Opinion

TOURANGEAU v. NAPPI DISTRIBUTORS

Court: District Court, D. Maine
Filed: Jul 18, 2023
Cited by: 0 cases
Authority: More cited than 23.3%

“Silence after instructions, including instructions on the form of the verdict to be returned by the jury, typically constitutes a waiver of any objections”

How later courts described this case

“Silence after instructions, including instructions on the form of the verdict to be returned by the jury, typically constitutes a waiver of any objections”
“A trial court is obliged to inform the jury about the applicable law, but, within wide limits, the method and manner in which the judge carries out this obligation is left to his or her discretion”
holding that a party has waived a Batson objection to particular jurors by failing to object to the peremptory challenges at the time they were exercised
Ms. Tourangeau equating Juror Number 89 and 14

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

MICHELE TOURANGEAU, )

)

Plaintiff, )

)

v. )

) No. 2:20-cv-00012-JAW

NAPPI DISTRIBUTORS, )

)

Defendant. )

ORDER ON PLAINTIFF’S MOTION FOR NEW TRIAL

After a five-day jury trial ending in a defense verdict, an employee-plaintiff

brings a motion for new trial against her employer-defendant. The Court denies the

plaintiff’s motion for new trial because it concludes that: (1) the evidence submitted

to the jury was sufficient to support the jury verdict; (2) it properly instructed the

jury on the defendant’s affirmative defenses; (3) it did not err in the jury selection

process; and (4) there was no juror bias to merit a new trial.

I. BACKGROUND

A. Procedural History

On January 10, 2020, Michele Tourangeau filed a lawsuit in this Court against

her employer, Nappi Distributors (Nappi), alleging unequal pay practices and related

retaliation, sex and pregnancy discrimination, and sexual harassment. Pl.’s Compl.

and Demand for Jury Trial (ECF No. 1) (Compl.). Ms. Tourangeau proceeded to trial

against Nappi on six legal claims: one, that Nappi violated the Equal Pay Act by

paying Ms. Tourangeau less than similarly situated male employees; two, that Nappi

discriminated against Ms. Tourangeau on the basis of sex and pregnancy under Title

VII; three, that Nappi retaliated against her for engaging in protected activity under

the Maine Human Rights Act, the Equal Pay Act (EPA), and Title VII; four, that

Nappi violated Maine’s Timely and Full Payment of Wages Law by failing to pay

timely wages owed to Ms. Tourangeau; five, that Nappi failed to pay Ms. Tourangeau

for work performed and owes her for expenses for which she reasonably believed she

would be compensated; and six, that Nappi failed to pay Ms. Tourangeau for work

performed, and unjustly benefitted from her work. Compl. ¶ 1.

The case was tried before a jury from February 27, 2023 to March 3, 2023, and

on March 3, 2023, the jury issued a verdict in favor of Nappi on all submitted counts.

Jury Verdict (ECF No. 204). Specifically regarding Ms. Tourangeau’s EPA claim, the

jury concluded that Ms. Tourangeau proved “by a preponderance of the evidence, that

Defendant Nappi Distributors paid her less than at least one male wine sales

representative engaged in work requiring substantially equal skill, effort, and

responsibility and performed under similar working conditions,” but that Nappi

proved “by a preponderance of the evidence, that the differential in pay . . . was due

to quantity or quality of production and/or to a business decision, such as adjusting

its payroll to reflect industry standards, not based on gender.” Id. at 1.

On April 4, 2023, Ms. Tourangeau filed a motion for new trial. Pl.’s Mot. for

New Trial (ECF No. 214). On April 10, 2023, Ms. Tourangeau filed an amended

motion for new trial. Pl.’s Am. Mot. for New Trial (ECF No. 219) (Pl.’s Mot.). On May

8, 2023, Nappi objected. Def. Nappi Distributors’ Corrected Opp’n to Pl.’s Am. Mot.

for New Trial (ECF No. 227) (Def.’s Opp’n). On June 5, 2023, Ms. Tourangeau replied.

Pl.’s Reply Mem. in Support of Am. Mot. for New Trial (ECF No. 235) (Pl.’s Reply).

B. The Legal Issues

Ms. Tourangeau claims that a new trial is warranted for four reasons: (1) the

evidence at trial was insufficient to support the jury’s finding that Nappi proved an

affirmative defense under the EPA; (2) the Court erred in denying Ms. Tourangeau’s

requested EPA jury instruction derived from Corning Glass Works v. Brennan, 417

U.S. 188 (1974); (3) the Court erred in denying Ms. Tourangeau’s request to strike for

cause Juror Number 89 while granting Nappi’s request to strike for cause Juror

Number 14; and (4) Juror Number 161 displayed such bias, hostility, and false

responses to voir dire that his presence tainted the entire jury pool against Ms.

Tourangeau. Pl.’s Mot. at 1-28.

II. THE PARTIES’ POSITIONS

A. Michele Tourangeau’s Motion

Ms. Tourangeau argues that the “Court should award Plaintiff a new trial for

several compelling and unusual reasons.” Id. at 1. First, “the Court should grant a

new trial because the jury’s verdict was against the great weight of the evidence as

to Nappi’s affirmative defense” under the EPA. Id.

Second, the Court should grant retrial because its “denial of Plaintiff’s

requested EPA instruction could have affected the jury’s lengthy (but ultimately

adverse) deliberations.” Id. at 24.

Third, the Court “should also grant a new trial because the unusual

circumstances of this case indicated such overwhelming juror bias that a miscarriage

of justice has occurred.” Id. at 2. Specifically, Ms. Tourangeau argues that a new

trial is required due to juror selection issues regarding Juror Numbers 89 and 14 and

due to juror bias of Juror Number 161.

1. Nappi’s Affirmative Defense under the EPA

Ms. Tourangeau argues that “a new trial is warranted because the jury’s

verdict was contrary to the law and against the great weight of the evidence under

the [EPA].” Id. at 4. Ms. Tourangeau submits that “there was no dispute that [she]

met her burden of proving a prima facie case of unequal pay,” and thus “the only

dispute to be decided by the jury based on the evidence presented at trial was whether

Nappi met its burden of proving an affirmative defense under the [EPA].” Id. at 5.

Ms. Tourangeau further submits that during trial “the Court appropriately ruled that

Nappi had failed to produce evidence of a bona fide seniority system that would entitle

it to an affirmative defense under the EPA,” yet Nappi “consistently cited

‘grandfathering’ as the basis for unequal pay in this case.” Id. Ms. Tourangeau

asserts that “[a] new trial is warranted because ‘grandfathering’ is the same thing as

a ‘seniority system’—the only difference is semantics.” Id. According to Ms.

Tourangeau, “[b]ecause Nappi could not prove that its ‘grandfathering’ of male wine[]

sales representatives was the kind of ‘bona fide seniority system’ the U.S. Supreme

Court has found to qualify as an affirmative defense under the EPA, this Court must

grant a new trial.” Id.

Ms. Tourangeau contends that “Nappi had the burden of proving that a

‘business decision’ or ‘industry standards’ separate and distinct from a seniority

system or ‘grandfathering’ warranted the pay disparity here . . . [and] Nappi simply

failed to meet its burden of proof.” Id. at 5-6. Ms. Tourangeau summarizes the “facts

adduced at trial regarding unequal pay and Nappi’s ‘business decision’” and argues

that “[i]n light of [the trial] testimony, it was false and misleading for Nappi to poison

the jury into thinking that [Ms.] Tourangeau’s hire date marked a companywide

policy of paying only 2% commission to wine sales representatives.” Id. at 8.

Specifically, Ms. Tourangeau points out that Nappi manager Paul Carr “made it clear

that the ‘grandfathering’ of wine sales representative salaries was not based on any

bona fide seniority system, but rather based on ‘the ones that are hired before [Ms.

