 390-91 (1986).
In contrast, the defense of preemption is waivable where it merely
dictates a different choice of law.
Id.
In Davis, the Supreme
Court held that a preemption defense under the National Labor
Relations Act, 29 U.S.A. § 151 et seq., is jurisdictional because
successful assertion of the defense would cause the state court's
jurisdiction to "itself [be] preempted by federal law vesting
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exclusive jurisdiction over that controversy in another body [i.e.,
the National Labor Relations Board]." Id. at 388 (emphases added).
In contrast, this court has held that a preemption defense under
the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), is
not jurisdictional because the state courts maintain concurrent
jurisdiction over claims under the Act.
926 F.2d 29, 39 (1st Cir. 1991).
Sweeney v. Westvaco Co.,
Because a successful preemption
defense under the LMRA would dictate a change in the choice of law,
but
not
a
change
in
forum,
the
the
preemption
defense
is
not
Id. at 41.5
jurisdictional and can be waived.
Here,
preemption
defense
is
not
jurisdictional
because a successful preemption defense under USERRA would dictate
only a change in law, not a change in forum.
situation,
as
jurisdiction
in
over
Davis, where
a
matter
the
that
This is not a
state courts
is
within
have
the
claimed
exclusive
jurisdiction of a federal agency or other federal forum. Nor is it
a
situation
where
federal
courts
enforcing a
state
law have
interfered with the exclusive jurisdiction of a federal agency or
other federal forum. As the preemption defense under USERRA is not
jurisdictional, and, because A.S.A.P. failed to raise the issue of
5
See also Wolf, 71 F.3d at 448 (holding that a
preemption defense under the Employee Retirement Income Security
Act ("ERISA"), 29 U.S.C. § 1144(a), was waivable because "ERISA's
jurisdictional provision provides that 'State courts . . . and
district courts of the United States shall have concurrent
jurisdiction of actions . . . brought by a participant or
beneficiary to recover benefits due'").
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preemption before the district court, its preemption claim has been
waived.6
III.
USERRA permits the award of liquidated damages "if the
court
determines
that
the
employer's
failure
[USERRA] was willful."
38 U.S.C. § 4323(d)(1)(C).
does
term
not
define
the
"willful,"
the
to
comply
with
When a statute
Supreme
Court
has
instructed us to look to the standard applied in other statutes
employing similar language.
See Trans World Airlines, Inc. v.
Thurston, 469 U.S. 111, 125-26 (1985).
In a series of decisions beginning in 1985, the Supreme
Court has repeatedly held that, "where willfulness is a statutory
condition of civil liability, . . . [the term] cover[s] not only
knowing violations of a standard, but reckless ones as well."
Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57 (2007); see also
Hazen Paper Co. v. Biggins, 507 U.S. 604, 614 (1993); McLaughlin v.
Richland Shoe Co., 486 U.S. 128, 133 (1988);
Thurston, 469 U.S. at
125-30.
In
disregard"
Thurston,
standard
the
for
Supreme
willful
Court
adopted
violations
a
of
"reckless
the
Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34
(1988), which provides that liquidated damages are "payable only in
6
Relying on Sweeney, A.S.A.P. argues that even if its
preemption claim has been waived, we nonetheless have the
discretion to consider the issue. We need not determine whether we
have such discretion because, even if we did, we would decline to
reach the merits of A.S.A.P.'s preemption claim.
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cases of willful violations," 29 U.S.C. § 626(b). See 469 U.S. at
126.
A few years after Thurston, the Supreme Court adopted a
"reckless disregard" standard for willful violations of the Fair
Labor Standards Act ("FLSA"), 29 U.S.C. § 255(a), which extended
the limitations
period
for
claims
"arising
out
of
a
willful
violation." McLaughlin, 486 U.S. at 133 (citing Thurston, 469 U.S.
at 128).
And in Hazen Paper, the Supreme Court revisited the
willfulness
standard
under
the
ADEA
and
reaffirmed
Thurston,
holding that a violation of the ADEA is willful "if the employer
knew or showed reckless disregard for the matter of whether its
conduct was prohibited by the ADEA."
507 U.S. at 614 (internal
quotation marks omitted).
In Safeco, the Supreme Court also adopted a "reckless
disregard" standard for willful violations of the Fair Credit
Reporting Act ("FCRA"), 15 U.S.C. § 1681n(a), which permits the
recovery of liquidated damages from "[a]ny person who willfully
fails
to
comply
with
[the
FCRA]."
