USCA1 Opinion

June 3, 1994

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________

No. 94-1038

GERALDINE FOX, ET AL.,

Plaintiffs, Appellees,
v.
SOUTHEAST TRANSPORT INC.,
A/K/A BILL MATT ENTERPRISES,
Defendant, Appellant.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[[Hon. Mark L. Wolf, U.S. District Judge]
___________________

___________________
Before
Torruella, Selya and Cyr,
Circuit Judges.
______________
___________________

Steven J. Marullo on brief for appellant.

_________________
Gary H. Goldberg on brief for appellees.
________________

__________________
__________________

Per Curiam.
__________
appeals

Appellant Southeast Transport

a judgment by

the District

the United States

of Massachusetts in

appellee

Geraldine

Fox and

appellee

Melinda St.

in

John, and

reasonable attorneys' fees.

Corporation

District Court for

the amount of
the amount
the award

$15,000 for

of

$20,000 for

to appellees

of

We summarily affirm.
I

Fox

and

St.

John

drivers in June 1988.

of the same year.

were hired

by

appellant

as truck

They were both terminated on August 11

In 1989, appellees brought

suit alleging

that appellant had discriminated against each "based upon her

sex in the terms and conditions of her employment by creating

hostile,

offensive

and

abusive

work

environment

terminating her employment" in violation of 42 U.S.C.

and Mass. Gen. L. ch. 151B.
a

default judgment
55(a).

The

hearing

to determine

appellee in damages.
Plaintiffs
their

court
the

pursuant to

then conducted
amount

to

be

an

Fed. R.

evidentiary

awarded

to

each

Fed. R. Civ. P. 55(b)(2).

sought

Mass. Gen.

2000e

In July 1991, the court entered

against defendant,

Civ. P.

and

damages

L. ch.

for

151B claim.

reasonable attorneys' fees.

emotional
They

distress on

also requested

Each of the appellees testified

at the hearing, as did two witnesses for the

defendant.

court detailed

in a memorandum

its findings and conclusions

The

and order dated December 9, 1993.

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On appeal, appellant
First,

asserts two assignments of

appellant claims that

the court at the evidentiary

certain testimony

error.

received by

hearing should have been barred

as hearsay, pursuant to the Federal Rules of Evidence,

which

appellant contends apply to hearings pursuant to Fed. R. Civ.

P.

55(b).

insufficient

Second,

appellant

contends

that

evidence

presented

to sustain

the

there

was

award

of

it

was

damages to each appellee.

II
Once

the

default

judgment

established, as alleged in
had discriminated

against the

because they were women.

the

appellees both by

creating a

by terminating their employment

See Riehle v. Margolies,

___ ______
_________

Therefore, the only issue to be

279 U.S.
decided at

Rule 55(b)(2) hearing was the amount of damages to which

appellees were
conduct.

entitled as

See Jones v.
___ _____

(1st Cir. 1993).

as

entered,

the complaint, that the appellant

hostile work environment and

218, 225 (1929).

had

required, stated

See Brown v.
___ _____
530-31 (8th
F.2d 636,

a result of

Winnepesaukee Realty, 990

____________________

In its memorandum
its findings

of fact

Cir. 1973); Foxtrap, Inc. v.

____________
638 n.1 (D.C.

Cir. 1982).

F.2d 1, 4

and order, the

court,

and conclusions.

Kenron Aluminum & Glass Corp.,

_____________________________

appellees were credible witnesses.

in part on

appellant's illegal

477 F.2d

526,

Foxtrap, Inc., 671

____________

The court

found that

It also concluded, based

its assessment of credibility, that the appellees

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had

suffered "significant

emotional
by the

distress"

because

specific illegal

conduct

appellant and,

were entitled to

damages under Mass. Gen. L. ch.

of

therefore,
151B.

See
___

Buckley Nursing Home, Inc. v. Massachusetts Comm'n Against

___________________________
_____________________________
Discrimination, 20 Mass. App. Ct.
______________
1299
can

172, 182, 478 N.E.2d 1292,

(an award of emotional distress

be sustained by finding

damages under ch. 151B

of discrimination alone even in

the absence of physical injury

or psychiatric consultation),

review denied, 395 Mass. 1103, 482 N.E.2d 328 (1985).

______ ______
Having
reversible

read

the

error

in

conclusions of

whole
any

the district

of
of

the
the

court.

record,

we

factual

find

no

findings

or

See Cumpiano
___ ________

v. Banco
_____

Santander Puerto Rico, 902 F.2d 148, 152 (1st Cir. 1990) (an
______________________
appellate

court "ought

conclusions
record, [the

drawn

not

to upset

therefrom unless,

appellate

judges] form

belief that a mistake has been made").

of the
distress

findings
on
a

the

of fact
whole of

strong,

or
the

unyielding

Furthermore, in light

court's findings and given that damages for emotional

are

"not easily

computed

extremely fact-sensitive," we find

and, therefore,

. .

no abuse of discretion in

the court's assessment of

F.2d

at 5

mainly

on

damages in this case.

(upholding an award
defendant's

for emotional

statement

of

Jones, 990
_____
damages based

damages

and

sworn

testimony).

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Finally, we

find no evidence, and

appellant has called

our attention to

none, which would indicate that

in

findings

its

factual

implicitly relied
hearsay.
that

on any

of

conclusions,

explicitly

or

the statements

alleged to

be

Therefore, even if we were to assume arguendo both

________

the Federal

Rules of

determine

damages

appellant

was

admission which
v.

and

the court,

and

Evidence apply

that

the

inadmissible

testimony

hearsay,

any

to a

challenged
error

may have occurred was harmless.

Louis Marx & Co.,

_________________

874

F.2d

(admission of evidence harmless

36,

hearing to

41 (1st

in

by
the

See Vincent
___ _______
Cir.

1989)

when appellate court can say

"with

fair assurance

that

the

judgment

was

substantially swayed by the error") (citations omitted).

Affirmed.
________

See 1st Cir. Loc. R. 27.1.

___

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not