Tourangeau.]” Id. at 9 (quoting Tr. of Proceedings at 522 (ECF Nos. 208-212) (Trial

Tr.)). In Ms. Tourangeau’s view, “[t]his testimony is inconsistent with the above

evidence that [she] was also effectively paid three percent commission (two percent

commission and one percent salary) upon her hire date and right up until her salary

was taken away.” Id.

Ms. Tourangeau relies on Mundell v. Acadia Hospital Corporation, 585 F.

Supp. 3d 86 (D. Me. 2022) and California Brewers Association v. Bryant, 444 U.S. 598

(1980) to argue that Nappi’s use of the word “grandfathering” at trial impermissibly

allowed the jury to consider seniority as an affirmative defense. Id. at 11-16. Ms.

Tourangeau then directs the Court to Corning and submits that “[t]he circumstances

in Corning apply with equal weight to [her] circumstances, because Nappi admittedly

found it unacceptable to reduce the commission rate of its ‘grandfathers,’ whether

those male employees had several years’ seniority or thirty years’ seniority.” Id. at

22-23. Ms. Tourangeau concludes that “[t]he evidence at trial simply did not support

that Nappi had a legitimate reason other than sex to take [Ms.] Tourangeau’s salary

away” because the Court “ruled that a bona fide seniority system was ‘just not what

happened here,’” id. at 11 (quoting Trial Tr. at 1030-31), and “the record lacked any

evidence to support the catchall affirmative defense under the EPA that Nappi paid

[Ms.] Tourangeau less due to any business factor other than seniority.” Id. at 16. She

further submits that “this Court should grant a new trial because Nappi had nothing

but illusory, post-event, undocumented reasons for why it paid [her] less.” Id. at 19.

2. Denial of Requested EPA Jury Instruction

Ms. Tourangeau “also seeks a new trial because the Court erred in denying

[her] request for a jury instruction under the EPA about employment policies that

perpetuate historical unequal pay practices.” Id. at 24. Ms. Tourangeau contends

that the Court erred in excluding her proposed EPA jury instruction because “[i]f all

the employees who were previously paid in a more favorable manner were men, then

the EPA’s direct purpose is advanced by giving the instruction at issue in Corning.”

Id. at 24-25. Ms. Tourangeau therefore “asks the Court to grant a new trial in which

the jury will receive an instruction pursuant to Corning if the jury finds Nappi has

met its burden of proving an affirmative defense to the EPA.” Id. at 25.

3. Jury Selection Process

Ms. Tourangeau contends that “[a] new trial is warranted because the court

erred in denying Plaintiff’s challenge for cause to Juror Number 89,” id. at 26, and in

“granting Defendant’s for-cause challenge to Juror Number 14 over Plaintiff’s

objection.” Id. at 28. Ms. Tourangeau submits that “[f]rom [her] perspective, Juror

Number 89 answered truthfully twice when he hedged on his response about

impartiality, saying not necessarily rather than an outright ‘no’ on questions related

to bias,” and “[t]hese honest responses reflected the juror’s bias and were only

changed once the Court pressed further.” Id. (emphasis in plaintiff’s motion). Ms.

Tourangeau moreover submits that during her “direct and cross examination of

[Nappi]’s management witnesses, Juror Number 89 appeared visibly angry” and

“[d]uring closing argument, Juror Number 89 looked so incensed by [Ms.

Tourangeau]’s arguments that he became completely red faced and appeared

obviously angry.” Id. Ms. Tourangeau explains that she “could not use her

peremptory challenges to exclude Juror Number 89 because of juror research

suggesting other biases within the jury pool” and, moreover, she “should not have had

to use a peremptory challenge to excuse this juror.” Id.

Regarding the jury selection process, Ms. Tourangeau also argues that “[a] new

trial is warranted because the Court erred in granting Defendant’s for-cause

challenge to Juror Number 14 over Plaintiff’s objection.” Id. Ms. Tourangeau submits

that Juror Number 14 “expressed no hesitation about her ability to be fair and

impartial, noting that she would not have a problem finding for one side or another,

depending on the evidence,” and “[a]lthough Juror Number 14 said she would be

likely to ‘lean’ toward someone being undercompensated, if the facts involve a woman

being undercompensated for equal work, the law would require her to ‘lean’ that way.”

Id. at 29. According to Ms. Tourangeau, “[t]he verdict must be set aside because the

Court erred in dismissing Juror Number 14, a woman who was truthful about her

perceived experience of prior gender discrimination,” and “Defendant’s gender-based

discrimination in the use of peremptory and for cause challenges during jury selection

resulted in a jury that was neither impartial nor appropriately inclusive of women.”

Id. at 30.

4. Juror Bias of Juror Number 161 During Trial

Finally, Ms. Tourangeau argues that “a new trial is warranted because Juror

Number 161 displayed such bias, hostility, and false responses to voir dire that his

presence tainted the entire jury pool” against Ms. Tourangeau. Id. at 31. Ms.

Tourangeau explains that “one of the factors that led Plaintiff to request that Juror

Number 161 be disqualified was that his conduct, demeanor, and hostile utterances

toward Plaintiff and her counsel revealed overt discriminatory animus, bias, and

prejudice that should have disqualified him from sitting on the jury.” Id. According

to Ms. Tourangeau, she “heard Juror Number 161 repeatedly scoffing at Plaintiff’s

table during trial . . . [and he] also rolled his eyes at Plaintiff and her counsel,

exhibiting obvious disdain for testimony presented by Plaintiff.” Id. (internal

quotations omitted). Ms. Tourangeau explains that “[b]ased on this overtly biased

conduct, counsel researched Juror Number 161’s Facebook page,” which “revealed

that Juror Number 161 ‘liked’ a Facebook group called 100PercentFEDUP.” Id.

According to Ms. Tourangeau, “[t]he group is entirely dedicated to sexist and anti-

feminist propaganda as well as conspiracy theories and overtly discriminatory

content.” Id. (emphasis in plaintiff’s motion).

Ms. Tourangeau submits that “[t]he 100PercentFEDUP group is a fringe and

radical organization of individuals who loathe anti-discrimination laws and

feminism,” id. at 32, and “[a]ny juror belonging to this Facebook group is

fundamentally compromised and unable to apply the law to the facts of a sex-based

discrimination case.” Id. at 33. Because Juror Number 161 liked this page on

Facebook, Ms. Tourangeau concludes that “it is crystal clear that Juror Number 161

lied during voir dire” because his “philosophical beliefs were directly germane to

Questions 7 and 8 on the juror questionnaire.” Id. at 35. Ms. Tourangeau further

contends that Juror Number 161 did not stand when “he should have” in response to

the magistrate judge’s following questions:

Have any of you, members of the jury, ever been a member of an

organization that has advocated on topics relevant to women’s

rights or gender-related issues?

Have you ever been a member of any organization who has

advocated regarding -- that is lobbied, advocating, for any

organization regarding women’s rights or gender-related -- or

gender-equity-related issues? If so, I ask that you stand.

Id. at 36 (quoting Tr. of Jury Selection at 5:20-6:1).

Ms. Tourangeau then argues that “[s]imilarly concerning, Juror Number 161’s

Facebook page has changed, and he no longer ‘likes’ the 100PercentFEDUP group,” a

change which “occurred in the past week, raising a question of how this juror learned

his Facebook page was at issue on post-trial motions.” Id. at 37. Ms. Tourangeau

contends that plaintiff’s counsel has not contacted the juror and assumes that neither

has defense counsel, and she then proposes three hypothetical answers to why Juror

Number 161 may have ‘unliked’ the Facebook page: (1) “[i]t is possible that an

enormous coincidence has occurred, and this juror removed the 100PercentFEDUP

‘like’ from his Facebook page for reasons having nothing to do with this case”; (2) “the

juror has decided to stay informed about this case and review all post-judgment

motions that are filed on PACER, including Plaintiff’s Motion for New Trial”; (3)

“someone from Nappi Distributors may well have [contacted him . . . which] begs the

question whether someone at Nappi has overlapping interests with Juror Number

161, and whether he knew Nappi employees before trial.” Id. at 37-38. Ms.