551
U.S.
at
57
(citing
McLaughlin, 486 U.S. at 132-33; Thurston, 469 U.S. at 125-26). The
Court noted that "[t]he standard civil usage" of the term willful
supported
the
adoption
of
a
standard
which
equated
willful
violations with actions taken in "reckless disregard" of the
statute.
Safeco, 551 U.S. at 57.
Thus, in the context of the ADEA, the FLSA, and the FCRA,
the Supreme Court has held that an employer's violation is willful
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if the employer either knew or showed reckless disregard as to
whether its conduct was prohibited by the statute.
U.S. at 57-58;
at 133.
Safeco, 551
Hazen Paper, 507 U.S. at 614; McLaughlin, 486 U.S.
We note also that the Sixth Circuit, in an unpublished
decision, has similarly held that, for claims under USERRA, a
violation of the statute is willful if "the employer either knew or
showed reckless disregard for the matter of whether its conduct was
prohibited by statute."
Koehler v. PepsiAmericas, Inc., 268 Fed.
Appx. 396, 403 (6th Cir. 2008) (citing Thurston, 469 U.S. at 12530).
Following the Supreme Court's direction that the term
"willfulness" generally imports a reckless disregard standard, we
hold that the term "willful" as used in § 4323(d)(1)(C) of USERRA
refers to a knowing violation or action taken in reckless disregard
of the obligations imposed by USERRA.
Under this standard, "[a]
finding of willfulness requires something more than merely showing
that an
employer
knew about
the [statute]
applicability in the workplace."
and
its potential
Sanchez v. P.R. Oil Co., 37 F.3d
712, 721 (1st Cir. 1994)(applying the same standard to claims under
the ADEA).
efforts
to
Where an employer engaged in "reasonable, good-faith
determine
that
[its
actions]
complied
with
the
[statute]," a finding of willfulness is inappropriate even though
the employer's actions in fact violated the statute.
Thurston, 469 U.S. at 127-28).
employer
acted
with
Id. (citing
Instead, it must be shown that the
"reckless
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disregard
of,
or
deliberate
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indifference
to,
[the]
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employer's
[statutory]
Entry ID: 5578703
obligations."
Sanchez, 37 F.3d at 721-22.
We
consider
separately
the
issue
of
willfulness
in
relation to A.S.A.P.'s refusal to reinstate Fryer and its decision
to terminate him.
There is ample evidence to permit a reasonable
jury to conclude that A.S.A.P. acted willfully in refusing to
reinstate Fryer in his pre-service position. First, the jury could
have concluded that A.S.A.P. knew that it had an obligation to
reinstate Fryer.
One of A.S.A.P.'s owners testified that the
Department of Labor informed A.S.A.P. of its "obligation to rehire
Mr. Fryer" so that he could "pick up where he left off." J.A. 88283.
Second, A.S.A.P.'s actions strongly support a conclusion that
A.S.A.P. was deliberately indifferent regarding its obligations
under
USERRA.
Fryer
testified
that
when
he
expressed
dissatisfaction that A.S.A.P. had not reinstated him in his preservice position, he was told by Joseph Sheedy, one of A.S.A.P.'s
owners, that he "needed to prove [him]self" because Fryer had "left
[A.S.A.P.] in a lurch" when he deployed and that the company "had
suffered [because of] it." J.A. 577-78. Fryer also testified that
he received "an extremely angry phone call" from Brian Cote, one of
A.S.A.P.'s owners, in which Fryer was told that he "needed to shut
[his] mouth" regarding his requests for reinstatement to his preservice position because another employee "was in the job" and he
was not going to move that employee out of the position. J.A. 628.
Fryer responded to Cote by informing him that he did, in fact,
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expect to
return
to his
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pre-service
position,
responded: "That's not going to fucking happen."
to
Entry ID: 5578703
which
Cote
J.A. 628-29.
In
sum, A.S.A.P.'s admission that it was aware of its obligation to
reinstate Fryer, coupled with Fryer's testimony regarding his
interactions with A.S.A.P.'s owners, is certainly sufficient to
permit a reasonable jury to conclude that A.S.A.P. knew of its
obligations and acted with reckless disregard in refusing to
reinstate Fryer to his pre-service position.
With respect to A.S.A.P.'s action in discharging Fryer,
A.S.A.P. argues
that
its
conduct
was not
willful
because
it
"independently possessed reasons to discharge Fryer for cause."