Tourangeau contends that “[g]iven the unusual circumstance of this case, Juror

Number 161 should be questioned by the Court about why and when he ‘unliked’ the

100Percent FEDUP Facebook page [or a]lternatively the Court should order a new

trial.” Id. at 38. “From Plaintiff’s perspective . . . the Court should have questioned

Juror Number 161 on his affiliation with 100PercentFEDUP and his responses to

Questions Number 7 and 8.” Id. at 40. According to Ms. Tourangeau, “when the

verdict was read in favor of Defendant and against Plaintiff, Juror Number 161

smirked and took such obvious pleasure in finding against [Ms.] Tourangeau that his

bias was unmistakable.” Id.

B. Nappi’s Response

1. Nappi’s Affirmative Defense under the EPA

Nappi submits that “[e]ven without Plaintiff’s indisputable concession and

subsequent waiver” regarding the Court’s jury instructions on Nappi’s affirmative

defenses, “the jury received ample evidence that Nappi’s decision in 2014 to

compensate all new wine sales representatives moving forward at two percent was

based on a business decision that had nothing to do with sex.” Def.’s Opp’n. at 23.

According to Nappi, it is “undisputed that all new wine sales representatives hired

by Nappi since 2014–regardless of their sex–have been compensated at a two-percent

commission rate” and that “Nappi decided to go to a two-percent commission rate for

new wine sales representatives before [Ms.] Tourangeau ever applied for a position at

Nappi.” Id. at 23 (emphasis in defendant’s opposition). Nappi submits that “[i]t was

further undisputed that the move to a two-percent commission rate for new wine sales

representatives was part of an effort to ‘cap’ the amount Nappi was spending on wine

sales representatives” and that “[s]uch a move was intended to bring the overall

compensation in the wine department down over time to a realistic level as compared

to compensation within Nappi and within the beverage industry.” Id. 23-24. Nappi

therefore contends that “the jury had an ample basis to conclude that the decision to

move to a two-percent commission rate had no connection with sex.” Id. at 23.

Regarding Ms. Tourangeau’s arguments about Nappi’s use of the term

“grandfathering,” Nappi submits that “the contention [Ms.] Tourangeau has built

around [the term] is both subjective and convoluted” and “[t]he testimony at trial

established that Nappi’s use of the term ‘grandfathered’ was not synonymous with

the term ‘seniority’ as [Ms.] Tourangeau intimates.” Id. at 26. Nappi further submits

that Ms. Tourangeau’s “morphed interpretation of the term ‘grandfathered’ ignored

the evidence the jury received of Nappi’s legitimate business reasons for its decisions

regarding wine sales representative commissions, the justifications for those reasons,

and the undisputed fact that those reasons had nothing to do with sex.” Id.

2. Denial of Requested EPA Jury Instruction

Nappi first argues that “[t]he Court properly instructed the jury on [its]

affirmative defenses under the EPA and ample trial evidence supported the jury’s

determination that the defendant met its burden of proving its defenses.” Id. at 17.

Nappi contends that Ms. Tourangeau’s “attempt to undermine the jury’s

determination with regard to Nappi’s EPA affirmative defenses fails” because: (1)

“the Court properly instructed the jury” and Ms. Tourangeau “agreed that the

evidence had generated the instruction that a business decision that was unrelated

to sex was a defense to her claim”; (2) “contrary to [Ms.] Tourangeau’s suggestion,

this case does not implicate the Supreme Court’s decision in Corning,” and; (3) “the

evidence presented at trial supported the jury’s determination that Nappi had proved

its affirmative defenses by a preponderance of the evidence.” Id. at 17-18.

Nappi explains that “during the course of the charge conference . . . [Ms.]

Tourangeau agreed that the evidence justified an instruction on the affirmative

defense of business decisions unrelated to sex” and she “did not object when the Court

stated that [it] intended to instruct the jury on the ‘quantity or quality of production’

defense and the business decision unrelated to sex defense.” Id. at 18-19. According

the Nappi, Ms. Tourangeau similarly “confirmed that she did not have any issues

with the EPA defense question on the proposed verdict form.” Id. at 19. Nappi

submits that “[c]onsistent with that consensus, the Court instructed the jury on

Nappi’s affirmative defenses under the EPA . . . [and p]rior to submitting the case to

the jury, [Ms.] Tourangeau did not object to th[e] instruction on the grounds that it

was misleading or that it did not accurately state the law pertaining to the EPA

affirmative defenses.” Id. Nappi further submits that “[t]here can be no doubt,

therefore, that [Ms.] Tourangeau waived any objection she may have had to the

Court’s inclusion of the EPA affirmative defense pertaining to business reasons

unrelated to sex in its jury instructions or to the Court’s description of that defense.”

Id.

Nappi next argues that “the Court did not err in declining to include” Ms.

Tourangeau’s requested EPA jury instruction because “the proposed instruction does

not accurately state the law” and “[m]oreover, the trial evidence did not justify

instructing the jury on the correct standard derived from Corning.” Id. at 19-20.

According to Nappi, “the Court’s instruction in its totality adequately informed the

jury as to the controlling issues in an EPA claim,” so “the Court did not err in

declining to include the language suggested by [Ms.] Tourangeau.” Id. at 20.

Nappi contends that “[n]one of the elements of reversible error exist with

regard to the Court’s refusal to include” Ms. Tourangeau’s requested instruction. Id.

at 20. According to Nappi, “the Supreme Court’s decision in Corning turns not on

alleged historical discriminatory treatment generally, but rather on a historical

‘practice of paying women less for equal work.’” Id. at 21 (internal citation and

emphasis omitted). Nappi further contends that “Corning does not support [Ms.]

Tourangeau’s proposed language, which refers to ‘the company’s prior illegal practice

of not hiring women for the sales representative positions’ and not to a prior practice

of paying women at a different rate than men to work as wine sales representatives.”

Id.

Nappi submits that “the pertinent portion of the Corning decision is not

implicated by the trial evidence” because Ms. Tourangeau “did not present any

evidence at trial that Nappi had a practice of paying women at a different rate than

men to work as wine sales representatives prior to its decision to compensate new

wine sales representatives with two-percent commissions.” Id. According to Nappi,

“the testimony established that all new wine sales representatives hired since 2014—

beginning with [Ms.] Tourangeau—have received two percent commissions,

regardless of their sex,” making it such that “the Supreme Court’s reference in

Corning to a ‘prior illegal practice of paying women less than men for equal work’ has

no relevance to the issues in this case.” Id.

Finally, Nappi submits that its “burden of proof with regard to its affirmative

defenses is substantially incorporated in the instructions the Court gave the jury as

to the EPA claim.” Id. at 22. Nappi notes that “[t]he Court eliminated the affirmative

defenses set forth in 29 U.S.C. § 206(d)(1) that it ruled were not generated by trial

evidence” and “instructed that Nappi bore the burden of proof to demonstrate its

affirmative defenses are more likely true than not,” such that “the Court’s instruction

on Nappi’s burden with regard to the affirmative defenses . . . more than adequately

informed the jury as to the controlling law.” Id.

3. Jury Selection Process

Nappi contends that “the Court did not abuse its discretion in ruling on the

challenges for cause during jury selection” because the Magistrate Judge neither

erred in releasing Juror Number 14 nor in refusing to strike Juror Number 89. Id.

at 26. First, Nappi argues that the Magistrate Judge did not abuse his discretion in

striking Juror Number 14 because the juror “admitted that she would be ‘more likely

to lean towards someone who is being undercompensated,’” and the Magistrate Judge

“was able to observe the juror when she spoke those words.” Id. at 27. According to

Nappi, the Magistrate Judge “observed that she seemed hesitant about her responses

to questions about whether she could be fair and impartial” and noted that “her prior

personal experience with an unequal pay issue that had never been adequately

addressed by her employer was a close parallel to the allegations in this case.” Id. at

27.

Regarding Juror Number 89, Nappi explains that “in refusing [Ms.]

Tourangeau’s request to strike Juror Number 89 for cause due to his prior litigation

experience, the Magistrate Judge noted his own observations about [the juror]’s

responses and his demeanor,” indicating “that the juror had satisfied him that [his]

prior experience as a defendant would not affect his ability to be fair and impartial in

this case.” Id. at 29. Nappi contends that because the Magistrate Judge’s

“assessments are amply supported by the record, the Court should conclude that the

Magistrate Judge’s ruling[] . . . in refusing to strike Juror N[umber] 89 w[as] well

within his discretion.” Id. at 31. Nappi further contends that the Magistrate Judge

“rejected [Ms.] Tourangeau’s attempt to equate the experiences and presentation of

Juror N[umbers] 14 and 89,” and “[i]n doing so, he made it clear that both the jurors’

answers and his observations about their demeanor were important distinguishing

factors.” Id. at 29.

Specifically regarding Ms. Tourangeau’s allegation of bias expressed by Juror

Number 89 during trial, Nappi submits that “[b]y waiting until her Amended Motion

for New Trial to raise these allegations, [Ms.] Tourangeau has waived them as a basis

to prove juror bias.” Id. at 31. Moreover, Nappi submits that Ms. Tourangeau “has

nothing but speculation to support her argument of bias, since there is no evidence

as to why Juror N[umber] 89 might have been upset.” Id. at 32.

4. Juror Bias of Juror Number 161 During Trial

Nappi submits that “there is no evidence of juror misconduct” and that because

Ms. Tourangeau “cannot meet the[] requirements [of demonstrating that Juror

Number 161 lied in his voir dire responses], the Court should deny the request for

new trial on this ground.” Id. at 32-33. Nappi contends that “[a]s this Court noted

during its careful assessment of this issue at trial, there is no competent evidence

that Juror N[umber] 161 failed to answer either question [seven or eight] honestly.”

Id. at 33. Specifically, regarding voir dire question seven, Nappi further contends

that Ms. Tourangeau “has presented no evidence of any feelings or beliefs held by

Juror N[umber] 161 relative to such laws or that he was lying about his opinion of

his ability to be fair and impartial in a case involving such laws.” Id. (emphasis

omitted). Regarding question eight, Nappi similarly contends that Ms. Tourangeau

“has presented no evidence of any feelings or beliefs held by Juror N[umber] 161

relative to lawsuits for money damages or that he was lying about his ability to be

fair and impartial in a case involving such claims.” Id. at 34 (emphasis omitted).

In response to Ms. Tourangeau’s argument about Juror Number 161’s liking of

the 100PercentFEDUP Facebook page, Nappi submits that Ms. Tourangeau’s

“representation” about the significance of liking this page, “whether implicit or

explicit, is simply inaccurate,” and moreover, the “Facebook page she references is

not a group; it is a page . . . to express conservative views” and Ms. Tourangeau “can—

and does—speculate freely as to what it means for a person to like a Facebook page,

but there is no evidence to substantiate any of that speculation.” Id. at 34. Nappi

further submits that “there is no evidence as to when Juror N[umber] 161 ‘liked’ the

page, what posts to the page, if any, Juror N[umber] 161 actually saw, commented

on, or liked, and whether [he] agreed or disagreed—in whole or in part—with the

material in posts on the page” and “[n]or is there anything about the Facebook page

that illuminates Juror N[umber] 161’s feelings or philosophical beliefs about anti-

discrimination laws or lawsuits for money damages.” Id. at 34. Nappi concludes that

“there is nothing about the Facebook page that would suggest—let alone establish—

that Juror N[umber] 161 lied when he indicated he could be fair and impartial in this

case.” Id. at 35.

C. Michele Tourangeau’s Reply

1. Nappi’s Affirmative Defense under the EPA

Ms. Tourangeau first submits that “[b]efore 2019, [Ms.] Tourangeau’s wages

were exactly the same as a three percent commission rate,” and “Nappi’s decision to

reduce [Ms.] Tourangeau’s compensation in 2019 had no valid justification other than

gender.” Pl.’s Reply at 1 (internal quotation marks omitted). Thus, according to Ms.

Tourangeau, “it is pure fabrication for Nappi to suggest that [Ms.] Tourangeau’s

compensation at the time of her hire was based on a policy to pay new wine sales

representatives wages amounting solely to a 2% commission rate.” Id. (emphasis in

Pl.’s Reply). Ms. Tourangeau further submits that “[f]unctionally, this argument is

both misleading and false because the evidence at trial established that [Ms.]

Tourangeau’s actual wages were ‘the same’ as a 3% commission rate until 2019.” Id.

at 1-2 (emphasis in Pl.’s Reply). Ms. Tourangeau submits that “Nappi’s excuse for

unequal pay is nothing more than a post hoc ergo propter hoc fallacy crafted in

hindsight four years after the events occurred.” Id. at 2 (emphasis omitted).

Ms. Tourangeau contends that “Nappi’s claim of grandfathered tenure and

seniority is tantamount to giving better rights (i.e., compensation) to certain

employees over others because of length of service” and that “[g]ood reason exists for

the United States Supreme Court’s requirement that a bona fide seniority system

affirmative defense under the EPA be based on clearly defined rules and specific

benchmarks for attaining (or losing) seniority.” Id. at 4. According to Ms.

Tourangeau, Nappi “fails to explain how receiving higher pay based on length of

service under the guise of ‘seniority’ is different from a ‘bona fide seniority system.”

Id. Ms. Tourangeau further contends that “[i]f the term ‘grandfathering’ is to be

distinguished from a ‘seniority system’ at all (which Plaintiff disputes), it is because

‘grandfathering’ connotes a decision to afford rights to a certain group over others

based on their status at a particular point in time,” and “[t]he evidence at trial simply

did not support ‘grandfathering’ as a basis for taking away [Ms.] Tourangeau’s 1%

salary in 2019. Id. at 5-6 (emphasis omitted). Ms. Tourangeau concludes that

“comparator evidence showed that [she] had more tenure and seniority when Nappi

began reducing her salary in 2019 than males earning 3% commission in 2014 and

2015,” including Robert Hole, Daniel Kane, and Dwayne Preble, and the “evidence

did not establish any other valid business decision under the EPA’s catchall

affirmative defense.” Id. at 9-10.

2. Denial of Requested EPA Instruction

Ms. Tourangeau submits that “[n]othing contained in Defendant’s Opposition

changes the argument advanced by Plaintiff that a new trial is warranted because

the jury’s deliberations were impacted by the Court’s decision not to give the Corning

jury instruction” since “[t]he facts of Corning are more analogous to the instant case

than the Court’s ruling suggested.” Id. at 12. According to Ms. Tourangeau, “[t]here

is no language in Corning that requires a prior illegal pay practice to be ‘baked into’

a current EPA violation.” Id. Ms. Tourangeau further submits that “[t]he Corning

jury instruction does not apply only to perpetuation of unequal pay within the same

workplace, but within our society as a whole.” Id (emphasis in Pl.’s Reply). Ms.

Tourangeau submits that “based on the purpose, language, and history of the EPA,

the jury should have been instructed that Nappi’s prior decision not to employ any

female wine sales representatives at all before 2015 perpetuated the illegal decision

to remove [Ms.] Tourangeau’s salary beginning in 2019.” Id. at 13.