Appellant's Br. 22.
If A.S.A.P. had discharged Fryer for cause,
this could negate a finding that A.S.A.P.'s decision to terminate
Fryer was based on his military service.
Vega-Colon v. Wyeth
Pharms., 625 F.3d 22, 27 (1st Cir. 2010) (noting that the employer
may overcome a prima facie case of violation if it can demonstrate
"that the action would have been taken despite the [employee's]
protected status").
A.S.A.P. appears to argue that a good faith
belief that
permissible
it
was
to
discharge an
employee
for
absenteeism would also negate a finding of willfulness as to the
discharge.
Here, the jury concluded specifically that Fryer was
not discharged for cause.
that
A.S.A.P.'s
claim
Additionally, there was ample evidence
of
excessive
pretextual.
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absenteeism
was
merely
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A.S.A.P.
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curiously
argues
Date Filed: 09/09/2011
that
it
also
Entry ID: 5578703
could
have
discharged Fryer for complaining about A.S.A.P.'s failure to comply
with its USERRA obligations. Asserting rights under USERRA cannot,
of course, provide grounds for discharge.
See 38 U.S.C. § 4311(b)
(prohibiting an employer from "tak[ing] any adverse employment
action against any person because such person . . . has taken an
action to enforce a protection afforded [under USERRA]").
just as the evidence supported Fryer's claim
In sum,
that the failure to
reinstate him was willful, the evidence also supports the jury's
verdict that A.S.A.P.'s action in discharging Fryer was willful.
IV.
A.S.A.P. argues that the district court made several
other errors, including errors in the calculation of damages and
the award of attorneys' fees.
Most of these claims are meritless,
and some border on frivolous.
address three.
We think it necessary only to
First, A.S.A.P. argues that Fryer should not have
been compensated for the period prior to June 30, 2008, the
reinstatement date requested in Fryer's formal written request for
reinstatement. The jury heard evidence that Fryer orally requested
an earlier reinstatement date of May 12, 2008.
This evidence
permitted the jury to conclude that A.S.A.P.'s failure to reinstate
Fryer on May 12, 2008, resulted in an unlawfully delayed start date
and thus entitled him to back-pay.
Second, Fryer was awarded back-pay based on an average
weekly pay calculation for the period during which Fryer was
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employed as a sprinkler service / sales representative.
A.S.A.P.
argues that, in calculating Fryer's average weekly pay, Fryer's
expert improperly limited the calculation to 2006 and excluded the
first four months of 2007, in which Fryer's commissions were
lowest.
Fryer's expert testified that he used 2006 as the base
year for calculating back-pay because it was nearly a full year and
included "seasonal variations."
J.A. 693.
The expert noted that
he was not provided data on a week-by-week basis, which prevented
him from simply using "[Fryer's] last 52 weeks of employment,"
including the first four months of 2007.
J.A. 692.
The expert
also explained that Fryer's average weekly wage for 2007, in which
Fryer worked only four months before his deployment, was less than
in 2006. J.A. 706.
The expert noted that, although Fryer's weekly
earnings were higher some weeks than others, he expected that "it
would average out" over the course of a year.
J.A. 693.
Thus,
given the fluctuating nature of Fryer's earnings over a one-year
period, the jury could reasonably have concluded that, despite
lower weekly earnings during the first four months of 2007, Fryer's
average weekly earnings during the period in question would have
been essentially equivalent to the 2006 weekly average.
Finally, A.S.A.P. argues that the back-pay award should
be adjusted to account for commission and overtime compensation
which was separately awarded.
The jury instructions specifically
directed the jurors not to award duplicate amounts. See J.A. 1034,
1036-37.
Absent some indication to the contrary, the jury is
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Case: 10-2047
Document: 00116258059
Page: 17
Date Filed: 09/09/2011
presumed to have followed the court's instructions.
Entry ID: 5578703
United States
v. Gonzalez-Vazquez, 219 F.3d 37, 48 (1st Cir. 2000).
Here, there
is no indication that the jury failed to follow the court's
instructions regarding duplicate awards.
As the district court correctly noted, "the back-pay
award of $42,234 . . . is far from excessive and the record
provides ample support for the amount."
Fryer v. A.S.A.P. Fire &
Safety Corp., No. 1:09-CV-10178 (D. Mass. Jan. 25, 2010) (Denial of
A.S.A.P.'s motion for new trial).
Affirmed.
Costs to appellee.
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