3. Jury Selection Process and Juror Bias

Regarding Juror Number 89, Ms. Tourangeau asserts that he “repeatedly

expressed hesitation about his ability to remain impartial, because he had ‘insight’

about being ‘wrongfully accused’ that would obviously have ‘some impact’ on his view

of this case.” Id. According to Ms. Tourangeau, “[a] juror who displays such personal

bias, or bias in fact, must be dismissed.” Id. at 13-14. Ms. Tourangeau submits that

“[a]llowing him to remain on the jury, indeed as the foreman, was an abuse of

discretion,” especially “considering that his answers to voir dire revealed the potential

for direct bias as a matter of law because Juror 89 was connected to at least three

different recent lawsuits concerning his employer.” Id. at 14 (emphasis omitted).

Ms. Tourangeau then asserts that the “facts in [United States v. Tucker, 61 F.

4th 194 (1st Cir. 2023)] reveal why Juror 161 should have been questioned and then

excused here,” because the “kind of behavior related to Juror 1 in Tucker is no

different from the kind of behavior that Plaintiff’s counsel observed with Jurors 89

and 161 in the instant case.” Id. at 14-15. Finally, Ms. Tourangeau submits that

although “Nappi contends that it cannot be determined beyond speculation whether

‘liking’ a Facebook page means that the juror ‘likes’ all of the content contained

therein . . . it is the membership in the group itself, and not every single post or view

maintained, that would have given Plaintiff the ability to challenge for cause.” Id. at

15. Ms. Tourangeau concludes that “[t]hese issues are of such significant importance

that Plaintiff requests a hearing with the Court to further evaluate Juror 161’s

truthfulness in responding to voir dire.” Id.

III. LEGAL STANDARD

“The decision to grant a new trial is squarely within the trial court’s

discretion.” Velazquez v. Figueroa-Gomez, 996 F.2d 425, 427 (1st Cir. 1993). At the

same time, the First Circuit has noted that the district court’s discretion to order a

new trial after a jury has reached a verdict is “quite limited.” Id. at 428. A motion

for a new trial under Rule 59 requires a finding that “the verdict is so seriously

mistaken, so clearly against the law or evidence, as to constitute a miscarriage of

justice.” TransAmerica Premier Insurance Company v. Ober, 107 F.3d 925, 929 (1st

Cir. 1997) (internal quotation marks omitted); see also Sanchez v. Puerto Rico Oil

Company, 37 F.3d 712, 717 (1st Cir. 1994) (a district court will set aside the jury

verdict only if it “is against the demonstrable weight of the credible evidence or

results in a blatant miscarriage of justice”).

The First Circuit has emphasized that a “‘district judge cannot displace a jury’s

verdict merely because he disagrees with it’ or because ‘a contrary verdict may have

been equally . . . supportable.’” Jennings v. Jones, 587 F.3d 430, 436 (1st Cir. 2009)

(quoting Ahern v. Scholz, 85 F.3d 774, 780 (1st Cir. 1996)). A new trial is a remedy

“sparingly used, and then only where there would be a miscarriage of justice and

where the evidence preponderates heavily against the verdict.” Sebastino v.

Springfield Terminal Railway Co., 530 F. Supp. 3d 81, 86 (D. Mass. 2021) (citing

United States v. Merlino, 592 F.3d 22, 32 (1st Cir. 2010)).

IV. DISCUSSION

A. Sufficiency of the Evidence of Nappi’s Affirmative Defense

under the EPA

Ms. Tourangeau argues that a new trial is warranted because the jury verdict

was against the great weight of the evidence and no rational jury could have found

that any discrepancy in pay between Ms. Tourangeau and the “grandfathered” male

colleagues was due to quantity or quality of production and/or to a business decision,

such as adjusting its payroll to reflect industry standards, not based on gender. The

Court disagrees with Ms. Tourangeau and concludes that a rational jury could well

have found—and in fact did find—that Nappi proved by a preponderance of the

evidence an affirmative defense to Ms. Tourangeau’s EPA claim.

1. Legal Standard

“[C]ourts may only grant a judgment contravening a jury’s determination when

the evidence points so strongly and overwhelmingly in favor of the moving party that

no reasonable jury could have returned a verdict adverse to that party.” Monteagudo

v. Asociacion de Empleados del Estado Libre Asociado, 554 F.3d 164, 170 (1st Cir.

2009) (citations omitted). “As part of this analysis, courts ‘may not consider the

credibility of witnesses, resolve conflicts in testimony, or evaluate the weight of the

evidence.’” Mesías v. Hosp. Hima San Pablo, No. 18-1988 (JAG), 2021 U.S. Dist.

LEXIS 57090, at *3 (D.P.R. Mar. 24, 2021) (quoting James Wm. Moore, MOORE’S

FEDERAL PRACTICE § 50.06[6][b] (3d ed. 2003)).

2. Analysis

a. The Prima Facie Case and Affirmative Defense

To begin, the Court notes what is and is not at issue. As the Court instructed

the jury, to prove her pay discrimination claim under the EPA, Ms. Tourangeau was

required to prove by a preponderance of the evidence: 1) that Ms. Tourangeau and at

least one male employee have been employed by Nappi Distributors in jobs requiring

substantially equal skill, effort, and responsibility, 2) that the jobs were performed

under similar working conditions, and 3) that Ms. Tourangeau was paid a lower wage

than the male employee in jobs that require substantially equal skill, effort, and

responsibility as Ms. Tourangeau’s job and that are performed under similar working

conditions. Trial Tr. at 1107:11-21..

The Court further instructed the jury that “[t]here is no dispute in this case

that Ms. Tourangeau and male employees working at Nappi as wine sales

representatives with southern Maine routes work in jobs that require substantially

equal skill, effort, and responsibility with similar working conditions. There is also

not dispute in this case that Ms. Tourangeau was paid a lower commission rate than

at least one male wine sales representative working in a job with substantially equal

skill, effort, responsibility, and working conditions.” Id. at 1108:3-11. The Court

informed the jury that Ms. Tourangeau needed only to compare herself to one “male

employee working in a job with substantially equal skill, effort, and responsibility

and working conditions.” Id. at 1108:12-15. The Court instructed the jury that Ms.

Tourangeau “need not show that Nappi Distributors had a discriminatory intent [in

paying] her unequal wages.” Id. at 1108:15-17.

These instructions all but informed the jury that Ms. Tourangeau had made

out a prima facie case against Nappi under the EPA, and the jury verdict on question

one is consistent with this assessment. See Special Verdict Form at 1 (ECF No. 204)

(Verdict Form).

The nub of the controversy was whether Nappi had sustained its burden to

prove its affirmative defense by a preponderance of the evidence, namely that “any

differences in pay between Ms. Tourangeau and male workers are due to quantity or

quality of production and/or to a business decision, such as [adjusting] its payroll to

reflect industry standards, not based on gender.” Trial Tr. at 1108:19-25. In issuing

its verdict, the jury concluded that Nappi had sustained its burden of proof on this

affirmative defense. Verdict Form at 1. The Court turns to the record evidence on

this affirmative defense.

b. The Two-Percent Commission: Nappi’s Reasoning

and Timing

The record at trial established that all new wine sales representatives hired by

Nappi since 2014—regardless of their sex—have been compensated at a two-percent

commission rate. Trial Tr. at 762:24-763:4. Nappi presented evidence to the jury

showing that the move to a two-percent commission rate for new wine sales

representatives was part of an effort to “cap” the amount Nappi was paying its wine

sales representatives. Id. at 522:10-20. According to Nappi, such a move was

intended to bring the overall compensation in the wine department down over time

to a “realistic” level as compared to compensation within Nappi and within the

beverage industry. Id. at 726:22-727:11. Nappi further presented evidence that it

decided to go to a two-percent commission rate for new wine sales representatives

before Ms. Tourangeau applied for a position at Nappi. Id. at 518:5-519:3; 761:24-

762:13.

c. Regional and National Compensation Standards

The jury similarly heard that the compensation Nappi paid its wine sales

representatives stood out as inflated when compared to distributors both in the

Northeast and nationally. Id. at 726:22-727:11; 762:14-23. Ms. Fox, for example,

testified that the “SevenFifty report” Ms. Tourangeau had sent to Mr. Watson

contained survey information that supported and “validated” Nappi’s decision to

reduce wine sales representatives’ compensation. Id. at 735:15-736:16. Although Ms.

Tourangeau asserts in her motion for new trial that “the record evidence established

that Nappi’s competitors were paying wine sales representatives more than 2%

commission,” she provides no evidence or citation to the record, and the Court

concludes that based on the trial testimony, a reasonable jury could find that Nappi’s

desire to bring its wine sales compensation more in line with the company’s own

compensation structure and the industry as a whole is a valid business reason other

than sex for the new commission rate that Nappi applied equally to all new wine sales

representatives hired since 2014. Pl.’s Mot. at 18 (emphasis in Pl.’s Mot.).

d. Nappi’s Increased Costs

Nappi likewise presented evidence that the reduction of the wine sales

commissions to two percent helped to offset increased costs for fuel, energy, product,

shipping, technology, and additional support staff. Trial Tr. at 730:2-11; 762:14-23.

Finally, the jury heard from Nappi’s president, Frank Nappi, Jr.—the person who

made the decision to move to two-percent commissions—that continuing with three-

percent commissions for wine sales representatives was not feasible from a business

perspective. Specifically, Mr. Nappi, Jr. testified that “three percent is not

sustainable, not for a long period of time [because w]ith wine [Nappi’s] margins are

not huge and over time they’ve—they’ve shrunk, [s]o we make a lot less money so

there is a lot less to pass on.” Id. at 832:13-21.

e. Nappi’s Exception for Long-term Sales

Representatives

The jury also heard evidence that Nappi’s decision to keep the wine sales

representatives who were with the company prior to 2014 at a three-percent

commission rate was based on business reasons unrelated to sex. Specifically, the

jury heard that wine sales representatives were kept at three-percent commissions

when the new rate was adopted because of their established positions and tenure at

Nappi, their general experience in wine sales, and their existing role in driving sales

for Nappi. Id. at 727:12-23. Frank Nappi, Jr. testified that relationships with

accounts that are developed over time are an important aspect of wine sales and that

the company valued the relationships the existing sales representatives had

developed, which motivated Nappi to keep those representatives at three-percent

commissions when the new reduced commission rate was implemented.1 Id. at

832:22- 833:14. Ms. Fox testified that Nappi did not want to lose these valued wine

sales representatives who had been with the company for many, many years.2 Id. at

766:10-25.

Based on the extensive record from the five-day trial, the Court concludes that

the jury had a sufficient basis to find that Nappi’s decision to move to a two-percent

commission rate at the time it hired Ms. Tourangeau in 2014 was motivated by a

1 Mr. Nappi, Jr. testified:

Q. Okay. You also were asked some questions about -- or I believe the existing wine

sales representatives were kept at three percent commission; is that right?

A. The ones with long tenure, yes.

Q. Okay. And why did you keep those at three percent?

A. Selling a wine sales route takes – takes a lot of work. You need to develop

relationships with your accounts to get, you know, most of their business. You know,

instead of having three bottles on the shelf, you want six bottles on the shelf or 12.

You want all their business, and it takes a while to – to grow that. And if you – if you

– if a salesperson that's been there for 20 years, you break down their commission rate

from three to two and they decide to leave, it will take a very long time, perhaps a year,

two years, to develop that route again.

Q. Okay. So it was the – you valued their – their tenure and seniority with regard to

those type of – of activities?

A. Yes.

Trial Tr. at 832:22-833:14.

2 Ms. Fox testified:

Q. Okay. And did you have an understanding as to why Nappi kept those individuals

at a three percent rate?

A. Yeah, I mean they -- as I talked previously a couple of times about the long tenure,

the long seniority that they've had, they were performing very well for us. We want –

Frank wanted to keep them, he did not want them to leave the company, you know, so

the decision was made that we were going to keep them at the three percent and as

they – like the – one of the retirements is Steve Cohen, when he retired and we – his

replacement is Matt Auger, Matt took over at two percent.

Q. Okay. So I think you’re indicating Frank Nappi wanted to retain these people, their

tenure for the company and experience was important to him?

A. Very.

Q. Okay.

A. To all of us.

Trial Tr. at 766:10-25.

business decision unrelated to sex. The Court thus concludes that a reasonable jury

could in fact have found that Nappi met its burden of proving its affirmative defense.

B. The Court’s Instruction on Nappi’s Affirmative Defenses and

Denial of Ms. Tourangeau’s Requested EPA Instruction

Ms. Tourangeau argues that the Court erred in instructing on a “catchall

affirmative defense” and in allowing Nappi to use the term “grandfathering”

colloquially when arguing in favor of the catchall defense. Ms. Tourangeau

additionally argues that a new trial is warranted because the Court refused to give

Ms. Tourangeau’s requested EPA instruction under Corning.

The Court concludes that it properly instructed on the catchall affirmative

defense, that Ms. Tourangeau waived any objection against this affirmative defense

when she did not object to its inclusion in the jury instructions, and that the Court

did not err in allowing Nappi to use the term “grandfathering” to mean something

other than a bona fide seniority system. The Court moreover concludes that its

thoroughly explained decision not to include an instruction based on Corning was

correct as a matter of substantive law and that the given instructions as a whole

encompassed all required elements to properly charge the jury.

1. Factual Background

On March 2, 2023, on the fourth day of trial, the Court held a charge conference

and reviewed the proposed jury instructions with the parties. See Trial Tr. at 878:21-

929:24.

Prior to trial, Nappi submitted the following proposed jury instruction on its

affirmative defenses:

If you find that Tourangeau has proven her claim, you will then consider

Nappi Distributors’ defenses. Nappi Distributors contends that the

differential in commission rate between the wine sales representatives

is the result of a bona fide system based on seniority and experience in

wine sales. Nappi also contends that the differential is based on a

business decision made before Tourangeau was hired to reduce

commission rates for wine sales representatives to better align with the

industry and with compensation within Nappi generally.

Def.’s Proposed Jury Instructions at 8-9 (ECF No. 127).

First, the Court discussed with the parties whether an instruction on the

seniority defense under the EPA was generated by the evidence at trial. Ms.

Tourangeau argued that it was not, specifying: “I think [Nappi is] entitled to the

affirmative defense on the idea that this was a business judgment or another factor

as we talked about initially, but I think it’s -- I think it would be inconsistent with

the evidence to instruct on a seniority system.” Id. at 883:3-7. The Court indicated

that it would review Ms. Tourangeau’s proposed caselaw and rule on availability of

the seniority defense. Id. at 886:10-12; 921:24-922:3.

Regarding the jury instructions related to Nappi’s other affirmative defenses

under the EPA, the Court proposed the following instruction:

THE COURT: What -- what it now says -- I think we can continue with

the discussion. What it says is Nappi -- if you find Ms. Tourangeau has

proven her claim, and this is under the Equal Pay Act, you will then

consider Nappi’s -- Nappi Distributors’ defenses. Nappi has asserted

that any difference in pay between Ms. Tourangeau and male workers

are due to differences in their seniority, to application of the merit

system to quantity or quality of production, and/or to a business decision

such as adjusting its payroll to reflect the industry standards not based

on gender. On these affirmative defenses Nappi bears the burden of

proof to demonstrate its affirmative defenses are more likely than not

true or not.

So do you want to – what’s Nappi’s position concerning -- I think the --

the one that clearly has been generated is business decisions such as

adjusting its payroll to reflect industry standards not based on gender.

That’s the real enchilada; isn’t it?

MR. WALL: I think so, Your Honor, yes.

THE COURT: Do you want to -- you want me to eliminate the -- the other

affirmative defenses listed here?

MR. WALL: Well, no, Your Honor, because if they’re going to be arguing,

for example, the routes issue and whether or not one is favorable over

another, then the quality or quantity of production becomes relevant to

that.

THE COURT: Okay. How about --

MS. QUINLAN: Your Honor --

THE COURT: Well, let me -- let me just -- let me finish with this.

MR. WALL: I would agree that merit system I don’t think is really -- is

not really an issue, it’s really more seniority, if they’re going to be

arguing the allocation of routes then there is a production issue, and

then the last one that you just read, Your Honor.

THE COURT: Okay. So the seniority issue will depend on my reading

of the Supreme Court case that’s going to be sent to me or you’ll -- after

this conference you can let me know. If it is as described, then it doesn’t

seem that Nappi has that kind of formal seniority system; you agree to

that?

MR. WALL: I -- I agree there is no formal system that has been

generated by the evidence so far.

THE COURT: Right, so it depends on what the Supreme Court said. So

I know that you want seniority, and unless the law prohibits it I’ll give

it.

MR. WALL: Thank you, Your Honor.

THE COURT: And then I’ll strike application of the merit system and

we’ll go with quantity or quality of production. I think it’s sort of -- I

think it’s been generated. And then the final one. Is there anything

further from either one on this?

MS. QUINLAN: Not on that part right there.

Id. at 884:20-886:19.

The Court later reiterated its intentions regarding Nappi’s EPA defenses when

it reviewed the proposed verdict form with the parties. Ms. Tourangeau sought to

ensure that “the affirmative defense language [in the verdict form] tracks the

discussion we’ve already had about seniority system, merit based, et cetera.” Id. at

921:20-23. The Court confirmed that the question on the verdict form regarding

Nappi’s EPA defenses would conform to the instructions generated by the evidence:

We’d have to eliminate -- so we’re -- we’re really talking -- this talks

about bona fide seniority system, and we have -- and depending on the

information you give me I may or may not include seniority system,

we’re striking merit system. And then we need to infuse and/or business

decision.

Id. at 921:24-922:4. Ms. Tourangeau confirmed that she did not have any further

issues with the EPA defense question on the proposed verdict form. Id. at 922:5-6.

On March 3, 2023, before commencement of the final day of trial, the Court

discussed with the parties its decision with respect to instructing on a bona fide

seniority system as an affirmative defense to the EPA claim. Id. at 1030:17-1031:15.

The Court distinguished between a bona fide seniority system and the term

“grandfathering,” as used at trial, and indicated that it would incorporate

grandfathering within the parameters of the business-related affirmative defense.

Id. at 1031:8-15. The Court’s discussion regarding seniority and grandfathering

proceeded as follows:

THE COURT: Let me talk about seniorities and affirmative defense

under the Equal Pay Act. I looked at AT&T versus Hulteen, H-U-L-T-

E-E-N, which is 556 U.S. 701, and this quotes California Brewer’s, which

is 444 U.S. 598, a 1980 case.

And it says here, a seniority system is a scheme that, alone or in tandem

with non-seniority criteria, allots to employees ever-improving rights

and benefits as their relative lengths of employment increase. That’s

not what happened here. It’s just not what happened here. This is --

Nappi’s change was grandfathering. It wasn’t a bona fide seniority

system in which you get ever-improving rights and benefits as your

relative length of employment increases. So I’m not going to instruct on

-- on seniority.

MR. WALL: I understand our objection is on the record.

THE COURT: Sure.

MR. WALL: I mean, Your Honor, if it’s incorporated within the sort of

parameters of the fourth provision that grandfathering is a -- business-

related rationale that’s not related to sex --

THE COURT: No, you can argue that, but I’m talking about your -- your

request that I instruct the jury on seniority as an affirmative defense. I

don’t think you have met it.

Id. at 1030:17-1031:15. The Court further ruled that Nappi could use the term

“seniority” in the colloquial fashion in closing, as the evidence established these

individuals had seniority and tenure with the company. Id. at 1035:2-16. Ms.

Tourangeau did not object to the Court’s ruling. Id. at 1035:13-23.

On the last day of trial, the Court also addressed Ms. Tourangeau’s requested

instruction under Corning. Ms. Tourangeau had asked the Court to include the

following jury instruction:

If you find that Nappi has proven their defense, that the decision to pay

Ms. Tourangeau was based on a neutral factor other than sex, but that

it nevertheless operated to perpetuate the effects of the company’s prior

illegal practice of not hiring women for the sales representative

positions, then you must find in Ms. Tourangeau’s favor.

Proposed Jury Instructions at 12 (ECF No. 142). After reviewing the facts and

holding of Corning, the Court denied Ms. Tourangeau’s request:

What I -- what I see Corning as saying is that if an employer’s prior

discriminatory practice is baked into its wage structure, even after it

changed its wage structure, a company’s insistence that it change its

wage structure neutrally doesn’t eliminate its prior discrimination.

That’s the way I read it.

So I don’t think that’s what happened here under any scenario because

Ms. Tourangeau was the first woman hired. So there is no evidence that

Nappi paid women sales representatives less before it hired Ms.

Tourangeau because Ms. Tourangeau was the first woman, so there is

no indication that any of its prior practice was baked into what it did

here. This was a new practice, which you claim, I think the jury will

decide, was discriminatory. But it’s not a function of -- it’s not a wage

structure that was baked into its current structure for which it’s now

offering a neutral reason. So the bottom line is I don’t think Corning

applies and I’m not going to give the instruction.

Trial Tr. at 1029:9-1030:1. After the close of evidence, the Court instructed the jury

on the EPA claim, including Nappi’s defenses, as follows:

If you find that Ms. Tourangeau has proven her claim, you will then

consider Nappi’s defenses. Nappi has asserted that any differences in

pay between Ms. Tourangeau and male workers are due to quantity or

quality of production and/or to a business decision, such as adjust[ing]

its payroll to reflect industry standards not based on gender. On these

affirmative defenses, Nappi bears the burden of proof to demonstrate its

affirmative defenses are more likely true than not.

Id. at 1108:17-25. In addition, the Court reviewed with the jury the relevant question

on the verdict form:

Two. This is the affirmative defense. Has Nappi Distributors proven,

by a preponderance of the evidence, that the differential in pay between

Ms. Tourangeau and the comparable male employee, or employees, was

due to quantity or quality of production and/or to a business decision

such as adjusting its payroll to reflect industry standards[,] not based

on gender? Yes or no.

Trial Tr. at 1123:17-23.

Ms. Tourangeau addressed the EPA affirmative defenses in her closing

argument. In discussing the preponderance of the evidence standard and how it

applied to Nappi’s defenses, she stated:

The same is true for affirmative defenses. So if Nappi is able to prove

that the only reason they did what they did when it comes to [Ms.

Tourangeau]’s compensation, the only reason was business necessity,

and you put those facts on the same scale and it tips ever so slightly in

their favor, then you would find for them on that affirmative defense.

Id. at 1145:2-7. After both parties concluded their closing arguments, the Court met

with the parties at sidebar prior to committing the case to the jury. During that

sidebar conference, the Court confirmed with the parties that they did not have any

objections to the jury instructions other than those already raised during the charge

conference. Neither party objected. Id. at 1181:25-1182:7.

2. Legal Standard

The First Circuit has held that “[a] trial court is obliged to inform the jury

about the applicable law, but, within wide limits, the method and manner in which

the judge carries out this obligation is left to his or her discretion.” Elliott v. S.D.

Warren Co., 134 F.3d 1, 6 (1st Cir. 1998). The First Circuit has further stated that

“the real test is whether as a whole ‘the instructions adequately illuminate the law

applicable to the controlling issues in the case without unduly complicating matters

or misleading the jury.’” Rosa-Rivera v. Dorado Health, Inc., 787 F.3d 614, 620 (1st

Cir. 2015) (citing United States v. DeStefano, 59 F.3d 1, 3 (1st Cir.1995)).

“A refusal to give a particular instruction constitutes reversible error only if

the requested instruction was (1) correct as a matter of substantive law, (2) not

substantially incorporated into the charge as rendered, and (3) integral to an

important point in the case.” Estate of Keatinge v. Biddle, 316 F.3d 7, 17 (1st Cir.

2002) (citing Elliott, 134 F.3d at 6). In discussing this standard, the First Circuit has

stated that “[t]he district court should refuse a request for an instruction that states

a legal holding which is not applicable to the facts, even if it is otherwise correct.” Id.

(citing 9A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND

PROCEDURE § 2552 (2d ed. 2002)). The moving party bears the burden of

demonstrating that the alleged error was “harmful, i.e., that it affected that party’s

substantial rights.” Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 102 (1st Cir. 1997)

(citing FED. R. CIV. P. 61)).

A new trial based on an alleged erroneous jury instruction is warranted only if

the objecting party can show that the instruction in question was “‘misleading or gave

an inadequate understanding of the law.’” First Act, Inc. v. Brook Mays Music Co.,

429 F. Supp. 2d 429, 432 (D. Mass. 2006) (quoting Steinhilber v. McCarthy, 26 F.

Supp. 2d 265, 278 (D. Mass. 1998) (citations omitted)). “An erroneous jury instruction

necessitates a new trial only if the error could have affected the result of the jury’s

deliberations.” Allen v. Chance Manufacturing Company, Inc., 873 F.2d 465, 469 (1st

Cir. 1989); see also La Plante v. American Honda Motor Company, Inc., 27 F.3d 731,

737 (1st Cir. 1994). Harmless error turns on “whether th[e] court can say with fair

assurance . . . that the judgment was not substantially swayed by the error.” Nieves-

Villanueva, 133 F.3d at 102 (citing Ahern v. Scholz, 85 F.3d 774, 786 (1st Cir. 1996)).

3. Analysis

a. “Grandfathering” Encompassed by Nappi’s Business

Decision Affirmative Defense

Ms. Tourangeau’s contention that Nappi should not have been allowed to

discuss “grandfathering” as a reason for its business decision is borderline frivolous.

Pl.’s Mot. at 5 (“Nappi consistently cited ‘grandfathering’ as the basis for unequal pay

in this case. A new trial is warranted because ‘grandfathering’ is the same thing as

a ‘seniority system’—the only difference is semantics”). As noted previously, the

Court viewed the term “grandfathering” to encompass two concepts: 1) a “bona fide

seniority system”, and 2) a more colloquial and informal employer policy that

recognizes that sales representatives become more valuable the longer they are

employed, in part because the representatives gain deeper personal contacts with

customers. Finding no evidence that Nappi had a bona fide seniority system, the

Court declined to instruct the jury on that issue.

But regarding the more common-sense definition of grandfathering, it was Ms.

Tourangeau, not Nappi, who first introduced the concept to the jury. During her

opening statement, Attorney Quinlan informed the jury that Nappi was going to

“claim that Michele’s colleagues are grandfathered into their higher pay rates while

she is not.” Trial Tr. at 23:4-5. Attorney Quinlan told the jury that “[g]randfathering

is a term we’ve heard many times before, and you’re going to hear that term a lot this

week.” Id. at 23:9-10. Attorney Quinlan explained that the term comes from the

American South, “where many states enacted laws aimed at preventing African

Americans from being able to exercise their right to vote.” Id. at 23:15-18. Attorney

Quinlan went on at length to describe the historic origins of the term,

“grandfathering,” and its association with southern repression of African Americans.

Id. at 23:18-24:4. Having given the jury this concept, Attorney Quinlan stated that

when Nappi grandfathered, it drew the line in 2019 at Ms. Tourangeau. Id. at 26:20-

23. Attorney Quinlan told the jury that “Nappi continues discrimination commission

rate disparity between those that are grandfathered and those that are not through

- - though phrased in terms of a neutral factor other than sex nevertheless operates

to perpetuate the effects of the company’s prior illegal practice of not hiring women.

Much like how the south utilized the grandfather clauses to exclude African

Americans from voting.” Id. 27:20-28:1.

In her extended comments about grandfathering in her opening statement,

Attorney Quinlan was not referring to grandfathering in the sense of a bona fide

seniority system, but in its more general sense. For Ms. Tourangeau to throw down

the grandfathering gauntlet in her opening statement, compare Nappi’s use of

grandfathering in her case to the South’s repression of African Americans during the

Jim Crow era, and then assert that Nappi should be prohibited from responding is

untenable.

Furthermore, by failing to object to what Ms. Tourangeau now refers to as the

“catchall defense under the EPA,” Pl.’s Mot. at 11, Ms. Tourangeau waived any

objection to the Court’s affirmative defense instruction regarding “a business

decision, such as adjusting its payroll to reflect industry standards, not based on

gender.” Jury Verdict at 1; see Tang v. Citizens Bank, 741 F. App’x 11, 13 (1st Cir.

2018) (holding that a party had waived any objection it may have had to the jury

instructions if the party allowed the case to be submitted to the jury without an

objection on the record) (citing FED. R. CIV. P. 51(c)(2)(B)); Ray v. Ropes & Gray LLP,

799 F.3d 99, 112 (1st Cir. 2015)).

At trial, not only did Ms. Tourangeau not object to the so-called catchall

affirmative defense, but she actively agreed with the Court that the evidence

generated at trial supported the inclusion of this instruction. Similarly, Ms.

Tourangeau did not object to the Court allowing Nappi to use the term

“grandfathering” in its closing arguments, a decision that the Court discussed in the

presence of both parties. Ms. Tourangeau thus waived any objection to the Court’s

instructions to the extent they omitted the seniority defense, as requested by Ms.

Tourangeau, and incorporated “grandfathering” into the catchall business decision

defense.

On March 2, 2023, on the fourth day of trial, the Court held a charge conference

and reviewed the proposed jury instructions with the parties. See Trial Tr. at 878:21-

929:24. First, the Court discussed with the parties whether an instruction on the

seniority defense under the EPA was generated at trial. Ms. Tourangeau argued that

it was not, specifying: “I think [Nappi is] entitled to the affirmative defense on the

idea that this was a business judgment or an other factor as we talked about initially,

but I think it’s -- I think it would be inconsistent with the evidence to instruct on a

seniority system.” Id. at 883:3-7. The Court indicated that it would review Ms.

Tourangeau’s proposed caselaw and rule on the seniority defense. Id. at 886:10-12;

921:24-922:3.

Regarding the jury instructions related to the catchall affirmative defense

under the EPA, the Court provided:

THE COURT: . . . So do you want to – what’s Nappi’s position concerning

-- I think the -- the one that clearly has been generated is business

decisions such as adjusting its payroll to reflect industry standards not

based on gender. That’s the real enchilada; isn’t it?

MR. WALL: I think so, Your Honor, yes.

. . .

THE COURT: And then I’ll strike application of the merit system and

we’ll go with quantity or quality of production. I think it’s sort of -- I

think it’s been generated. And then the final one. Is there anything

further from either one on this?

MS. QUINLAN: Not on that part right there.

Id. at 885:7-886:19.